TOP UPDATES
USCIS to Begin Implementing New Policy Memorandum on Notices to Appear
USCIS: USCIS will take an incremental approach to implement this memo… The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.
Proposed I-912 Fee Waiver Form Revision
USCIS: USCIS is proposing to revise our Form I-912, Request for Fee Waiver, to remove the receipt of means-tested benefits from the eligibility criteria… Eligibility for these benefits can vary from state to state, depending on the state’s income level guidelines. As a result, individuals who would not otherwise qualify under the poverty-guideline threshold and financial hardship criteria have been granted fee waivers by USCIS.
EOIR Announces Largest Ever Immigration Judge Investiture
DOJ: The Executive Office for Immigration Review (EOIR) announces the investiture of 46 immigration judges, including two assistant chief immigration judges, marking for the second month in a row the largest class in the agency’s history. IJ bios here.
- Samuel M. Factor, Immigration Judge, New York City Immigration Court
- Brian T. Palmer, Immigration Judge, New York Immigration Court
- Oshea Denise Spencer, Immigration Judge, New York City Immigration Court
AILA, CLINIC, and NILC Provides Update on FAM Changes to Public Charge
AILA, CLINIC, and NILC provided a summary of issues discussed during a 9/12/18 telephonic call with representatives from DOS concerning FAM changes and consulates’ public charge determinations and associated Form I-601A revocations. AILA Doc. No. 18092632
Which Immigration Cases Will the Supreme Court Hear This Term?
AIC: Although only one immigration case is currently scheduled to be heard, challenges to President Trump’s immigration policies will likely end up in front of the Court by the end of the term.
Policy Brief: S. 3478 Would Codify Cruelty Against Arriving Children
In this policy brief, AILA expresses its opposition to S. 3478, which would eviscerate long-standing legal standards and protections for immigrant children and families seeking asylum who arrive at the U.S. border. AILA Doc. No. 18092500
Tracking Over 2 Million ICE Arrests: A First Look
TRAC: Historically, the vast majority of ICE arrests occur when the agency assumes custody of immigrants from another law enforcement agency. Since Trump assumed office, roughly three out of four ICE arrests were what ICE refers to as “custodial” arrests…The remaining one-quarter (25%) were individuals arrested at their home, place of work, or elsewhere in the wider community including at courthouses or at DHS offices when the immigrant had appeared for an appointment.
New Immigration Policy Gives USCIS Adjudicators Full Discretion to Deny Cases Without Issuing RFE
AILA member Taymoor Pilhevar discusses USCIS’s policy memorandum issued on 7/13/18 on the rescission of the standing policy that RFEs and NOIDs must be issued before a denial is issued. AILA Doc. No. 18092730
Dozens of Doctors Who Screen Immigrants Have Record of ‘Egregious Infractions,’ Report Says
NYT: The report looked at more than 5,500 doctors across the country used by United States Citizenship and Immigration Services as of June 2017 to examine those seeking green cards. More than 130 had some background of wrongdoing, including one who sexually exploited female patients and another who tried to have a dissatisfied patient killed, the report said.
In the Face of a Shutdown, Trump and Congress Delay Border Wall Fight Until December
AIC: This continuing resolution sets up a potential major battle over immigration enforcement, border wall funding, and other immigration issues—which could all come to a head in the face of a December government shutdown.
WaPo: Boase was placed in removal proceedings last month, roughly a year after he admitted during his citizenship interview with U.S. Citizenship and Immigration Services that, yes, he once registered to vote, and yes, he once cast a vote.
LITIGATION/CASELAW/RULES/MEMOS
The plaintiffs filed a class action suit and motion for preliminary injunction to force the government to preserve TPS for more than 200,000 individuals, stating that TPS terminations was unconstitutional and violated the Administrative Procedure Act. (Ramos et al. v. Nielsen et al, 3/12/18) AILA Doc. No. 18092833
CA9 Holds CBP Officer Is Not Entitled to Qualified Immunity and Holds BivensCan Be Extended
The court held that, taking the facts as alleged in the complaint, CBP officer is not entitled to qualified immunity due to violation of clearly established unreasonable seizure, and can be subject to a Bivens claim by mother of the deceased. (Rodriguez v. Swartz, 8/7/18) AILA Doc. No. 18092534
The court held BIA erred in concluding OR witness tampering statute was categorically CIMT and that statute was not divisible; under modified categorical approach, court found statute was divisible and applicable subsection also not categorically CIMT. (Vasquez-Valle v. Sessions, 8/10/18) AILA Doc. No. 18092536
C.D. Cal. Grant Injunctive and Declaratory Relief Pursuant to FloresSettlement
Plaintiffs seek class certification to have ORR policies/practices be declared unlawful and to enjoin due process violations in evaluating fitness of custodians, placement in secure facilities, administering psychotropic drugs, and lack of access to counsel. (Lucas R. v. Azar, 6/29/18) AILA Doc. No. 18092670
The court granted class certification to putative class of 1900 individuals subject to an October 2017 ICE policy of re-detention without notice or individual analysis to determine necessity of re-detention; class seeks injunctive and declaratory relief. (Chhoeun v. Marin, 8/14/18) AILA Doc. No. 18092537
Complaint alleges unreasonable delay of naturalization application that was part of DOD’s MANVI program; seeks mandamus compelling government action. Lack of adjudication within normal processing times and under policies to expedite military applications violate APA. (Sea v. DHS, 7/19/18) AILA Doc. No. 18092701
The court found that despite a timely delivery to hearing due to being in custody, defendant was deprived of proper notice because NTA failed to state time and date of hearing; IJ, thus, had no jurisdiction to enter deportation order. (U.S. v. Virgen-Ponce, 7/26/18) AILA Doc. No. 18092731
The court held that revocation of green card/LPR status as void ab initio outside of INA’s five-year rescission period without a hearing was a due process violation and an agency action “not in accordance with law”; ordered status reinstated until hearing complete. (Lai v. U.S., 7/17/18) AILA Doc. No. 18092702
The court held that detention and attempted deportation of petitioner while he pursued a provisional unlawful presence waiver violated the APA and Fifth Amendment. Formal opinion forthcoming. (Martinez v. Nielsen, 8/3/18) AILA Doc. No. 18092601
The court held USCIS did not properly interpret “intention” in 8 USC §1481(a), stating that a USC’s potential inability to leave and be admitted elsewhere did not mean USC lacked “intention” to relinquish nationality under the domestic-renunciation provision. (Kaufman v. Nielsen, 7/20/18) AILA Doc. No. 18092602
DHS OIG Finds USCIS’s Medical Admissibility Screening Process Needs Improvement
DHS OIG found that USCIS has inadequate controls for verifying that foreign nationals seeking LPR status met health-related standards for admissibility. DHS OIG made recommendations that, when implemented, will improve USCIS selection and oversight of physicians and its review of medical forms. AILA Doc. No. 18092573
USCIS Issues Policy Alert on Special Naturalization Provisions for Children
USCIS issued a policy alert updating the USCIS Policy Manual with guidance to clarify certain special naturalization provisions for children. This guidance is effective 9/26/18, and is controlling and supersedes any prior guidance. Comments are due by 10/9/18. AILA Doc. No. 18092605
On 9/26/18, members of the House and Senate sent a letter to the Department of Homeland Security’s Acting Inspector General, urging for an investigation of allegations of coercion and abuse by DHS officers against immigrant parents separated from their children at the border. AILA Doc. No. 18092633
RESOURCES
- An Attorney’s Ethical and Legal Obligations to Pereira-Affected Clients
- UC Hastings CGRS Announces Launch of New Expert Witness Database
- Practice Pointer: Submitting an Attorney Change of Address
- NYIC on Public Charge
- The Surgery Center for Female Genital Mutilation: The Surgery Center for FGM is the nation’s first and only non-profit center for treatment of FGM. Our efforts are funded completely by donations and grants which allow us to provide our services at no cost to the patient. We specialize in reversal of FGM by reconstructing the genitalia surgically. Our Center also offers psychological counselling and educational training for medical personnel.
EVENTS
- 10/1/18 MPI: Immigration Law & Policy Conference
- 10/2/18Bronx DV Roundtable Immigration Symposium
- 10/4/18 Department of Justice Recognition and Accreditation & Immigration Legal Services for Abused Immigrants
- 10/2/18-11/13/18 Introduction to Immigration Law Practice: A Course for New Practitioners
- 10/5/18 DACA Conference at New York City Bar Association
- 10/9/18 Citizenship in an Era of Record Migration and Growing Nationalism
- 10/9/18Stress Testing International Refugee Law: A Time of Gulag Archipelagos, Moats, and Walls
- 10/10/18 National Context: The Legal Fights over Sanctuary Policies
- 10/10/18 Immigrant Women, Labor, and the Quest for Gender Justice
- 10/13/18 The Economics and Ethics of Immigration
- 10/17/18Lives in the Balance: Eviscerating Asylum Protection for Victims of Gender Violence
- 10/18/18Temporary Protected Status Beneficiaries: What’s Next?
- 10/26/18 A Nation of Immigrants? 50 Years of the New Immigration
- 11/26-28/18 CLINIC & NITA “Advocacy in Immigration Matters”
- 2/8/19 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2019
ImmProf
Monday, October 1, 2018
Sunday, September 30, 2018
Saturday, September 29, 2018
- From the Bookshelves: Patriot Number One: American Dreams in Chinatown by Lauren Hilgers
- Backlog of Pending Cases in Immigration Courts as of August 2018
- Immigration Article of the Day: Invoking Common Law Defenses in Immigration Cases by Fatma Marouf
- U.S. Government Targets Asylum Mills’ Clients
Friday, September 28, 2018
- Immigration Article of the Day: State Anti-Sanctuary & Immigration Localism by Pratheepan Gulasekaram, Rick Su, and Rose Cuison Villazor
- Former owner and manager of Long Island catering hall pleads guilty to forced labor charges
- Trump’s latest immigration proposal is a looming public health crisis
Thursday, September 27, 2018
Wednesday, September 26, 2018
Tuesday, September 25, 2018
- Susan Akram: The Trump administration is trying to reduce the number of Palestinian refugees, here’s why it won’t work
- Editorial Cartoon by Matt Davies
- At the Movies: Letters from Our Elders
Monday, September 24, 2018
- Viet Thanh Nguyen on “Good” and “Bad” Immigrants, Race, Storytelling and Activism
- From the Bookshelves: Sarah Song, Immigration and Democracy
- Call for Papers – “Border Myths” Symposium Issue
AILA NEWS UPDATE
http://www.aila.org/advo-media/news/clips
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Thanks, Elizabeth!
Check out the “Litigation Section” to see how “real” Article III Courts continue to reject the legal arguments pushed by the Sessions DOJ.
Perhaps the “sleeper” here is US v. Virgen-Ponce, ED WA. The District Judge rejected the BIA’s position in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) that a “Notice to Appear” that fails to specify the actual time, date, and place of hearing is sufficient to vest jurisdiction with an Immigration Judge. The “boneheaded” position taken by the BIA and DHS under Sessions (rejecting the Supreme Court’s interpretation) could, if rejected by more Article III Courts and ultimately the Supremes, invalidate most of the 760,000 cases now pending in Immigration Court! Read my colleague Judge Jeffrey Chase’s outstanding blog about the BIA’s “dereliction of duty” in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) http://immigrationcourtside.com/2018/09/02/hon-jeffrey-chase-on-how-the-bia-blew-off-the-supremes-matter-of-bermudez-cota-27-in-dec-441-bia-2018-is-the-bia-risking-docket-disaster-to/
While this is only one District Court, the legal argument is being pursued across the country. This could potentially effectively “invalidate” the entire Immigration Court System. Given the toxic, lawless actions of AG Jeff Sessions, a “complete restart” under a neutral and competent court-appointed “Special Master” could be the country’s only salvation until Congress establishes an independent Immigration Court that actually complies with our Constitution.
Given such a chance at restart, probably 60% -75% of today’s Immigration Court docket could be left off docket pending a rational legalization program of some type.
With a remaining docket of 200,000 to 350,000 cases that actually need to be litigated, and a more disciplined and professional DHS that respects court time and follows the same type of prosecutorial discretion guidelines as almost every other law enforcement agency in America, an independent Immigration Court with today’s number of Immigration Judges could actually maintain an ideal 6-18 month “decision cycle” without building new backlog, and most importantly, without denying Due Process or fundamental fairness to anyone. It actually could fulfill it’s once-stated (but forgotten under Bush and Obama and then trashed by Sessions) vision of “being the world’s best tribunals, guaranteeing fairness and Due Process for all.”
What a difference honest, rational administration that actually encouraged compliance with the laws (including asylum and other protection laws) and our Constitution, instead of mocking and violating them, could make!
PWS
10-01-18