THE GIBSON REPORT: 05-06-19 — Prepared By Elizabeth Gibson, Esquire, NY Legal Assistance Group

TOP UPDATES

 

Trump Calls For Asylum-Seekers To Pay Fees, Proposing New Restrictions

NPR: In the memo, Trump said he is giving Attorney General William Barr and acting Homeland Security Secretary Kevin McAleenan 90 days to propose new regulations to speed up the processing of asylum claims, charge application fees for those seeking asylum, and to bar work authorization for certain applicants. See also Asylum seekers leave everything behind. There’s no way they can pay Trump’s fee.

 

White House asks Congress for $4.5 billion in emergency spending at border

WaPo: The request includes $3.3 billion for humanitarian assistance and $1.1 billion for border operations, and it represents a dramatic escalation of the administration’s efforts to address the situation at the border.

 

Trump administration to give Border Patrol agents authority to decide asylum claims on the spot

Wa Examiner: The Department of Homeland Security is racing to implement a plan that would give federal law enforcement on the border the authority to conduct interviews with asylum seekers who fear returning to their home countries, according to two sources with firsthand knowledge of the plan.

 

Civil servants say they’re being used as pawns in a dangerous asylum program

Vox: Asylum officers have raised concerns with their union. Vox spoke with several of them in their capacity as union members, in meetings facilitated and attended by the head of the union representing immigration officers in US Citizenship and Immigration Services, about how the new procedures have changed their jobs.

 

Emails show Trump admin had ‘no way to link’ separated migrant children to parents

NBC: On the same day the Trump administration said it would reunite thousands of migrant families it had separated at the border with the help of a “central database,” an official was admitting privately the government only had enough information to reconnect 60 parents with their kids, according to emails obtained by NBC News. See also Homeland Security Used A Private Intelligence Firm To Monitor Family Separation Protests.

 

Bodies In The Borderlands

Intercept: Scott Warren Worked to Prevent Migrant Deaths in the Arizona Desert. The Government Wants Him in Prison.

 

John Kelly joins board of company operating largest shelter for unaccompanied migrant children

CBS: Caliburn is the parent company of Comprehensive Health Services, which operates Homestead and three other shelters for unaccompanied migrant children in Texas. Prior to joining the Trump administration in January 2017, Kelly had been on the board of advisors of DC Capital Partners, an investment firm that now owns Caliburn.

 

Kushner’s immigration plan has skeptics lining up on both sides

CNN: For months, President Donald Trump’s son-in-law and senior adviser has been chipping away at a plan to overhaul the country’s immigration system, seizing an issue that’s otherwise belonged at the White House to senior adviser and immigration hardliner Stephen Miller.

 

ICE Reallocates Resources to Investigate Use of Fraudulent Documents at Southwest Border

ICE announced the reallocating resources to investigate the use of fraudulent documents to “create fake families seeking to exploit U.S. immigration laws.” During April 2019, HSI conducted about 100 family unit interviews and have found evidence of fraud in “more than a quarter of cases.” AILA Doc. No. 19050232

 

Administration Backs Plan for More Visas for Seasonal Workers

WSJ: The Trump administration is moving ahead to allow an additional 30,000 seasonal workers to return to the U.S. this summer, a higher-than-expected number that reflects internal tensions in the White House’s approach to legal immigration.

 

Trump Names Mark Morgan, Former Head of Border Patrol, to Lead ICE

WaPo: President Trump on Sunday named a former Obama administration official who has embraced some of Mr. Trump’s hard-line positions on border security as the head of Immigration and Customs Enforcement, part of a broad effort to force federal agencies into a more aggressive crackdown on migrants.

 

Trump says the border crisis is about criminals and gangs. His administration says it is about families and children.

WaPo: The sharp dichotomy between the president’s rhetoric and the tone of his aides reflects how they are waging a battle on separate fronts — one political and the other operational — as the administration struggles to deal with a mounting humanitarian crisis at the U.S. border with Mexico.

 

Why is Mexican migration slowing while Guatemalan and Honduran migration is surging?

WaPo: Migration from Mexico has dropped 90 percent over the past 20 years; this year, for the first time ever, Guatemala and Honduras are on pace to surpass it as the leading sources of illegal immigration to the United States.

 

Terrorism, immigration efforts hampered by Homeland Security vacancies

WaPo: Just 47 percent of key department slots are filled with confirmed appointees, according to the Political Appointee Tracker published by The Washington Post and the Partnership for Public Service. Only Interior is worse, at 41 percent, among Cabinet-level agencies.

 

Push for driver’s licenses for undocumented immigrants intensifies at Capitol

Buffalo News: Twelve states, along with the District of Columbia and Puerto Rico, permit undocumented immigrants to get licenses. They do so, however, in vastly different ways, from two-tiered systems in some cases to making it be only used for driving and not, for instance, as identification to get into federal buildings.

 

We Got U.S. Border Officials to Testify Under Oath. Here’s What We Found Out.

ACLU: The information we uncovered through our lawsuit shows that CBP and ICE are asserting near-unfettered authority to search and seize travelers’ devices at the border, for purposes far afield from the enforcement of immigration and customs laws.

 

LITIGATION/CASELAW/RULES/MEMOS

 

No More Filing Window at OPLA-NYC

DHS: Please be advised that the Office of the Principal Legal Advisor New York City (OPLA-NYC)  will permanently close the reception window at 26 Federal Plaza effective Monday, June 3, 2019.  Starting on that date, OPLA-NYC will no longer accept in-person filings at 26 Federal Plaza.  OPLA-NYC will continue to receive documents 24/7 through ICE eService (visit: eserviceregistration.ice.gov)… Although OPLA-NYC will continue to accept service of filings by mail,  we will only provide proof of service via ICE eService.

 

Natz Interview Locations

USCIS: Starting June 1, 2019, Brooklyn and Staten Island residents will be interviewed (only natz cases) at the USCIS Field Office in Newark.  Newark Office will be working on Saturdays as well.  This is the way USCIS deals with the current  backlog.

 

On Heels of Barr Immigration Decision, Booker, Jayapal, Smith to Re-Introduce Bill to Counter Attorney General’s Efforts

Booker: The bill would directly combat Attorney General Barr’s efforts to indefinitely detain immigrants by, 1) mandating that all detained immigrants have access to a bond hearing before an immigration judge, and 2) shifting the burden to the government to prove that asylum seekers and other immigrants should be detained because they pose a risk to the community or a flight risk.

 

Unpublished Decision: Theft of Services not a CIMT (attached)

BDS: affirming Judge Farber’s grant of our motion to terminate because our LPR client’s recent petit larceny conviction is on direct appeal (following a successful late-filed notice of appeal) and his theft of services conviction is not a CIMT.

 

BIA Remands, Finding that a Subsequent Notice of Hearing Can “Perfect” a Deficient NTA

The BIA held that if a NTA does not specify time/place of initial removal hearing, the subsequent service of a notice with that information “perfects” the deficient NTA and triggers the stop-time rule. Matter of Mendoza-Hernandez and Matter of Capula-Cortes, 27 I&N Dec. 520 (BIA 2019) AILA Doc. No. 19050230

 

BIA Terminates Proceedings After Finding Grand Larceny Conviction Not an Aggravated Felony

Unpublished BIA decision terminated removal proceedings after finding respondent’s conviction of grand larceny in the second degree under NY law was not an aggravated felony and thus she was not removable under INA §237(a)(2)(A)(iii). Courtesy of Michael Goldman. (Matter of Reyes, 4/24/19) AILA Doc. No. 19050302

 

BIA Holds Ohio Statute Not a Firearms Offense

Unpublished BIA decision holds that the improper handling of a firearm in a motor vehicle under Ohio Rev. Code 2923.16(E)(1) is not a firearms offense because state has prosecuted under similar statutes for possessing antique firearms. Special thanks to IRAC. (Matter of Edwards, 6/20/18) AILA Doc. No. 19050395

 

BIA Holds California Vehicle Manslaughter Not a CIMT

Unpublished BIA decision holds that vehicular manslaughter with gross negligence under Calif. Penal Code 192(c)(1) is not a CIMT because it does not require a sufficiently culpable mental state. Special thanks to IRAC. (Matter of Pourmand, 6/18/18) AILA Doc. No. 19050295

 

BIA Grants Interlocutory Appeal Challenging Denial of Change of Venue

Unpublished BIA decision grants interlocutory appeal of denial of motion to change venue to immigration court close to his attorney where respondent had conceded removability and submitted application for cancellation of removal. Special thanks to IRAC. (Matter of Linares Flores, 6/15/18) AILA Doc. No. 19050195

 

BIA Holds Virginia Hit-and-Run Statute Not a CIMT

Unpublished BIA decision holds that Va. Code Ann. 46.2-894 is not a CIMT because it does not require drivers to leave the scene of the accident or realize that the accident resulted in injury or property damage. Special thanks to IRAC. (Matter of Sifuentes-Reyna, 6/15/18) AILA Doc. No. 19050196

 

CA1 Finds Petitioner Failed to Satisfy Prejudice Requirement for Ineffective Assistance of Counsel Claim

The court upheld the BIA’s denial of petitioner’s motion to reopen his 2012 removal order, finding that the petitioner failed to show sufficient prejudice resulting from the alleged ineffective assistance of counsel upon which he based his motion to reopen. (Franco-Ardon v. Barr, 4/26/19) AILA Doc. No. 19042900

 

CA5 Finds BIA’s Retroactive Application of Matter of Diaz-Lizarraga Violates Due Process

The court found that the BIA erred in applying the definition of crimes involving moral turpitude (CIMTs) announced in 2016 in Matter of Diaz-Lizarraga to the petitioner’s 2007 conviction for attempted theft. (Monteon-Camargo v. Barr, 3/14/19, amended 4/26/19) AILA Doc. No. 19031974

 

CA9 Upholds BIA’s Decision Not to Certify Ineffective Assistance of Counsel Claim for Review Under 8 CFR §1003.1(c)

The court held that the BIA’s decision not to certify a claim is committed to agency discretion and, in this case, was not subject to judicial review. (Idrees v. Barr, 12/13/18, amended 4/30/19) AILA Doc. No. 19011471

 

EDVA Finds Plausible Claims that ORR Family Reunification Policies Violate Constitutional, Statutory, and Administrative Laws

The judge granted two classes to be certified in this case challenging Office of Refugee Resettlement policies that the class has argued makes it too difficult for children to get out of detention and back with their families or in a home with a sponsor. (J.E.C.M. v. Lloyd, 4/26/19) AILA Doc. No. 18121803

 

DOJ Notice and Request for Comments on Proposed Revisions to Forms EOIR-42A and EOIR-42B

DOJ notice and request for comments on proposed revisions to Form EOIR-42A and Form EOIR-42B. Comments are due 5/28/19. (84 FR 17891, 4/26/19) AILA Doc. No. 19042936

 

USCIS Updates Officer Training on Credible Fear of Persecution and Torture Determinations

USCIS updated its Refugee, Asylum, and International Operations (RAIO) Directorate Officer Training course on credible fear of persecution and torture determinations, to explain how to determine whether an individual subject to expedited removal or an arriving stowaway has a credible fear. AILA Doc. No. 19050602

 

RESOURCES

 

EVENTS

 

 

ImmProf

 

Sunday, May 5, 2019

Saturday, May 4, 2019

Friday, May 3, 2019

Thursday, May 2, 2019

Wednesday, May 1, 2019

Tuesday, April 30, 2019

Monday, April 29, 2019

********************************************

Elizabeth’s second and third items show how the Trump Administration is compromising the fairness of the credible fear and asylum systems within DHS by skewing the law and procedures against asylum seekers.  This is despite both the intent behind the UN Convention and Protocol Relating to the Status of Refugees that asylum seekers be “given the benefit of the doubt” and the Supreme Court’s decision in INS v. Cardoza-Fonseca holding that the term “well founded fear” must be given a generous interpretation so that even those whose chances of persecution are as low as 10% could qualify for asylum.

PWS

05-07-19

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