PRACTICE ALERTS
Mandatory E-Filing with EOIR, Starting FRIDAY
EOIR Updates
EOIR: EOIR reminds interested stakeholders that hearings on Feb. 8, 2022, and beyond will proceed as scheduled, subject to local operational and case-specific decisions. Please monitor EOIR’s website for information about the agency’s operations nationwide.
EOIR NYC: In an effort to provide more clarity on operations at each of the NYC immigration courts from Feb. 8 onward, [EOIR] is providing additional guidance. See attached.
EADs Valid Longer
USCIS: In the interest of reducing the burden on both the agency and the public, USCIS has revised its guidelines to state that initial and renewal EADs generally may be issued with a maximum validity period of up to 2 years for asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners; or up to the end of the authorized deferred action or parole period to applicants in these filing categories
NEWS
After review, U.S. maintains border policy of expelling migrants, citing Omicron
CBS: After a recent internal review, the Biden administration decided to maintain a pandemic-era order put in place under former President Donald Trump that authorizes the rapid deportation of migrants from the U.S.-Mexico border, the Centers for Disease Control and Prevention (CDC) told CBS News Thursday.
Bill Aims to Remove US Immigration Courts from Executive Branch
VOA: U.S. House Representative Zoe Lofgren, a Democrat from California who leads the House Subcommittee on Immigration and Citizenship, unveiled the legislation Thursday.
148 Groups Ask Biden To Fund $50M For Migrant Atty Access
Law360: A group of 148 organizations supporting immigrant and civil rights sent a letter to President Joe Biden and congressional leaders urging them to allocate at least $50 million to provide “immediate and dramatic” expansion of legal representation for people facing immigration proceedings.
83,000 Afghans Made It To The US. Now They Need Lawyers
Law360: The arrival in the United States of 83,000 displaced Afghans following the military’s withdrawal from Afghanistan over the summer has put stress on the already overburdened immigration system and created an access to justice crisis that Congress needs to address, attorneys say. See also Additional $1.2 billion in resettlement assistance authorized earlier this week by President Biden.
Internal documents show heated back-and-forth between DeSantis and Biden admin over care of migrant children
CNN: An ongoing feud over President Joe Biden’s immigration policies is escalating in Florida where Gov. Ron DeSantis is threatening to keep long-standing shelters from caring for migrant children, culminating in a heated back and forth unfolding in internal correspondence obtained by CNN.
Feds Pressed To Free Immigrant Detainees As Ill. Ban Kicks In
Law360: Immigrant rights groups urged the Biden administration on Tuesday to release people held in immigration detention in Illinois amid fears that U.S. Immigration and Customs Enforcement will send the detainees out of state as Illinois shuts down its last two detention centers.
Mexican authorities evict Tijuana migrant camp near border
WaPo: About a hundred members of the police, National Guard and army on Sunday evicted 381 migrants, mainly Central Americans and Mexicans, from a makeshift camp they had been staying in for almost a year in Tijuana at the U.S. border crossing.
Robot Dogs Take Another Step Towards Deployment at the Border
DHS: “The southern border can be an inhospitable place for man and beast, and that is exactly why a machine may excel there,” said S&T program manager, Brenda Long. “This S&T-led initiative focuses on Automated Ground Surveillance Vehicles, or what we call ‘AGSVs.’ Essentially, the AGSV program is all about…robot dogs.”
LITIGATION/CASELAW/RULES/MEMOS
BIA Reinstates Removal Proceedings After Finding §2C:35-10(a)(1) of New Jersey Statutes Annotated Is Divisible with Respect to Specific Substance Possessed
AILA: BIA found §2C:35-10(a)(1) of New Jersey Statutes Annotated is divisible and the record of conviction can be reviewed under the modified categorical approach to determine whether the specific substance possessed is a controlled substance under federal law. (Matter of Laguerre, 1/20/22)
BIA Dismisses Appeal After Finding §714.1 of Iowa Code Is Divisible with Regard to Type of Theft
AILA: BIA found Iowa Code §714.1 is divisible with respect to whether a violation of it involved theft by taking without consent or theft by fraud or deceit, permitting use of modified categorical approach to determine whether violation involved aggravated felony theft. (Matter of Koat, 1/27/22)
BIA Rules Respondent’s Conviction for Conspiracy to Commit Wire Fraud Constitutes a Particularly Serious Crime
AILA: BIA found the amount of forfeiture ordered in a criminal proceeding may be considered in determining whether a crime of fraud or deceit resulted in a loss to victim(s) exceeding $10,000, if the amount ordered is sufficiently traceable to the conduct of conviction. (Matter of F-R-A-, 2/3/22)
Unpub. BIA Termination Victory
LexisNexis: Helen Harnett writes: “I thought you might be interested in this BIA decision. The IJ terminated proceedings because the NTA did not contain a time or date.”
CA1 Holds That Irregularities in “Record of Sworn Statement” Lacked Sufficient Indicia of Reliability for Use in Assessing Credibility
AILA: In light of unexplained irregularities in the record, the court vacated the BIA’s denials of withholding of removal and relief under the Convention Against Torture (CAT) and remanded to the agency for further factfinding. (Bonilla v. Garland, 1/12/22)
CA1 Says Conviction in Rhode Island for Driving a Motor Vehicle Without Consent Is Not Categorically a Theft Offense
AILA: The court held that the petitioner’s conviction for driving a motor vehicle without consent of the owner or lessee under Rhode Island General Laws (RIGL) §31-9-1 did not constitute a categorical aggravated felony theft offense. (Da Graca v. Garland, 1/18/22)
CA1 Holds That BIA Properly Applied Heightened Matter of Jean Standard to Petitioner’s Waiver Request
AILA: The court held that the BIA adequately considered the question of extraordinary circumstances called for in Matter of Jean, and found it lacked jurisdiction to consider the relative weight the BIA gave the evidence in denying the inadmissibility waiver. (Peulic v. Garland, 1/11/22)
CA4 Finds That “Prosecution Witnesses” Is Not a PSG
AILA: The court agreed with the BIA that the Honduran petitioner’s proposed particular social group (PSG) of “prosecution witnesses” lacked particularity, and found no error in the BIA’s decision upholding the IJ’s adverse credibility finding as to petitioner. (Herrera-Martinez v. Garland, 1/5/22)
CA4 Finds BIA Abused Its Discretion in Denying Continuance to Petitioner with Pending U Visa Application
AILA: Where the petitioner had a pending U visa application, the court held that the BIA abused its discretion in denying his motion for a continuance, finding that the BIA had departed from precedential opinions in holding that he had failed to show good cause. (Garcia Cabrera v. Garland, 1/6/22)
4th Circ. Revives Guatemalan Asylum Case Over Family Ties
Law360: The Fourth Circuit breathed new life into a Guatemalan migrant’s asylum case, faulting an immigration judge for failing to tie death threats that the man received to his son, who was targeted for gang recruitment.
CA5 Finds Proposed PSG of Honduran Women Unable to Leave Domestic Relationship Was Not Cognizable
AILA: The court concluded that the BIA did not abuse its discretion in holding that the petitioner’s proposed particular social group (PSG)— “Honduran women who are unable to leave their domestic relationships”—was not legally cognizable. (Jaco v. Garland, 10/27/21, amended 1/26/22)
CA5 Finds Petitioner Removable Under INA §237(a)(2)(A)(ii) for Having Been Convicted of Two CIMTs After Admission
AILA: The court concluded that res judicata did not bar the removal proceedings, deadly conduct was categorically a crime involving moral turpitude (CIMT), and petitioner was admitted to the United States when he adjusted to lawful permanent resident (LPR) status. (Diaz Esparza v. Garland, 1/17/22)
CA5 Says Government Rebutted Presumption of Future Persecution Based on Guatemalan Petitioner’s Sexual Orientation and Identity
AILA: The court held that because petitioner, who was homosexual and identified as transgender, had said that she could probably safely relocate in Guatemala, the BIA did not err in finding that the government had rebutted the presumption of future persecution. (Santos-Zacaria v. Garland, 1/10/22)
CA5 Upholds Withholding of Removal Denial to Petitioner with Felony Assault Conviction
AILA: The court affirmed the BIA’s determination that petitioner’s felony assault conviction was a particularly serious crime rendering him ineligible for withholding of removal, because he had failed to show how the alleged errors compelled reversal. (Aviles-Tavera v. Garland, 1/4/22)
CA5 Withdraws Prior Opinion and Issues Substitute Opinion in Parada-Orellana v. Garland
AILA: The court denied the petitioner’s petition for panel rehearing, withdrew its prior panel opinion of 8/6/21, and held that the BIA did not abuse its discretion by applying an incorrect legal standard when it denied petitioner’s motion to reopen. (Parada-Orellana v. Garland, 1/3/22)
CA6 Finds Petitioner Forfeited Ineffective Assistance Claim Because He Failed to Comply with Third Lozada Requirement
AILA: The court held that BIA did not abuse its discretion in denying the motion to reopen based on ineffective assistance, finding that Matter of Lozada requires more than a statement that the noncitizen is “not interested” in filing a bar complaint.(Guzman-Torralva v. Garland, 1/13/22)
CA7 Upholds Asylum Denial to Christian Chinese Petitioner Who Acknowledged Discrepancies in Her Asylum Application
AILA: The court held that the record supported the IJ’s and BIA’s conclusion that the Chinese Christian petitioner did not meet her burden of establishing her eligibility for asylum given the discrepancies in her testimony and the lack of corroborative evidence. (Dai v. Garland, 1/24/22)
CA7 Says BIA Legally Erred by Considering Arguments That the Government First Raised on Appeal
AILA: The court held that the BIA legally erred by considering arguments that the government did not present to the IJ, and that the BIA engaged in impermissible factfinding on the conditions in Kosovo, rendering its decision to deny remand an abuse of discretion. (Osmani v. Garland, 1/24/22)
CA8 Upholds BIA’s Decision Denying Motion to Reopen Even Though Petitioner Made a Prima Facie Case for Relief
AILA: The court held that the BIA did not abuse its discretion in denying petitioner’s successive motion to reopen, and that the BIA did not deprive the petitioner of a constitutionally protected liberty interest in declining to reopen proceedings sua sponte. (Urrutia Robles v. Garland, 1/26/22)
CA9 Holds That BIA Sufficiently Complied with Notice Requirements Applicable to a Minor in Immigration Proceedings
AILA: The court rejected the petitioner’s contention that, because she was actually a minor when she was released on her own recognizance without notice of her hearing to a reasonable adult, the notice provided her was inadequate. (Jimenez-Sandoval v. Garland, 1/13/22)
CA9: Panel Nixes Deportation For Missing Court, Cites Faulty Notice
Law360:An Indian man can’t be deported for missing an immigration court date after he received a notice to appear that didn’t specify a date and time, even though that information came in a later notice, the Ninth Circuit has ruled.
CA9 Finds Petitioner’s Conviction for Arson in California Was Not an Aggravated Felony
AILA: The court held that arson in violation of California Penal Code (CPC) §451 was not a categorical match to its federal counterpart, and thus that the petitioner’s conviction under CPC §451(b) was not an aggravated felony that rendered him removable. (Togonon v. Garland, 1/10/22)
CA9 Declines to Rehear Velasquez-Gaspar v. Garland En Banc
AILA: The court issued an order denying the rehearing en banc of Velasquez-Gaspar v. Garland, in which the court upheld the BIA’s conclusion that the Guatemalan government could have protected the petitioner had she reported her abuse. (Velasquez-Gaspar v. Garland, 1/25/22)
CA11 Finds Petitioner Failed to Prove That Florida’s Cocaine Statute Covers More Substances Than the Federal Statute
AILA: The court held that the petitioner, who had been convicted of cocaine possession under Florida law, had failed to show that Florida’s definition of cocaine covers more than its federal counterpart, and thus upheld the BIA’s denial of cancellation of removal. (Chamu v. Att’y Gen., 1/26/22)
Feds Fight Detention Probe In Migrant Counsel Access Suit
Law360: The U.S. Department of Homeland Security urged a D.C. federal court to halt immigration advocates’ efforts to inspect a large detention center accused of denying detainees access to counsel, calling a probe “particularly intrusive” amid debate over the lawsuit’s viability.
EOIR to Close Fishkill Immigration Court
AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.
Form Update: Form I-864, Affidavit of Support Under Section 213A of the INA, Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, Form I-864EZ, Affidavit of Support Under Section 213A of the Act
USCIS: Starting April 7, 2022, we will only accept the 12/08/21 edition.
Form Update: Form I-824, Application for Action on an Approved Application or Petition
USCIS: Starting April 7, 2022, we will only accept the 12/02/21 edition.
RESOURCES
· AILA: Practice Alert: Escalating Problems with Virtual Hearings and Contacting the Court
· AILA: Can They Do It? The Myth of the Tech-Challenged Client
· AILA: Sleep Debt: A Contributing Factor for Ethics Mishaps
· AILA: Practice Alert: Local OPLA Guidance on Prosecutorial Discretion
· AILA: Practice Alert: In-Person Asylum Interviews Return But COVID-19 Precautions Continue
· AILA: Practice Resource: Fraudulent Document Standard and Matter of O–M–O–
· AILA: Taking the Measure of Lozada
· AILA Meeting with the USCIS Refugee, Asylum & International Operations Directorate
· ASAP: February Updates
· Asylos
o The Bahamas: State protection for families of gang members who face persecution by gangs (AME2021-15)
o Iraq: Situation of divorced, single mothers in Iraqi Kurdistan (MEN2021-19)
o Hungary: Treatment of Roma Women and State Protection (CIS2021-09)
o Russia: Domestic Violence (CIS2021-08)
· CLINIC: Department of Homeland Security (DHS), I-9 and REAL ID Policies
· CLINIC: COVID & U.S. Citizenship and Immigration Services (USCIS)
· CLINIC: COVID & Department of State
· CLINIC: COVID & ICE
· CLINIC: COVID & EOIR
· MPI: Four Years of Profound Change: Immigration Policy during the Trump Presidency
· USCIS Statement on the International Day of Zero Tolerance for Female Genital Mutilation
· USCIS: Overview of myUSCIS for Applicants
EVENTS
ImmProf
Monday, February 7, 2022
· U.S. Hispanic population continued its geographic spread in the 2010s
Sunday, February 6, 2022
· Poetry Break: Immigration by Ali Alizadeh
· Refugee Olympic Team at 2022 Winter Olympics in Beijing?
· After review, Biden Administration maintains Title 42 border policy of expelling migrants
Saturday, February 5, 2022
· WaPo Debunks JD Vance Talking Points on Biden & Unlawful Migration
· NPR Politics Podcast: Democratic Activists Say Biden Has Failed To Deliver On Immigration Promises
Friday, February 4, 2022
· From the Bookshelves: Joan is Okay by Weike Wang
· The Toll of MPP (Remain in Mexico Policy) on Children
· “The Disillusionment of a Young Biden Official” by Jonathan Blitzer for The New Yorker
· Bill Introduced in Congress to Make Immigration Courts More Independent
· Shalini Bhargava Ray on “Shadow Sanctions for Immigration Violations” in Lawfare
Thursday, February 3, 2022
· Border Patrol to Use Robot Dogs
· DACA Recipients Continue to Contribute
· Immigration Article of the Day: Restructuring Public Defense After Padilla by Ingrid Eagly, Tali Gires, Rebecca Kutlow & Eliana Navarro Gracian
Wednesday, February 2, 2022
· New TPS Advocated for Migrants from Honduras, Guatemala, El Salvador, and Nicaragua
· San Francisco apologizes for history of racism, discrimination against Chinese Americans
· A Mexican American is the first Latina president of Harvard Law Review
· From the Bookshelves: Go Back to Where You Came From: And Other Helpful Recommendations on How to Become American by Wajahat Ali
· MPI Releases Report on Immigration Policy Changes During Trump Administration
· Covid infections surge in immigration detention facilities
Tuesday, February 1, 2022
· In Today’s WTF Deportation News
· DeSantis Plays Politics with the Lives of Migrants
· Congress, not Biden, should be held accountable for immigration reform
Monday, January 31, 2022
· WES: Canada’s Enduring Appeal to Prospective Immigrants in the Face of COVID-19
· Race, Sovereignty, and Immigrant Justice Conference
· AB 1259 Extends Post-Conviction Relief to Trial Convictions in California That Lack Immigration Advisal
· From the Bookshelves: No One is Illegal: Fighting Racism and State Violence on the U.S.-Mexico Border by Justin Akers Chacón and Mike Davis
Liz’s “Item 4” under “Litigation,” upholding termination for a statutorily defective NTA, inspired the following additional thoughts.
So, DHS argues on appeal that the BIA should violate, and intentionally and dishonestly, “misconstrue” 7th Circuit precedent. And, for a good measure, publish the result to insure that no IJ in the 7th Circuit gets it right in the future.
Why aren’t there ethical problems with this outrageous, unprofessional DHS appellate argument? Why isn’t this a precedent, as it provides helpful guidance and can be used to prevent future frivolous litigation by DHS? Why is there no accountability for this frivolous appeal, request to publish, and the blatant effort by DHS counsel to “pull the wool over the eyes” of the IJ and the BIA?
The pattern of taking a frivolous appeal, making unethical arguments, and asking the BIA to publish as a precedent shows the arrogant view of ICE that they “have EOIR in their pocket” (certainly consistent with the Sessions/Barr rhetoric) and that there will be neither accountability nor consequences for frivolous and unethical conduct by DHS attorneys! By not publishing the result as a precedent, the BIA leaves it open for other IJs and single Appellate Judge BIA “panels” to get it wrong in the future. It also sends a signal that taking a whack at making misleading arguments for illegal and unethical results has no downside at Mayorkas’s DHS or Garland’s BIA.
The one-sided BIA precedent process — publishing mainly cases favorable to DHS — is no accident either. Pro-DHS rulings can be used by OIL (correctly or incorrectly) to argue for so-called “Chevron deference” or its evil cousin “Brand X” disenfranchisement of Article III Judges.
By contrast, precedents favorable to individuals merely promote due process, fundamental fairness, best practices, consistency, and efficiency. They might also be used to curb misbehavior by IJs and DHS counsel. Nothing very important in the eyes of EOIR’s DOJ political overlords.
GOP AGs, from Ashcroft through Sessions and Barr, have made it clear that precedents favorable to DHS Enforcement are far less likely to be “career threatening” or “career limiting” for their “captive judges.” On the other hand, precedents standing for due process, vindicating migrants’ rights, or curbing “outlier” behavior by IJs and DHS attorneys can be risky. And, perhaps surprisingly, Dem AGs in the 21st Century also have been “A-OK” with that, as Garland demonstrates on a daily basis.
Where are Ur Mendoza Jaddou (yes, she’s at USCIS, not ICE, but she’s “upper management,” knows the issues, and has access to Mayorkas) and Kerry Doyle at DHS? Whatever happened to Lisa Monaco, Vanita Gupta, and Lucas Guttentag at DOJ?
These are the types of “real time” problems that leadership can and should be solving by setting a “no nonsense due process first” tone and bringing in and empowering expert Appellate Judges (“real judges”) and DHS Chief Counsel who will put due process, fundamental fairness, and ethics foremost! But, apparently it’s “below the radar screen” of Biden Administration leadership at DHS and DOJ.
The case for an independent Article I Court has never been stronger! Garland’s lack of leadership and furthering of injustice adds to Chairperson Lofgren’s case for fundamental change and removal of EOIR from DOJ, every day!
