The Gibson Report 03-19-18

The Gibson Report 03

Compiled by Elizabeth Gibson, Esq., New York Legal Assistance Group

HEADLINES:

TOP UPDATES

 

Supreme Court agrees to hear immigration law detention case

WaPo: The Supreme Court has agreed to decide whether federal immigration law gives the government the power to indefinitely detain any noncitizen it is considering deporting if the person previously committed certain crimes.

Cert granted. SCOTUSblog overview of the case.

 

Supreme Court bans Arizona from denying ‘Dreamers’ driver’s licenses

The Hill: Reuters reported that justices refused to hear the state’s Republican-driven challenge to President Obama’s Deferred Action for Childhood Arrivals (DACA) program, which protects young people brought into the country illegally as children from deportation. Their decision lets stand a lower court ruling that blocked the state from denying driver’s licenses to DACA recipients. Cert denied.

 

Jeff Sessions Has Power To Shape Asylum Policy. He Could Be Gearing Up To Use It To Deny Relief To Domestic Violence Victims.

HuffPo: Now, Sessions is set to personally decide the fate of a Salvadoran woman the appeals board deemed eligible for asylum more than a year ago. If Session rules against the woman, he could ensure that she is deported instead of being granted asylum — and that future immigrants seeking asylum on similar grounds meet a similar fate. Sessions has already referred three immigration cases to himself this year — an uncommonly high rate that alarmed experts who fear he is gearing up to dramatically shrink the parameters for who can be spared from deportation.

 

AILA Report “Cogs in the Deportation Machine” Shows Massive Escalation of Immigration Enforcement

ImmProf: The American Immigration Lawyers Association (AILA) released a new report detailing how the Trump administration has systematically increased enforcement, using harsh, indiscriminate methods to deport thousands of families, asylum seekers, and people who have lived and worked for years in the United States.

 

See The 20+ Immigration Activists Arrested Under Trump

NPR: Immigration and Customs Enforcement, the agency most frequently criticized for arresting activists, categorically rejects the accusation that it is singling them out. ICE says it does not retaliate against unlawful immigrants for critical comments they make, and any suggestion to the contrary is “irresponsible” and “speculative.”

 

Dem leaders pull back from hard-line immigration demand

The Hill: While House Minority Leader Nancy Pelosi (D-Calif.) and other Democratic leaders had hinged their support for last month’s budget caps deal on a commitment from Republicans to consider legislation salvaging the Deferred Action for Childhood Arrivals (DACA) program, they’ve signaled they won’t hold a similar line heading into next week’s expected vote on an omnibus spending bill.

 

ICE spokesman resigns, citing fabrications by agency chief, Sessions about California immigrant arrests

WaPo: A spokesman for U.S. Immigration and Customs Enforcement has resigned over what he described as “false” and “misleading” statements made by Attorney General Jeff Sessions and ICE acting director Thomas D. Homan. James Schwab worked out of the agency’s San Francisco office until he abruptly quit last week.

 

The US Keeps Mistakenly Deporting Its Own Citizens

VICE: “Recent data suggests that in 2010 well over 4,000 US citizens were detained or deported as aliens, raising the total since 2003 to more than 20,000, a figure that may strike some as so high as to lack credibility,” Stevens wrote in a 2011 report.

 

Long-Residing Liberians Are at Risk of Losing Protection from Deportation by the End of March

AIC: While much of the national immigration conversation has focused on the fate of Dreamers and those with Temporary Protected Status, a little-known protection provided to Liberians is on the brink of expiration.

 

Westchester Becomes First County in the State to Pass Immigrant Protection Act

NYIC: The IPA, which County Executive George Latimer is widely expected to sign into law, prohibits county officials from using resources to do the job of federal immigration authorities; prevents county officials from asking for immigration status or country of birth when it is not necessary to the job the function they are performing; and prevents County Corrections and Probation officers from handing over Westchester residents to Immigration and Customs Enforcement (ICE) unless there is a judicial warrant.

 

Collateral damage: How Trump threw Canada’s refugee system into turmoil

Reuters: More than 20,000 people, including thousands of Haitians and Nigerians and hundreds of Turks, Syrians and Eritreans, have crossed the border into Canada illegally over the past year in search of asylum, many fleeing in fear that Trump would deport them to their home countries. This unexpected northward migration has overwhelmed Canada’s system for processing asylum claims, leading to the worst delays in years.

 

NY OCC Update

Please be advised that the New York Office of the Chief Counsel (OCC-NYC) will be revising the hours of operation for our 26 Federal Plaza reception window effective Monday, April 2, 2018.  Starting on that date, the reception window will be open to the public from Monday-Friday, 8:30am to 12:00pm, excluding holidays.  In-person filings will only be accepted during these hours.  The duty attorney will only be available to the public during these hours.  You may continue to email inquiries to the duty attorney at:  Duty-Attorney.NYC-OCC@ice.dhs.gov.  The OCC-NYC does not accept document filings through the duty attorney mailbox.The OCC-NYC continues to receive documents 24/7 through eService (visit: eserviceregistration.ice.gov) and will also continue to receive filings by regular and express mail at the following address: DHS/ICE, Office of the Chief Counsel, 26 Federal Plaza, Room 1130, New York, NY 10278.

 

LITIGATION/CASELAW/RULES/MEMOS

 

ACLU Files Class Action Lawsuit on Behalf of Immigrant Parents and Children Detained in Separate Facilities

The ACLU amended its previous complaint in Ms. L. v. ICE to seek to represent a nationwide class of plaintiffs who are detained in immigration custody and whose minor children are separated from them and detained in ORR custody. (Ms. L. v. ICE, 3/9/18) AILA Doc. No. 18031238. See also ACLU legal explainer.

 

Post-Jennings Habeas Win in Northern District of California

Withholding client wins habeas case in Northern District of California .  The order confirms that despite the recent Supreme Court decision in Jennings v. Rodriguez, individuals in withholding-only proceedings are still eligible for prolonged detention bond hearings under Diouf v. Napolitano.  The order also has good language on DUIs and rehabilitation that could be useful in bond cases.

 

Ninth Circuit to Hear DACA Arguments in May 2018

ImmProf: The U.S. Court of Appeals for the Ninth Circuit has ordered an expedited briefing schedule in the consolidated appeals to a group of case, including the district court injunction of the rescission of the Deferred Action for Childhood Arrivals (DACA) policy.

 

BIA Finds Adjudicators May Look to Multiple Provisions of the CSA to Determine if an Offense Is an Aggravated Felony Under INA §101(a)(43)(B)

The BIA held that in deciding whether a state offense is an aggravated felony under INA §101(a)(43)(B), adjudicators need not look solely to the provision of the Controlled Substances Act (CSA) most similar to the state statute of conviction. Matter of Rosa, 27 I&N Dec. 228 (BIA 2018) AILA Doc. No. 18031437

[Of note in CA2: FN 5 notes that in NY it is permissible and common to take impossible “attempted recklessness” pleas, which apparently you can’t in CA. And voluntary (first degree) manslaughter under NY law is already considered a COV under Vargas-Sarmiento, 448 F.3d 159 (2d Cir. 2006).]

 

BIA Finds California Attempted Voluntary Manslaughter to Be an Aggravated Felony Under INA §101(a)(43)(F)

The BIA held that attempted voluntary manslaughter in violation of §§192(a) and 664 of the California Penal Code is categorically an aggravated felony crime of violence under INA §101(a)(43)(F). Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018) AILA Doc. No. 18031538

 

CA1 Upholds Denial of Asylum Where Evidence Showed Persecution Was Based on an Economic Motive

The court denied the petition for review, finding that substantial evidence showed that the petitioner failed to establish eligibility for asylum by failing to show a nexus between his alleged persecution and a statutorily protected ground. (Lopez-Lopez v. Sessions, 3/16/18) AILA Doc. No. 18031637

 

CA2 Holds That BIA Erred by Retroactively Applying Matter of Diaz-Lizarraga

The court held that the BIA erred by retroactively applying the standard announced in Matter of Diaz-Lizarraga for larceny crimes involving moral turpitude to the petitioner’s case and remanded the case to the BIA. (Obeya v. Sessions, 3/8/18) AILA Doc. No. 18031900

 

CA5 Upholds Texas SB 4

The court issued an opinion upholding Texas SB 4 in its entirety, except for the application to elected officials of the prohibition on endorsing policies limiting the enforcement of immigration laws. (City of El Cenizo, Texas, et al. v. State of Texas, 3/13/18) AILA Doc. No. 18031434

 

DHS OIG Finds USCIS Has Unclear Website Information and Unrealistic Time Goals for Adjudicating Green Card Applications

DHS OIG reports that information on USCIS’s website about processing times for green card applications doesn’t reflect the actual time it takes field offices, on average, to adjudicate them and the stated 120-day goal for green card adjudication is unrealistic. USCIS concurred with the findings. AILA Doc. No. 18031436

 

Lawsuit Challenges the Administration’s Implementation of the Waiver Process Under the Latest Travel Ban

A class action lawsuit was filed in federal district court on March 13, 2018, challenging the administration’s implementation of the waiver process under Presidential Proclamation 9645, the third iteration of the travel ban. (Emami v. Nielsen et al., 3/13/18) AILA Doc. No. 18031551

 

Article: What DOJ’s California Lawsuit Means for Immigrant Sanctuaries Across the Country

Governing the States and Localities reports on DOJ’s lawsuit challenging three California laws related to immigration enforcement, with AILA Senior Legislative Associate Alyson Sincavage discussing how the outcome could impact other jurisdictions with similar laws. AILA Doc. No. 18031540

 

DHS Statement on President Trump’s Visit to Border Wall Prototypes

After President Trump’s operational briefing at the border wall prototypes in San Diego, DHS issued a statement calling for legislation to deter migration.AILA Doc. No. 18031435

 

Practice Alert: USCIS Transfers I-601A Processing from the NBC to the NSC

 

ACTIONS

 

 

RESOURCES

 

 

EVENTS

 

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Many thanks, Elizabeth.

PWS

03-20-18

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