"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
THE GIBSON REPORT — 12-28-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
Elizabeth Gibson 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 22, 2021. NYC non-detained remains closed for hearings.
Vox: Excluded from stimulus relief up until now, US citizens and permanent residents who filed a joint tax return with an undocumented spouse will receive a check for $600, as well as $600 per dependent child. The benefits phase out for individuals making more than $75,000 and couples making more than $150,000.
AP: Susan Rice, Biden’s incoming domestic policy adviser, and Jake Sullivan, his pick for national security adviser, as well as Biden himself, warned that moving too quickly could create a new crisis at the border.
TRAC: Detailed case-by-case government records obtained by TRAC after successful litigation show that in early 2018, the number of federal prosecutions for all immigration-related charges climbed sharply and crested 12,000 for the first time in May after the Department of Justice’s “zero-tolerance” policy went into effect.
TRAC: Not surprisingly, Immigration Court closures and delays in hearings for courts that are conducting hearings have drastically reduced the number of completed cases for the first two months of this fiscal year as compared with prior years at the same time.
MPI: Based on their analysis of data from the Census Bureau’s American Community Survey (ACS), Migration Policy Institute (MPI) researchers find that during the first three years of the Trump administration, participation in TANF, SNAP, and Medicaid declined twice as fast among noncitizens as citizens.
WaPo: A new policy allowing Iranian women to pass down their citizenship to their children marks a long-sought victory for activists and is raising hopes for an estimated 1 million undocumented children born to foreign fathers in the country.
Changes the default filing deadline for non-detained individual hearings from 15 days to 30 days. There also is guidance on the contents of motions for extensions.
DHS and DOJ issued a joint final rule based on a 7/9/20 NPRM clarifying that the danger to the security of the U.S. statutory bar to eligibility for asylum and withholding of removal may encompass emergency public health concerns. Rule is effective 1/22/21. (85 FR 84160, 12/23/20) AILA Doc. No. 20122311
Law 360: A Texas federal judge seemed likely at a hearing Tuesday to strike down an Obama-era program protecting young unauthorized immigrants, but he indicated he may leave open a window to “slice and dice” the program or send it back to the government to revise it.
SCOTUSblog: If the justices take up the border-wall case, it will be the second case added to the court’s docket this term involving the legality of border-wall construction.
The BIA ruled that a conviction for child neglect in the second degree under §163.545(1) of the Oregon Revised Statutes is categorically a “crime of child abuse, child neglect, or child abandonment” under INA §237(a)(2)(E)(i). Matter of Rivera-Mendoza, 28 I&N Dec. 184 (BIA 2020) AILA Doc. No. 20122205
The court held that substantial evidence supported the BIA’s denial of withholding of removal to petitioner, finding he had failed to prove a nexus between the alleged persecution and membership in his proposed particular social group of “Honduran landowners.” (Marquez-Paz v. Barr, 12/18/20) AILA Doc. No. 20122109
Law360: The Sixth Circuit on Tuesday held that migrant children are not guaranteed a free lawyer when fighting deportation in immigration court, upholding a Guatemalan man’s conviction for entering the U. S. without authorization after he was deported as a teenager. In a published opinion, a three judge panel said that foreign-born minors do not have a constitutional right to a government-provided lawyer in immigration court, finding that certain sufficient “safeguards” already exist for them, including that immigration judges help pro se immigrants develop the court record and that the government must produce clear evidence that an individual should be deported.
The court found that the petitioner had failed to exhaust his administrative remedies before the BIA for his argument that his 2019 motion to reconsider was timely because it related back to his still-pending 2004 motion to reconsider. (Hernandez-Alvarez v. Barr, 12/16/20) AILA Doc. No. 20122112
The court issued an order granting the petitioner’s unopposed motion to vacate the BIA’s decision in Matter of E-R-A-L-, which pertains to establishing a particular social group based on landownership, and remanded to the BIA for further proceedings. (Albizures-Lopez v. Barr, 12/10/20) AILA Doc. No. 20122203
The court held that USCIS’s denial of the H-1B visa was arbitrary and capricious where USCIS had ruled that computer programmers did not “normally” require a bachelor’s degree, despite relevant language in DOL’s Occupational Outlook Handbook (OOH). (Innova Solutions, Inc. v. Baran, 12/16/20) AILA Doc. No. 20121733
The court held that vehicular homicide in Florida is a crime involving moral turpitude (CIMT), and thus upheld the BIA’s determination that the petitioner was removable for having been convicted of two or more CIMTs pursuant to INA §237(a)(2)(A)(ii). (Smith v. Att’y Gen., 12/18/20) AILA Doc. No. 20122113
A district court judge granted summary judgment in favor of two nationwide classes suing USCIS and ICE for failing to timely produce the class members’ immigration files (A files). (Nightingale, et al., v. USCIS, et al., 12/17/20) AILA Doc. No. 20122104
A district court granted the plaintiffs’ motion for class certification and motion to amend the nationwide preliminary injunction in a lawsuit challenging USCIS policy limiting asylum jurisdiction over UAC applicants. (J.O.P. et al., v. DHS, et al., 12/21/20) AILA Doc. No. 20122321
CGRS: A group of asylum seekers and immigrant services organizations are suing the Department of Homeland Security (DHS), purported Acting Secretary Chad Wolf, and purported Acting DHS General Counsel Chad Mizelle to vacate two rules that have drastically curtailed access to work authorization and identity documentation for people who flee to the United States and apply for asylum protection.
CGRS: Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture.
AIC: The fee increase rule scheduled to take effect January 18 would apply when individuals facing deportation submit certain applications, appeals, and motions to the nation’s immigration courts or the Board of Immigration Appeals, both of which are overseen by the Executive Office for Immigration Review, within the Department of Justice.
CLINIC: Seven Temporary Protected Status (TPS) beneficiaries — who live in the District of Columbia, Maryland, Virginia, and Miami, Florida — and the Central American Resource Center (CARECEN) filed a motion for a preliminary injunction in their suit against the Trump administration for unlawfully blocking TPS beneficiaries’ path to permanent U.S. residence.
DHS announced that it has extended the flexibilities in rules related to Form I-9 compliance during the COVID-19 pandemic until January 31, 2021. AILA Doc. No. 20032033
USCIS determined that for January 2021, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference categories must use the Dates for Filing chart. Applicants in all employment-based preference categories must use the Final Action Dates chart. AILA Doc. No. 20122305
USCIS announced it is publishing a notice in the Federal Register revising Form I-131 to remove sections on the Haitian Family Reunification Parole and the Filipino World War II Veterans Parole programs. These changes will terminate the programs when form instruction changes are finalized. AILA Doc. No. 20122312
DHS notice of agreement between the government of the United States of America and the government of the Republic of El Salvador for cooperation in the examination of protection claims. (85 FR 83597, 12/22/20) AILA Doc. No. 20121631
DHS announced that the United States and Honduras have concluded the implementation accords for the Asylum Cooperative Agreement, under which certain migrants requesting asylum or similar humanitarian protection at the border will be transferred to Honduras to seek protection in Honduras. AILA Doc. No. 20122108
