Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, January 8, 2021. NYC non-detained remains closed for hearings.
USCIS Extends Flexibility for Responding to Agency Requests
USCIS: In response to the coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services is extending the flexibilities it announced on March 30, 2020…This flexibility applies to the above documents if the issuance date listed on the request, notice, or decision is between March 1, 2020, and Jan. 31, 2021, inclusive.
Unrelated to COVID-19, the federal government will be closed 12/24/2020 by Executive Order.
TOP NEWS
More Rules (subject to litigation)
- EOIR Fee Increases (including $50 asylum fee): This final rule is effective on 1/19 2021.
- Asylum Eligibility and Procedural Modifications: This final rule is effective on 1/19 2021.
- Procedures for Asylum and Withholding of Removal: This final rule is effective on 1/15 2021.
- Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure: This final rule is effective on 1/15 2021.
Trump has finalized a controversial agreement to deport asylum seekers to El Salvador
Vox: The Asylum Cooperative Agreement, signed in September 2019 with the approval of Salvadoran President Nayib Bukele, is one of three such pacts that the US has made in an effort to discourage regional migration. The other agreements are with Honduras and Guatemala, although only the agreement with Guatemala has gone into effect so far, leading to the deportations of nearly 1,000 Hondurans and Salvadorans.
ProPublica: Last year, Congress quietly passed a bill allowing thousands of Liberian immigrants to apply for green cards. But the Trump administration hardly made it easy, and now the application window is closing.
Immigrant Families Are Being Deported Without Their Asylum Claims Heard Lawfully, Advocates Say
Buzzfeed: On Friday, six families from Guatemala and six families from El Salvador were taken to separate airports to be deported by ICE, said Shalyn Fluharty, an attorney with Proyecto Dilley, which offers legal services to detained families. Some of the families were pulled from the plane at the last minute while asylum officers reviewed their claims, but at least one family was deported.
Cuomo Finally Signs Protect Our Courts Act To Stop Courthouse Arrests
Documented: New York Gov. Andrew Cuomo (D) finally signed the Protect Our Courts Act after the New York State Legislature approved it in July. This bill is meant to stop law enforcement from arresting undocumented immigrants at courthouses. Between 2016 and 2018, the U.S. Immigration and Customs Enforcement activity in and around New York courthouses grew from 11 operations to 202 operations.
LITIGATION/CASELAW/RULES/MEMOS
SCOTUSblog: The Supreme Court on Friday ruled that it was too early to resolve the legality of the Trump administration’s plan to exclude people who are in the country illegally from the state-by-state breakdown used to allocate seats in the House of Representatives. The decision puts at least a temporary end to the litigation challenging the president’s plan. But the ruling, from which the court’s three liberal justices dissented, leaves open the possibility that the challengers could return to court if the Trump administration implements the plan during its final month in office.
As a result of class action litigation in Vangala v. USCIS challenging USCIS’s “No Blank Space” policy, USCIS has agreed to stop implementing the rejection policy for asylum applications and U visa petitions starting December 28, 2020. AILA provides a practice alert with additional details. AILA Doc. No. 20122100
USCIS and ICE Must Give People Access to Their Immigration Files After Losing Lawsuit
AIC: People who need access to their government immigration records scored a huge victory on December 17. A judge ruled that a nationwide class of individuals should have access to their immigration files—called A-Files—within the timeframes outlined by law.
BIA Rules on Expert Testimony and Factual Findings
The BIA ruled that expert testimony is evidence, but only an immigration judge makes factual findings, and that when a factual finding is inconsistent with an expert’s opinion, judges should explain the reasons behind the factual findings. Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020) AILA Doc. No. 20121736
The court dismissed the petitions for review of the IJ’s decisions denying the petitioners’ motions to reopen their credible fear determinations on the basis that IJs lack jurisdiction to reopen credible fear proceedings under 8 CFR §1208.30(g)(2)(iv)(A). (Singh v. Barr, 12/9/20) AILA Doc. No. 20121632
CA9 concluded that USCIS’s denial of an H-1B petition was arbitrary and capricious because it misrepresented the OOH and failed to consider OOH language providing that a “bachelor’s degree” is the “[t]ypical level of education” for computer programmers. (Innova Solutions v. Baran, 12/16/20) AILA Doc. No. 20121733
The court held that the government had failed to rebut the presumption that the petitioner, a son of the chief of the Challa tribe who had received death threats from members of the rival Atwode tribe, had a well-founded fear of future persecution in Ghana. (Addo v. Barr, 12/14/20) AILA Doc. No. 20121635
CA10 Upholds CAT Denial as to Nigerian Petitioner Who Alleged He Was Attacked for His Homosexuality
The court upheld the denial of Convention Against Torture (CAT) relief as to petitioner, who alleged he had been attacked in Nigeria in 2006 because of his homosexuality, finding that the BIA’s adverse credibility determination was supported by substantial evidence. (Igiebor v. Barr, 12/7/20) AILA Doc. No. 20121634
The court held that petitioner was bound by her attorney’s concession of removability because it was not obviously incorrect and because it was not a product of her attorney’s unreasonable professional judgment or so unfair that it led to an unjust result. (Dos Santos v. Att’y Gen., 12/11/20) AILA Doc. No. 20121636
DOS Provides Immigrant Visa Processing Update in Response to Injunction in Young v. Trump
DOS announced that immigrant visa applicants who are named plaintiffs in Young v. Trump should contact the National Visa Center for guidance on scheduling a visa interview, or if they case had previously been scheduled, their nearest embassy or consulate. AILA Doc. No. 20121731
USCIS updated guidance regarding adjustment of status (AOS) interview criteria and guidelines for refugees and asylees. USCIS updated the list of categories of AOS cases in which USCIS may waive the required interview, and updated and clarified interview criteria for asylee and refugee AOS cases. AILA Doc. No. 20121531
USCIS Provides Update on Receipt Notice Delays for Forms Filed with USCIS Lockbox
USCIS issued a stakeholder message noting that a significant increase in filings in recent weeks and facility capacity restrictions as a result of the COVID-19 pandemic are causing “significant delays for processing receipt notices” for forms and applications filed with the USCIS Lockbox. AILA Doc. No. 20121534
DHS and DOJ final rule which finalizes, with minor changes, the Interim Final Rule published at 84 FR 33829 on 7/16/19, which barred from asylum eligibility individuals who transit through a third country without seeking protection. The rule is effective 1/19/21. (85 FR 82260, 12/17/20) AILA Doc. No. 20121633
EOIR Final Rule Increasing Fees for Filings
EOIR final rule increasing the filing fees for applications, appeals, and motions that are subject to an EOIR-determined fee. The rule is effective 1/19/21. (85 FR 82750, 12/18/20) AILA Doc. No. 20121533
EOIR Final Rule on Procedures for Asylum and Withholding of Removal
EOIR final rule making changes to the regulations on asylum and withholding of removal. The final rule adopts the notice of proposed rulemaking published at 85 FR 58692 on 9/23/20 with few changes. The rule is effective 1/15/21. (85 FR 81698, 12/16/20) AILA Doc. No. 20121637
EOIR Final Rule on Appellate Procedures and Administrative Closure
EOIR final rule amending the regulations on the processing of immigration appeals, as well as amending the regulations regarding administrative closure. The rule is effective 1/15/21. (85 FR 81588, 12/16/20) AILA Doc. No. 20121130
CLINIC: he Executive Office for Immigration Review, or EOIR, has updated the webpage for the Recognition and Accreditation program to indicate that as of Dec. 14, 2020, EOIR will no longer accept previous versions of Forms EOIR-31 and EOIR-31A. The versions dated February 2020 will be required after that date.
RESOURCES
- CRS: Assisted Reproductive Technology, Surrogacy, and U.S. Citizenship for Children Born Abroad
- MPI: Top 10 Migration Issues of 2020
- MPI: Unauthorized Immigrants in the United States: Stable Numbers, Changing Origins
- MPI: New Approaches to Climate Change and Migration: Building the Adaptive Capacity of Mobile Populations
- AILA and Partners Send Letter Requesting Legislation to Create an Article l Immigration Court
- Think Immigration: Digital Evidence in the Immigration Law Context
- Practice Pointer: Information on Service of Process on the U.S. Attorney in a Federal Lawsuit
- CLINC: Updates on Consular Processing
- CLINIC: Checklist for Initial DACA Applications
- CLINIC: BIA Rules on Motions to Reopen Based on Ineffective Assistance of Counsel
- CLINIC: Updates to the Citizenship Test
- New Citizenship Test Questions Translated (9 languages)
- ILRC: Practice Alert: Temporary Changes to U.S. Citizenship and Immigration Services (USCIS) in Response to COVID-19
- ILRC: Public Charge Exemptions and Considerations
- ILRC: Community Alert: Changes to the DACA Program
- New York State Address Confidentiality Program Launches New Online Application For Victims Of Violence To Help Save Lives
EVENTS
- 1/7/21 Trauma-Informed Lawyering: Strategies and Best Practices
- 1/7/21 New Forms for DOJ Recognition and Accreditation
- 1/12/21 Unemployment Insurance
- 1/12/21-2/26/21 Comprehensive Overview of Immigration Law
- 1/21/21 Immigration in 2021: Anticipating Changes under a New Administration
- 1/25/21-2/8/21 Three-Part Webinar Series: All About Public Charge Inadmissibility
- 2/4/21 Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas
- 2/5/21 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2021
- 2/5/21 Addressing Domestic Violence 2021: Remote Family and Immigration Law Practice During Pandemic or Disaster
- 2/9/21 What Every Lawyer Should Know About U.S. Immigration Law
- 2/25/21-4/8/21 Introduction to Family-Based Immigration Law
- 2/10/21 All About DOJ Recognition and Accreditation
- 3/12/21 Strategies and Tactics for Successful Immigration Appeals
- 3/16/21 Representing Immigrants in Family Court
- 4/21/21 Working with Domestic Violence Immigrant Survivors: The Intersection of Basic Family Law, Immigration, Benefits, and Housing Issues in California 2021
ImmProf
Monday, December 21, 2020
Sunday, December 20, 2020
- From The Bookshelves: How To Pronounce Knife by Souvankham Thammavongsa
- Immigration Article of the Day, Do Employer-Sponsored Immigrants Fare Better in Labor Markets Than Family-Sponsored Immigrants? by Julia Gelatt
- Immigrant Families Are Being Deported Without Their Asylum Claims Heard Lawfully, Advocates Say
Saturday, December 19, 2020
- Immigration Article of the Day, Temporary Migrant Workers or Immigrants? The Question for U.S. Labor Migration by Daniel Costa
- NY’s Protect Our Courts Act
Friday, December 18, 2020
- With thanks from a grateful nation
- From The Bookshelves: The Deportation Machine: America’s Long History of Expelling Immigrants by Adam Goodman
- Immigration Article of the Day, Special Immigrant Juvenile Status and the Integration of Central American Unaccompanied Minors by Luis Edward Tenorio
- Sesame Street’s newest Muppets are Rohingya refugees
- Supreme Court Dismisses Census 2020 Suit on Justiciability Grounds
- International Migrants Day
- The Beat Goes On: Trump has finalized an agreement to deport asylum seekers to El Salvador
- Jewish senator likens Trump immigration policy to US blocking Jews in 1930s
Thursday, December 17, 2020
- Job Announcement: Seton Hall University School of Law Immigrants’ Rights/International Human Rights Clinic
- Immigration Article of the Day: Unpacking the Rise in Crimmigration Cases at the Supreme Court by Philip L. Torrey
- Unauthorized Immigrants in the United States: Stable Numbers, Changing Origins
Wednesday, December 16, 2020
- Bush chooses painting of lady liberty for Christmas cards
- Migration Policy Institute Top 10 Migration Issues of 2020
- Immigration Article of the Day: Overcoming the Labyrinth: A Guide for Immigration Attorneys to Assert Habeas Corpus by Joshua J. Schroeder
- Why Millions of Americans Still Can’t Get Coronavirus Relief Funds
- On Immigration, Will Biden Become the New “Deporter in Chief”?
Tuesday, December 15, 2020
- ProPublica is Tracking the Trump Administration’s “Midnight Regulations”
- Immigration Article of the Day: Immigration Update: The History and Impact of the Newly Defined ‘Public Charge’ by Shane Kumar & Kayley Leon
Monday, December 14, 2020
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Documenting the final weeks of the kakistocracy.
PWS
12-23-20