THE GIBSON REPORT 01-22-18 – Compiled by Elizabeth Gibson, Esq., NY Legal Assistance Group

THE GIBSON REPORT 01-22-18

TOP UPDATES

 

“Shutdown

Here’s the general practice alert from AILA. In summary:

  • EOIR:  Varick is open, 26 Fed is not. Clerks have stated that there will be no morning or afternoon non-detained hearings today.
  • OCC: Until Congress passes an appropriations bill, the Office of Chief Counsel New York will only be receiving and processing mail for detained cases at Varick Street and ICE Hudson Valley.  The filing window at 26 Federal Plaza will be closed.  You may continue to file documents for the non-detained docket via eService.  However, those documents will not be processed until after we return to normal operations.
  • USCIS: Fee-funded activities remain open. A few specific exceptions are listed here.
  • Asylum Offices: Open for business as usual.
  • CBP: Open for business as usual with a few exceptions.
  • DOL: will  cease receiving and processing applications during the shutdown
  • DOS: scheduled passport and visa services in the United States and overseas will continue

 

DACA

  • Who Can File For Renewal Right Now:

o   DACA EXPIRED 9/5/2016 OR LATER (this is 2016 and not 2017)

o   IN CURRENT DACA STATUS – the USCIS website says if your DACA is valid beyond 3/5/2018 you cannot file for renewal, but the legal community is pretty much in agreement that this is an error and that anyone with current DACA status can file for renewal now regardless of expiration date

  • Who Can File An Initial DACA Application Right Now:

o   Individuals who had DACA previously, but it expired before 9/5/2016

  • No First Time Initial DACA Applications Are Being Accepted.  If someone has never had DACA before they cannot file for the first time now.
  • BUT: Keep in mind that this can all change any day given appeal to SCOTUS.

 

TPS

  • Haiti;

o   Termination of the Designation of Haiti for Temporary Protected Status

o   USCIS Announces Re-Registration Period Now Open for Haitians with TPS

o   USCIS Guidance: Automatic Employment Authorization Document (EAD) Extension (Haiti)

o   Practice Alert: USCIS Extends TPS and EADs for Haitians Whose Applications Remain Unadjudicated

o   DOJ Information on EADs for TPS Haiti

  • El Salvador:

o   Termination of the Designation of El Salvador for Temporary Protected Status

o   USCIS Announces Re-Registration Period Now Open for Salvadorans with TPS

o   DOJ Information on EADs for TPS El Salvador

  • Emergency Advance Parole for TPS is being denied at 26 FP: Legal Aid: TPS recipient from El Salvador, whose mother just passed away was denied for emergency advance parole at 26 FP this morning. He was charged the full fee. They asked him how he entered the country. It seems like they are trying to prevent people from curing their entries.

 

EOIR Updates its Case Priorities and Immigration Court Performance Measures Guidance

EOIR issued a memorandum, that is effective immediately, and applies prospectively to all new cases filed and to all immigration court cases reopened, recalendared, or remanded, and rescinds all other prior memoranda establishing case processing or docketing priorities. AILA Doc. No. 18011834

 

EOIR Releases OPPM on Change of Venue Requests

EOIR released Operating Policies and Procedures Memorandum 18-01, Change of Venue, stating that every Immigration Judge is required to ensure that “good cause has been shown” before granting a motion for change of venue. This OPPM replaces OPPM 01-02. AILA Doc. No. 18011733. [The memo also suggests that pleadings, removability, and types of relief be settled prior to change of venue from a detained court to a non-detained court and that the first appearance in non-detained court after such a motion be an individual hearing.]

 

Possible changes for UACs

KIND: L.A. asylum office is letting folks know there will be a few policy implemented for UACs in the next few weeks. The new policy will be to deny UAC jurisdiction for cases in which:

1)      The child is over 18 years old,

2)      The child has reunified with one or both parents, and

3)      The child now has a legal guardian.

 

Status Docket

NY Immigration Court is now placing cases on a “status docket” if they having something pending before USCIS. This appears to be in lieu of administrative closure.

 

DHS Opposing Termination for VAWA Adjustments

LSNYC: I recently filed a motion to terminate a removal case because my client’s VAWA petition was approved. The IJ denied the motion because of DHS’s opposition. When I appeared at the master last week, the TA told me they’re no longer agreeing to termination where there’s a VAWA approval. Now I’m forced to handle the client’s adjustment before the IJ, albeit in 2020.

 

Public Charge Regs

It is anticipated that a proposed rule will be issued by the President that will expand the definition of public charge, as well as its impact on a client’s inadmissibility or deportability in the US. Although this has been rumored for some time, the administration appears to be getting the ball rolling. There is just conjecture at this time about what the proposed rule will be, but it is expected to be expanded to include not just cash assistance and long term institutionalized health, but also food stamps, medicaid, head start. Also expect that order will aim to go after sponsors for reimbursement, when they sponsored someone who later becomes a public charge.

 

Trump administration’s immigrant-crime hotline releases victims’ personal information

AZ Republic: The release of private information by ICE underscores problems that have surfaced since ICE launched the Victims of Immigration Crime Engagement office, or VOICE, to “serve the needs of crime victims and their families who have been affected by crimes committed by individuals with a nexus to immigration.”

 

Update on Ravi Ragbir

He has been brought to New York from Florida and is now in  in the Orange County Correctional facility. He is awaiting a Jan. 29 hearing. He would be thrilled to get letters. Please send a note to: Ravi Ragbir, ID 2018-00097, Orange County Correctional Facility, 110 Wells Farm Road, Goshen New York, 10924.

 

US border patrol routinely sabotages water left for migrants, report says

The Guardian: United States border patrol agents routinely vandalise containers of water and other supplies left in the Arizona desert for migrants, condemning people to die of thirst in baking temperatures, according to two humanitarian groups.

 

LITIGATION/CASELAW

 

Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018)

(1) An applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group.

(2) The Board of Immigration Appeals generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.

 

Justices to review travel ban challenge

SCOTUSblog: The Supreme Court will hear oral argument on the challenge to President Donald Trump’s September 24 order, the latest version of what is often known as his “travel ban,” which limited travel from eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. The announcement came in a brief order.

 

Trump administration asks Supreme Court to intervene on DACA

SCOTUSblog: [On Jan. 18] the federal government went to the Supreme Court, asking it to intervene immediately in a legal dispute over whether the Trump administration can end DACA – and to rule on the dispute before the court’s summer recess.

 

CA2 Finds No Federal Subject-Matter Jurisdiction Over Petitioner’s APA Claim

The court found that there was no basis for federal subject-matter jurisdiction over the petitioner’s Administrative Procedure Act (APA) claim challenging USCIS’s denial of jurisdiction over his adjustment of status application. The court found that the APA does not empower courts to set aside agency action where other statutes preclude judicial review and that INA §242(a)(5) is a statute that precludes judicial review of the petitioner’s case. (Singh v. USCIS, 12/22/17) AILA Doc. No. 18011961.

 

CA6 Holds That BIA Abused Its Discretion by Failing to Credit Petitioner’s Evidence

The court held that the BIA abused its discretion in denying the petitioner’s motion to reopen removal proceedings by failing to credit the facts presented by the petitioner’s evidence that showed that she would be singled out for persecution by a Mexican drug cartel based on her family membership. The court also held that the BIA abused its discretion by summarily rejecting the petitioner’s argument that she could not safely relocate to another area in Mexico. (Trujillo Diaz v. Sessions, 1/17/18) AILA Doc. No. 18011937.

 

CA1 Denies Petition for Review, Finding No Plausible Claim of Legal Error

The court denied the petition for review where the IJ had previously found that the petitioner’s testimony was insufficient to support her claim that she entered into the marriage on which her immigration petition had been based in good faith. The court found that there was no plausible claim of legal error, and that the court therefore could not substitute its assessment of the evidence for that of the IJ. The court also found that the BIA’s finding that the petitioner had not demonstrated extreme hardship was supported by substantial evidence. (Gaitu v. Sessions, 12/22/17). AILA Doc. No. 18011847.

 

CA9 Orders Government to Return Individual Removed to Mexico to the United States

the Ninth Circuit issued an order granting the petition for a writ of mandamus, ordering the government to return the petitioner to the United States by 1/16/18 and to provide him with his necessary medications. (Bringas-Rodriguez v. Sessions, 1/12/18). AILA Doc. No. 18011844.

 

CA1 Dismisses Petitions for Review of Denial of Voluntary Departure for Lack of Jurisdiction

The court dismissed the petitions for review of denial of voluntary departure to both members of a married couple, finding that the court lacked jurisdiction to review the immigration judge’s discretionary decision to deny voluntary departure. (De la Cruz Orellana v. Sessions, 12/18/17)

AILA Doc. No. 18011837

 

In lawsuits, same-sex couples say U.S. wrongly denied their children citizenship

WaPo; The lawsuits claim the State Department considers Blixt’s and Dvash-Banks’s children born “out of wedlock,” even though both couples are legally married.

 

ACTIONS

 

o   AILA: Call for Examples: RFEs or Denials Based on More than 12 Months of Practical Training

o   AILA: Call for Examples: Experiences with Waivers for Individuals Impacted by Travel Ban

o   NYCLU Request for declarations: [NYCLU is] working on an amicus brief in pending habeas litigation before the SDNY in which we want to illustrate that detention is not required or necessary to effectuate removal. We are writing to ask for assistance from practitioners from around the country (1) whose clients have received bag and baggage/departure letters, and/or (2) whose clients have gone through particularly traumatic experiences as a result of ICE revoking an order of supervision (e.g.  where a client was suddenly re-detained when they had been planning for an orderly departure or where a client was detained ostensibly on the premise that removal is imminent, only then to sit in detention for weeks). If you have had clients in these situations and are available to complete the attached declaration, please send it to me (jwells@nyclu.org) and the NYU Immigrant Rights Clinic Clinic by the end of Tuesday, January 23, 2018.

o   ACTION ALERT: #SaveTPS for Syria!

o   Take Action: Protect TPS Holders

 

RESOURCES

 

 

EVENTS

 

 

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

Thanks to the amazing Elizabeth, as always!

Although the “shutdown” appears at least temporarily resolved, I find it interesting (and telling) that notwithstanding the supposed “immigration crisis,” the DOJ opted to declare the vast majority of U.S Immigration Courts and U.S. Immigration Judges handling “non-detained” dockets to be “non-essential.”    That would have added many thousands of cases to the backlog caused by “ADR” every day during the shutdown! Also, what a “morale booster” for an already demoralized and dispirited Immigration Court system and its employees!

PWS

01`-22-18

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