THE GIBSON REPORT — 08-17-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19

Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.

 

New

  • Opening dates for some non-detained courts: Hearings in non-detained cases at courts without an announced date are postponed through, and including, September 4, 2020.
  • New 26 Federal Plaza Standing Order: All  master  calendar  hearings  for  represented  respondents  will  be  conducted  telephonically. The standing order also provides detailed information regarding requesting telephonic individuals or decisions on the papers, including requirements for consent forms waiving the right to appear in person.

 

Closures

 

Guidance:

 

TOP NEWS

 

The Trump Administration Is Preparing To Treat Asylum-Seekers As Security Threats

Buzzfeed: If implemented, the rule would take effect for 90 days and block immigrants who’ve been in Mexico or Canada within the last two weeks from legal protections.

 

Top DHS officials Wolf and Cuccinelli are not legally eligible to serve in their current roles, GAO finds

WaPo: Trump has repeatedly circumvented the Senate confirmation process by installing appointees to interim positions, and then has left them in those roles indefinitely without a formal nomination or the backing of Congress.

 

US immigration services set to furlough two-thirds of its workers after coronavirus stimulus talks fail

USA Today: U.S. Citizenship and Immigration Services notified about 13,400 of its 20,000 employees that they would be furloughed Aug. 30 because of budget shortfalls, which the agency hoped Congress would fill in its next relief package before negotiations stalled last week.

 

Judge: Outside experts can visit immigrant detention center

AP: U.S. District Judge Leonie Brinkema agreed to a request from lawyers of inmates who have filed a lawsuit over conditions to allow a medical expert to conduct an inspection at the private facility in Farmville.

 

A Private Security Company Is Detaining Migrant Children at Hotels

NYT: Under emergency coronavirus orders, the Trump administration is using hotels across the country to hold migrant children and families before expelling them.

 

ICE Guards Have A “Pattern And Practice” Of Sexually Assaulting Immigrants, A Complaint Says

Buzzfeed: The continued sexual harassment and assaults the immigrants allegedly experienced at the hands of ICE officers were detailed in a complaint filed with the El Paso County District Attorney, the US Attorney’s Office for the Western District of Texas, and the Department of Homeland Security’s Office of Inspector General this week. The allegations inside the El Paso Processing Center (EPPC) were first reported by ProPublica.

 

Fear, language barriers hinder immigrant contact-tracing

AP: Contact tracers take pains to reassure patients that nothing will be passed along to immigration officials, that they don’t have to provide Social Security or insurance information, and that their contacts won’t know who shared their names and phone numbers.

 

Apple to Amazon Line Up Against Trump’s Immigrant Visa Ban

Bloomberg: The group asked a court Monday to be allowed to add the industry’s voice to a lawsuit opposing the ban, saying it’s causing “irreparable harm on businesses and the nation’s economy.”

 

Why do Americans think more immigration means more crime?

CSM: There’s a nagging myth that immigration and crime go hand in hand, despite data to the contrary. Our reporters look at why the misperception endures.

 

Dozens of immigrants in Elko area suffer after postal worker accused of intentionally discarding immigration documents

Nevada Ind: A letter dated June 2020 from the Office of the Inspector General addressed to the senator’s office explains an investigation had already been underway and determined that a postal office employee in Salt Lake City had intentionally discarded the missing federal immigration documents.

 

LITIGATION/CASELAW/RULES/MEMOS

 

CA2 Limits Public Charge Injunction to Vermont, Connecticut, and New York

The court limited its injunction on DHS public charge rules to within the Second Circuit (Connecticut, New York, and Vermont). USCIS has not yet issued guidance on how it will implement these differing public charge standards. (Make the Road New York, et al. v. Cuccinelli, et al., 8/12/20) AILA Doc. No. 19101103

 

District Court Suspended Two Asylum Policies After Finding Ken Cuccinelli’s Appointment Violated the Federal Vacancies Reform Act

The government dismissed its appeal of a district court’s ruling that the Trump administration had illegally appointed Ken Cuccinelli to serve as the acting director of USCIS and that two immigration directives issued by him were “invalid.” (L.M.-M., et al., v. Cuccinelli, 8/13/20) AILA Doc. No. 20030335

 

Advocacy Organizations File Lawsuit Challenging New DHS Asylum EAD Rules

Several immigration advocacy organizations filed a lawsuit in the U.S. District Court for the District of Maryland challenging two new DHS final rules pertaining to employment authorization documents (EADs) for asylum seekers. (Casa de Maryland, Inc., et al. v. Wolf, et al., 7/21/20) AILA Doc. No. 20081235

 

Class Action Lawsuit Challenges Unconstitutional National Origin Discrimination Against MAVNI-Naturalized Citizens

The plaintiff, a naturalized U.S. citizen who entered the U.S. Army through the Military Accessions Vital to National Interest (MAVNI) Program, filed a class action lawsuit challenging DoD’s allegedly discriminatory MAVNI-based security clearance policies. (Kaden v. Esper, et al., 8/13/20) AILA Doc. No. 20081730

 

BIA Holds Convictions Vacated Under Cal. Penal Code 1473.7 Not Valid for Immigration Purposes

Unpublished BIA decision holds that convictions vacated under Cal. Penal Code 1473.7 are no longer valid for immigration purposes because the statute requires a procedural or substantive defect in underlying criminal proceedings. Special thanks to IRAC. (Matter of C-H-C-, 3/30/20) AILA Doc. No. 20081303

 

BIA Holds Colorado Definition of Marijuana Broader Than Federal Definition

Unpublished BIA decision holds that Colorado’s definition of marijuana is broader than the federal definition because it includes marijuana stalks. Special thanks to IRAC. (Matter of Arellano-Casas, 3/17/20) AILA Doc. No. 20081200

 

BIA Dismisses Charge of Conspiracy to Commit Fraud-Related Aggravated Felony

Unpublished BIA decision finds that respondent was not convicted of an aggravated felony under INA 101(a)(43)(U) where the IJ dismissed the corresponding charge under INA 101(a)(43)(M) because the loss to the victim was less than $10,000. Special thanks to IRAC. (Matter of Gray, 3/6/20) AILA Doc. No. 20081401

 

BIA Dismisses Interlocutory DHS Appeal Challenging Administrative Closure Following Approval of Form I-360

Unpublished BIA decision declines to consider interlocutory DHS appeal challenging administrative closure for respondent with approved Form I-360 to await a current priority date. Special thanks to IRAC. (Matter of D-J-B-F-, 3/20/20) AILA Doc. No. 20081201

 

BIA Rescinds In Absentia Order Where Hearing Notice Omitted Word “Street”

Unpublished BIA decision rescinds in absentia order where the respondent’s attorney was not present when next hearing date was announced and the address listed on the hearing notice omitted the word “street.” Special thanks to IRAC. (Matter of Sayevych, 4/1/20) AILA Doc. No. 20081304

 

BIA Reopens Proceeding Sua Sponte for Respondent Previously Removed from the Country

Unpublished BIA decision reopens proceedings sua sponte following vacatur of conviction underlying sole charge of removability and notwithstanding respondent’s physical removal from United States in 2014. Special thanks to IRAC. (Matter of Garcia-Navarro, 3/16/20) AILA Doc. No. 20081102

 

BIA Holds Georgia Involuntary Manslaughter Not a CIMT

Unpublished BIA decision holds that involuntary manslaughter under Geo. Code Ann. 16-5-3(a) is not a CIMT because it requires only criminal negligence. Special thanks to IRAC. (Matter of Kolubah, 3/11/20) AILA Doc. No. 20081101

 

BIA Finds Exploitation of Elderly Persons in Florida Not an Aggravated Felony Theft Offense

Unpublished BIA decision holds that exploitation of an elderly person under Fla. Stat. 825.103(1) is not an aggravated felony theft offense because it does not include lack of consent as an element. Special thanks to IRAC. (Matter of Joseph, 3/10/20) AILA Doc. No. 20081100

 

CA1 Finds 98-Day Absence from United States Was Not “Brief, Casual, and Innocent” for Purposes of TPS

The court held that the BIA did not abuse its discretion in finding that the rescission of the petitioner’s removal order was incorrect, and that his 98-day absence from the United States barred him from Temporary Protected Status (TPS) relief. (Machado Sigaran v. Barr, 8/5/20) AILA Doc. No. 20081330

 

CA3 Holds IJ Failed to Reconsider Discretionary Denial of Asylum After Sri Lankan Petitioner Was Granted Withholding

Granting the petition for review, the court held that the IJ abused his discretion by failing to reconsider pursuant to 8 CFR §1208.16(e) his discretionary denial of asylum to the Sri Lankan petitioner, who was subsequently granted withholding of removal. (Sathanthrasa v. Att’y Gen., 7/30/20) AILA Doc. No. 20081103

 

CA5 Says Petitioner’s Texas Conviction for Sexual Assault of a Child Was a “Crime of Child Abuse”

The court held that the petitioner’s conviction for sexual assault of a child under Texas Penal Code section 22.011(a)(2) was a categorical match to a “crime of child abuse” as defined by the BIA, rendering him removable under INA §237(a)(2)(E)(i). (Garcia v. Barr, 8/4/20) AILA Doc. No. 20081300

 

CA5 Upholds Denial of Asylum to Albanian Citizen Who Received Death Threats from Members of Socialist Party

The court upheld the denial of asylum to the Albanian petitioner, who had been threatened and attacked by members of his country’s Socialist Party, finding no error in the BIA’s conclusion that the petitioner’s injuries did not amount to past persecution. (Gjetani v. Barr, 7/31/20) AILA Doc. No. 20081104

 

CA6 Holds It Lacks Jurisdiction to Review Motion to Reopen Based on Exceptional Circumstances

The court dismissed the petition for review for lack of jurisdiction, finding that the petitioner—who alleged that confusion about his hearing date constituted an exceptional situation—had failed to administratively exhaust the claims he raised in his petition. (Cuevas-Nuno v. Barr, 8/7/20) AILA Doc. No. 20081301

 

CA6 Says BIA Erred in Denying Iraqi Petitioner’s Motion to Remand to Consider New Evidence

The court held that the BIA erred in denying the Iraqi petitioner’s motion to remand, finding that his new evidence, particularly two 2017 DOS reports on human rights and religious freedom in Iraq, could be significant to his Convention Against Torture (CAT) claim. (Marqus v. Barr, 7/30/20) AILA Doc. No. 20081131

 

CA8 Upholds Deferral of Removal Denial to Iraqi Petitioner with a Criminal Record

Upholding the BIA’s denial of deferral of removal, the court found that the Iraqi petitioner’s argument that he would likely be tortured upon return to Iraq because of his criminal convictions was based on a chain of assumptions and speculation. (Alzawed v. Barr, 7/31/20) AILA Doc. No. 20081133

 

CA8 Finds Petitioner Failed to Show He Would Likely Be Tortured in South Sudan Based on His Membership in an Ethnic Minority

The court held that the BIA had correctly found that petitioner, who was a member of an ethnic minority, must show more than a pattern of general ethnic violence in South Sudan to meet the likelihood of torture requirement under the Convention Against Torture (CAT). (Lasu v. Barr, 7/31/20) AILA Doc. No. 20081132

 

CA8 Finds BIA Did Not Abuse Its Discretion in Denying Motion to Reopen Based on Changed Country Conditions in Somalia

The court held that the BIA did not err in denying the petitioner’s motion to reopen his removal proceedings based on changed conditions in Somalia, finding that al-Shabaab’s activities between 2008 and 2018 did not represent a material increase in violence. (Shire v. Barr, 7/23/20) AILA Doc. No. 20081034

 

CA9 Reaffirms That BIA Must Analyze Cognizability of Particular Social Groups on a Case-by-Case Basis

The court held that the BIA had misapplied Matter of A-B-, as well as past precedent, in concluding that the petitioner’s proposed social group comprised of “indigenous women in Guatemala who are unable to leave their relationship” was not cognizable. (Diaz-Reynoso v. Barr, 8/7/20) AILA Doc. No. 20081430

 

CA9 Denies Qualified Immunity to Montana Judge and Sheriff’s Deputy over Undocumented Immigrant’s Courthouse Arrest

In an action alleging that an undocumented immigrant’s Fourth Amendment rights were violated when he was arrested in a Montana courthouse, the court affirmed the denial of qualified immunity to the defendants, a local judge and sheriff’s deputy. (Reynaga Hernandez v. Skinner, et al., 8/10/20) AILA Doc. No. 20081233

 

CA9 Remands Asylum Claim of Nicaraguan Petitioner Who Suffered Frequent and Severe Abuse by Domestic Partner

Granting the petition for review, the court held that substantial evidence did not support the BIA’s conclusion that petitioner had failed to establish the Nicaraguan government was unable or unwilling to protect her from persecution by her domestic partner. (Davila v. Barr, 8/7/20) AILA Doc. No. 20081431

 

CA9 Says “Obstruction of Justice” Under INA §101(a)(43)(S) Unambiguously Requires a Nexus to Ongoing or Pending Proceedings

Granting the petition for review, the court held that INA §101(a)(43)(S), which describes an aggravated felony offense relating to obstruction of justice, unambiguously requires a nexus to an ongoing or pending proceeding or investigation. (Valenzuela Gallardo v. Barr, 8/6/20) AILA Doc. No. 20081302

 

CA9 Holds That a Conviction for Criminal Stalking in California Is Categorically a CIMT

Denying the petition for review, the court held that the BIA did not err in concluding that the petitioner’s conviction under California Penal Code §646.9(a) for criminal stalking was categorically a crime involving moral turpitude (CIMT). (Orellana v. Barr, 7/28/20) AILA Doc. No. 20081037

 

CA9 Holds That Petitioner’s Oregon Conviction for Manufacture of a Controlled Substance Was an Aggravated Felony

The court held that Oregon Revised Statute §475.992(1)(a), which criminalizes the manufacture or delivery of a controlled substance, is divisible as between its “manufacture” and “delivery” terms, and that a conviction under that statute is an aggravated felony. (Dominguez v. Barr, 7/21/20) AILA Doc. No. 20081036

 

CA10 Finds Petitioner’s Colorado Drug Conviction Did Not Qualify as a Predicate for Removal

The court held that the Colorado statute under which the petitioner was convicted for possessing hydrocodone was broader than its federal counterpart, the Controlled Substances Act (CSA), and that no categorical match existed between the state statute and the CSA. (Johnson v. Barr, 7/31/20) AILA Doc. No. 20081134

 

CA10 Finds It Lacks Jurisdiction to Review BIA’s Discretionary Cancellation-of-Removal Hardship Decision

The court held that, under INA §242(a)(2)(B), it lacked jurisdiction over the petitioner’s claim that the BIA had misapplied its precedent in weighing the level of hardship that the petitioner’s U.S. citizen spouse would face upon his removal. (Galeano-Romero v. Barr, 8/4/20) AILA Doc. No. 20081432

 

USCIS Memo on Settlement Process for Historical Fingerprint Enrollment for Denaturalization Cases

USCIS released a memo in response to a FOIA request outlining the settlement process for Historical Fingerprint Enrollment cases as cases are prepared for denaturalization. Special thanks to Matthew Hoppock. AILA Doc. No. 20081433

 

ICE Issues Guidance on COVID-19

ICE updated its guidance on its response to the COVID-19 pandemic, providing information on how it screens new detainees. ICE notes that it tests all new detainees at ICE-owned facilities for COVID-19, houses all new detainees separately for 14 days after arrival, and monitors their symptoms. AILA Doc. No. 20031658

 

RESOURCES

 

 

EVENTS

 

Note: Check with organizers regarding cancellations/changes

 

ImmProf

 

Monday, August 17, 2020

Sunday, August 16, 2020

Saturday, August 15, 2020

Friday, August 14, 2020

Thursday, August 13, 2020

Wednesday, August 12, 2020

Tuesday, August 11, 2020

Monday, August 10, 2020

 

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

I think it’s interesting that, as Elizabeth reports, respondents still properly win at least some “unpublished” appeals to the BIA. (Practice hint, the amazing Ben Winograd, Esquire, keeps track of  all the BIA’s unpublished cases.  As pointed out by “The Asylumist” Jason Dzubow recently, that’s over 99% of the BIA’s total work product.) Yet, “winners” for respondents among published BIA precedents have come virtually extinct.

I can’t remember offhand the last time I saw a precedent decision where the respondent clearly prevailed that wasn’t then “certified” to the AG for reversal. Heck, the Trump AGs even have “certified” cases that DHS won, just to eradicate some non-dispositive finding that might have been helpful to future respondents.

What if we got rid of political interference in the “quasi-judicial” process by biased AGs? What if we had an expert BIA, well-versed in asylum, human rights, immigration, and constitutional law, that consistently treated respondents fairly on appeal and published the results to promote the granting of deserved relief before Immigration Judges and to instruct attorneys on how to prepare well-documented cases?

Due Process Forever! And, as always, many thanks to Elizabeth!

PWS

08-17-20

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