THE GIBSON REPORT — 09-20-21 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group — Respondents Win Another @ BIA & Other News!

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

NEWS

 

Democrats Dealt a Blow on Immigration Plans

NYT: The Senate’s parliamentarian ruled that Democrats’ plan to give 8 million immigrants a path to citizenship could not be achieved through the reconciliation process.

 

Fifth Circuit largely halts judge’s order that blocks Biden’s efforts to limit immigration arrests

CNN: The 5th US Circuit Court of Appeals found that the provisions do not eliminate immigration officials’ “broad discretion” to decide who should face enforcement action, according to the ruling. The part of the injunction that was not put on hold is already in line with general enforcement protocol.

 

US to fly Haitian migrants back after thousands gather at Texas border

Guardian: The Biden administration on Saturday was working on plans to send many of the thousands of Haitian immigrants who have gathered in a Texas border city back to their homeland, a swift response to the huge influx of people who suddenly crossed from Mexico and congregated under and around a bridge. See also How Hope, Fear and Misinformation Led Thousands of Haitians to the U.S. Border.

 

Immigration Processing Now Takes 6 Times Longer Following Trump Policies

Newsweek: Despite its number of applications consistently hovering around the eight to 10 million range for the past five years, the U.S. Citizenship and Immigration Services (USCIS) processing times jumped six-fold between 2015 and 2020. The agency now faces a backlog of millions of petitions from people looking to temporarily stay or live in the country, receive humanitarian relief, obtain work authorization or become U.S. citizens.

 

Will NYC Expand Voting Rights To Some Immigrants? Not With Mayor de Blasio’s Help

Gothamist: On Monday, the City Council will hold a hearing on a proposal that would extend voting rights in local elections to people like John, along with 900,000 legal, permanent residents who have been living in New York City for more than 30 days and are otherwise eligible to vote. While the bill (Intro. 1867) is supported by a majority of the current members of the council and a coalition of community organizations, it faces steep obstacles, starting with Mayor Bill de Blasio.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Matter of N-V-G-, 28 I&N Dec. 380 (BIA 2021).

BIA: A person who enters the United States as a refugee and later adjusts in the United States to lawful permanent resident status is not precluded from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 ‍U.S.C. § ‍1182(h) (2018), based on a conviction for an aggravated felony, because he or she has not “previously been admitted to the United States as an alien lawfully admitted for permanent residence” under that provision.

 

CA2 Says Matter of Soram’s Holding Applies Retroactively to Render Petitioner Removable

AILA: The court concluded that the holding in the BIA’s 2010 decision in Matter of Soram applied retroactively to the petitioner’s 2006 New York conviction for child endangerment, and thus the petitioner was removable. (Marquez v. Garland, 9/7/21)

 

CA3 Concludes That Petitioner’s Federal Conviction for Aggravated Identity Theft Is a CIMT

AILA: The court held that the petitioner’s conviction for aggravated identity theft in violation of 18 USC §1028A(a)(1) was a crime involving moral turpitude (CIMT) because it requires fraudulent intent, and thus, he was removable under INA §237(a)(2)(A)(ii). (Sasay v. Att’y Gen., 9/10/21)

 

CA5 Grants Partial Stay on Preliminary Injunction of Biden’s Enforcement Priorities Memos

AILA: The court granted a stay of the preliminary injunction pending appeal to allow DHS/ICE to rely on Biden’s enforcement priorities memos, in all respects, except for detained individuals subject to mandatory detention or ordered removed. (Texas, et al. v. United States, et al., 9/15/21)

 

CA6 Holds That U Visa Applicants May Sue USCIS over Processing Delays Despite New Bona Fide Determination Process

AILA: The court held that USCIS’s new bona fide determination process did not moot the plaintiffs’ case, and that the plaintiffs had sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U visa waitlist. (Barrios Garcia et al. v. DHS et al., 9/13/21)

 

CA9 Holds That Single Factor Rule Conflicts with REAL ID Act of 2005

AILA: The en banc court overruled prior circuit precedents establishing and applying the single factor rule, which required the court to sustain an adverse credibility determination by the BIA if one of the agency’s identified grounds was supported by substantial evidence. (Alam v. Garland, 9/8/21)

 

CA9 Concludes IJ’s Finding That Petitioner Was Not a Christian Was Unsupported by Substantial Evidence

AILA: The court held that the law-of-the-case doctrine did not require it to accept a prior Ninth Circuit panel’s determination that the petitioner was not a Christian, and found that he was not required to reattach his application for relief to his motion to reopen. (Etemadi v. Garland, 9/9/21)

AILA Doc. No. 21092007

 

CA9 Says IJ Provided Sufficient Safeguards During Removal Proceedings to Accommodate Petitioner’s Mental Illness

AILA: The court held that petitioner, a lawful permanent resident who had been found mentally incompetent, had received adequate safeguards in his removal proceedings, and had failed to exhaust his claim regarding the IJ’s “particularly serious crime” determination. (Benedicto v. Garland, 9/9/21)

 

CA9 Says California Conviction for Child Endangerment Is Not a “Crime of Child Abuse, Child Neglect, or Child Abandonment”

AILA: Granting the petition for review, the court held that felony child endangerment in violation of California Penal Code §273a(a) does not constitute a “crime of child abuse, child neglect, or child abandonment” within the meaning of INA §237(a)(2)(E)(i). (Diaz-Rodriguez v. Garland, 9/10/21)

 

9th Circ. Raps BIA Hearing Again After High Court Remand

Law360: The Ninth Circuit once again ruled that the Board of Immigration Appeals unfairly denied a Mexican national’s bid to rebut his ex-girlfriend’s testimony from a domestic incident, three months after the Supreme Court vacated its earlier decision and remanded the case.

 

CA11 Finds Petitioner Failed to Preserve Whether His Defective NTA Violated BIA’s Claim-Processing Rules

AILA: The court held that petitioner had failed to preserve whether his defective Notice to Appear (NTA) violated BIA’s claim-processing rules, and found he was removable for his controlled substance conviction, or alternatively, his second-degree assault conviction. (Farah v. Att’y Gen., 9/8/21)

 

CA11 Holds That Petitioner’s Two Simple Battery Convictions in Georgia Qualified as Aggravated Felonies Under the INA

AILA: The court concluded that each of the petitioner’s two Georgia convictions for simple battery under OCGA Section 16-5-23 was “a crime of violence … for which the term of imprisonment [was] at least one year” within the meaning of INA §101(a)(43)(F). (Talamantes-Enriquez v. Att’y Gen., 9/9/21)

 

District Court Orders Border Officials to Stop Expelling Certain Families under Title 42

AILA: The court granted motions for class certification and preliminary injunction (the PI was stayed for 14 days), to prevent U.S. border officials from using Title 42 to expelling families with young children seeking asylum. (Huisha-Huisha, et al. v. Mayorkas, 9/16/21)

 

Biden Administration Files First MPP Implementation Compliance Report

AILA: The Biden administration filed their first Migrant Protection Protocols (MPP) compliance report. Earlier, the district court ordered the administration to submit information on key pieces of data and steps it was taking toward implementation of MPP. (Texas, et al., v. Biden, et al., 9/15/21)

 

USCIS Updates Policy Guidance on Refugee and Asylee Adjustment of Status Interviews

AILA: USCIS released updated policy guidance, effective 9/16/21, revising the criteria that applies when determining whether to refer an asylee or refugee adjustment applicant for an interview. Policy also includes criteria relating to a principal applicant’s underlying asylum claim.

 

Second Extension of Effective Date of USCIS Temporary Final Rule on Interpreters at Asylum Interviews

AILA: USCIS temporary final rule extending the expiration date of the temporary final rule on interpreters at asylum interviews published at 85 FR 59655, which was set to expire on 9/20/21, through 3/16/22. (86 FR 51781, 9/17/21)

 

DOS and DHS Release Statement on CAM Application Approval

AILA: DOS and DHS released a statement announcing that the Central American Minors (CAM) program will begin accepting new applications as of 9/14/21. Statement also included a reminder that eligibility for the program was also expanded.

 

USCIS Releases New Webpage for Lockbox Filing Location Updates

AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.

 

RESOURCES

 

 

EVENTS

   

 

ImmProf

Monday, September 20, 2021

Sunday, September 19, 2021

Saturday, September 18, 2021

Friday, September 17, 2021

Thursday, September 16, 2021

Wednesday, September 15, 2021

Tuesday, September 14, 2021

Monday, September 13, 2021

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

Thanks, Elizabeth!😎

🇺🇸DPF!

PWS

09-21-21

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