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Eric M. Mark, Esq. Phone: 201‐394‐4676
P.O. Box 9151 Fax: 201‐262‐7640
Paramus, NJ 07653‐9151 EricMarkEsq@gmail.com

Atanas Entchev A# 073 178 406
Mayia Entcheva A# 073 178 405
Enislav Entchev A# 073 185 055

 

WHY THE ENTCHEVS SHOULD RECEIVE PROSECUTORIAL DISCRETION

 

Both Atanas and Enislav are currently detained at the Delaney Hall facility pursuant to an Order of Deportation issued on September 24, 2009, for which all subsequent appeals were denied. Mayia is not currently detained. The fourth member of the family, Christina Entcheva is married to a U.S. Citizen and is a Lawful Permanent Resident. The family is the epitome of the type of people who have made this country what it is and who the U.S. should want to live within its borders. Atanas and Mayia are nationally and internationally recognized experts in their fields who have contributed brilliantly and energetically to American institutions, and Enislav has been living in the U.S. since he was two years old and is a graduate of New Jersey public schools.

The immigration history of the family is long and complex. Atanas initially arrived in the U.S. on August 18, 1991 as a nonimmigrant exchange visitor and the recipient of the Humphrey Fellowship for Urban Planning at Rutgers University. The rest of the family arrived in 1992 and 1993 as family members. In 1993 they applied for Political Asylum, which was denied in 1996 based on changed country conditions in Bulgaria. The decision was timely appealed to the Board of Immigration Appeals. In the interim, Atanas became the beneficiary of a visa as an Outstanding Researcher or Professor. Their lawyer at the time failed to properly file a Motion to Reopen and Request for Remand and the BIA refused to remand the case to the Immigration Judge for reconsideration. The BIA denied the appeal in 2002. A subsequent appeal to the U.S. Third Circuit Court of Appeals resulted in a remand to the Immigration Judge. The matter then made its way through the BIA and the Third Circuit, again. During the summer of 2011 the Third Circuit denied the last appeal and request for a stay.

As you are well aware, on June 17, 2011 ICE Director John Morton issued a memo to ICE Field Office Directors to provide guidance on the exercise of prosecutorial discretion. As has always been true pursuant to prior policy, prosecutorial discretion can be exercised at any point in the removal process, including after entry of an Order of Deportation. The memo lists the factors, both positive and negative, that should be considered when evaluating requests for prosecutorial discretion. An analysis of these factors shows that many positive factors and no negative factors apply to Atanas, Mayia and Enislav.

1. The agency’s civil immigration enforcement priorities According to Director Morton, ICE must prioritize its enforcement to ensure the aliens it removes represent threats to national security, border security, public safety and the integrity of the immigration system.

None of these descriptions apply to the Entchevs. On the contrary, in their time in the U.S., Atanas and Mayia have contributed to the well-being of numerous municipal, state and federal government agencies. Along the way they have made every effort to, and in fact did, comply with all immigration, federal, state and local laws.

2. The person’s length of presence in the U.S.,

with particular consideration given to presence while in lawful statustanas has been in the U.S. since 1991. Mayia and Enislav since 1992 and 1993. All three came to the U.S. on valid visas and remained in lawful nonimmigrant status throughout the duration of their stay. Only recently, in the summer of 2011, when the long complicated immigration process concluded did the family enter non-lawful status. Despite this, the family did not purposefully violate the deportation order. Rather, they were waiting for notification by mail that they had to leave the U.S. They did not realize that no such notification would arrive. For Enislav, the U.S. is the only home he has ever known. He has no memories of Bulgaria. He does not speak Bulgarian. He went to elementary, middle and high school in New Jersey, and attended Middlesex County College for two semesters before the requirement to pay out of state tuition became overly burdensome. The family has grown up together as Americans, in America for 20 years.

3. The circumstances of the person’s arrival in the U.S. and the manner of his or her entry, particularly if the alien came to the U.S. as a young child

Atanas entered the U.S. with the blessing of the U.S. government and a grant to study at Rutgers University. He excelled in his studies and began a successful and acclaimed career in Geographic Information Systems and shortly thereafter his family lawfully joined him in New Jersey. Enislav arrived when he was two years old.

4. The person’s pursuit of education in the U.S., with particular consideration given to those who have graduated from a U.S. high school or are pursuing a college degree

All three members of the Entchev family benefited from the U.S. education system. Mostnotably, Enislav completed all of his schooling at New Jersey public schools and obtained a GEDfrom New Brunswick Adult Learning Center. He is fondly remembered by teachers and administrators from his elementary school, high school and Middlesex County College. Enislav pursued a college education at Middlesex County College, and finished two semesters of study. However, because of his status he had to pay out of state tuition and could no longer afford to continue his studies. Atanas completed his post-graduate degree at Rutgers University. Both Atanas and Mayia have contributed tremendously to educational institutions throughout the Northeast. Atanas was an adjunct professor at Monmouth University. Mayia designed the Microsoft School of the Future, which is part of the Philadelphia Public School District and has won international awards. She is currently working on a $20,000,000 Charter School in Brooklyn, NY. She has received high praise for her work on an Elementary School in Monroe, NJ, as well as many other places.

5. Whether the person’s immediate relative has served in the U.S. military

None of the Entchevs have served in the U.S. military. However, while such service would be a positive factor, the absence of such service, particularly where it was not a viable option as a nonimmigrant, is not a negative factor, either.

6. The person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants

None of the Entchevs have any criminal convictions or other negative reflections of character. Enislav was arrested for possession of marijuana, but the charges were dismissed when the person he was with admitted that the marijuana belonged to him and not Enislav. The person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status or evidence of fraud

7. The person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status or evidence of fraud

None of the Entchev’s have committed any immigration violations, been previously deported or removed, been accused of fraud or been denied status. Throughout their 20-year stay in the U.S. they have taken every effort and spent thousands of dollars to comply with immigration regulations. The only blemish in the otherwise spectacular history is the denial of the waiver of the two-year home residency requirement, for which USIA did not provide a reason. In 1997 Atanas was approved by the Immigration and Naturalization Services for a visa as an Outstanding Professor or Researcher. His native country, Bulgaria, waived the two-year home residency requirement, but the United States Information Agency denied the waiver, without providing a reason.

8. Whether the person poses a national security or public safety concern

Of course not. In 20 years no one has violated the law, been accused of any security related concern or public safety issue. On the contrary, Atanas and Mayia have contributed to the public safety of the residents of the Northeast U.S. and continue to contribute to local, state and federal governments. Atanas is currently involved in a project with the U.S. Fish and Wildlife Service, as well as Brick Township, Woodbridge Township, North Brunswick Township, Mount Laurel Township, Voorhees Township, Rutgers University, Monmouth University, City of Orange, Rowan University, Camden County, and the New Jersey Department of Environmental Protection.

9. The person’s ties and contributions to the community, including family relationships

The fourth member of the Entchev family, Christina, also arrived in the early 1990s. Three years ago she married a U.S. Citizen. In 2010 she received Lawful Permanent Resident status. She currently lives with her husband in Jersey City, NJ. The family is very close knit. They see each other at least once a week and speak more often than that. Christina and her husband work closely with Atanas. Atanas and Mayia are activiely involved in several community groups, including the Raritan Yacht Club, where Atanas volunteers his time to manage the website for the Hospice Regatta,which has raised over $60,000. Both Atanas and Mayia volunteer their time to conduct seminars, as well. Mayia is also an active member who contributes extensive time, energy and resources at a local tennis club.

10. The person’s ties to the home country and conditions in the country

The family has not been to Bulgaria in 20 years. Enislav has no memories of Bulgaria and does not speak Bulgarian. He does not know a single person in Bulgaria. For the last 14 years the family has unsuccessfully pursued political asylum from Bulgaria. While the courts were never satisfied that Atanas could meet the burden of proof for past persecution, there was never an inference from any judge or reviewer that the claims were frivolous or unfounded. Rather, the courts relied on the changed country conditions to deny the asylum claim. However, this does not mean Bulgaria would be a friendly place to the Entchevs. It has not been home to the Entchevs in 20 years; their home is in New Jersey.

11. The person’s age, with particular consideration given to minors and the elderly

Enislav is 21 years old. He has been in the U.S. since he was two years old. He is not a minor in calendar years, but he is a DREAM Act eligible individual who wishes to pursue a college education.

12. Whether the person has a U.S. Citizen or permanent resident spouse, child or parent

Atanas’s and Mayia’s daughter, and Enislav’s sister, is a permanent resident.

13. Whether the person is the primary caretaker of a person with a mental or physical disability, minor or seriously ill relative

This does not apply. But it is also not a negative factor.

14. Whether the person or the person’s spouse is pregnant or nursing

This does not apply. But it is also not a negative factor.

15. Whether the person or the person’s spouse suffers from severe mental or physical illness

This does not apply. But it is also not a negative factor.

16. Whether the person’s nationality renders removal unlikely

This does not apply. But it is also not a negative factor.

17. Whether the person is likely to be granted temporary or permanent status or other relief

from removal The only thing preventing Atanas and his family from obtaining permanent residence is a stubborn refusal to grant a waiver of the two-year home residency requirement where the home country has submitted its waiver. Since beginning acknowledged as an Outstanding Professor or Researcher and receiving a visa, Atanas has contributed to the welfare and success of so many American organizations, governments and businesses that he has returned America’s investment in him exponentially. Rather than requiring him to stay overseas for two years, we should be asking him to stay and never leave. Also, Atanas daughter has now gained permanent residence. This fact could lead to a reconsideration of the waiver. Christina gained her residence through marriage to a U.S. citizen, and will be eligible for citizenship herself in less than three years. At that time, she would undoubtedly petition for permanent residence for her parents and brother.

18. Whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities

This does not apply. But it is also not a negative factor. The factors in the Morton Memo are not exhaustive, and no one factor is determinative. Decisions should be based on the totality of the circumstances with the goal of conforming to ICE’s enforcement priorities. One factor absent from the Memo is the good moral character of the person and the desirability of having that person remain in the U.S. Kind, charitable, well-liked, hard-working people are a commodity. As evidenced by the volume of character and professional references supplied on behalf of the Entchevs as a family and as individuals, this is an entire family of ideal Americans. These letters were collected in only a matter of days, without the help of Atanas and Enislav who are detained. Given some extended time, the letters from colleagues, friends, clients, neighbors and others will multiply. Another factor that must be considered is the potential passage of the DREAM Act. Although the Development, Relief and Education for Alien Minors Act failed to advance as an amendment to the defense bill in September 2010, it was re-introduced as a standalone bill days after. In April 2011, at least 25 Senators, including Dick Durbin, Richard Lugar, Charles Schumer, Harry Reid and Frank Lautenberg asked DHS Secretary Janet Napolitano to end the deportation of DREAM Act-eligible students, and specifically requested that deferred action be granted to those individuals. It is impossible to assert that deporting law-abiding, academically gifted, professionally accomplished, internationally recognized, communally accepted, DREAM Act eligible people who have called the U.S. home for twenty years is within the priorities of ICE.