Chicago Immigration Judge Reports — Asylum grants and denials, fiscal year 2000 through the early months of 2005

Chicago Immigration Judge Reports — Asylum Grants and Denials

The data and analyses is from The Transactional Records Access Clearinghouse (TRAC), a data gathering, data research and data distribution organization associated with Syracuse University. Comprehensive, independent and nonpartisan information about U.S. federal immigration enforcement.
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"Judge O. John Brahos was appointed as an Immigration Judge in October 1982. He received an undergraduate degree in 1956 from De Paul University, College of Commerce, and a Juris Doctorate from De Paul University, College of Law, in 1959. Prior to joining the Executive Office for Immigration Review, he served as general attorney, trial attorney, supervisory general attorney, and attorney examiner from 1971 to 1982 for the former Immigration and Naturalization Service in Chicago. Judge Brahos also served as an alternate member on the Board of Immigration Appeals in 1991, 1993, and 1994. He is a member of the Illinois Bar.

Judge Brahos decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Brahos is recorded as deciding 649 asylum claims on their merits. Of these, he granted 172, gave 2 conditional grants, and denied 475. Converted to percentage terms, Brahos denied 73.2 percent and granted (including conditional grants) 26.8 percent.

For Judge Brahos , the largest group of asylum seekers appearing before him came from Guatemala . Individuals from this nation made up 9.6 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Brahos were: China (8.8 %), Yugoslavia (7%), El Salvador (5.8%), Bulgaria (4.9%).

In the nation as a whole during this same period, major nationalities of asylum seekers, in descending order of frequency, were China (22.3%), Haiti (9.3%), Colombia (9.1%), Albania (4.0%), India (3.9%), Guatemala (3.4%), Indonesia (3.0%), El Salvador (2.4%), Armenia (2.1%), Mexico (1.9%), and Russia (1.9%)."
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"Judge Samuel Der-Yeghiayan was appointed Immigration Judge in December 2000. He received his B.A. from Evangel College in 1975 and his J.D. from Franklin Pierce Law Center in 1978. Judge Der-Yeghiayan was selected in 1978 as a trial attorney for the Immigration and Naturalization Service (INS) in Chicago under the Attorney General's Honor Program. In 1981, he was promoted to the position of district counsel for the Chicago District of the INS where he served until his appointment as an Immigration Judge in December 2000. He received the INS "District Counsel of the Year" award in 1998 and the Frank J. McGarr award for "Outstanding Government Attorney of the Year" in 1986 from the Chicago Chapter of the Federal Bar Association. He is a member of the Illinois Bar and the U.S. Supreme Court.

Detailed data on Judge Der-Yeghiayan decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Der-Yeghiayan is recorded as deciding 258 asylum claims on their merits. Of these, he granted 80, gave 1 conditional grants, and denied 177. Converted to percentage terms, Der-Yeghiayan denied 68.6 percent and granted (including conditional grants) 31.4 percent." ____________________________________________________________

"Judge Jennie L.Giambastiani was appointed as an Immigration Judge in May 2002. She received a Bachelor of Arts degree in 1983 from Loyola University of Chicago, and a Juris Doctorate from Loyola University School of Law in 1986. Prior to becoming an Immigration Judge, from April 1987 until May 2002, Judge Giambastiani served as district counsel, deputy district counsel, assistant district counsel, and supervisory legalization officer for the former Immigration and Naturalization Service in Chicago. Judge Giambastiani is a member of the Illinois Bar.

Detailed data on Judge Giambastiani decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Giambastiani is recorded as deciding 274 asylum claims on their merits. Of these, she granted 101, gave 12 conditional grants, and denied 161. Converted to percentage terms, Giambastiani denied 58.8 percent and granted (including conditional grants) 41.2 percent.

For Judge Giambastiani , the largest group of asylum seekers appearing before her came from China . Individuals from this nation made up 16 % of her caseload. Other nationalities in descending order of frequency appearing before Judge Giambastiani were: Guatemala (10.2 %), Albania (8.7%), Iraq (4%), Ukraine (4%)."
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"Judge James R. Fujimoto was appointed as an Immigration Judge in June 1990. He received an undergraduate degree in 1976 from the University of Chicago, and a Juris Doctorate from DePaul University in 1979. Judge Fujimoto was a partner in the law firm of Alexander, Fennerty & Fujimoto in Chicago from 1981 to 1990. From 1978 to 1981, he served as a law clerk and then associate attorney for Masuda, Funai, Eifert & Mitchell, also in Chicago. Judge Fujimoto is a member of the Illinois Bar.

Detailed data on Judge Fujimoto decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Fujimoto is recorded as deciding 736 asylum claims on their merits. Of these, he granted 222, gave 9 conditional grants, and denied 505. Converted to percentage terms, Fujimoto denied 68.6 percent and granted (including conditional grants) 31.4 percent."
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"Judge Carlos Cuevas was appointed as an Immigration Judge in February 1994. He received a Bachelor of Arts degree from DePaul University in 1979, and a Juris Doctorate from DePaul University, College of Law, in 1982. From 1989 to 1994, Judge Cuevas served as an administrative law judge with the Illinois Human Rights Commission in Chicago. From 1986 to 1989, he was in private practice in Chicago. Judge Cuevas served as an attorney with the Legal Assistance Foundation of Chicago from 1982 to 1986. He is a member of the Illinois Bar. Detailed data on

Judge Cuevas decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Cuevas is recorded as deciding 703 asylum claims on their merits. Of these, he granted 314, gave 20 conditional grants, and denied 369. Converted to percentage terms, Cuevas denied 52.5 percent and granted (including conditional grants) 47.5 percent.

For Judge Cuevas , the largest group of asylum seekers appearing before him came from Guatemala . Individuals from this nation made up 12.2 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Cuevas were: China (7 %), Yugoslavia (5.6%), Albania (5.5%), El Salvador (4.6%)." __________________________________________________________

"Judge Craig M. Zerbe was appointed as an Immigration Judge in August 1985. He received a Bachelor of Arts degree. from La Salle College in 1970, and a Juris Doctorate from Temple University Law School in 1975. From 1980 to 1985, Judge Zerbe served as general attorney in the Litigation Division at the former Immigration and Naturalization Service in Chicago. From 1970 to 1972, he served in the U.S. Army. Judge Zerbe is a member of the Pennsylvania Bar.

Detailed data on Judge Zerbe decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Zerbe is recorded as deciding 773 asylum claims on their merits. Of these, he granted 318, gave 9 conditional grants, and denied 446. Converted to percentage terms, Zerbe denied 57.7 percent and granted (including conditional grants) 42.3 percent.

For Judge Zerbe , the largest group of asylum seekers appearing before him came from China . Individuals from this nation made up 9 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Zerbe were: Guatemala (8.8 %), Albania (7.5%), Bulgaria (4.9%), Pakistan (4.8%)." ___________________________________________________________

"Judge Robert D. Vinikoor was appointed as an Immigration Judge in January 1984. He received a Bachelor of Science degree from the University of Delaware in 1971, and a Juris Doctorate from the University of Baltimore in 1976. From 1982 to 1984, he was a special assistant U.S. attorney at the U.S. Attorney's Office in Chicago. He also served as trial attorney in Chicago, and general attorney in Miami, Florida, with the former Immigration and Naturalization Service from 1976 to 1982. Judge Vinikoor also serves as an adjunct professor at Loyola University School of Law. Judge Vinikoor is a member of the Maryland, New Jersey, Florida, and Illinois Bars.

Detailed data on Judge Vinikoor decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Vinikoor is recorded as deciding 1015 asylum claims on their merits. Of these, he granted 239, gave 19 conditional grants, and denied 757. Converted to percentage terms, Vinikoor denied 74.6 percent and granted (including conditional grants) 25.4 percent.

For Judge Vinikoor, the largest group of asylum seekers appearing before him came from China . Individuals from this nation made up 11 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Vinikoor were: Guatemala (9.7 %), Albania (5%), Somalia (4.1%), El Salvador (3.6%)."

U.S. Supreme Court- Aliens, Immigration and Nationality Law

U.S. SUPREME COURT CASES (click on link)

DUI IS NOT A CRIME OF VIOLENCE:
Leocal v. Ashcroft 543 U. S. ____ (2004) November 9, 2004.

A drunk driving accident is not a "crime of violence" allowing the government to deport a permanent resident, the Supreme Court ruled in Leocal v. Ashcroft 543 U. S. ____ (2004) November 9, 2004.

The court ruled unanimously in favor of Josue Leocal, a Florida man challenging his deportation to Haiti in 2002 after pleading guilty to a felony charge of drunk driving.

The 11th U.S. Circuit Court of Appeals ruled that the DUI offense was a "crime of violence" under the immigration statute because he had caused injury to others.

The Supreme Court disagreed. It said the plain meaning of the statute suggests that the felony offense must require intent in causing harm - not mere negligence as in Leocal's case - before immigrants are subject to the drastic consequence of deportation.

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REHNQUIST, C. J., delivered the opinion for a unanimous Court.

Petitioner, a lawful permanent resident of the United States, pleaded guilty to two counts of driving under the influence of alcohol (DUI) and causing serious bodily injury in an accident, in violation of Florida law. While he was serving his prison sentence, the Immigration and Naturalization Service (INS) initiated removal proceedings pursuant to § 237(a) of the Immigration and Nationality Act (INA), which permits deportation of an alien convicted of "an aggravated felony." INA § 101(a)(43)(F) defines "aggravated felony" to include, inter alia, "a crime of violence [as defined in 18 U.S.C. § 16] for which the term of imprisonment [is] at least one year." Title 18 U.S.C. § 16(a), in turn, defines "crime of violence" as "an offense that has as an element the use . . . of physical force against the person or property of another," and § 16(b) defines it as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." An Immigration Judge and the Board of Immigration Appeals (BIA) ordered petitioner's deportation, and the Eleventh Circuit dismissed his petition for review, relying on its precedent that a conviction under Florida's DUI statute is a crime of violence under 18 U.S.C. § 16.

Held: State DUI offenses such as Florida's, which either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle, are not crimes of violence under 18 U.S.C. § 16. Pp. 4-11.

(a) Section 16 requires this Court to look to the elements and nature of the offense of conviction in determining whether petitioner's conviction falls within its ambit. Florida's DUI statute, like similar statutes in many States, requires proof of causation but not of any mental state; and some other States appear to require only proof that a person acted negligently in operating the vehicle. This Court's analysis begins with § 16's language. See Bailey v. United States, 516 U.S. 137, 144, 133 L. Ed. 2d 472, 116 S. Ct. 501. Particularly when interpreting a statute featuring as elastic a word as "use," the Court construes language in its context and in light of the terms surrounding it. See Smith v. United States, 508 U.S. 223, 229, 124 L. Ed. 2d 138, 113 S. Ct. 2050. Section 16(a)'s critical aspect is that a crime of violence involves the "use . . . of physical force against" another's person or property. That requires active employment. See Bailey, supra, 516 U.S. 137, at 145, 1333 L. Ed. 472, 116 S. Ct. 501. While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another by accident. When interpreting a statute, words must be given their "ordinary or natural" meaning, Smith, supra, 508 U.S. 223 at 228, 124 L. Ed. 2d 138, 113 S. Ct. 2050, and § 16(a)'s key phrase most naturally suggests a higher degree of intent than negligent or merely accidental conduct. Petitioner's DUI offense therefore is not a crime of violence under § 16(a). Pp. 4-8.

(b) Nor is it a crime of violence under § 16(b), which sweeps more broadly than § 16(a), but does not thereby encompass all negligent conduct, such as negligent operation of a vehicle. It simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The classic example is burglary, which, by nature, involves a substantial risk that the burglar will use force against a victim in completing the crime. Thus, § 16(b) contains the same formulation found to be determinative in § 16(a): the use of physical force against another's person or property. Accordingly, § 16(b)'s language must be given an identical construction, requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense. Pp. 8-9.

(c) The ordinary meaning of the term "crime of violence," which is what this Court is ultimately determining, combined with § 16's emphasis on the use of physical force against another (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses. This construction is reinforced by INA § 101(h), which includes as alternative definitions of "serious criminal offense" a "crime of violence, as defined in [§ 16]," § 101(h)(2), and a DUI-causing-injury offense, § 101(h)(3). Interpreting § 16 to include DUI offenses would leave § 101(h)(3) practically void of significance, in contravention of the rule that effect should be given to every word of a statute whenever possible, see Duncan v. Walker, 533 U.S. 167, 174, 150 L. Ed. 2d 251, 121 S. Ct. 2120. Pp. 9-11.

(d) This case does not present the question whether an offense requiring proof of the reckless use of force against another's person or property qualifies as a crime of violence under § 16. P. 11.

Reversed and remanded
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Demore v. Kim: Mandatory Detention Allowed | Custody & No Bond/Bail: INA Sec. 236(c)(1), 8 U.S.C.S. Sec. 1226(c)(1) (April 29, 2003)

The US Supreme Court declared that lawful permanent residents with certain criminal convictions can be detained pursuant to INA §236(c) without an individual bond hearing. The Court, however, also held that § 236(e) does not preclude habeas review of challenges to detention under § 236(c) .

The Supreme Court decision in Demore v. Kim applied only to individuals who conceded deportability and explicitly did not address the adequacy of the Matter of Joseph hearing, which allows a person to be released if she or he can demonstrate that the government is "substantially unlikely to prevail" on the charges of removal. To the extent possible, non-citizens should not concede deportability and request a Matter of Joseph hearing. 22 I. & N. Dec. 799 (BIA 1999) http://callyourlawyers.com/pdfcaselaw/matterofjoseph.pdf

The Immigration Judge may make a determination on whether a lawful permanent resident “is not properly included” in a mandatory detention category, in accordance with 8 C.F.R. § 3.19(h)(2)(ii), either before or after the conclusion of the underlying removal case. If this threshold bond decision is made after the Immigration Judge’s resolution of the removal case, the Immigration Judge may rely on that underlying merits determination.

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INS v. St. Cyr: Supreme Court Allows Criminal Aliens to Apply for Waivers under former Section 212(c)

Courts have jurisdiction under 28 U.S.C. 2241 to decide the legal issue raised by St. Cyrs habeas petition. (2) Section 212(c) relief remains available for aliens, like St. Cyr, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect. Certiorari to the United States Court of Appeals for the Second Circuit No. 00767. June 25, 2001

HTML: http://supct.law.cornell.edu/supct/html/00-767.ZS.html

PDF: http://callyourlawyers.com/pdfcaselaw/St.Cyr_supct.pdf

Conviction under Immigration law includes Illinois sentence for "1410 probation" (Gill v. Ashcroft, (7th Cir.) )

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003

Ct. of Appeal lacked jurisdiction to consider appeal of instant removal order under 8 USC §1227(a)(2)(B)(i) based on existence of alien's prior Illinois state court conviction for possession of cocaine that was ultimately dismissed87 upon alien's successful completion of probation period; under 8 USC §1101(a)(48)(A), alien's state court proceeding qualified as "conviction" that precluded alien from applying for discretionary relief from removal order.

Gill pleaded guilty in an Illinois court to possession of cocaine. He was sentenced to “410 probation,” 720 ILCS 570/410. Section 410(f) provides that, if a first offender completes this probation without incident, “the court shall discharge the person and dismiss the proceedings against him.” The statute continues: A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. 720 ILCS 570/410(g). Gill did not deny that “410 probation” was a “conviction” under the text of §1101(a)(48)(A). The 7th Circuit declined to follow the holding of Lujan- Armendariz, "which elevated an abandoned administrative practice over a statutory text." 222 F.3d 728 (9th Cir. 2000).

The term "conviction" under Immigration law: * * * The term "conviction" means with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. * * * (8 U.S.C. 101(a)(48)(A)

Two principal problems: How to classify diversionary dispositions such as “410 probation” that impose some restraint on liberty but withhold formal adjudication of guilt; second, how to classify convictions later expunged or covered by some other device for restoring the person’s civil rights. In Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), the Board held that the criteria of §1101(a)(48)(A) apply to all offenders, no matter how they would have been treated if they had been charged in federal court. The 7th Circuit adopted the Board’s "straightforward" application of §1101(a)(48)(A), which abolished, for purposes of immigration law, any distinction between the treatment of deferred dispositions in first and successive drug-possession offenses. The Board has declined to acquiesce in Lujan-Armendariz and will not apply it outside the ninth circuit.

In Gill, the Seventh Circuit determined that the definition of conviction under federal immigration law, not the Illinois First Offender standard, controls. The 7th Circuit determined that an administrative appellate tribunal, namely, the Board of Immigration Appeals, had the authority to conclude that its uniform interpretation of what constitutes a "conviction" under federal law was dispositive, regardless of what states may say to the contrary (Matter of Roldan , 22 I&N Dec. 512 (BIA, 1999).

http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3377.pdf

Another court has looked at this differently (Lujan-Armendariz v. Immigration & Naturalization Service, 222 F.3d 728 (9th Cir. 2000). In the latter decision, the Circuit Court of Appeals found that state equivalents to the Federal First Offender Act (like 410 probation) in regard to first time simple drug possession charges if expunged, may not be used as convictions under the Immigration and Nationality Act to establish inadmissibility or deportability. The Ninth Circuit also extended this rule to foreign equivalents to the First Offender Act (Dillingham v. Immigration & Naturalization Service, 267 F.3d 996 (9th Cir. 2001). Unfortunately, the Ninth Circuit's decision does not apply in Illinois, Indiana or Wisconsin. And, there is more. Under certain circumstances, a misdemeanor conviction under state law may amount to what is known as an "aggravated felony" (8 U.S.C. 1227(a)(2)(A)(iii) under federal immigration law (Guerrero-Perez v. INS, (7th Cir. 2001) 242 F.3d 727, rehearing den.(7th Cir. 2001) 256 F.3d 546). What this means is that certain misdemeanor convictions, like the First Offender conviction, can result in the removal from the United States of a lawful permanent resident or undocumented alien. (For example, Criminal Sexual Abuse, 720 ILCS 5/12-15(c) is a Class A misdemeanor. It is also an aggravated felony under federal immigration law. Since aliens who have committed aggravated felonies are unable as a matter of law to obtain cancellation of their removal hearings upon a conviction for such a crime, they may be deported). (Guerrero-Perez).

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003:
Download: http://callyourlawyers.com/pdfcaselaw/gil.pdf