THE GIBSON REPORT – 03-12-18

THE GIBSON REPORT – 03

Compiled by Elizabeth Gibson, Esq., NY Legal Assistance Group

 

HEADLINES:

TOP UPDATES

 

EOIR Updates

  • The EOIR hotline appears to no longer list the IJ. To verify the IJ, you will need to call the court.
  • Lora was vacatedon Monday. No more Lora bond hearings for now, although the bond issue is still being litigated.
  • OCC: Please be advised that the San Juan Office of the Chief Counsel will be handling cases formerly assigned to IJ Margaret McManus and IJ Elizabeth Lamb during March and April.  Please note that documents for these hearings must be served via eService to ensure timely receipt by the Assistant Chief Counsel in San Juan.  In the alternative, documents may be sent via Express Mail directly to the San Juan office at the following address. [People have reported already having McManus and Lamb cases by video conference to San Juan. But double check because at least one person has said their case for this month was rescheduled instead of being sent to San Juan.]

 

Advocates Say Sessions’ Decision to Toss Rule on Asylum Hearings Endangers Thousands

WaPo: The decision this week vacates a 2014 ruling by the Justice Department’s Board of Immigration Appeals. Now, immigration judges can reject asylum petitions without a full hearing if, upon initial review, they appear to be fraudulent or unlikely to succeed. [This is particularly concerning in light of Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018), which requires the clear articulation of a social group. Advocates worry that the two decisions could be used together to say that someone is not entitled to an individual hearing if they do not articulate a PSG at a master calendar hearing.]

 

AG Refers Decision to Himself and Issues Amicus Invitation on “Particular Social Group” and Victims of Private Criminal Activity

The Attorney General referred Matter of A-B- to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal. AILA Doc. No. 18030801.

  • From Respondent’s Counsel: It’s an ARCG case where my client was denied by IJ VSC in Charlotte. BIA reversed on every element including adverse credibility in December 2016. IJ VSC recertified it in August 2017 to the BIA saying that Velazquez v Sessions (4th circuit) basically meant that ARCG was no longer applicable.

 

US in Talks with Mexico on Safe Third Country Agreement

Politico: Homeland Security Department officials hope to discuss an asylum deal with Mexican officials, despite frayed diplomatic relations over border security and trade, a department official tells Morning Shift. The Trump administration aims to strike a “safe third country” pact with Mexico that would allow the United States to return non-Mexican asylum seekers to Mexico if they passed through that country en route to the southwest border.

 

How the Supreme Court is Expanding the Immigrant Detention System

Atlantic: During FY 2018, ICE reports that its average daily population has been 40,726. Before the year began, ICE budget documents had projected a detention population of 51,379. That staggering expansion—65 percent in a single year—would have vaulted ERO to a spot somewhere around No. 7. Its population would rank in size behind only the federal prison system and those of California, Florida, Georgia, New York, and Texas.

 

DOJ Files Lawsuit Challenging Three California Laws Relating to Immigration Enforcement

The Department of Justice filed a lawsuit challenging three California laws relating to immigration enforcement as violating the Supremacy Clause of the Constitution. (United States v. California, 3/6/18)

AILA Doc. No. 18030700

 

Extension of the Designation of Syria for Temporary Protected Status

DHS: announces that the Secretary of Homeland Security (Secretary) is extending the designation of Syria for Temporary Protected Status (TPS) for 18 months, from April 1, 2018, through September 30, 2019. The extension allows currently eligible TPS beneficiaries to retain TPS through September 30, 2019, so long as they otherwise continue to meet the eligibility requirements for TPS. Re-Registration Period Opens for Syrians with Temporary Protected Status.

 

Article: On DACA’s Termination Date, Path Forward Remains Unclear

Bloomberg Law reports on court decisions that have temporarily allowed the DACA program to continue beyond the March 5 end date set by President Trump and where the Dream Act stands in Congress, with insights from AILA Director of Government Relations Greg Chen. AILA Doc. No. 18030601

 

Immigration Attorney Sentenced to More Than Six Years in Prison for Fraud Scheme and Identity Theft in Relation to Visa Applications

USCIS: An Indianapolis, Indiana immigration attorney was sentenced today to 75 months in prison for defrauding the U.S. Citizenship and Immigration Services (USCIS) and more than 250 of his clients by filing fraudulent visa applications and reaping approximately $750,000 in illegitimate fees.

 

Baltimore approves spending of $200,000 to pay lawyers to help immigrants fight deportations

Half of the $200,000 is funded by a grant from the Vera Institute of Justice, a New York nonprofit. The other half will come from the city’s budget.

 

Suffolk Sheriff Will Continue Honoring Cooperation With ICE

NYIC: Suffolk County’s new sheriff, Errol Toulon Jr., replaced Vincent DeMarco in January. De Marco, a staunchly conservative supporter of President Trump’s immigration policies, had established a policy of tight cooperation with ICE.

 

LITIGATION/CASELAW/RULES/MEMOS

 

AG Refers and Vacates Decision on Entitlement to Full Asylum Hearing

Attorney General Jeff Sessions referred the BIA decision in Matter of E-F-H-L- to himself for review and vacated that decision, directing that the matter be recalendared and restored to the active docket. Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). AILA Doc. No. 18030536.

 

CA1 Finds Evidence Did Not Compel Conclusion That Violence Against Petitioner’s Family Members Was Due to Family Membership

The court denied the petition for review of the denial of the petitioner’s asylum application, finding that the evidence did not compel the conclusion that a series of violent incidents against her family members was on account of their family membership. (Sosa-Perez v. Sessions, 2/28/18) AILA Doc. No. 18030630

 

CA2 Says New CIMT Interpretation for Theft Crimes Is NOT Retroactive

Post Diaz-Lizarraga, the BIA now deems theft crimes to be CIMTs if the intended deprivation was permanent OR where property rights are substantially eroded.  [T]he Second Circuit reversed the BIA’s retroactive application of the new rule, reasoning that criminal defendant’s of that time would have relied on existing precedent regarding immigration consequences of convictions when entering into pleas.

 

CA2 Finds There Is No Duress Exception to the “Material Support Bar”

The court joined several other circuits in holding that the “material support bar” in INA §212(a)(3)(B)(iv)(VI) does not except individuals who acted under duress. (Hernandez v. Sessions, 2/28/18) AILA Doc. No. 18030633

 

CA2 Holds That BIA’s Interpretation of REAL ID Act Was Entitled to Chevron Deference

The court held that the BIA’s interpretation of the REAL ID Act as not requiring an IJ to give a petitioner an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required was entitled to Chevron deference. (Sun v. Sessions, 2/23/18) AILA Doc. No. 18030635

 

CA3 Holds That Unlawful Contact with a Minor Under 18 Pa. Cons. Stat. §6318(a)(5) is a Crime of Child Abuse

The court denied the petition for review, holding that a conviction for unlawful contact with a minor under 18 Pennsylvania Consolidated Statutes §6318(a)(5) is a crime of child abuse under INA §237(a)(2)(E)(i). (Mondragon-Gonzalez v. Attorney General, 1/29/18) AILA Doc. No. 18030636

 

CA5 Remands to District Court to Determine Whether Minor in ORR Custody Wishes to Pursue an Abortion

In a case involving whether ORR can refuse an unaccompanied minor access to Texas’s judicial bypass regime, the court remanded the case to the federal district court to conduct a hearing to determine whether the unaccompanied minor presently wishes to pursue an abortion. (Doe v. ORR, 3/1/18) AILA Doc. No. 18030637

 

CA5 Dismisses Equitable Tolling Case for Lack of Jurisdiction

Where the petitioner filed a statutorily untimely motion to reopen but argued she was entitled to equitable tolling, the court dismissed the petition for lack of jurisdiction, finding that whether equitable tolling applied was a question of fact, not of law. (Penalva v. Sessions, 2/28/18) AILA Doc. No. 18030701

 

CA9 Finds Violation of California Penal Code §286(i) to Be an Aggravated Felony

The court found that a violation of California Penal Code §286(i) for sodomy where the victim cannot consent qualifies as a rape offense under INA §101(a)(43)(A), and that the plaintiff’s conviction under that statute was therefore an aggravated felony. (Elmakhzoumi v. Sessions, 3/1/18) AILA Doc. No. 18030738

 

Maryland District Court Declines to Enjoin Rescission of DACA Program

The U.S. District Court for the District of Maryland issued an opinion declining to enjoin the government’s rescission of the DACA program but enjoining the government from using information provided through the DACA program for enforcement purposes. (Casa de Maryland v. DHS, 3/5/18) AILA Doc. No. 18030734

 

Civil Rights and Civil Liberties Organizations File FOIA Seeking Information on Extreme Vetting Policies

On 3/1/18, Muslim Advocates, along with a coalition of 29 civil rights and civil liberties organizations, filed a FOIA request seeking information from DHS, OIG, CRCL, and ICE concerning their extreme vetting policies and procedures. AILA Doc. No. 18030730

 

Muslim Advocates and the Center for Constitutional Rights File FOIA on the Travel Ban Waiver Process

On 1/23/18, Muslim Advocates and the Center for Constitutional Rights filed a FOIA request seeking information from DHS, DOS, CBP, and USCIS regarding the waiver process provided for in Presidential Proclamation 9645 (Travel Ban 3.0). AILA Doc. No. 18030732

 

ACTIONS

 

 

 

RESOURCES

 

 

EVENTS

 

 

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As always, thanks Elizabeth. You’re amazing!

PWS

03-13-18

 

 

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