Plaintiffs in Vermont and Florida Drop EB-5 Scam Suits
A few months ago, two class action law suits were initiated against Raymond James & Associates claiming they were involved in a fraudulent scheme targeting EB-5 investors in Vermont’s Jay Peak ski resort. The EB-5 program allows foreigners who invest at least $500,000 in the U.S. and create or maintain a minimum of 10 U.S. jobs to obtain green cards. In the last week of July, the suits were voluntarily dropped by the plaintiffs in Vermont and Florida.
Carlos Enrique Hiller Sanchez previously filed a suit in a Florida federal court, hoping to recover funds from Raymond James & Associates and from fund manager Joel Burstein for alleged violations of the Securities Exchange Act of 1934, for fraud, and for a fiduciary breach through their roles in the alleged scam. The scam involved collecting money from foreign nationals who sought to obtain green cards by investing in the U.S. through the EB-5 visa program. Sanchez dropped the case last month for unknown reasons.
A couple of days afterward, three EB-5 investors who had filed similar suits in Vermont, asked the federal court to dismiss their claims as well. They had alleged that Jay Peak owner Ariel Quiros and CEO William Stenger conspired with Raymond James to misuse millions of dollars raised through the immigrant investor plan.
The U.S. Security and Exchange Commission (SEC) and the state of Vermont also filed law suits against Jay Peak, Quiros, and Stenger. They claimed that Quiros and Stenger used millions of dollars acquired through the EB-5 program to cover losses in unrelated projects and to pay for personal expenses including luxury purchases and income taxes. The SEC won an asset freeze and the appointment of a receiver for the resort’s entities.
http://www.law360.com/articles/822171/plaintiffs-in-2-states-drop-eb-5-scam-suits-over-jay-peak
Court Rules No Blanket Redactions for Immigration Judge Names
A three-judge panel of the DC Circuit ruled that the Executive Office for Immigration Review’s (EOIR) redaction of immigration judges’ names from complaint files was unjustified. The case was part of a lawsuit issued by American Immigration Lawyers Association (AILA) against EOIR. The DC Circuit panel decided to use the case to more closely examine the process and appropriateness of redacting names.
The suit alleged that EOIR failed to produce records under a Freedom of Information Act (FOIA) request regarding complaints against immigration judges. On appeal, EOIR argued that publicly disclosing the names of judges who have complaints against them would cause them to face stigma.
AILA argued that the judges’ names do not qualify for exemptions from FOIA requests because the public has a vested interest in holding individual judges accountable, encouraging additional complaints, and evaluating how the government handles grievances. AILA argued that this public interest outweighed the judges’ privacy interests.
The DC Circuit ruled that EOIR’s justifications failed to meet the qualifications of FOIA’s Exemption 6, a clause which allows the government to withhold certain files if the disclosure of those files would constitute an unnecessary invasion of privacy.
The Court said that they could not make a blanket ruling that would protect judges’ names from disclosure because there is a wide variation in the privacy and public interests from case to case.
Court Rules INA’s Definition of “Crime of Violence” is Unconstitutionally Vague
In June 2015, The Supreme Court held in Johnson v. United States the Armed Career Criminal Act’s definition of “violent felony” void for vagueness.
In July 2016, that decision was used as a precedent to analyze the INA’s definition of “crime of violence.”
The case was brought before the United States Court of Appeals for the Sixth Circuit. The petitioner was Altin Bashkim Shuti who entered the U.S. as a lawful permanent resident in 2008 when his family fled to the U.S. from Albania, where they feared persecution at the hands of the Albanian Socialist Party.
In May 2014, Shuti and some of his high school friends allegedly committed a “larceny of marijuana” and in the process were alleged to have possessed a shotgun. Shuti pleaded guilty to unarmed robbery, the lesser of the two offenses. Shuti was sentenced to two and a half years in prison and shortly after that, the Department of Homeland Security initiated removal proceedings against him.
Ordinarily, the Attorney General is permitted to remove certain non-citizens from the country, including those involved in certain kinds of crimes. Under normal circumstances, a non-citizen may apply for discretionary relief from removal. But when an aggravated felony has been committed, the non-citizen is generally ineligible for discretionary relief from deportation.
The INA has an expansive definition of the term “aggravated felony.” Among the many offenses that fall under this category, the INA lists “a crime of violence,” defined as any crime for which “the term of imprisonment is at least one year.” The term “crime of violence” is further defined by the general criminal code as follows:
“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.”
In Shruti’s case, the government alleged that Shuti’s conviction was an aggravated felony. Shuti filed for asylum, withholding of removal, and protection under the Convention Against Torture. But in 2015, an immigration judge denied all forms of discretionary relief and ordered Shuti be removed to Albania.
The decision was upheld by the Board of Immigration Appeals. But while the appeal was pending, the Supreme Court handed down the decision in Johnson v. United States. In a supplemental briefing, Shuti argued that the INA’s definition of “crime of violence” was unconstitutionally vague in light of the new precedent. The BIA insisted that the new precedent did not apply to civil deportation proceedings.
But the United States Court of Appeals for the Sixth Circuit disagreed. They upheld Shuti’s constitutional claim and vacated the order of removal.
The Court grounds its decision in the Fifth Amendment, which grants individuals the right of due process of law. The Court argues that a vague law prevents due process from taking place. The Court points out that the INA’s definition of “crime of violence” is vague enough that it can’t even be applied in a uniform fashion by judges. It is therefore unrealistic to assume that non-citizens and their attorneys will be able to use it to anticipate the immigration consequences of criminal convictions. It found, therefore, INA’s definition void for vagueness.
To read the full case, please click here.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.