TOP UPDATES
Attorney General States IJs May Only Grant Continuances “For Good Cause Shown”
The Attorney General (AG) found that an IJ may only grant a continuance “for good cause shown” and outlined the good-cause standard. Further, the AG vacated the Board’s orders declining to entertain these appeals and remanded. Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018) AILA Doc. No. 18081671. See also Retired IJs and Former Members of the BIA Issue Statement in Response to Matter of L-A-B-R-.
What will happen to DACA? Federal court cases could lead to an answer.
WaPo: On Friday, U.S. District Judge John D. Bates ruled that the Trump administration does not have to accept new applications for the Deferred Action for Childhood Arrivals program but must continue processing renewals while the future of the program is under appeal.
EOIR: The Executive Office for Immigration Review (EOIR) on Friday held the investiture of 23 new immigration judges, which increases the total number of immigration judges to 351. Since the end of January 2017, 82 immigration judges have been sworn in, and EOIR anticipates three additional hiring classes this fall that will total at least 75 more immigration judges.
Sessions: Federal judges costing taxpayers with immigration rulings
AP: U.S. Attorney General Jeff Sessions told an audience of hundreds of judges and attorneys on Friday that “erroneous rulings” by federal judges have been costly to taxpayers, and he criticized judges who’ve thwarted some of President Donald Trump’s immigration policies.
White House to honor ICE ‘heroes’ after family separation fiasco
Politico: The “Salute to the Heroes of the Immigration and Customs Enforcement and Customs [and] Border Protection” is scheduled for Aug. 20 in the East Room, an administration official confirmed, in the latest signal that the Trump administration anticipates the midterm fallout from its zero-tolerance border policy very differently from its critics.
The Trump Administration Is Seeking To Restart Thousands Of Closed Deportation Cases
BuzzFeed: So far this fiscal year, attorneys for Immigration and Customs Enforcement have sought the reactivation of nearly 8,000 deportation cases that had been administratively closed — meaning pushed off the court’s docket. The previous fiscal year, which included nearly four months of the Obama administration, there were nearly 8,400 such requests. The pace of such requests is nearly double that of the last two years of the Obama administration, when there were 3,551 and 4,847 such requests, respectively.
Trump’s New Immigration Rule Could Hurt Obamacare Markets
Governing: If a significant number of legal immigrants forgo health insurance, that could have negative ripple effects on so-called Obamacare premiums and on the health-care system as a whole.
Online trolls are using immigration as a wedge issue for 2018 midterm elections
LA Times: The nation’s volatile immigration debate has amplified online, researchers warned, and foreign operatives and homegrown trolls are using it as a political wedge ahead of the November elections. The report said the online disinformation campaign was likely to grow more sophisticated, with bad actors tailoring their posts, videos and other content to target communities of color — and to hide who is controlling the message.
Citizenship service conspired with ICE to ‘trap’ immigrants at visa interviews, ACLU says
WaPo: According to emails between federal officials unsealed in federal court documents this week, U.S. Citizenship and Immigration Services had been coordinating with ICE to alert the agency when certain immigrants eligible for deportation showed up at the CIS office for routine interviews.
Feds Crack Down on Volunteers Helping Migrants Survive the Arizona Desert
ColorLines: Nine humanitarian volunteers are facing federal charges after leaving water bottles for migrants in the Arizona desert. Colorlines talks to members of No More Deaths about their work and the consequences of their solidarity.
Millions of Frequent Flier Miles Are Donated to Reunite Families Separated at Border
NYT: Miles4Migrants has partnered with donors and aid organizations to reunite dozens of families on an ad hoc, case-by-case basis. The refugees and asylum seekers they helped had international itineraries…
But this week, flush with more than 28 million newly donated frequent flier miles, the organization is thinking about how to tackle the logistics of reuniting families in the United States.
A growing number of California detainees are Indians crossing through Mexico to seek asylum
LA Times: According to immigration officials and attorneys, there has been an increase in recent years of Indian nationals crossing into the U.S. through Mexico — although they represent a small percentage of those detained overall.
Detention Is Not the Solution to Family Separation: 15 Years of Government Data Explain Why
AIC: According to a recent study that analyzed 15 years of government data, detention poses significant barriers to justice for asylum-seeking families. The study’s findings also provide further evidence that detaining families seeking protection is unnecessary, costly, and inhumane.
Assessing the impact of “Secure Communities”, an Obama-era programme revived by Donald Trump
Economist: Launched in the last year of the George W. Bush administration and expanded under President Barack Obama, Secure Communities was axed in 2014 amid protests that it might be unconstitutional and that it discouraged migrants from co-operating with local law enforcement. Two new papers look at the effects of the programme in its earlier incarnation. They find that it succeeded in its stated goal of removing undocumented workers—but it also reduced access to jobs, health care and nutrition for migrants and citizens alike.
Intercept: Over the course of six months, The Intercept interviewed more than 25 people who were adopted by U.S. citizens as children but who remain without citizenship, in some cases well into their 40s and 50s. Some no longer reside in the United States, unable to return because of their legal status. Others live with the constant fear of deportation. The majority live as permanent residents, a nebulous status within American immigration law that can be rescinded if an individual commits a crime that falls within a broad range of nonviolent “aggravated felonies,” including burglary and selling drugs.
On a 2/27/18 Ombudsman’s teleconference, USCIS instructed individuals experiencing problems using “My Case Status” to email myuscissupport@uscis.dhs.gov for assistance. AILA members have reported that USCIS’s website is not recognizing client’s receipt number when entered into the online tool.
LITIGATION/CASELAW/RULES/MEMOS
Intercept: Is there any court, or indeed, any authority at all outside the executive branch, with the power to protect those activists’ First Amendment rights? No. That was the position articulated by Justice Department lawyers on Tuesday before a panel of judges on the 2nd Circuit Court of Appeals in New York City. The hearing was meant to determine whether the court should issue a stay preventing ICE from deporting just such a figure, Ravi Ragbir, executive director of the New Sanctuary Coalition of New York City, before he has a chance to assert his constitutional claim in federal court.
Judge halts mother-daughter deportation, threatens to hold Sessions in contempt
WaPo: federal judge in Washington halted a deportation in progress Thursday and threatened to hold Attorney General Jeff Sessions in contempt after learning that the Trump administration started to remove a woman and her daughter while a court hearing appealing their deportations was underway.
CPI: An August 1 Justice Department filing sought to dismiss CBP and individual officers, but not the U.S government, as defendants. Nevertheless, Lovell’s lawsuit — and 10 others since 2011 reviewed by the Center for Public Integrity — raise timely and unsettling questions about how far border and other immigration officers can go with their considerable power to detain people at the nation’s 328 ports of entry.
State probe finds immigrant teens not currently being abused
AP: A state review into the treatment of immigrant teens held at a Virginia detention center confirmed the facility uses restraint techniques that can include strapping children to chairs and placing mesh bags over their heads…But a top state regulator conceded in an interview that investigators did not attempt to determine whether serious allegations of past abuse at the locally run facility are true.
DOJ employee who heckled immigration chief didn’t violate rules, agency finds
CNN: A Justice Department employee who heckled DHS Secretary Kirstjen Nielsen at a Washington restaurant and criticized the administration’s immigration policy online did not violate rules against political activity by government workers, a watchdog agency found.
An ICE attorney forged a document to deport an immigrant. ICE didn’t care until the immigrant sued.
Slate: The suit finally spurred ICE’s Office of Professional Responsibility to investigate Lanuza’s allegations, which found them credible. In January 2016, prosecutors took action against Love, charging him with deprivation of constitutional rights under color of law. In addition to serving 30 days in jail, he agreed to stop practicing law for 10 years and paid Lanuza $12,000.
District Court Judge Orders Reunification of Parents and Children
In a joint status report on the current status of reunification of families with children ages 5- 17, the government stated that 559 children have not been reunified with their family, including 163 children whose parents are outside the United States. (Ms. L, et al., v. ICE, 8/9/18) AILA Doc. No. 18060800
CA5 Rules That Adequacy of Procedures Under INA §360 Precludes APA Relief
Affirming district court’s dismissals, the court rejects plaintiffs’ APA challenge to the deprivation of their U.S. passports—based on allegedly erroneous conclusions that they are not U.S. citizens—finding that INA §360 establishes an adequate alternative remedy. (Hinojosa v. Horn, 5/8/18) AILA Doc. No. 18081335
BIA Termination Refiling of Same NTA
Unpublished BIA decision upholds IJ decision terminating proceedings for second time because second NTA contained same charge alleged in first NTA and because DHS failed to submit evidence during the first round of proceedings. Special thanks to IRAC. (Matter of Kurremula, 8/10/17) AILA Doc. No. 18081702
BIA Holds Oklahoma Possession with Intent to Distribute Statute Is Not an Aggravated Felony
Unpublished BIA decision holds possession of cocaine with intent to distribute under 63 Okla. Stat. 2-401-2-420 isn’t an aggravated felony as it requires neither unlawful trading or dealing nor knowledge of the substance’s illicit nature. Special thanks to IRAC. (Matter of Gonzalez, 8/14/17) AILA Doc. No. 18081704
BIA Reverses Denial of Motion to Change Venue from Atlanta to Arlington
Unpublished BIA decision reverses denial of motion to change venue from Atlanta to Arlington, noting that the respondent, her attorney, and her witnesses all lived in Virginia. Special thanks to IRAC. (Matter of C-D-L-G-, 7/26/17) AILA Doc. No. 18081502
BIA Holds Florida Arson Statute Is Not a Crime of Violence
Unpublished BIA decision holds that arson under Fla. Stat. 806.01(2) is not a crime of violence under 18 USC §16 because it prohibits the intentional causing of a fire or explosion against one’s own property. Special thanks to IRAC. (Matter of Kotowski, 7/27/17) AILA Doc. No. 18081503
BIA Holds Texas Statute Is Not Sexual Abuse of a Minor
Unpublished BIA decision holds that indecency with a child under Tex. Penal Code 21.11(a)(1) is not sexual abuse of a minor because it criminalizes sexual contact with 16-year-old victims. Special thanks to IRAC. (Matter of C-M-O-G-, 7/31/17) AILA Doc. No. 18081630
BIA Holds Arizona Statute Is Not a Firearms Offense
Unpublished BIA decision holds that misconduct involving weapons under Ariz. Rev. Stat. 13-3102(A)(4) is not a firearms offense because it prohibits possession knives and nunchaku. Special thanks to IRAC. (Matter of R-S-A-, 7/25/17) AILA Doc. No. 18081405
BIA Holds Michigan Assault Statute Is Not Sexual Abuse of a Minor
Unpublished BIA decision holds that assault with intent to commit criminal sexual conduct under Mich. Comp. Laws. 750.520g(1) is not aggravated felony sexual abuse of a minor because the age of the victim is not an element of the offense. Special thanks to IRAC. (Matter of W-P-M-, 7/18/17) AILA Doc. No. 18081404
BIA Holds Virginia Larceny Statute Not a Particularly Serious Crime
Unpublished BIA decision holds that grand larceny from the person under Va. Code Ann. 18.2-95 is not a particularly serious crime on its face, making it unnecessary to examine the underlying circumstances of the offense. Special thanks to IRAC. (Matter of J-J-V-, 7/18/17) AILA Doc. No. 18081300
BIA Finds Reentry As LPR Not an “Admission” Under INA 212(h)
Unpublished BIA decision holds that respondent was not subject to the aggravated felony bar in INA 212(h) because his reentry following a trip abroad did not qualify as an “admission” as an LPR. Special thanks to IRAC. (Matter of Reza, 7/18/16) AILA Doc. No. 18081303
DHS Issues Statement from Press Secretary on July 2018 Border Numbers
DHS issued a statement regarding the July 2018 border migration numbers, stating “DHS is continuing to refer to DOJ single adult illegal border crossers for prosecution at historic rates.” AILA Doc. No. 18081333
EOIR Provides Comparison Chart of In Absentia Rates
EOIR provides a comparison chart of in absentia rates from FY2014 through FY2018 (through 6/30/18). AILA Doc. No. 18081730
Bipartisan Senate Report on UACs Finds Agencies Haven’t Taken Sufficient Responsibility
The Senate Permanent Subcommittee on Investigations issued a report, finding that HHS and DHS have taken steps towards improving the care of UACs, but that they “still do not take sufficient responsibility for guarding their safety and ensuring they appear at their immigration court proceedings.” AILA Doc. No. 18081771
USCIS Performance Data on All Form Types for FY2018
USCIS statistics on all USCIS form types for the first and second quarter of FY2018, broken down by category (family, employment, humanitarian, citizenship and naturalization, and “other”), as well as by case status (received, approved, denied, pending). AILA Doc. No. 18051031
RESOURCES
- New Practice Advisory on Fee Waivers
- CLINIC Fact Sheet: Family Separation for Asylum Seekers
- Litigating Immigration Cases in Federal Court
- Detaining Families: A Study of Asylum Adjudication in Family Detention
EVENTS
- 8/20/18 All About Survivor Derivatives
- 8/23/18 All Rise: A Comedy Show About Law – This month: Immigration. Andrea and JR proudly fight alternative facts with legal fictions as they face off over America’s immigration laws and ask some of New York’s best comedians and legal experts to testify
- 8/28/18 Overcoming Secondary Trauma in Immigration Practice
- 8/29/18 Understanding and Preparing Waivers
- 9/6/18 Asylum Law Updates on Particular Social Groups
- 9/7-9/18 NOVA Frontier Film Festival – showcases films that are centered around the theme of Identity and Immigration, supporting the artistic development of filmmakers of African Descent
- 9/10/18 NYIC 40 Hour Training: Albany
- 9/12/18 Improving Productivity and Time Management
- 9/20-21/18 2018 Federal Court Litigation Conferences: Join Us in Washington, D.C. or Remotely via Webcast
- 9/26/18Representing Children in Immigration Matters 2018: Effective Advocacy and Best Practices
- 10/9/18 Citizenship in an Era of Record Migration and Growing Nationalism
- 10/10/18 Immigrant Women, Labor, and the Quest for Gender Justice
11/26-28/18 CLINIC & NITA “Advocacy in Immigration Matters”
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Wow! Sessions’s overt contempt for the Federal Judiciary continues to astonish! Perhaps that’s one of the reasons why he loses so many cases in the Federal Courts, even though the deck is generally stacked in favor of the Government because of judicial “deference” to agency interpretations.
Sorry, Jeff, but just because there are “three equal branches of government,” does it mean they exercise equal authority in all situations. To the contrary, the role of the Federal Courts is to insure that the laws enacted by Congress are Constitutional and that the Executive acts within the laws and the Constitution. That’s basic Marbury v. Madison.
Time and time again, the Article IIIs have found that Trump and Sessions are misusing their statutory authority and violating the Constitution with their immigration actions. Even the “vindication” in Trump v. Hawaii came only after plaintiffs and lower Federal Courts had forced the Administration to narrow the scope of the Executive Orders (twice) to make them at least arguably legal, according to a narrow majority of the Supremes.
Even recent Trump appointee, Justice Neil Gorsuch, hardly known as a civil libertarian, sounded like a bastion of moderation, common sense, humanity, and Constitutional scholarship by comparison with Sessions “over the top” chastisement of the judiciary:
“I think that the right to have an independent judge tell you what the law is, no matter who you are, is one of the great liberties and genius of the constitutional design,” Gorsuch said. “It’s something that’s very real today for the immigrant, the criminal defendant, the unpopular, the minority.”
The most telling comment was delivered by community organizer Matthew Covington who said quite accurately: “Sessions has not been kind to any marginalized group and has actively undermined voting rights.” What a sad commentary on a man who violates his oath of office to uphold the Constitution and protect the rights of everyone in America (not just Trump’s White Nationalist base) every day he is in office.
PWS
08-22-18