THE GIBSON REPORT 02-04-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
TOP UPDATES
USCIS Processing Delays Have Reached Crisis Levels Under the Trump Administration
AILA’s analysis of USCIS data reveals crisis-level delays in its processing of applications and petitions for immigration benefits under the Trump administration. This brief examines how current USCIS policies lengthen the delays and what steps USCIS and Congress can take to remedy this crisis. AILA Doc. No. 19012834
ICE told hundreds of immigrants to show up to court Thursday — for many, those hearings are fake
CBS: ICE is required to include court dates with court notices, per a Supreme Court decision last summer, but most don’t actually reflect scheduled hearings. The American Immigration Lawyers Association issued a “practice alert” on Tuesday evening, warning members “the next upcoming date on NTAs that appears to be fake is this Thursday.”
Immigration Court Backlog Surpasses One Million Cases
TRAC: The Immigration Court backlog has jumped by 225,846 cases since the end of January 2017 when President Trump took office. This represents an overall growth rate of 49 percent since the beginning of FY 2017.
Retired judge: Shut down this immigrant detention center
Houston Chronicle: Lumpkin has fewer than 1,200 locals plus up to 1,900 men delivered by U.S. Immigration and Customs Enforcement to Stewart from across the country, including Texas. The town has just one private immigration lawyer.
Prisons Across The U.S. Are Quietly Building Databases Of Incarcerated People’s Voice Prints
Intercept: In New York and other states across the country, authorities are acquiring technology to extract and digitize the voices of incarcerated people into unique biometric signatures, known as voice prints. Prison authorities have quietly enrolled hundreds of thousands of incarcerated people’s voice prints into large-scale biometric databases. Computer algorithms then draw on these databases to identify the voices taking part in a call and to search for other calls in which the voices of interest are detected. Some programs, like New York’s, even analyze the voices of call recipients outside prisons to track which outsiders speak to multiple prisoners regularly.
Immigrant rights attorneys and journalists denied entry into Mexico
LA Times: Two U.S. immigrant rights attorneys and two journalists who have worked closely with members of a migrant caravan in Tijuana said they had been denied entry into Mexico in recent days after their passports were flagged with alerts by an unknown government.
Migrants Say They Pay For Inclusion On ‘La Lista’ To Make Border Crossing
Appeal: Migrants near Brownsville, Texas say that if they don’t bribe Mexican officials they’re stuck at the bottom of a list of people seeking refuge in the U.S. via international bridges
‘A watershed moment’: Trump faces crossroads amid mounting threats on all sides
WaPo: Senate Republicans also are overwhelmingly resistant to declaring a national emergency, according to two senior GOP aides. Senate Majority Leader Mitch McConnell (R-Ky.) privately cautioned Trump last week that doing so could divide the GOP and told the president that Congress might pass a resolution disapproving an emergency declaration.
ICE Failed to Hold Detention Center Contractors Accountable, Report Finds
NPR: The report detailed several of the most egregious cases, including contractors failing to notify ICE of sexual assaults and employee misconduct, using tear gas instead of approved pepper spray, and commingling detainees with serious criminal histories with those who might be at risk of sexual assault.
India Protests U.S. Detention of Students in Fake-University Sting
NYT: The American authorities said this past week that they had indicted eight people accused of exploiting the country’s student visa system. They were said to have helped foreign nationals illegally remain in the United States by enrolling them into the University of Farmington in Farmington Hills, Mich., which billed itself as a “nationally accredited business and STEM institution” with an innovative curriculum, flexible class schedules and a diverse student body. But the private university was being secretly operated by agents of the Department of Homeland Security to expose immigration fraud, according to federal prosecutors who announced charges in the case.
USCIS: The indictments charge operators and clients of three “maternity house” or “birthing house” schemes that were dismantled in March 2015 when federal agents executed 35 search warrants, which resulted from international undercover operations.
Deseret News: In 2012, Saavedra and Martinez, two young adults in their early 20s, decided to turn themselves in to authorities to get inside the Broward Transitional Center, a for-profit immigration detention facility in Florida that houses 600 men and 100 women.
ICE confirms it is force-feeding detainees on hunger strike
WaPo: Immigration and Customs Enforcement officials have confirmed they are force-feeding nine detainees who initiated a hunger strike at an El Paso detention center.
The Travel Ban at Two: Rocky Implementation Settles into Deeper Impacts
MPI: Monthly immigrant visa issuances to nationals of Iran, Libya, Somalia, Syria, and Yemen were down an average of 72 percent between FY 2017 and 2018 (see Figure 1).
OCA Mulls Rule Requiring Judicial Warrants for ICE Arrests in NY Courts
NY Law Journal: The Office of Court Administration, which oversees New York state courts, is considering making a rule that would prohibit federal immigration officers from arresting undocumented immigrants in state courthouses without a warrant signed by a federal judge.
Government Quietly Increases ICE Detention to 48,000 Beds During the Shutdown
AIC: ICE drastically expanded its network of immigration jails in the last month by a startling 7 percent.
LITIGATION/CASELAW/RULES/MEMOS
Defense Department engaged in illegal discrimination against some soldiers, district court finds
ABA: A Seattle federal district court ruled Thursday that the federal government illegally discriminated against naturalized U.S. citizens in the U.S. Army by requiring security checks on them every two years, without individualized suspicion.
The Acting AG referred a BIA decision to himself for review whether an individual may establish persecution on account of membership in a “particular social group” based on membership in a family unit. Amicus briefs are due by 2/25/19. Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018) AILA Doc. No. 18120432
The Acting AG to review cancellation of removal eligibility and the impact of multiple convictions for driving while intoxicated or driving under the influence with regards to “good moral character.” Amicus briefs due by 2/25/19. Matter of Castillo-Perez, 27 I&N Dec. 495 (A.G. 2018) AILA Doc. No. 18120437
BIA Terminates Proceedings Over DHS Opposition Following Approval of U Visa
Unpublished BIA decision reopens and terminates proceedings sua sponte over DHS opposition following approval of respondent’s application for U nonimmigrant status. Special thanks to IRAC. (Matter of Singh, 1/18/18) AILA Doc. No. 19012838
BIA Orders Further Consideration of Request for Continuance for U Visa Applicant
Unpublished BIA decision remands for further consideration of request for continuance pending U visa application adjudication where respondent was no longer detained and IJ didn’t consider likelihood application would be granted. Special thanks to IRAC. (Matter of Munoz-Pocasangre, 1/19/18) AILA Doc. No. 19012841
BIA Rescinds In Absentia Order Because NTA Did Not Specify Immigration Court
Unpublished BIA decision rescinds in absentia order because NTA did not specify the particular immigration court at which the respondent was required to appear. Special thanks to IRAC. (Matter of Ramos, 2/9/18) AILA Doc. No. 19020434
BIA Vacates Bond Decision Based on Allegations in Police Report
Unpublished BIA decision reverses IJ determination that respondent was danger to community, stating that it accords little weight to conduct described in police documents that is neither prosecuted criminally nor independently corroborated. Special thanks to IRAC. (Matter of A-B-L-, 1/23/18) AILA Doc. No. 19012940
BIA Finds DHS Failed to Properly Authenticate Form I-213
Unpublished BIA decision vacates finding that respondent was present without being admitted or paroled because DHS failed to properly authenticate the Form I-213 used to establish alienage. Special thanks to IRAC. (Matter of Reyes, 1/26/18) AILA Doc. No. 19013033
BIA Finds Respondent Did Not Knowingly Waive Appeal
Unpublished BIA decision finds respondent did not knowingly waive right to appeal because IJ did not warn him failing to appeal would constitute an irrevocable waiver of the right. Special thanks to IRAC. (Matter of Chaudhary, 1/18/18) AILA Doc. No. 19012839
BIA Finds LPR Who Involuntarily Reentered U.S. Without Inspection Was Not Seeking Admission
Unpublished BIA decision holds that returning LPR was not properly regarded as an applicant for admission because he was fleeing for his life from a drug cartel in Mexico when he illegally reentered the country. Special thanks to IRAC. (Matter of I-C-B-, 1/25/18)
BIA Holds Utah Sexual Battery Not a CIMT
Unpublished BIA decision holds that sexual battery under Utah Code section 76-9-702(3) is not a CIMT because it is a general intent offense for which no harm or evil intent is required. Special thanks to IRAC. (Matter of V-C-, 1/24/18) AILA Doc. No. 19013031
BIA Equitably Tolls Motion to Reopen Deadline
Unpublished BIA decision equitably tolls deadline for motion to reopen where respondent was suffering from undiagnosed medical condition while in detention and was unable to obtain record from immigration court. Special thanks to IRAC. (Matter of A-A-B-, 1/22/18) AILA Doc. No. 19012939
BIA Remands for Testimony on Amount of Loss to Victims of Fraud
Unpublished BIA decision holds that IJ should have permitted respondent to testify regarding amount of loss to the victims before finding that he had been convicted of an aggravated felony under INA §101(a)(43)(M)(i). Special thanks to IRAC. (Matter of Mena, 2/7/18) AILA Doc. No. 19020103
BIA Rescinds In Absentia Order Against Respondent Who Recently Gave Birth
Unpublished BIA decision rescinds in absentia order upon finding that respondent giving birth via caesarean section 10 days prior constituted exceptional circumstances for her failure to appear. Special thanks to IRAC. (Matter of Valencia Barragan, 2/5/18) AILA Doc. No. 19020102
BIA Vacates Denial of Bond Hearing to Respondent Mistakenly Designated as Arriving Alien
Unpublished BIA decision reversed determination that IJ lacked jurisdiction over bond hearing where respondent was apprehended after entering country and was mistakenly designated an arriving alien on the NTA. Special thanks to IRAC. (Matter of A-M-Y-, 2/2/18) AILA Doc. No. 19013140
BIA Finds Failure to Meet Filing Deadline Constitutes Ineffective Assistance On Its Face
Unpublished BIA decision holds that prior attorney’s failure to submit application by court-imposed deadline was ineffective assistance on its face, reopening proceedings despite failure to comply with Matter of Lozada. Special thanks to IRAC. (Matter of Cortes-Reyes, 1/26/18) AILA Doc. No. 19013139
BIA Reopens and Terminates Proceedings Sua Sponte Following Reduction in Drug Sentence
Unpublished BIA decision reopens and terminates proceedings sua sponte following reduction of respondent’s sentence for possession of cocaine to simple drug misdemeanor under Cal. Penal Code 1170.18(G). Special thanks to IRAC. (Matter of Gonzalez, 2/2/18) AILA Doc. No. 19020100
BIA Finds Terrorizing Statute Not a CIMT
Unpublished BIA decision holds that terrorizing under Guam Code Ann. 19.60(a) is not a CIMT because the victim is not required to actually experience fear. Special thanks to IRAC. (Matter of Eidaro, 1/19/18) AILA Doc. No. 19012938
The court affirmed USCIS adjustment denial and its finding that MeK and Fek between 1979 and 1981 were Iranian terrorist organizations and that copying and distributing flyers was material in that it was both “relevant” and “significant” to terrorism. (Hosseini v. Nielsen, 12/19/18) AILA Doc. No. 19012833
The court found that in citing a valid statutory basis and offering a factual predicate, a consular officer’s visa rejection was facially legitimate and bona fide; it also held that plaintiffs made no affirmative showing that officer acted in bad faith. (Yafai v. Pompeo, 1/4/19) AILA Doc. No. 19012901
CA9 Panel Issued Amended Decision on “Crime of Domestic Violence” Conviction
The court issued an amended decision, where the panel concluded that a class one misdemeanor domestic violence assault under Arizona Revised Statutes §§ 13-1203 and 13-3601 conviction was a “crime of domestic violence” under 8 USC §1227(a)(2)(E). (Cornejo-Villagrana v. Whitaker, 12/27/18) AILA Doc. No. 19012836
The court found that the BIA correctly determined that the Travel Act is divisible and that petitioner was removable based on his conviction for a controlled substance offense and remanded for consideration of the claim for cancellation of removal. (Myers v. Sessions, 9/25/18)
CA9 Denies Petition for Review Citing Bermudez-Cota After NTA Didn’t Specify Time/Date
The court denied petitioner’s petition for review, holding that a NTA that does not specify the time/date vests an IJ with jurisdiction over the removal proceedings, so long as a notice specifying this information is sent to the individual in a timely manner. (Karingithi v. Whitaker, 1/28/19) AILA Doc. No. 19012972
The court held the BIA did not commit any of the raised legal errors related to In re: Leal and Leal v. Holder by concluding that the petitioner’s conviction for reckless engagement was a crime involving moral turpitude. (Olivas-Motta v. Whitaker, 12/19/18) AILA Doc. No. 19012933
Ohio Attorneys Sue ICE Alleging Public, Humanitarian, and Bioethical Abuse
Attorneys David Malik and Anna Markovich submitted a FOIA request asking ICE for information about the people who have been deported, ICE’s policies related to racial and ethnic profiling, and ICE’s process for determining which individuals to deport. (Malik v. ICE, 1/9/19 AILA Doc. No. 19012832
USCIS Announces Online Case Status Feature for Asylum Applicants
USCIS announced that applicants who have a pending affirmative asylum application with USCIS can now check the status of their applications online at uscis.gov/casestatus. It will not cover defensive asylum applicants whose cases are pending in immigration court. AILA Doc. No. 19012804
DHS OIG’s report found ICE doesn’t adequately hold detention facility contractors accountable to performance standards and issues waivers seeking to exempt them from complying with certain standards instead of applying financial penalties for deficient conditions. AILA Doc. No. 19020104
DHS Releases Policy Guidance for Implementation of the Migrant Protection Protocols
CBP Releases Guidance on Migrant Protection Protocols
EOIR Releases Addendum to LOP Cohort Analysis of Phase I: Detention Length with DHS Data
EOIR Releases Phase II Analysis of Its Legal Orientation Program Cohort
Announcements of ICE Enforcement Actions
ICE reports that it arrested 118 during a five-day period, from January 14-18, 2019, in New York City, Long Island, and the Hudson Valley. AILA Doc. No. 17041232
HHS Annual Update of Poverty Guidelines for 2019
Health and Human Services (HHS) notice providing the annual update of the HHS poverty guidelines to account for last calendar year’s increase in prices as measured by the Consumer Price Index, effective 1/11/19. (84 FR 1167, 2/1/19) AILA Doc. No. 19020107
Applicants Can Now Request Certificates of Citizenship Online
U.S. Citizenship and Immigration Services (USCIS) announced today that applicants can now complete and file Form N-600, Application for Certificate of Citizenship, and Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322 online.
RESOURCES
· IDP is releasing a new practice advisory and issue-spotting checklist addressing conviction finality issues in light of the Board of Immigration Appeals’ August 2018 decision in Matter of J.M. Acosta.
· Practice Alert: DHS Issuing NTAs with Fake Times and Dates
· Practice Alert: Long-Pending I-765 and I-131 Applications at the NBC
· AILA’s Administrative Litigation Task Force Provides Litigation Briefings
· Ethical Considerations in Declining Representation
· Zero Protection: How U.S. Border Enforcement Harms Migrant Safety and Health
· Matter of A-B-: Case Updates, Current Trends, and Suggested Strategies
· Stopping Immigration Services Scams: A Tool for Advocates and Lawmakers
· Filing DACA Applications in the Wake of Federal Court Rulings
· Central Americans were Increasingly Winning Asylum Before President Trump Took Office
EVENTS
- 2/4/19 AILA CLE: Local Agency Practices In NY, NJ, & CT
- 2/5/19 Developments in Waivers: The I-601A, Removal Proceedings, and Beyond
- 2/6/19 Matter of A-B-: Case Updates, Current Trends, and Suggested Strategies
- 2/7/19 Basic Immigration Law 2019: Business, Family, Naturalization and Related Areas
- 2/8/19 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2019
- 2/12/19 I-751 Petitions: How to Handle Delays and Changes in Circumstances
- 2/26/19 Naturalization Challenges and Strategies in the Trump Era
- 3/8/19 Asylum & Immigration Conference with the Federal Bar Association at NY Law School
- 3/12/19 AILA Spring Federal Court Litigation Conference
- 8/4/19 Legal, Cultural, & Historical Approach to Understanding the Complex and Controversial Issue Dominating Our National Dialogue
ImmProf
Monday, February 4, 2019
· Shoba Wadhia on the Two Year Anniversary of the Travel Ban
Sunday, February 3, 2019
· Race in Our Politics: A Catalog of Campaign Materials — Immigration as a Racial Dog Whistle
· University of Farmington? ICE set up a fake university. Hundreds enrolled.
· The Travel Ban at Two: Rocky Implementation
· Immigrants from New Origin Countries in the United States
· “U.S.” Rapper Facing Removal
· Federal prosecutors unseal indictments naming 19 people linked to Chinese ‘birth tourism’ schemes
· Super Sunday: DHS Fights Super Scammers
· At the Movies: The Invisibles
Saturday, February 2, 2019
· Amanda Frost: The revival of denaturalisation under the Trump administration
· Trump’s Former Undocumented Housekeeper to Join Congressman as State of the Union Guest
Friday, February 1, 2019
Thursday, January 31, 2019
· Detained Migrants Being Force Fed
· Alleged Illegal Voters in Texas are Actually Citizens
· Immigration Article of the Day: Health Justice for Immigrants by Medha D. Makhlouf
· No-Stop Religious Services to Avoid Deportation in the Netherlands
· Symposium: Immigration in the Trump Era, Southwestern Law School
Wednesday, January 30, 2019
· Border Fencing To Prevent Another Kind of Migration Altogether
· When Spouse’s Freedom Depends on ICE Agent’s Discretion
· U.S. Government Shutdown Worsens Immigration Court Backlog
· How immigration could help a shrinking American labor force
· Immigration and Civil Rights in an Era of Trump by Kevin R. Johnson
Tuesday, January 29, 2019
· Border Patrol Openings Hard to Fill
· Call For Papers: Emerging Immprofs @ BYU June 7 & 8
Monday, January 28, 2019
· Desert X: Roadtripping for Large-Scale Immigration Art
· Message to Italy: Allow Minors to Land
If you would like to be added to the Weekly Briefing distribution list, please email egibson@nylag.org.
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Check out Elizabeth’s first four items showing how Trump’s “malicious incompetence” is destroying the U.S. immigration system and harming people in a variety of ways.
PWS
02-05-19