Justice for Unlawfully Removed Aliens

This week, the Board of Immigration Appeals (BIA) issued a new decision, finding that it had jurisdiction over the appeal of an alien who had been removed from the United States "in error" by the Department of Homeland Security.  This is an important ruling for any alien who has been erroneously removed either during the time allowed for filing an appeal or while an appeal is pending.

The alien in this case was a native and citizen of Mexico with criminal convictions for robbery and residential burglary.  He was ordered deported by the Immigration Judge, and appealed his case to the BIA.  At some point, either before he appealed, or while the appeal was pending, he was erroneously removed to Mexico by DHS, despite the fact that the regulations state that a removal order cannot be executed during this time.   This was a problem because the regulations also state that a person's departure from the United States constitutes a withdrawal of their appeal.  That is, if a person has been ordered removed, files an appeal with the BIA, but then departs the United States, that appeal is considered to be withdrawn, the BIA will not make a decision, and the order of removal becomes final. 

In this decision, the BIA considered for the first time whether the regulations stating that a departure constitutes withdrawal applies to aliens who have been erroneously removed.  The BIA found that such a removal does not constitute a withdrawal of the appeal, and that it has jurisdiction over the case.  The BIA stated, "Fundamental fairness dictates that an unlawful act by the DHS should not serve to deprive us of jurisdiction to review an alien's appeal."  The BIA cited Nken v. Holder, 556 U.C. 418, 436 (2009), pointing out that "there is a public interest in preventing aliens from being wrongfully removed." 

AAO Precedent Decision on P-3 Visas

The Administrative Appeals of Office (AAO) of USCIS has just issued a new, precedent decision on P-3 Nonimmigrant Visa Petitions, examining for the first time what the term "culturally unique" means.  P-3 status may be granted to nonimmigrant artists or entertainers, either individually or as a group, who are coming to the United States to develop, interpret, represent, coach, or teach a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation.  The event the artist or entertainer is participating in must further the understanding or development of his or her art form, and the performance must be "culturally unique." 

In this case, the Skirball Cultural Center, a museum and cultural center, petitioned to have the Orquestra Kef classified as P-3 nonimmigrants for a period of six weeks.  According to the decision, the Orquestra Kef is an ensemble of seven musicians from Argentina "whose music blends klezmer (Jewish music of Eastern Europe) with [L]atin and South American influences."  Initially, USCIS denied their petition, finding that the Skirball Cultural Center failed to establish that the performance would be culturally unique, because it was a "hybrid or fusion style of music" which "cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons."  Because it was a complicated case, USCIS certified its decision to the AAO. 

The AAO found that the P-3 classification can apply to artists and entertainers "whose unique artistic expression crosses regional, ethic, or other boundaries," and that "the idea of 'culture' is not static and must allow for adaptation or transformation over time and across geographic boundaries."  The AAO examined the documents that the petitioner submitted to show that the performance would be culturally unique, including three letters from experts in music, two newspaper articles written about the Orquestra Kef, and a review of the group's 2004 alburm.  The AAO found that "the modern South American klezmer music performed by the beneficiary group is representative of the Jewish culture of the beneficiaries' home country of Argentina," and that "the group's musical performance falls within the regulatory definition of culturally unique."  Because they found that the performance would be culturally unique, the AAO withrew the decision denying the petition, and approved the petition. 

The AAO's decision was the right one, and hopefully will allow more unique and interesting artists and entertainers to perform in the United States.