COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

 

EOIR Status Overview & EOIR Court Status Map/List:

EOIR plans to resume non-detained hearings on July 6, 2021 at all remaining immigration courts.

 

Changes to USCIS Mask Policy: Fully vaccinated staff and visitors are not required to wear masks. However, some government buildings may still require masks for all visitors, including 26 Federal Plaza.

 

TOP NEWS

 

Justices deny green cards to noncitizens granted Temporary Protected Status

SCOTUSblog: The court ruled in Sanchez v. Mayorkas that adjustment of status is reserved for those who were inspected at the border and admitted to the United States by an immigration officer, thus disqualifying the majority of those granted Temporary Protected Status.

 

Biden Has Given Prosecutors More Power To Decide Which Immigration Cases To Drop

BuzzFeed: The guidance, written by chief ICE attorney John Trasviña, a President Biden appointee, was sent to prosecutors on May 27 and represents a shift in how the agency pursues deportation orders in immigration court by emphasizing the discretion prosecutors have in court. While it does not require prosecutors to toss cases, it could lead to more immigrants having the ability to push for delays or dismissal of their deportation cases.

 

Biden administration formally ends ‘remain in Mexico’ policy after suspending it earlier this year

CNN: Shortly after President Joe Biden took office, the Department of Homeland Security suspended new enrollments to the program formally known as Migrant Protection Protocols. The department subsequently kicked off the process of gradually allowing asylum seekers previously subject to the program into the US. Between February 19 and May 25, around 11,200 migrants were processed into the US, according to Mayorkas’ memo Tuesday.

 

The false promises of more immigration enforcement

Vox: [R]esearch shows that the threat of detention and deportation in the US doesn’t dissuade migrants from making the journey to the southern border, especially if they are victims of violence and may be seeking to escape the “devil they know” in their home countries.

 

Biden Wants Mexico To Do More To Stop Immigrants Trying To Cross The US Border

BuzzFeed: Ahead of a planned visit by Vice President Kamala Harris, the Biden administration wants Mexico to send back more immigrants turned around by the US, take back additional families expelled by border agents, and do more to prevent Mexican airports from being used as pit stops for migration routes, according to government documents obtained by BuzzFeed News.

 

Docs Show ICE Didn’t Track Consent For Alleged Sterilization

Law360: Advocacy groups on Thursday released records acquired through a Freedom of Information Act lawsuit that showed failures in oversight by U.S. Immigration and Customs Enforcement of its medical personnel at a Georgia detention center, which is at the center of allegations of medical abuses and forced gynecological procedures.

 

Biden has quietly deployed an app for asylum seekers. Privacy experts are worried

LATimes: In recent weeks, U.S. border officials have taken an unprecedented step, quietly deploying a new app, CBP One, which relies on controversial facial recognition, geolocation and cloud technology to collect, process and store sensitive information on asylum seekers before they enter the United States, according to three privacy-impact assessments conducted by the Homeland Security Department and experts who reviewed them for The Times. See also US Border Officers Are Collecting DNA From Asylum-Seekers Even Though They Don’t Have Criminal Records.

 

Texas is seeking to evict migrant children from state shelters.

NYT: Gov. Greg Abbott of Texas has instructed state officials to end contracts with the Biden administration for shelters in the state that hold migrant children and teenagers who have been arriving alone, in record numbers, to the southwest border.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Supreme Court Says TPS Is Not an Admission

The Supreme Court issued a unanimous decision, holding that a TPS recipient who entered the United States unlawfully is not eligible under §1255 for LPR status merely by dint of his TPS. (Sanchez et ux. v. Mayorkas, 6/7/21) AILA Doc. No. 21060799

 

Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021)

BIA: The mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged and that does not significantly increase the risk of future harm is insufficient to establish “changed circumstances” to excuse an untimely asylum application within the meaning of section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D) (2018).

 

CA1 Upholds Denial of Cancellation of Removal to Ecuadorian Petitioner with Two Young Children

Posted 6/1/2021

The court held that the BIA did not err when it found that the petitioner, who had a 12-year-old son and a five-year-old daughter, had not met his burden to show that his removal would result in exceptional and extremely unusual hardship to his family. (Tacuri-Tacuri v. Garland, 5/24/21)

AILA Doc. No. 21060138

 

CA3 Rejects Government’s Attempt to Invoke Fugitive Disentitlement Doctrine, But Upholds Denial of Withholding of Removal

Posted 6/1/2021

The court held that the government’s evidence of petitioner’s fugitive status was insufficiently probative to justify discretionary dismissal of his petition, but found that BIA did not err in denying petitioner’s withholding of removal application. (Galeas Figueroa v. Att’y Gen., 5/19/21)

AILA Doc. No. 21060140

 

CA4 Finds That EAJA Does Not Apply to Habeas Applicants Seeking Release from Civil Detention

The court held that the Equal Access to Justice Act (EAJA) does not apply to a habeas proceeding seeking release from civil detention, and thus affirmed the district court’s order denying the petitioner attorney’s fees under the Act. (Obando-Segura v. Garland, 5/28/21) AILA Doc. No. 21060734

 

CA5 Says Conviction for Conspiracy to Commit Money Laundering Is an Aggravated Felony Under INA §101(a)(43)(D)

The court held that the petitioner’s conviction for conspiracy to commit money laundering plainly constituted an aggravated felony under INA §101(a)(43)(D), and that the remainder of the petitioner’s claims were either meritless or unexhausted. (Maniar v. Garland, 5/20/21) AILA Doc. No. 21060434

 

CA5 Says Attorney General Interpreted INA §208(b)(2)(A)(iv) in Matter of A-H- Correctly as a Matter of Law

Where the government had ordered petitioner removed after he threatened to commit an act of terrorism, the court held that the Attorney General had interpreted INA §208(b)(2)(A)(iv) correctly, and thus that the government had lawfully terminated his asylum status. (Mirza v. Garland, 5/12/21) AILA Doc. No. 21060432

 

CA5 Finds Plea Agreement That Lacked Judge’s Signature Could Serve as Clear and Convincing Evidence of a Conviction

The court held that the petitioner had failed to show that the IJ or the BIA had violated a statutorily imposed evidentiary requirement in finding that the plea agreement form proved the existence of a forgery conviction by clear and convincing evidence. (Nguyen v. Garland, 5/12/21) AILA Doc. No. 21060430

 

CA6 Rejects Castro-Tum: Garcia-DeLeon V. Garland

LexisNexis: Garcia-DeLeon v. Garland “We conclude that 8 C.F.R. § 212.7(e)(4)(iii), in conjunction with 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), gives IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers.

 

CA9 Affirms Denial of Deferral of Removal to Jamaican Petitioner Who Claimed She Suffered Physical Abuse by Former Domestic Partner

Upholding the BIA’s denial of deferral of removal under the Convention Against Torture (CAT), the court held that the record did not compel a finding that it was more likely than not that the petitioner would suffer future torture if she returned to Jamaica. (Dawson v. Garland, 5/26/21) AILA Doc. No. 21060732

 

CA9 Finds Nunc Pro Tunc Order Did Not Retroactively Establish Naturalized Parent’s Sole Legal Custody Under Former INA §321(a)

The court held that where it has not been proven that a custody order was entered in error, a nunc pro tunc order cannot retroactively establish a naturalized parent’s sole legal custody for purposes of derivative citizenship under former INA §321(a). (Padilla Carino v. Garland, 5/18/21) AILA Doc. No. 21060731

 

CA9 Says Exceptional Circumstances Warrant Reopening of In Absentia Removal Orders of Salvadoran Mother and Child

The court held that exceptional circumstances warranted reopening of in absentia removal orders entered against a mother and her minor child due to the mother’s failure to appear, where the mother suffered from memory problems and was illiterate. (Hernandez-Galand v. Garland, 5/12/21) AILA Doc. No. 21060438

 

9th Circ. Says Judges Can Reopen Deported Immigrant Cases

The Ninth Circuit on Wednesday held that immigration judges can reopen the cases of immigrants who have been removed from the U.S. or who voluntarily left, reversing a Board of Immigration Appeals decision that held that the “departure bar” in immigration law blocked those reopenings.

 

9th Circ. Will Rehear Split Political Asylum Denial Ruling

Law360: The Ninth Circuit has agreed to reconsider en banc the denial of a Bangladeshi citizen’s asylum application based on alleged politically motivated threats against his family following a dissent from the panel decision citing evidentiary failures in the initial immigration court finding.

 

DOJ Asked To Pull Case That Busted Immigration Judge Union

Law360: A group of House Democrats asked the U.S. Department of Justice to withdraw a Trump administration petition that led the Federal Labor Relations Authority to rule immigration judges are managers who cannot unionize, saying the ruling broadly threatens federal employees’ union rights.

 

DHS Says Wolf Had Power To Issue Asylum Work Permit Regs

Law360: The U.S. Department of Homeland Security asked a Maryland federal court to preserve Trump-era regulations restricting asylum-seeker work permits, saying the official who created the policies had the legal authority to do so despite several courts calling that authority into question.

 

NJ Counties Fight Immigrant Info-Sharing Curb At 3rd Circ.

Two New Jersey counties urged the Third Circuit on Thursday to strike down New Jersey Attorney General Gurbir S. Grewal’s order that county and local law enforcement officers must restrict information they share with immigration authorities, arguing that it obstructs federal law.

 

ICE Issues Interim Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities

ICE issued interim guidance to all OPLA attorneys to guide them in appropriately executing interim civil immigration enforcement and removal priorities and exercising prosecutorial discretion. AILA Doc. No. 21060499

 

DHS Terminates the Migrant Protection Protocols Program

DHS announced that after review of the Migrant Protection Protocols (MPP) program, the Secretary of Homeland Security made a determination that MPP be terminated. This announcement does not impact this phased entry strategy into the United States of certain individuals enrolled in MPP. AILA Doc. No. 21060141

 

USCIS Announces Pilot Program for Credit Card Payments Using Form G-1450 When Filing Form I-485

USCIS announced a pilot program for accepting credit card payments using Form G-1450, Authorization for Credit Card Transactions, for U nonimmigrants filing Form I-485. The pilot program began on May 3 and is limited to the Nebraska Service Center. AILA Doc. No. 21060200

 

RESOURCES

 

• AILA: Practice Alert: Red Notices and the Application of the Serious Non-Political Crime Bar
• CRS: Immigration Arrests in the Interior of the United States: A Primer
• IDP: Practice Advisory: “Realistic Probability” in Immigration Categorical Approach Cases
• HF: NYC DACA Scholarship Fund
• ILRC: Immigration Consequences of Pretrial Diversion and Intervention Agreements
• NIPNLG: Project South and National Immigration Project release new ICE records on gynecological abuse

 

EVENTS

 

• June: National Immigrant Heritage Month
• 6/8/21-6/29/21 CLINIC Webinar Series: Citizenship and Naturalization
• 6/9/21-6/11/21 ‘Ageing Gracefully? The 1951 Refugee Convention at 70’
• 6/9/21-6/12/21 2021 AILA Virtual Annual Conference on Immigration Law
• 6/9/21 Hot topics: Adjudication and Enforcement Trends
• 6/9/21 Making Citizenship an Organizing Principle of the US Immigration System
• 6/10/21 Public Charge and Hot Topics in Consular Processing
• 6/14/21 Taxes at the Border: Understanding the Tax Consequences of Immigration Status
• 6/15/21 U Visa Hot Topics
• 6/15/21 Motions to Reopen in Immigration Court: Part III – VAWA Self-petitioners
• 6/15/21 Statelessness & COVID-19: Case Studies Around the World
• 6/16/21 Immigrant eligibility for public benefits
• 6/16/21 Phase 2 of a SIJS case: Preparation & submission of the immigration forms to USCIS
• 6/17/21 Practice tips for representing clients with criminal legal system contacts in affirmative applications
• 6/22/21 EADs and Delays in Work Authorization for Your Family– and Employment-Based Clients
• 6/22/21 Defending Immigration Removal Proceedings 2021
• 6/25/21 Understanding and Screening for Statelessness
• 6/29/21 Immigrant eligibility for public benefits
• 6/30/21 “Objection!” How to Object Effectively in Immigration Court
• 6/30/21 Immigration Update – June 2021
• 7/7/21-7/21/21 Webinar Series: Navigating Refugee and Asylee Issues
• 7/8/21-7/29/21 Webinar Series: Overview of Removal Proceedings and Orders of Removal
• 7/9/21 FOIA Requests with DHS
• 7/21/21 The ethics of dual representation (child and guardian) in SIJS practice
• 7/22/21 PLI: Defending Immigration Removal Proceedings 2021
• 9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

 

ImmProf

 

Monday, June 7, 2021

·         Supreme Court Rules Against TPS Recipient in Adjustment Case

·         Student Is Denied High School Diploma for Wearing Mexican Flag

·         VP Harris to Visit Guatemala, Mexico to Discuss Migration, Human Trafficking, Corruption

Sunday, June 6, 2021

·         New Interim Guidance re: Immigration Enforcement

·         Does Increased Enforcement Deter Migrants?

Saturday, June 5, 2021

·         Biden Administration Adopting Immigration Changes

Friday, June 4, 2021

·         Teaching the Categorical Approach: The Cute Kittens Method

·         New Issue of Daedalus on Immigration, Nativism & Race in the United States

·         AP Report: U.S. government has groups to pick asylum-seekers to allow into the United States

Thursday, June 3, 2021

·         Congressional Research Service Report on Immigration Consequences of Criminal Activity

·         The Equal Access to Green Cards for Legal Employment (EAGLE) Act of 2021

Wednesday, June 2, 2021

·         June is immigrant heritage month; June 21 world refugee day

·         Slowing U.S. Population Growth Could Prompt New Pressure for Immigration Reform

·         Will VP Kamala Harris take the lead on immigration?

·         Few Former Immigration Lawyers in Congress

Tuesday, June 1, 2021

·         Termination of the Migrant Protection Protocols (Remain in Mexico) Program

·         Supreme Court Rules for U.S. Government in Asylum Credibility Case

Monday, May 31, 2021

·         UK Orchestrating Rapid Relocation of Afghan Interpreters & Their Families

·         Ironic tribute to MAVNI on Memorial Day

·         2021 Annual Pre-AILA Crimes & Immigration Seminar

 

 

**************

Thanks, Elizabeth!

Item #3 makes an essential point that experts have long recognized and that undermines the assumptions on which many of the failed Trump and Biden immigration policies are based: U.S. enforcement policies have little or no effect on forced migrants’ decisions to leave their homes. 

Indeed, as immigration experts have told the Administration, to little apparent avail, “forced migration” is exactly what it says it is: migration resulting from forces in home countries that are largely beyond the immediate control of either the migrants or the U.S. Government. 

That doesn’t mean we shouldn’t understand and constructively address the root causes of human migration. Of course we should! 

But, such systemic changes will take time and will have only marginal effects, if any, on current migration patterns. And, harsh, cruel enforcement and illegal border closures will continue to waste resources while squandering any remaining moral leadership authority we have on migration issues following four years of unrelenting illegal and immoral behavior by the Trump regime!

Vox: [R]esearch shows that the threat of detention and deportation in the US doesn’t dissuade migrants from making the journey to the southern border, especially if they are victims of violence and may be seeking to escape the “devil they know” in their home countries.

I just watched a TV news report in which law enforcement officials and reporters hypothesized the higher walls had caused smugglers to use more dangerous methods such as maritime entries, that, in turn, kill more migrants. Is that how we measure “success?” And, even killing a few more migrants won’t have a material effect on departures or overall illegal entries.

Why not encourage individuals to apply for refuge from abroad or at legal ports of entry where they will be treated fairly and humanely by officials and judges actually qualified to administer asylum and protection laws? Why not structure our legal immigration system around the “market realities” of human migration and “push, pull factors” rather than continuously swimming against the tides of migration? Why not put experts who understand the realities of human migration in charge of our policies and courts, rather than politicos who look only for the expedient, while all too often eschewing the intelligent?

🇺🇸Due Process Forever!

PWS

06-10-21