THE GIBSON REPORT — August 14, 2017

The Gibson Report 08-14-17

Here are the “Headliners:”

“TOP UPDATES

 

ICE eService for OCC

On Monday, August 21, 2017, U.S. Immigration and Customs Enforcement (ICE) eService will become available in the ICE Office of the Principal Legal Advisor (OPLA) New York City Office of Chief Counsel (OCC) area of responsibility.  See attached brochure, which describes what can be served electronically. To request access to ICE eService, please visit eserviceregistration.ice.gov.

 

ACLU Class Action Suit Charges that Efforts to Detain and Deport Children are Based on Unfounded Gang Allegations

Attorneys representing immigrant children and their families sued Attorney General Jeff Sessions, Immigration and Customs Enforcement (ICE), and the U.S. Department of Health and Human Services’ Office of Refugee Resettlement (ORR) today for using unsubstantiated claims of gang affiliation to illegally detain teenagers in jail-like facilities in California.

 

National Conference of State Legislatures Issues Report on Increase in State Immigration Legislation

Enacted legislation related to immigration increased in the first half of 2017 by 90 percent to 133 laws compared with 70 laws in 2016. The number of resolutions increased by 22 percent to 195 from 159. Lawmakers in 47 states enacted 133 laws and 195 resolutions related to immigration, for a total of 328. An additional nine bills were vetoed by governors and 18 are pending signatures. Trends 2017: Sanctuary policies, Refugees, Education/civics, Education/in-state tuition.

 

For-Profit Private Prison Operator Tells Investors that ICE Will Improve Company Earnings

“While in the past, ICE processing centers have been primarily utilized for individuals detained for multiple illegally border crossings, increasingly, ICE intends to utilize contract bed capacity for interior enforcement.”

 

ICE Investigating Families

Catholic Charities: It seems that ICE and HSI are getting contact information for families from minors at the border and are going on a fishing expedition to get evidence of immigration and criminal violations.  The first wave is taking action against people with immigration violations–arresting and detaining household members with outstanding removal orders, issuing NTA (but also sometimes detaining) those who are undocumented. There will likely be a second wave of using smuggling inadmissibility charges to limit the relief that these immigrants can receive.  The third wave will be criminally prosecuting people on federal charges of alien smuggling (which is a crime and carries 5 years of jail time). CLINIC and NYIC  and others are tracking these encounters. You may want to report to them. This is what we are telling people contacted by HSI and ICE:

  1. Talking to them is completely voluntary.  They have not issued a subpoena and you are not obligated to go to a meeting or answer your door. They may show up at your house; you do not have to let them in.
  2. You have a right to consult with a lawyer before you talk to them. You have a right to have a lawyer present during any conversations with them.
  3. 5th Amendment.  If you talk to them, what you say can and will be used against you in a deportation case and a criminal case. They are looking for evidence to use against you.

4.      Smuggling is a crime. (We usually walk then through the statute). It includes paying for but also just arranging and planning for someone to enter the U.S.  It doesn’t matter why you did this or how sympathetic the story is. If you admit to this crime, you can be prosecuted and put in jail. It is also an immigration violation which can be used against you.”

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Interesting that even ICE is more advanced in electronic filing than the Immigration Courts!

PWS

08-14-17

THE “GIBSON REPORT” FOR AUGUST 7, 2017

GIBSON REPORT, 08-07-17

As usual, lots of “good stuff” in Elizabeth’s Report.  Here are the “Top Stories:”

“TOP UPDATES

 

NYIFUP Accepting New Cases Again

BDS: As most of you know, the New York Immigrant Family Unity Project (NYIFUP) has not been in intake recently. We are pleased to let you know that the NYIFUP providers will be back accepting new cases at the Varick Street Court as of August 14th for clients who are detained, unrepresented, and financially eligible. We will not be imposing a bar to our services based on criminal history. Because we intake unrepresented clients directly at the court, there is no need to refer us cases, although you are welcome to let the providers know about someone who will be coming through intake ahead of time. At this time, the providers are still determining our capacity to accept cases whose first appearance was during the time that we were out of intake. If you have specific questions about NYIFUP or an individual case, you can reach out to me, to Sarah Gillman at the Legal Aid Society (stgillman@legal-aid.org), or to Sarah Deri Oshiro at the Bronx Defenders (sarahdo@bronxdefenders.org). Thank all of you for your strong support of NYIFUP this year. NYT Coverage.

 

Increased number of RFEs for pending I-360 SIJS petitions and notices of intent to revoke approved I-360 SIJS petitions

USCIS has been issuing an increased number of RFEs for pending I-360 SIJS petitions and notices of intent to revoke approved I-360 SIJS petitions. USCIS is primarily issuing RFEs to SIJS applicants that were 18 years old or older at the time the guardianship order was issued. However, they are also issuing RFEs to SIJS applicants that obtained a custody order.

 

EOIR Memo on continuancesIssued July 31, 2017, it directs IJs to take a less liberal stance with regards to continuances, taking into account the complexity of the case, etc. Respondents will be granted at least one continuance to obtain counsel, but it may be harder to receive additional adjournments if they cannot show diligence in seeking counsel.

 

  1. 1720: RAISE Act

While it is unlikely that this bill will ever become a law, it has gained a lot of press since Trump announced his support for it. The law would have a significant impact on family-based immigration and also would affect employment-based and refugee programs. In short, it would, cut family-based immigration in half over the next decade (eliminating the categories of adult parents of U.S. citizens, adult siblings of U.S. citizens, unmarried or married adult children of U.S. citizens, and unmarried adult children of LPRs), end the diversity visa lottery, and cap refugee admissions at 50,000. For elderly parents there would be a renewable nonimmigrant visa granted on the condition that parents will not work, access public benefits, and must be guaranteed support and health insurance by their sponsoring children. MPI analysis.

 

DOJ Announces Anti-Sanctuary City Language Required for Participation in Public Safety Partnership Program

The Department of Justice announced that, in order to participate in the Public Safety Partnership (PSP) program, local jurisdictions must answer questions that “show a commitment to reducing crime stemming from illegal immigration.” Twelve locations were initially selected for the program. AILA Doc. No. 17080333

 

Data Shows Prosecutorial Discretion Grinds to a Halt in Immigration Courts

The Department of Justice (DOJ) announced last month that it now has hired 326 immigration judges, 53 more judges than July 2016, yet during that time the immigration court backlog has grown. According to new data released by the Transactional Records Access Clearinghouse (TRAC) the reason for this may be due to the fact that the Trump administration has nearly ended the use of prosecutorial discretion to close cases, forcing judges to place them all on their dockets.

 

Advocates File Amicus Brief with BIA on the Modified Categorical Approach and CIMTs

Responding to an amicus invitation, AILA, the Immigrant Defense Project, and the National Immigration Project of the National Lawyers Guild filed a brief taking the position that the BIA should not depart from the categorical approach when analyzing reprehensibility element of the CIMT analysis. AILA Doc. No. 17080403

 

Civil Rights Groups Sue State Department – demand processing of Diversity Visa Winners

Civil rights groups filed a federal lawsuit challenging the State Department’s refusal to process visa applications for winners of the U.S. Diversity Visa Program lottery who hail from the six countries covered by President Trump’s Muslim ban.  P.K. v. Tillerson, was filed in the U.S. District Court in Washington, D.C.

 

Still No Action Taken: Complaints Against Border Patrol Agents Continue to Go Unanswered

According to more recent CBP data obtained by the American Immigration Council, the agency has made little progress in its efforts to improve accountability. This data, obtained through a Freedom of Information Act (FOIA) request, includes 2,178 cases of alleged misconduct by Border Patrol agents and supervisors that were filed between January 2012 and October 2015.”

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Go the the full report at the link for more.

PWS

08-07-17

 

The Gibson Report for July 31, 2017

The-Gibson-Report-July-31-2017

 

PWS

08-31-17

The “Gibson Report” For July 24, 2017 — Administration Seeks To Warehouse Asylum Seekers In Mexico

 Gibson Report, JUly 24, 2107

The first item in Elizabeth’s report for this week is certainly worthy of note:

Administration to Release Regulations Requiring Asylum Seekers to Remain in Mexico

HRF: “[T]he administration indicated that it plans to issue regulations to advance the provision in President Trump’s January 25 executive order that seeks to remove immigrants “to the territory from which they came” while they await immigration court hearings.”

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All sorts of potential issues with this one. If they are Mexicans, how can you send them back to the country from which they seek asylum while awaiting an asylum hearing? And, if they are not Mexicans, how can you force Mexico to accept non-Mexican nationals back into its territory?

PWS

07-25-17

The Gibson Report For June 19, 2017

The Gibson Report, June 19, 2017

Thanks, Elizabeth!

PWS

06-19-17

The Gibson Report For June 5, 2017! — More “ADR” On Tap For The New York Immigration Court?

Get it here:

Gibson Report 06-05-17

One thing that caught my eye in Elizabeth’s report is the first item:

“Update from Regina Rau, Acting Court Administrator-NYC:

Effective 7/3/17 Judge Tsankov will be assigned to the Varick Street Court.  Until further notice, any case on her NYC docket from 7/3/17 on will not be going forward.

Judge Chew will be retiring at the end of June. However his future cases will be heard by another Immigration Judge so all of your hearing dates will remain the same.”

In the case of Judge Tsankov’s docket, sure sounds like more “Aimless Docket Reshuffling” (“ADR”) to me.  And, based on my experience and what I’ve been hearing from folks in and dealing with the Immigration Courts, I wouldn’t “bet the farm” on all of Judge Chew’s cases being heard on schedule either.

PWS

06-05-17

 

 

The “Gibson Report” For May 30, 2017

Gibson Report, May 30

PWS

05-30-17

DOJ’s Location Of U.S. Immigration Courts At Obscure Detention Locations Helps DHS To Deny Due Process, Punish Lawyers!

https://www.propublica.org/article/immigrants-in-detention-centers-are-often-hundreds-of-miles-from-legal-help

Patrick G. Lee writes in ProPublica:

“One morning in February, lawyer Marty Rosenbluth set off from his Hillsborough, North Carolina, home to represent two anxious clients in court. He drove about eight hours southwest, spent the night in a hotel and then got up around 6 a.m. to make the final 40-minute push to his destination: a federal immigration court and detention center in the tiny rural Georgia town of Lumpkin.

During two brief hearings over two days, Rosenbluth said, he convinced an immigration judge to grant both of his new clients more time to assess their legal options to stay in the United States. Then he got in his car and drove the 513 miles back home.

“Without an attorney, it’s almost impossible to win your case in the immigration courts. You don’t even really know what to say or what the standards are,” said Rosenbluth, who works for a private law firm and took on the cases for a fee. “You may have a really, really good case. But you simply can’t package it in a way that the court can understand.”

His clients that day were lucky. Only 6 percent of the men held at the Lumpkin complex — a 2,001-bed detention center and immigration court — have legal representation, according to a 2015 study in the University of Pennsylvania Law Review. Nationwide, it’s not much better, the study of data from October 2006 to September 2012 found: Just 14 percent of detainees have lawyers.

That percentage is likely to get even smaller under the Trump administration, which has identified 21,000 potential new detention beds to add to the approximately 40,000 currently in use. In January, President Trump signed an executive order telling the secretary of homeland security, who oversees the Immigration and Customs Enforcement agency, to “immediately” start signing contracts for detention centers and building new ones.

If history is any guide, many of those facilities will end up in places like Lumpkin, population 2,741. The city’s small downtown has a courthouse, the police department, a couple of restaurants and a Dollar General. There’s no hotel and many of the nearest immigration lawyers are based 140 miles away in Atlanta.

“It’s been a strategic move by ICE to construct detention centers in rural areas,” said Amy Fischer, policy director for RAICES, a San Antonio-based nonprofit that supports on-site legal aid programs at two Texas facilities for detained families. “Even if the money is there, it’s very difficult to set up a pro bono network when you’re geographically three hours away from a big city.”
ICE currently oversees a network of about 200 facilities, jails, processing centers and former prisons where immigrants can be held, according to a government list from February.

Unlike criminal defendants, most immigrants in deportation proceedings are not entitled to government-appointed lawyers because their cases are deemed civil matters. Far from free legal help and with scant financial resources, the majority of detainees take their chances solo, facing off against federal lawyers before judges saddled with full dockets of cases. Frequently they must use interpreters.

An ICE spokesman denied that detention facilities are purposely opened in remote locations to limit attorney access. “Any kind of detention center, due to zoning and other factors, they are typically placed in the outskirts of a downtown area,” said spokesman Bryan Cox. “ICE is very supportive and very accommodating in terms of individuals who wish to have representation and ensuring that they have the adequate ability to do so.” At Lumpkin’s Stewart Detention Center, for instance, lawyers can schedule hourlong video teleconferences with detainees, Cox said.

But a ProPublica review found that access to free or low-cost legal counsel was limited at many centers. Government-funded orientation programs, which exist at a few dozen detention locations, typically include self-help workshops, group presentations on the immigration court process, brief one-on-one consultations and pro bono referrals, but they stop short of providing direct legal representation. And a list of pro bono legal service providers distributed by the courts includes many who don’t take the cases of detainees at all. Those that do can often only take a limited number — perhaps five to 10 cases at a time.

The legal help makes a difference. Across the country, 21 percent of detained immigrants who had lawyers won their deportation cases, the University of Pennsylvania Law Review study found, compared to just 2 percent of detainees without a lawyer. The study also found that 48 percent of detainees who had lawyers were released from detention while their cases were pending, compared to 7 percent of those who lacked lawyers.

Legal counsel can also speed up the process for those detainees with no viable claims to stay in the country, experts said. A discussion with a lawyer might prompt the detainee to cut his losses and opt for voluntary departure, avoiding a pointless legal fight and the taxpayer-funded costs of detention.

Lawmakers in some states, such as New York and California, have stepped in to help, pledging taxpayer money toward providing lawyers for immigrants who can’t afford their own. But such help only aids those detainees whose deportation cases are assigned to courts in those areas.

“What brings good results is access to family and access to counsel and access to evidence, and when you’re in a far off location without those things, the likelihood of ICE winning and the person being denied due process increase dramatically,” said Conor Gleason, an immigration attorney at The Bronx Defenders in New York.”

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Read the complete article at the above link.

Lumpkin is “at the outskirts” of what “downtown area?” Don’t all major metro areas have “metropolitan correctional centers,” city jails, county jails, or some equivalent located near the courts and hub of legal activities for criminal defendants awaiting trial? Why are civil detainees allowed to be treated this way?

For far too long, under AGs from both parties, the DOJ has participated in this disingenuous charade designed to promote removals over due process. Because cases often have to be continued for lawyers, even where none is likely to be found, the procedure actually adds to detention costs in many cases.  Why not house only those with final orders awaiting removal or with pending appeals at places like Lumpkin? Why don’t the BIA and Courts of Appeals rule that intentionally detaining individuals where they cannot realistically exercise their “right to be represented by counsel of their own choosing” is a denial of due process?

Look for the situation to get much worse under Sessions, who envisions an “American Gulag” where detention rules as part of his program to demonize migrants by treating them all as “dangerous criminals.”

Meanwhile, as I pointed in a recent panel discussion at AYUDA, the only part of the immigration system over which the private sector has any control or influence these days is promoting due process by providing more pro bono lawyers for migrants. Eventually, if those efforts are persistent enough, the Government might be forced to change its approach.

PWS

05-18-17

The “Gibson Report” For The Week Of May 15!

Here it is:

The Gibson Report For Week of May 15, 2017

 

PWS

05-16-17

THE “GIBSON REPORT” — Week of May 1, 2017

Gibson Report — May 1, 2017

 

Thanks again to Elizabeth Gibson, Esq. for making this terrific resource available.

PWS

05-01-17

HERE IT IS! — The “Gibson Report” For April 17, 2017!

Gibson Report — April 17, 2017

Thanks again to Elizabeth Gibson, former Arlington Immigration Court Intern and “Georgetown Law RLP’er” now Immigrant Justice Corps Fellow/Staff Attorney, Immigrant Protection Unit, New York Legal Assistance Group!

PWS

04-17-17