⚖️SOCIAL JUSTICE & PROGRESS: MADISON, WI MOVES FORWARD WITH PROMISING LOCAL LEADERS COMMITTED TO MAKING THINGS BETTER FOR EVERYONE — Esther J. Cepeda @ Wisconsin State Journal

https://madison.com/opinion/column/esther-j-cepeda-madison-embraces-leaders-of-color/article_b8142fad-87be-5431-af70-52063f11347e.html

. . . .

This is the point of electing people of color to positions in which they are likely to be able to add a unique view to discussions about allocating public resources that centers disparities in particular communities.

The people of color who were elected to the Dane County Board — Brenda Yang, 19th District, Dana Pellebon, 33rd District, Olivia Xistris-Songpanya, 13th District; April Kigeya, 15th District — are cultural ambassadors who likely have the beginnings of answers to thorny questions that have bedeviled the Madison area for years.

Questions like how to perform outreach in communities that are cut off from Madison’s glittering Downtown and its majestic campuses; what to do about the lack of jobs for those approaching the job market with few skills; and how to string together disconnected neighborhood enclaves into a multicultural coalition that could hold their representatives to account.

Intertwined with how county leaders move toward equality for the most vulnerable is Tuesday’s election of women of color to the Madison School Board.

Nothing is more important than establishing the local public schools as safe places where children of color can read, write and compute math at the same level as their white, grade-level peers.

As a former Madison teacher, I can tell you from personal experience that the Madison schools have put an incredible amount of energy, time and cash behind training and programs to guide staff toward an understanding of the special needs, talents and assets of children of color.

School Board president and first-term incumbent Ali Muldrow was re-elected Tuesday, and Nichelle Nichols won an open seat. These women bring extensive personal and professional experience with Madison schools and the district office to bear on huge budgets meant to target the neediest students while still nurturing high-flyer learners.

Both the School Board and the Madison City Council have majorities of people of color leading them.

Surely, the authors of the “Race to Equity Project” report wouldn’t declare that the “mission” to promote “greater public awareness and understanding of the depth and breadth of the racial disparities that differentiate the white and black experience in Dane County, Wisconsin” is accomplished.

But they did tip their hat to all those who came before them. “Long before we came along, mission-driven institutions and a host of committed Dane County activists had been compiling an impressive record of struggle against racism, discrimination, and unequal opportunity. They have fought for equality and fairness for people of color from their positions as public officials, in the classroom, from the pulpit, at neighborhood centers, and in the day-to-day work of improving the future for at-risk children and families.”

Amen. It is on the shoulders of those who have gone before them that leaders of color in Madison are finally getting their due. There is much work to be done, but things are moving in the right direction. Compared to so many other municipalities, Dane County and Madison are moving relatively quickly to address big needs — this is exciting!

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Read Esther’s complete article at the link.

The “grass roots level” is a great place to make fairness and equity work for everyone in the community.

🇺🇸Due Process Forever!

PWS

04-11-22

THE GIBSON REPORT — 03-28-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC — HEADLINERS: ICE Lies To Congress About Attorney Access; BIA Flagged By 11th For Another “Categorical Approach” Blunder!

Weekly Briefing

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

CONTENTS (jump to section)

NEWS

LITIGATION & AGENCY UPDATES

RESOURCES

EVENTS

NEWS

Biden Administration Prepares Sweeping Change to Asylum Process

NYT: Under the new policy, which the administration released on Thursday as an interim final rule, some migrants seeking asylum will have their claims heard and evaluated by asylum officers instead of immigration judges. The goal, administration officials said, is for the entire process to take six months, compared with a current average of about five years.

USCIS Agrees to Restore Path to Permanent Residency for TPS Beneficiaries

CLINIC: U.S. Citizenship and Immigration Services (USCIS) agreed to restore a path to permanent residency for many Temporary Protected Status (TPS) beneficiaries blocked by then-acting USCIS Director Ken Cuccinelli — an illegally appointed Trump official. Because of this agreement, TPS beneficiaries impacted by this policy will be able to reopen and dismiss their removal orders and apply to adjust their status to become permanent residents — eliminating the threat of deportation if their TPS protections are revoked in the future.

ICE ending Etowah County immigration detention after ‘long history of serious deficiencies’

AL: U.S. Immigration and Customs Enforcement, also known as ICE, will discontinue use of the Etowah County Detention Center in Gadsden, and will limit the use of the three other southern detention facilities: Glades County Detention Center in Moore Haven, FL., Winn Correctional Center in Winnfield, LA., and Alamance County Detention Facility in Graham, N.C. See also Biden to Ask Congress for 9,000 Fewer Immigration Detention Beds.

ICE claims ‘unabated’ legal access in detention during pandemic

Roll Call: Congress in the fiscal 2021 law instructed the agency to include the number of legal visits “denied or not facilitated” as well as how many detention centers do not meet the agency’s standards of communications between immigrants and their lawyers… [T]he report claimed ICE inspections in fiscal 2020 “did not identify any legal representatives being denied access to their clients.”

Cruelty as Border Policy: The Biden Administration Keeps in Place CBP’s “Consequence Delivery System”

Border Chronicle: Behind closed doors, agents, like technocrats in a Fortune 500 company, create color-coded graphics to demonstrate the most “efficient” and “effective” enforcement techniques. Even though the effectiveness of deterrence has been questioned and refuted, and even though the question of human rights has not entered the equation at all, the U.S. federal government seems to be plowing ahead with this without any questions.

Boston asylum office has second lowest grant rate for asylum seekers in the country

GBH: The Boston asylum office for U.S. Citizenship and Immigration Services granted only about 11% of applications last year, less than half the national average, according to a report released Wednesday.

Judge Orders Immig. Atty To Pay $240K For Asylum Scam

Law360: A Massachusetts judge ordered an immigration attorney to pay $240,000 in penalties and restitution for filing frivolous and false asylum applications for undocumented Brazilian immigrants without their knowledge, according to a Thursday announcement from Massachusetts Attorney General Maura Healey.

EOIR Announces 25 New Immigration Judges

More than half of the judges will be going to the Hyattsville Immigration Court (Maryland) and Sterling Immigration Court (Virginia, opening May 2022). The list includes Claudia Cubas (CAIR Coalition), Kristie Ann-Padron (Catholic Legal Services, Miami), Kyle A. Dandelet (Pro Bono Immigration Attorney at Cleary Gottlieb), Ayodele A. Gansallo (Hebrew Immigrant Aid Society of Pennsylvania), Joyce L. Noche (Immigrant Defenders Law Center), Christine Lluis Reis (Human Rights Institute at St. Thomas University College of Law), Carmen Maria Rey Caldas (IRAP), and others.

Biden says the U.S. will take 100,000 Ukrainians. But how many will go?

WaPo: Refugee workers said it was typical for recent refugees to focus at first on the possibility that they would be able to return quickly to their lives. But should the war drag on, more Ukrainians would seize on the chance to seek a haven in the United States, they said.

Immigration, Environmental Law Links Deepen Under Biden

Law360: Immigration and environmental attorneys are increasingly banding together as advocacy groups on both the left and the right try to leverage environmental laws to influence immigration policy.

LITIGATION & AGENCY UPDATES

DHS Partly Barred From Tailoring Immigration Enforcement

Law360: An Ohio federal judge on Tuesday blocked the U.S. Department of Homeland Security from considering a Biden administration mandate that had narrowed immigration enforcement priorities while making custody decisions, finding the policy overstepped sections of federal immigration law.

CA2 “Weapons Bar” Remand: Kakar v. USCIS

Lexis: On review, the United States District Court for the Eastern District of New York affirmed the denial under the “weapons bar” of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(3)(B)(iii)(V). The question on appeal is whether USCIS, in denying Kakar’s application, adequately explained the unlawfulness of Kakar’s acts under United States law, and whether in doing so it considered his claim of duress. Because we are unable to discern USCIS’s full reasoning for denying Kakar’s application or to conclude that the agency considered all factors relevant to its decision, we conclude that its decision was arbitrary and capricious under the APA.

CA 11 Says Marijuana Conviction Can’t Bar Removal Relief

Law360: The Eleventh Circuit ruled Thursday that the Board of Immigration Appeals erred when finding that a man’s Florida conviction for marijuana possession rendered him ineligible for a form of deportation protection.

Feds Lose Bid To Move Texas Sheriffs’ Immigration Policy Suit

Law360: A Texas federal judge has denied the Biden administration’s bid to transfer a group of Texas sheriffs’ challenge to the administration’s immigration enforcement policies, rejecting the argument that none of the sheriffs in the judicial district has standing to sue.

DHS and DOJ Interim Final Rule on Asylum Processing

AILA: Advance copy of DHS and DOJ interim final rule (IFR) on asylum processing. The IFR will be published in the Federal Register on 3/29/22 and will be effective 60 days from the date of publication, with comments accepted for 60 days.

DOS Provides Guidance on Visas for Ukrainian Children

AILA: DOS issued guidance on visas for Ukrainian children undergoing intercountry adoption or who previously traveled for hosting programs in the United States. The Ukrainian government is not currently approving children to participate in host programs in the United States. More details are available.

EOIR Updates Appendix O of the Policy Manual with Adjournment Code 22

AILA: EOIR updated appendix O of the policy manual with adjournment code 22. The reason is “Respondent or representative rejected earliest possible hearing date,” and the definition is “Hearing adjourned due to respondent or representative rejecting earliest possible hearing date.”

HHS 60-Day Notice and Request for Comment on Forms for Sponsors for Unaccompanied Children

AILA: HHS 60-day notice and request for comments on proposed revisions to the Family Reunification Packet of forms for potential sponsors of unaccompanied children. Comments are due 60 days after publication of the notice. (87 FR 16194, 3/22/22)

RESOURCES

AIC: Alternatives to Detention: An Overview

AIC: Biden’s New Asylum Process: What You Need to Know

CLINIC: All About Employment Authorization Documents: FAQs for Legal Practitioners

CLINIC: All About Cuban Adjustment: FAQs for Legal Practitioners

CLINIC: Executive Office for Immigration Review (EOIR) Updates

CLINIC: U.S. Citizenship and Immigration Services (USCIS)

CRS: Expedited Removal of Aliens: An Introduction

ILRC: 2022 Case Update: Domestic Violence Deportation Ground

ILRC: Update on DHS Enforcement Priorities Litigation

ILRC: Acquisition & Derivation Quick Reference Charts

USCIS: Fact Sheet: DHS Efforts to Assist Ukrainian Nationals

EVENTS

NIJC EVENTS

4/12/22 Pro Bono Training: Representing Immigrant Survivors Of Domestic Violence (VAWA)

5/18/22 Pro Bono Training: Representing Immigrant Survivors Eligible For U Visas

6/28/22 Pro Bono Training: Asylum Pride Part 1

6/30/22 Pro Bono Training: Asylum Pride Part 2

GENERAL EVENTS

3/29/22 What U Practitioners Should Know in 2022: Monitoring Developments in U Visa Practice

3/29/22 Instrumentalising citizenship in the fight against terrorism: How have deprivation powers evolved since 9/11?

3/30/22 EOIR: Case & Appeals System; Immigration Court Online Resource

3/30/22 Increasing Immigrant Integration and Inclusion Through Community Partnerships

3/31/22 Asylum Overhaul: Unpacking DHS’ New Rule on Asylum Procedures

3/31/22 EOIR ECAS Information Sessions

3/31/22 The Crisis in Ukraine: Legal Services Insights, Responses, and Opportunities to Assist Refugees

4/1/22 EOIR – Chicago Model Hearing Program

4/1/22 Abolition Across Criminal Justice, Immigration, and National Security

4/5/22 Intensive T Visa Declaration Workshop

4/6/22 Initial TPS Applications

4/7/22 Motions Before the Board of Immigration Appeals

4/8/22 The Road to Abolition: Intersectional Approaches to Immigrant Justice

4/8/22 Prosecutorial Discretion (PD) in the Immigration Context: Advantages, Tactics, and Logistics

4/12/22 Introduction to Bond Proceedings

4/12/22 Preparing Military Naturalization Applications: What You Need to Know

4/12/22-5/3/22 Webinar Series: Selected Issues in Inadmissibility

4/13/22 Understanding Helpfulness for U Visa Certification and the Ongoing Assistance Requirement

4/14/22 Workshop for Country Conditions Experts on Mitigating DHS Challenges

4/20/22 U Visa Webinar Series: U Visa Consular Processing

4/21/22 Monthly NIPNLG Removal Defense Webinar: Hot Topics in SIJS

4/21/22 The Asylum Processing Rule & Southern Border Legal Updates

4/25/22 Bias, Equity, and the Impact of Anti-Blackness on Immigrant Survivors

4/27/22 Special Immigrant Juvenile Policy Updates

4/27/22 U Visa RFEs

4/28/22 Motions to Reopen Removal Proceedings

5/3/22 The Family Visa Petition

5/4/22 California Pardons and Post-Conviction Relief

5/6/22-5/13/22 NITA-NIPNLG “Advocacy in Immigration Matters” Training

5/10/22 Asylum Claims for Young People

5/13/22 FBA Immigration Law Conference

5/17/22 Advocating for Prosecutorial Discretion for Clients in Removal Proceedings

5/18/22 Pro Bono Training: Representing Immigrant Survivors Eligible For U Visas

5/19/22 Special Immigrant Juvenile Status: Your Client’s I-360 Is Approved, Now What?

5/24/22 Obstacles to TPS Eligibility

6/7/22 Asylum and Employment Authorization

6/8/22 Naturalization for People with Disabilities

6/22/22 Introduction to Immigrant Visa Consular Processing

7/5/22 Comprehensive Overview of Immigration Law (COIL)

9/26/22 Comprehensive Overview of Immigration Law (COIL)

To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

The idea that the DHS “New American Gulag” (“NAG”) doesn’t restrict attorney access is absurd! A primary reason for detention in obscure, out of the way, hard to reach places like Jena, LA, Lumpkin, GA, amd Dilley, TX is to inhibit representation and increase the pressure on detainees to abandon claims and take “final orders of removal.”

That goes hand in hand with staffing these prisons with DOJ’s wholly owned judges who are renowned for denying bond and summarily denying most asylum claims. That a disproportionate number of these facilities are located in Federal Judicial Circuits five and eleven, notorious for anti-due process, anti-human-rights, anti-immigrant “jurisprudence,” is no coincidence either.

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

With respect to the “categorical approach,” as my distinguished colleague Judge Jeffrey Chase has pointed out, EOIR has actually “institutionalized” resistance to and manipulation of this analysis to promote results unfavorable to immigrants and pleasing to DHS!

As several related Supreme Court decisions sealed the matter, the Board in 2016 was finally forced (at least on paper) to acknowledge the need to make CIMT determinations through a strict application of the categorical approach. However, as Prof. Koh demonstrates with examples from BIA precedent decisions, since 2016, the Board, while purporting to comply with the categorical approach, in fact has expanded through its precedent decisions the very meaning of what constitutes “moral turpitude,” enabling a greater number of offenses to be categorized as CIMTs.

Consistent with this approach was a training given by now-retired arch conservative Board member Roger Pauley at last summer’s IJ training conference. From the conference materials obtained by a private attorney through a FOIA request, Pauley appears to have trained the judges not to apply the categorical approach as required by the Supreme Court when doing so won’t lead to a “sensible” result. I believe the IJ corps would understand what this administration is likely to view as a “sensible” result. Remember that the IJs being trained cannot have more than 15 percent of their decisions remanded or reversed by the BIA under the agency’s completion quotas. So even if an IJ realizes that they are bound by case law to apply the categorical approach, the same IJ also realizes that they ignore the BIA’s advice to the contrary at their own risk.

HON. JEFFREY S. CHASE: The History Of A Flawed Judiciary; The Intentional Tilting Of Asylum Law Against Asylum Seekers; The Farce Of Justice In The Immigration Courts; The Need For An Independent Article I Court!

As both of these incidents show, the Biden Administration under Mayorkas and Garland has failed to bring accountability or intellectual honesty to many parts of the broken immigration justice system they inherited from the Trump regime. The disgraceful “atmosphere of unaccountability” continues to predominate at DHS and DOJ.

🇺🇸Due Process Forever!

PWS

03-29-22

⚖️EOIR SPONSORS WEBINAR FOR MARCH 30 — REGISTRATION OPENS TODAY & CLOSES @ 5PM!

https://public-inspection.federalregister.gov/2022-06357.pdf

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Tip: If EOIR really wants to change its public image and get more user input, giving more than 9 hours of public notice of the registration deadline might help!

🇺🇸Due Process Forever!

PWS

03-28-22

⚖️THE GIBSON REPORT — 03-21-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC — BIA Suffers Beat-Downs In 11th (Burglary) & 1st (Credibility, CAT) Cirs, While Shernette G. Noyes Gets Rare Win For Immigrant In BIA Theft Precedent, Matter of C. MORGAN, 28 I&N Dec. 508 (BIA 2022)!

Weekly Briefing

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The content of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

CONTENTS (jump to section)

PRACTICE ALERTS

NEWS

LITIGATION & AGENCY UPDATES

RESOURCES

EVENTS

PRACTICE ALERTS

USCIS Preparing to Resume Public Services on June 4

Secretary Mayorkas Designates Afghanistan for Temporary Protected Status

CBP General Notice Regarding Electronic Form I-94s Instead of Paper at Land Ports of Entry

DHS To End COVID-19 Temporary Policy for Allowing Expired Identity Documents for Employment Verification

NEWS

One-Third of New Immigration Court Cases Are Children; One in Eight Are 0-4 Years of Age

TRAC: The largest segment where age was recorded, some 32,691, were children from zero to four years of age. This represents 12 percent of cases received this fiscal year, or a little less than one out of every eight.

DHS withdraws Trump-era rule that expanded quick deportations

Reuters: DHS in a notice published in the Federal Register said the “expedited removal” process is best focused on people who recently entered the U.S. and remain in close proximity to the border, rather than those targeted by Trump’s sweeping 2019 expansion, who have been in the country longer and developed ties to their communities.

‘Travesty’: Immigration advocates accuse Biden administration of TPS double standard on immigrants of color

MSN: The administration’s announcement that it would provide “temporary protected status,” or TPS, for Afghans came weeks after the Department of Homeland Security granted the same protections for Ukrainians living in the United States. See also More than 44,000 Afghans tried for a fast track to the U.S. About 200 have gotten it; Russians are blocked at US border, Ukrainians are admitted.

Watchdog recommends relocation of detainees from ICE facility, citing unsanitary conditions and staff shortages
CBS: The Department of Homeland Security Office of Inspector General (OIG) issued a damning report on Friday documenting unsanitary conditions, staff shortages and security lapses at ICE’s Torrance County Detention Center in New Mexico. The OIG found the conditions so unsafe that it took the highly unusual step of urging ICE to immediately remove all persons detained at the facility. ICE is refusing to comply with this recommendation and has contested the integrity of the OIG’s investigation.

US seeks regional approach to migration and asylum seekers

AP: Faced with the likelihood of eventually reopening its southern border to asylum seekers, the United States government is urging allies in Latin America to shore up immigration controls and expand their own asylum programs.

Notable opinions by high court nominee Ketanji Brown Jackson

AP: In 2019, Jackson temporarily blocked the Trump administration’s plan to expand fast-track deportations of people in the country illegally, no matter where they are arrested.

Profile of Sen. Dick Durbin

Politico: When it comes to immigration, Durbin said, “I don’t want to hear the word reconciliation,” referring to the budgetary rules that can allow for the Senate to sidestep a filibuster. “That holds up false hope. … The question is: is there anything we can do on the subject of immigration that can win 60 votes in the Senate? We’re going to test that.”

Immigrants with asylum put lives on hold over green card waits

RollCall: For green card applications filed by people with asylum, the wait ranges from 25 to 52 months, or more than four years, according to the USCIS website. See also Visa limbo for immigrants in U.S.; U.S. Work-Permit Backlog Is Costing Immigrants Their Jobs.

Powered by artificial intelligence, ‘autonomous’ border towers test Democrats’ support for surveillance technology

WaPo: The towers use thermal imaging, cameras and radar to feed an artificial intelligence system that can determine whether a moving object is an animal, vehicle or person, and beam its location coordinates to U.S. Border Patrol agents.

LITIGATION & AGENCY UPDATES

BIA AMICUS INVITATION (VACATUR OF A CRIMINAL CONVICTION), Due Date: April 6, 2022

BIA: What factors should the Board weigh when considering an untimely motion to reopen that is premised on a vacatur of a criminal conviction?

Matter of C. MORGAN, 28 I&N Dec. 508 (BIA 2022).

BIA: Larceny in the third degree under section 53a-124(a) of the Connecticut General Statutes is not a theft offense aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because it incorporates by reference a definition of “larceny” under section 53a-119 of the Connecticut General Statutes that is overbroad and indivisible with respect to the generic definition of a theft offense. Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009), and Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004), not followed.

April argument calendar features cases on Trump-era asylum policy and praying football coach

SCOTUSblog: Biden v. Texas (April 26): Whether the Department of Homeland Security must continue to enforce the Migrant Protection Protocols, a policy begun by President Donald Trump that requires asylum seekers at the southern border to stay in Mexico while awaiting a hearing in U.S. immigration court.

Judge Revives Suits Over Denied Travel Ban Waivers

Law360: Foreigners locked out of the U.S. due to former President Donald Trump’s now-defunct travel bans will get a new chance to fight their case, after a California federal judge reopened two lawsuits over the policy on Tuesday.

CA5: HIV Status Not Enough To Halt Deportation

Law360: A recent HIV diagnosis alone does not put a Mexican national at greater risk of state-sanctioned violence if he’s returned home, the Fifth Circuit ruled Monday in a unanimous published opinion denying the man’s asylum bid.

Unpub. CA5 Credibility, CAT Remand: Thraiyappah V. Garland

LexisNexis: Because the BIA erred in concluding its affirmance of the IJ’s adverse credibility determination effectively disposed of Thraiyappah’s pattern-or-practice claim for CAT protection based on his Tamil ethnicity, we Grant the petition, Vacate in part and Remand to the BIA.

CA11: BIA Must Rethink Removal For Burglary Of Empty Dwelling

Law360: A man facing deportation from the U.S. for burglarizing an empty Florida property got another chance to challenge his removal after the Eleventh Circuit questioned a finding by immigration judges that his crime constituted “moral turpitude.”

ACLU Seeks ICE Docs To Check On Biden Reform Promise

Law360: The Massachusetts chapter of the American Civil Liberties Union sued U.S. Immigration and Customs Enforcement Wednesday seeking records it says will show whether the Biden administration followed through on a promise to reform immigration enforcement policies.

USCIS Releases Updated Information on Rosario Class Action

AILA: USCIS stated that following the February 7, 2022, court decision in Asylumworks v. Mayorkas, USCIS must process all initial EAD applications from asylum applicants within 30 days. Given certain conditions regarding Form I-765, some applicants may be considered Rosario class members.

DHS Notice Rescinding 2019 Expedited Removal Notice

AILA: Advance copy of DHS notice rescinding the July 23, 2019, notice Designating Aliens for Expedited Removal, which expanded the application of expedited removal procedures. The notice will be published in the Federal Register on 3/21/22 and will be effective on that date.

DHS Designates Afghanistan for TPS for 18 Months

AILA: Secretary of Homeland Security Mayorkas announced the designation of Afghanistan for Temporary Protected Status (TPS) for 18 months. The designation will take effect upon publication of a forthcoming Federal Register notice, which will also include instructions for applying for TPS and an EAD.

AG Issues Memorandum on FOIA Guidelines

AILA: The Attorney General issued a memo to heads of executive departments and agencies with guidelines for the fair and effective administration of the Freedom of Information Act (FOIA). The memo includes guidelines for removing barriers to access and reducing FOIA request backlogs, among other things.

DOS Provides Guidance on Local Filing of Form I-130 Petitions

AILA: DOS states that U.S. citizens physically present overseas with their Afghan, Ethiopian, and Ukrainian immediate family members can request to locally file a Form I-130 petition at the nearest U.S. embassy or consulate that processes immigrant visas. DOS specifies who citizens can file for.

DHS Extends Validity of Certain EADs Issued Under TPS for Somalia

AILA: DHS has automatically extended the validity of certain EADs with a Category Code of A12 or C19 issued under TPS for Somalia through September 12, 2022. Information on updating expiration dates and reverification is available.

ICE Issues Guidance on Protections for Noncitizen Victims of Crime

AILA: ICE issued directive 10036.2, which states that ICE personnel are generally prohibited from using or disclosing information protected by Section 1367 to anyone other than DHS or DOJ employees. This includes information on applicants for T & U visas, continued presence, or VAWA based benefits.

Third 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 3/16/22, through 3/16/23. (87 FR 14757, 3/16/22)

RESOURCES

AIC: New Biden Administration SIJS Policies Offer Crucial Protections for Immigrant Youth

AIC: Immigration and Customs Enforcement Issues Annual Report—What Does It Really Mean?

ICE: Standard Operating Procedures Detention Facility Termination of Agreement

ILRC: TPS and Asylum: Can I Apply for Both?

ILRC: Deferred Action and Work Permits for Young People with Special Immigrant Juvenile Status (SIJS)

MPI: Frequently Requested Statistics on Immigrants and Immigration in the United States

MPI: The World Is Witnessing a Rapid Proliferation of Border Walls

EVENTS

NIJC EVENTS

4/12/22 Pro Bono Training: Representing Immigrant Survivors Of Domestic Violence (VAWA)

5/18/22 Pro Bono Training: Representing Immigrant Survivors Eligible For U Visas

GENERAL EVENTS

3/21/22 International Day for the Elimination of Racial Discrimination

3/21/22 Comprehensive Overview of Immigration Law (COIL)

3/22/22-3/23/22 Hot Topics in Removal Defense and Asylum Law

3/23/22 Race, Citizenship, and Political Inequality

3/23/22 Intermediate Intensive VAWA Training

3/23/22 USCIS: Citizenship Promotion for Special Immigrant Juveniles, T and U Nonimmigrants, and VAWA Self- Petitioners Engagement

3/24/22 TPS, Adjustment, and Alternate Relief

3/29/22 What U Practitioners Should Know in 2022: Monitoring Developments in U Visa Practice

4/1/22 EOIR – Chicago Model Hearing Program

4/5/22 Intensive T Visa Declaration Workshop

4/6/22 Initial TPS Applications

4/7/22 Motions Before the Board of Immigration Appeals

4/12/22 Introduction to Bond Proceedings

4/12/22 Preparing Military Naturalization Applications: What You Need to Know

4/12/22-5/3/22 Webinar Series: Selected Issues in Inadmissibility

4/21/22 Monthly NIPNLG Removal Defense Webinar: Hot Topics in SIJS

4/27/22 U Visa RFEs

4/28/22 Motions to Reopen Removal Proceedings

5/3/22 The Family Visa Petition

5/4/22 California Pardons and Post-Conviction Relief

5/6/22-5/13/22 NITA-NIPNLG “Advocacy in Immigration Matters” Training

5/10/22 Asylum Claims for Young People

5/17/22 Advocating for Prosecutorial Discretion for Clients in Removal Proceedings

5/18/22 Pro Bono Training: Representing Immigrant Survivors Eligible For U Visas

5/19/22 Special Immigrant Juvenile Status: Your Client’s I-360 Is Approved, Now What?

5/24/22 Obstacles to TPS Eligibility

6/7/22 Asylum and Employment Authorization

6/8/22 Naturalization for People with Disabilities

6/22/22 Introduction to Immigrant Visa Consular Processing

7/5/22 Comprehensive Overview of Immigration Law (COIL)

9/26/22 Comprehensive Overview of Immigration Law (COIL)

To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the group page and request to be added.

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

Many congrats to Attorney Shernette G. Noyes of Stratford, CT for doing the near impossible: Notching a well-deserved win for an immigrant in a “crimmigration” case before one of the toughest BIA panels this side of Dodge City!

Shernette G. Noyes ESQ
Noyes & Associates LLP
Stratford, CT
PHOTO: Noyes & Associates LLP

🇺🇸Due Process Forever!

PWS

03-23-22

🏀SPORTS/SOCIAL JUSTICE🗽 — He’s Won More Games Than Any Other, Including 5 NBA Championships, & Coached Some Of The All-Time Greats — But Some Of Gregg Popovich’s Greatest Achievements Go Beyond The Court — His Consistent Outspoken Advocacy For Social Justice & An End To Racism In America!

Etan Thomas
Etan Thomas played in the NBA from 2000 through 2011. He is a published poet, activist and motivational speaker

https://www.theguardian.com/sport/2022/mar/12/gregg-popovich-legacy-ally-activism-injustice-racism?CMP=Share_iOSApp_Other

Etan Thomas in The Guardian:

. . . .

In 2017, Popovich spoke at length at Spurs media day about systemic racism and politics, saying the country under Trump had become “an embarrassment to the world”: “Obviously, race is the elephant in the room and we all understand that. Unless it is talked about constantly, it’s not going to get better. Why do we have to talk about that?’ Well, because it’s uncomfortable. There has to be an uncomfortable element in the discourse for anything to change.

“The disgusting tenure and tone and all the comments … have been xenophobic, homophobic, racist, misogynistic. I live in a country where half the people ignored that to elect someone.”

Asked to reflect on the life of Dr Martin Luther King Jr and race relations in the country, part of Popovich’s answer focused on the country’s leadership.

“It seems like a lot of roll back in that regard, especially as we look at the race situation in our country. Everybody wants to forget about it but it should be there, front and center, constantly,” Popovich said.

“Race is still the unanswered dilemma that everyone continues to ignore. Dr. King did not ignore it, and it’s a big fear now that we have a group in power that is very willing to ignore it. It’s not just with their words, but their actions prove it, and that is scary.”

Now. Coach Popovich wasn’t the first and definitely won’t be the last in sports to verbally spank the former US president or call out the blatant and the prevailing racism and bigotry that is currently running rampant not only throughout the Republican Party but America as a whole, yet he’s certainly one of the most important and unique for a number of reasons:

1) Coach Popovich is a graduate of the Air Force Academy and works in a military town.

2) The aforementioned standard that he and the Spurs organization has set would appear to be in direct opposition to his public chastisement of the America.

3) Coach Popovich was making these statements in the ultra-red state of Texas, arguably the most conservative of the conservative states based on the state legislature and the congressional delegation, one that has voted Republican in 10 straight presidential elections and saw 52.6% of voters punch for Trump.

. . . .

Coach Popovich said that it’s up to white people to call out racism no matter what the consequences and didn’t even really receive any backlash for his comments, not even in an ultra-conservative place like Texas. And that’s what makes him unique and special. Yes, Popovich’s coaching milestone is historic and worthy of celebration, but his activism off the court will endure longer as the standard for all white people who truly want to be allies in this fight against racism and white supremacy.

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

Read the full article at the link.

Many congrats to Coach Popovich on his coaching milestone! He did it all with one team, the San Antonio Spurs, making him the longest-tenured Head Coach not only in the NBA but in contemporary American sports!

😎 Due Process Forever!

PWS

03-14-22

🗽NDPA OPPORTUNITY: Join Professor Alberto Benitez (GW) & Anam Rahman ESQ For A Review Of Biden Administration’s Immigration Policies — Tuesday, March 15 @ Noon (Zoom)

The Biden Administration’s Immigration Policies March 15th 2022 REV FLYER.pdf

THE BIDEN ADMINISTRATION’S IMMIGRATION POLICIES:
A REVIEW
Tuesday, March 15th, 2022 12-1:00pm ET (ZOOM)
PROFESSOR ALBERTO BENITEZ
ANAM RAHMAN
Partner, Calderón Seguin PLC;
GW Law Alum 2012
Register here: The Biden Administration’s Immigration Policies March 15th 2022 REV FLYER.pdf

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

🇺🇸Due Process Forever!

PWS

03-13-22

🗽AS LAST AFGHAN REFUGEES LEAVE FT. MCCOY, WI, U.S. RESETTLEMENT SYSTEM CONTINUES TO SUFFER FROM DAMAGE INFLICTED BY TRUMP KAKISTOCRACY!☹️

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‘I don’t know what will happen’: After months at Fort McCoy, Afghan family resettled in separate states

Living 120 miles apart, family shares hopes and anxieties while navigating ‘chaotic’ resettlement process

Lamha Nabizada spent nearly six months at Fort McCoy, a 60,000-acre Army base in Monroe County, Wis., before she was relocated with part of her family to Rockville, Md. Here, she looks through the window of a hotel room on Feb. 22, 2022, during the family’s search for permanent housing. She is among 76,000 Afghans evacuated to the United States during the country’s largest resettlement operation since the Vietnam War. (Eman Mohammed for Wisconsin Watch)

By Zhen Wang February 28, 2022
Wisconsin WatchIn her final hours living at Fort McCoy, an Army base in rural Monroe County, Wisconsin, Lamha Nabizada searched for an interesting place to pose for a photo at this reporter’s request. The task wasn’t easy.“Everywhere is the same thing, same barrack,” the 27-year-old told Wisconsin Watch.Venturing outside into frigid air, she posed in front of a flagpole and gun turret.It was Feb. 6, the day before Nabizada and her 22-year-old brother Masroor would travel to Maryland — continuing a resettlement journey that began last August when the Taliban took over Afghanistan’s capital of Kabul. They were among tens of thousands airlifted from the country with passports, legal documents and little else.Nearly six months later, the siblings were among the last to leave Fort McCoy, which housed as many as 12,600 Afghans.

Lamha felt mixed emotions as she prepared to leave: hope for new opportunities and anxiety about moving to an unfamiliar place.

“I don’t know what will happen in the future,” she said.

On Feb. 15, Fort McCoy became the seventh of eight U.S. military installations to send its final evacuees to host communities. Four days later, the eighth base cleared out the last of the 76,000 total evacuees who arrived for the largest resettlement operation since the Vietnam War.

Through Feb. 23, Wisconsin had resettled about 820 of the 850 Afghan evacuees currently slated for the state, according to Bojana Zorić Martinez, director of the Wisconsin Department of Children and Families’ Bureau of Refugee Programs.

Zorić Martinez said serving so many people at once was difficult. Aside from housing, they need Social Security numbers, jobs, food and other basic items.

Evacuees are eligible to apply for benefits available to refugees, according to the federal Office of Refugee Resettlement. That includes job preparation, English language training and medical aid. They may also be eligible for other federal benefits such as Medicaid and food assistance.

Zorić Martinez said the system shrunk under Trump, who slashed the country’s refugee cap each year he was in office, which meant less money for resettlement agencies.

“We are now seeing the consequences of that,” she said.

Read the full story

*

ZHEN WANG / WISCONSIN WATCH

zwang@wisconsinwatch.org

Zhen Wang joined Wisconsin Watch as a reporting intern in May 2021. At UW-Madison, she is pursuing a master’s degree in journalism, honing her investigative journalism skills, and preparing herself for a career in health care journalism. She previously worked for the Guardian Beijing bureau and China Daily. Before joining the journalism industry, she worked in various sectors and obtained a master’s degree in international relations in New Zealand. She speaks Chinese and is a member of Asian American Journalists Association.

More by Zhen Wang / Wisconsin Watch

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Reprinted from Wisconsin Watch under Creative Commons License. Full story available at the link. Nice reporting by Zhen Wang!

Here are some additional quotes from Zhen’s article from my good friend and NDPA superstar Professor Erin Barbato of the U.W. Law Immigration Clinic, among the many clinical teams who have “stepped up” for Afghan refugees:

“The government has to provide more resources, if we’re going to ensure that everybody has their basic needs met during this transition time, and it’s wonderful to see people in the community coming together,” said Erin Barbato, director of the Immigrant Justice Clinic at the University of Wisconsin Law School. “But that’s not going to solve the problem for everybody.”

The legal clinic is helping evacuees file for asylum and training attorneys to represent them in that process — positions that are in short supply. Barbato and other immigration experts fear some people will fall through bureaucratic cracks unless the federal government takes action to stabilize the system.
. . . .

Barbato, the UW legal clinic director, said the two-year parolee status leaves evacuees vulnerable to future deportation — a potentially deadly proposition. The U.S. asylum program last year faced a backlog of nearly 413,000 applications.

Congress has historically passed such laws to protect evacuees from U.S. military conflict zones, including in Vietnam and Iraq.

Echoing immigration advocates and veterans, Barbato said an Afghan Adjustment Act, which has yet to be introduced in Congress, could pave a safer, quicker path to citizenship. Lawmakers must also inject more resources into the immigration bureaucracy, she added. How these resources are allocated will shape the fate of applicants who have waited years in the queue — as well as new Afghan arrivals.

🇺🇸Due Process Forever!

PWS

o3-01-22

⚖️👩🏽‍⚖️ MORE NDPA CLE: Ellsberg, Harris, Schmidt, Among Headliners @ Inaugural Fourth Circuit Asylum Law Conference @ William & Mary Law on March 11!

Dr. Mary Ellsberg
Founding Director
Global Women’s Institute
George Washington University
PHOTO: GWU

https://www.eventbrite.com/e/the-inaugural-fourth-circuit-asylum-law-conference-tickets-203071732017?aff=speaker

MAR

The Inaugural Fourth Circuit Asylum Law Conference

by William & Mary Law School Immigration Clinic

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The Inaugural Fourth Circuit Asylum Law Conference

by William & Mary Law School Immigration Clinic

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Join us for a full-day virtual conference discussing Fourth Circuit asylum law and best practices with experts. 6.5 VA & NC CLE credits.

About this event

Join the William & Mary Law School Immigration Clinic, William & Mary Center for Racial and Social Justice, and Immigrant Justice Corps for the Inaugural Fourth Circuit Asylum Law Conference.

Conference Schedule:

Panels and Sessions include:

One Year In: The Biden Administration and Asylum Policy

Developments in Fourth Circuit Case Law

Increasing Access to Pro Bono Counsel in Underserved Areas: Virginia as a Case Study

Working Across Disciplines: Best Practices for Attorneys and Mental Health Professionals in Asylum Seeker Evaluations

Country Conditions: From Page to Practice

CLE Credit and DOJ Accredited Representative Certifications

This event has been approved for 6.5 credit hours of CLE credit from Virginia and North Carolina. Attorneys seeking CLE credit must purchase tickets indicating that CLE credit is provided (indicated by “CLE” listed by the ticket type).

Attorneys from other jurisdictions who are not seeking CLE credit from Virginia or North Carolina are welcome to attend.

DOJ Accredited Representative certifications will be provided to those who register as DOJ Accredited Representatives seeking certification.

Zoom Webinar Information

Zoom information for the event will be sent to the email address used to register. For security reasons, we do not post the Zoom link information. All Zoom registration information will be provided in a separate email closer to the date of the event.

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Date and time

Fri, March 11, 2022

9:00 AM – 5:00 PM EST

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Eventbrite’s fee is nonrefundable.

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William & Mary Law School Immigration Clinic

Organizer of The Inaugural Fourth Circuit Asylum Law Conference

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Our panel will be “Country Conditions: From Page to Practice.”

🇺🇸Due Process Forever!

PWS

02-25-22

😎👍🏼⚖️🗽MORE TIMELY NDPA ASYLUM TRAINING — Feb. 25-26 — Register Now!

Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

More NDPA Training: Tomorrow and Saturday, the New York Asylum and Immigration Law Conference will be held virtually; Sue Roy and I are among the speakers, along with many other members of the NDPA.

Here is the link:

https://www.eventbrite.com/e/2022-annual-new-york-asylum-immigration-conference-tickets-233964222287

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

Here’s the full agenda with the impressive list of speakers:

2022 Asylum Conference Agenda_FINAL (Zoom Links & Dropbox Link)

Garland’s head will be spinning 😵‍💫 by the time the NDPA gets finished with him and his failing “courts!”

Thanks for passing this along, Sir Jeffrey!

🇺🇸Due Process Forever!

PWS

02-24-22

😎👍🏼⚖️🗽 MORE FREE NDPA TRAINING FROM THE EXPERTS: 6 Months After the Fall of Aghanistan: Free Webinar Mar. 9 1-2 pm ET!

Professor Stephen Yale-Loehr
Cornell Law

Cornell Law School and the Cornell Migrations Initiative, along with other organizations, are hosting a free public webinar on Wednesday March 9 from 1-2 pm ET entitled “After the Fall: The Future of Afghan Allies Fleeing the Taliban.”

Six months after the fall of Afghanistan, a lot has been done, but a lot remains to be done.The United States evacuated over 100,000 Afghans to the United States or third countries.Yet an estimated 200,000 Afghans who helped the U.S. military or government remain in Afghanistan, fearing persecution and famine.Moreover, those who have made it to the United States have mostly entered on humanitarian parole, which is a temporary status that expires after two years.They need ways to remain in the United States permanently.

Learn what Cornell University and other organizations have done to assist Afghans at risk, what remains to be done, and how you can help.

Speakers include Joel Kelsey, chief of staff to U.S. Senator Richard Blumenthal; Chis Purdy, director of Veterans for American Ideals and Outreach at Human Rights First; Nell Cady-Kruse from the Evacuate Our Allies Coalition; Camille Mackler, executive director of Immigrant ARC; and Katie Rahmlow, a Cornell law student who has worked on several Afghan cases. Cornell law professor Stephen Yale-Loehr, who directs an Afghanistan asylum clinic at Cornell Law School, will moderate.

To register for the free webinar, go to https://ecornell.cornell.edu/keynotes/overview/K030922a/

Stephen Yale-Loehr

Professor of Immigration Law Practice, Cornell Law School

Faculty Director, Immigration Law and Policy Program

Faculty Fellow, Migrations Initiative

Co-director, Asylum Appeals Clinic

Co-Author, Immigration Law & Procedure Treatise

Of Counsel, Miller Mayer

Phone: 607-379-9707

e-mail: SWY1@cornell.edu

Twitter: @syaleloehr

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

Thanks so much Steve for passing this along! An all-star lineup to be sure! 🌟🌟🌟 Don’t miss it! Required registration available at the above link.

🇺🇸Due Process Forever!

PWS

02-24-22

🗽⚖️NDPA NEWS: GW IMMIGRATION CLINIC CONTINUES TO IMPRESS!

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera

Professor Alberto Benitez at the GW Immigration Clinic reports:

Friends,

Our friend, colleague, and alum Paulina Vera shared this story. Congratulations Daniel!

“A current Immigration Judge shared that he spoke to his colleague, another Immigration Judge (“IJ”), about a recent virtual hearing handled by student-attorney, Daniel Fishelman ’22. IJ complimented the Clinic’s preparation and Daniel’s performance, stating that even though it was for a short matter, she was impressed by the Clinic. This was the Clinic’s first appearance before IJ. Please join us in congratulating Daniel on completing his first hearing and getting positive feedback from Immigration Judges!”

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

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

THE WORLD IS YOURS

******************
Many congrats to student-attorney, Daniel Fishelman ’22 on his first engagement as a member of the NDPA!👍🏼😎

Also, congrats to my friends and “due process role models” Alberto and Paulina! So proud that part of Paulina’s “immigration justice journey” went through the Arlington Immigration Court, where she served as an intern.

Alberto and Paulina tell me that after their “standard rigorous prep session” with Daniel, he definitely was “QRFPT” — “Quite Ready For Prime Time!” 😎 That’s as opposed to “NQRFPT” (“Not Quite Ready For Prime Time”) ☹️ — something to be avoided in Immigration Court or any other type of litigation!☠️

This case illustrates what I found on the bench: that “short cases” are almost always the result of superior scholarship, meticulous preparation, and informed dialogue by counsel for both parties before getting to court.

That’s why one grossly underutilized tool for reducing backlogs is investing in and encouraging more and better trained representation for individuals appearing in Immigration Court.

As statistics have shown time after time, universal representation is also the key to achieving high appearance rates.

Additionally, constructing court dockets and scheduling cases locally with input from both counsel is a way of reversing the backlog building “Aimless Docket Reshuffling” (“ADR”) produced by attempting to manage dockets from “on high.” ADR usually results from EOIR unilaterally attempting to satisfy DHS enforcement aims or to accommodate “disconnected political agendas and ill-advised gimmicks” generated by DOJ and White House politicos — invariably clueless about the realities of Immigration Court practice!

The three things always left behind by ADR: due process, fundamental fairness, and practical efficiency!

🇺🇸 Due Process Forever!

PWS

02-24-22

🗽ATTN NDPA: LAW YOU CAN USE — IN ACTION AND LIVING COLOR! 🎥 — ABA VIDEOS PRESENTS: “Master Calendar — Episode 1 Of Fighting For Truth, Justice, & The American Way In America’s Most Arcane & Dysfunctional ‘Courts’” — Featuring Blockbuster Due Process Superstars 🤩 Of Stage, Screen, & Internet: Stephanie Baez, Denise Gilman, & Michelle Mendez!

🌟 🌟 🌟 🌟 🌟

Stephanie Baez ESQ
Pro Bono Counsel
ABA Commission on Immigration
PHOTO: ABA

🌟 🌟 🌟 🌟 🌟

Denise L.; Gilman — Professor Denise L. Gilman
Clinical Professor, Director Immigration Clinic
UT Austin Law
PHOTO: UTA

🌟 🌟 🌟 🌟 🌟

Michelle N. Mendez, ESQ
Director of Legal Resources and Training
National Immigration Project, National Lawyers Guild
PHOTO: NIPNLG

https://www.youtube.com/watch?v=

“Join the ABA Commission on Immigration for a 3-part series on the Mechanics of Immigration Court. This series covers the nuts and bolts of how to practice in immigration court. Part I takes an in depth look at the Master Calendar Hearing and Filing Applications for Relief with Immigration Court. Topics to be covered include reviewing the Notice to Appear, getting your client’s court file, how to prepare for the initial Master Calendar Hearing and what to expect, best practices for appearing via WebEx and Open Voice, and a brief overview of common forms of relief and prosecutorial discretion. This webinar is designed for pro bono attorneys and immigration practitioners who are new to immigration law, or for anyone who wants to brush up on their practical skills.”

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

PLAYING IN HOME, OFFICE, AND CLASSROOM THEATERS NOW!

RATED G — Suitable & Highly Recommended for All Audiences

Win cases, save lives, achieve racial justice, fulfill the wrongfully withheld promises of the U.S. Constitution, force change into a deadly and dysfunctional system that has been weaponized to “Dred Scottify” the other and degrade humanity!

Make an “above the fray” AG finally pay attention to and address the disgraceful, due-process-denying, wasteful mess in “his wholly-owned parody of a court system.” This is what being a lawyer in 21st Century America is all about!

The video is 1 hour and 15 minutes!

“If you can win a case in this system, everything else in law, indeed in life, will be a walk in the park!” — Paul Wickham Schmidt, ImmigrationCourtside

Don’t miss the sequel!

🇺🇸Due Process Forever!

PWS

02-16-22

⚖️NDPA: LAW YOU CAN USE: Professor Geoffrey A. Hoffman Says Success Could Be In Your Background! 😎🗽

Republished from ImmigrationProf Blog:

https://urldefense.com/v3/__https://lawprofessors.typepad.com/immigration/2022/02/guest-post-foreground-and-background-issues-by-geoffrey-a-hoffman.html__;!!LkSTlj0I!GtiDnj-eYO_mcLN0fG2g1OUH6UIraTViIBHbVFCS5G6EmSA6TpFuullv_q9ueiqcr6i08C9xlU9jG7unFbaIZmAGOmUw$

Thursday, February 10, 2022

Guest Post: Foreground and Background Issues by Geoffrey A. Hoffman

By Immigration Prof

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Foreground and Background Issues by Geoffrey A. Hoffman*

I want to say a bit about “foreground” versus “background” issues in immigration cases. I have noticed puzzlement at these concepts and recently when lecturing noticed that people do not appreciate the difference. In addition, it is not a common way of thinking about the law. It has become crucial for me, however, in my experience to clearly and effectively distinguish between these two concepts. It is also a rich source of ideas, strategies and techniques in a variety of cases, so let me try to explain it here. The other motivation for laying out the theory is that (in the future) I can point to this piece of writing as a “backgrounder” for my lectures … Sorry for the pun!

First, what are some foreground issues? You can start by readily imagining the elements of any claim – take for example an asylum case. In such a case, the applicant (or a respondent, in court) has the burden to prove most (but not all) of the issues. Those may include past persecution, future persecution, nexus (“on account of” one of the five statutory grounds), etc. The applicant may or may not have to prove that he or she cannot safely internally relocate or that there has been a fundamental change in circumstances in the country of origin. Nevertheless those are all “foreground” issues. Other pretty straightforward issues that have to be adjudicated and will be evaluated by the IJ include (1) credibility; (2) sufficiency of the evidence or corroboration; and (3) related to credibility, the consistency or coherence of the applicant’s story. Of course, background and foreground do not apply just to asylum, but can be imagined in the context of any case, and in any field of the law.

At this point, I would implore students to shout-out any “background” issues they can think of. In a pedestrian sense, all issues that come up in the course of a hearing or series of proceedings can be “brought to light” – by the judge or either party – and therefore get converted from “background” to “foreground.” But, many times these issues are not brought up, and often go unaddressed. If they are not brought up by counsel, for example, they may be waived and therefore a rich source of argument on appeal may be lost.

Some examples of background issues, and by now you probably see where I am going, include, interpreter (verbal) or translation (written) errors, transcription issues, competency or more saliently “incompetency” issues, jurisdiction, firm resettlement, other bars to relief, U.S. citizenship as a defense to deportation, other defenses, the existence of qualified relatives, unexplored avenues for relief, etc., etc. Basically, any issue that is lurking behind the scenes in any immigration court litigation can be seized upon and (in appropriate cases) be used on appeal when the BIA is reviewing what happened below before the trial judge.

A good example from an actual case may be helpful as an illustration to the reader at this point.

In my first pro bono BIA appeal years ago I utilized a series of “background” issues that resulted successfully (albeit after several months or years) in: (1) a remand to the IJ; (2) termination of the case on remand; and (3) ultimately, an (affirmative) grant of asylum for the mother and young child before USCIS. The case involved a young Haitian mother and her 7 or 8 year-old son. I got the case on appeal and read the transcript immediately. What struck me on reviewing the record was that at the very beginning of the proceedings, at the Master Calendar Hearing, an attorney or the judge mentioned very briefly in passing that the young boy was deaf. He had a disability that resulted in his being fitted with a device, a cochlear implant. The comment went unexplored or unremarked upon throughout the pendency of proceedings. Ultimately, the judge denied the political asylum claim of the mother. The fact that the child would be persecuted on account of his disability was not argued, mentioned, or even touched upon in the IJ’s decision denying relief.

As appellate counsel, I wondered if this “background” issue might be addressed on appeal. By researching how to make this a “foreground” issue on appeal, and hopefully a basis for a good remand, I learned about a very helpful case, Matter of Lozada (still good law) and was able to follow the rules and strict procedures in that case to prove that the prior attorney was ineffective by failing to bring out a key argument that could have been dispositive of the entire case.

The task was not an easy one. It should not be overlooked that Lozada and the case’s not insignificant requirements are burdensome. Moreover, the motion to remand had to be very thoroughly documented with expert affidavits, NGO reports, witness statements, and not to mention medical documents.

Once remanded, I noticed a further issue: in the file there was a one-page document with an old agency stamp which happened to be a copy of the I-589 asylum application that my client had never received an interview on and which had not been adjudicated. In bringing this further “background” issue to the Court’s attention, the burden shifted to my opposing counsel to provide the Department’s position on when, if ever, the agency had provided the required affirmative interview as required by Due Process, the INA, and the regulations.

Because the government could not prove that the interview had ever occurred, the motion to terminate was granted and I was permitted to file affirmatively (again) with USCIS, arguing this time the dire circumstances that would befall my clients in Haiti in consideration of the disability of the son and other details about the case involving the political situation in their home country.

Given these considerations, it is important for attorneys on appeal to take the record not as a given, as static, but something dynamic that can be researched and creatively explored at every level. A part of the case that was not appreciated previously can and often does exist. It may be a change of law that occurred while the case was winding its way through the lengthy and frustrating backlog (which stands of this writing at 1.6 million cases). It could be misdirection or mistaken advice by notarios or prior counsel. It can take the form of errors, made perhaps innocently and innocuously by interpreters that, if uncorrected, doom the respondent’s chances.

A further point: the retrospective stance of an appeal makes seeing background issues perhaps easier than seeing them in real time. What is really hard sometimes is seeing such issues as they happen in the context of the trial court setting. A key example of such issues that often get overlooked is burden of proof. We often see attorneys conceding deportability or inadmissibility, often overlooking key arguments or defenses. These are not really background but should be foreground issues, especially where the burden is on the government in most situations to prove by clear and convincing evidence the ground of deportability, now removability, has been proven. Other key arguments, for example, surrounding admissibility of statements of ICE officers, or others such as in the I-213 record of inadmissibility / deportability are also largely overlooked.

Finally, I want to mention in closing further fall-out from Niz-Chavez v. Garland and Pereira v. Sessions, and the latest developments surrounding the defective NTA issue. The defective NTA problem is probably one of the most underappreciated “background” issues because it implicates “jurisdiction,” or as the Board has left open, and it still remains to be decided, at the very least a “claims-processing” rule violation.

More specifically, for everyone who has an in absentia order, the rule in Rodriguez v. Garland, 15 F.4th 351, 354–56 (5th Cir. 2021), in the Fifth Circuit, and more recently, Singh v. Garland, (No. 20-70050), in the Ninth Circuit, has given us important opportunities to raise this as a crucial background issue. Even though these cases are at odds now with Matter of Laparra, 28 I&N Dec. 425 (BIA 2022), there are two circuits finding that in absentia orders must be reopened where the NTA was defective under most circumstances.

Given these developments there is no question that the defective NTA issue is not going away anytime soon. And if, as I think the Board will soon find, a defective NTA is indeed a claims-processing rule violation, at the very least, it will be important to raise such a “background” issue to reopen proceedings, obtain a remand, or otherwise preserve the procedural issue to ensure relief is available for many respondents.

*Clinical Professor, University of Houston Law Center; Individual Capacity and institution for identification only

KJ

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Thanks, Geoffrey, for giving us such a timely and much-needed dose of your “accessible practical scholarship!” And, as always, thanks to Dean Kevin Johnson and ImmigrationProf Blog for getting this out to the public so quickly.

I’d pay particular attention to Geoffrey’s “red alert’ ❗️about defective NTA issues and the BIA’s flailing effort to again shun the Supremes and best practices in Matter of Laparra — a decision that has been “thoroughly roasted” by “Sir Jeffrey” Chase and me, among others. See, e.g.,https://immigrationcourtside.com/2022/02/01/%f0%9f%97%bd%e2%9a%96%ef%b8%8fhon-jeffrey-chase-garland-bias-double-standard-strict-compliance-for-respondents-good-enough-for-govern/

Laparra is already in trouble in two Circuits at opposite ends of the spectrum — the 9th and the 5th. As Geoffrey points out, the potential of “counter-Laparra” litigation to force some due process back into both the trial and appellate levels of Garland’s dysfunctional “courts” is almost unlimited!

But, litigation challenging Laparra and raising defective NTAs as a “claims processing rule” must be timely raised at the first opportunity. It’s a great example of “background issues” that talented NDPA litigators must “bring to the foreground” and use to save lives! It also shows the importance of great practical scholarship and meticulous preparation. Good lawyering wins!

Thanks again Geoffrey!

🇺🇸Due Process Forever!

🗽ATTENTION NDPA! — JOIN SOME OF YOUR FAVORITE “ROUND TABLERS” ⚔️ FOR THE 5TH ANNUAL IMMIGRATION COURT “BOOT CAMP” 🥾 IN K.C. APRIL 28-30, 2022!

Genevra W. Alberti, Esq. The Clinic at Sharma-Crawford Attorneys at Law — Genevra W. Alberti, Esq.
The Clinic at Sharma-Crawford Attorneys at Law
Kansas City, Mo.
PHOTO: The Clinic

Dear Colleagues,

The Clinic at Sharma-Crawford Attorneys at Law – a nonprofit removal defense organization in Kansas City, Missouri – is hosting its fifth annual Immigration Court Trial Advocacy College from Thursday, April 28 to Saturday, April 30, 2022 in the Kansas City metro area.

This is a unique, hands-on, one-on-one, training experience designed to make you confident in immigration court, and the program has something for beginners as well as experienced removal defense litigators. Under the guidance of seasoned trial attorneys from all over the country (myself included) and using a real case, real witnesses, and real courtrooms, participants will learn fundamental trial skills while preparing a defensive asylum case for a mock trial. The complete conference schedule and faculty bios are available on The Clinic’s website here.

Among our All-Star Faculty will be Members of the Round Table of Former Immigration Judges Hon. Lory Diana Rosenberg, Hon. Sue Roy, and Hon. Paul Wickham Schmidt.

Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

Hon. Lory Diana Rosenberg
Senior Advisor
Immigrant Defenders Law Group, PLLC, Member, Round Table of Former Immigration Judges

Me

Days 1 and 2 of the program will focus on helping attendees master the fundamentals of trial practice and prepare a defensive asylum case and witness for trial. For many of the sessions, attendees will be broken up into smaller groups, each with its own set of faculty members to provide one-on-one input. Each attendee will be assigned a role – either the respondent’s attorney, or the DHS attorney – and will have a volunteer “witness” to prep. On day 3, mock trials will be held in real courtrooms with faculty serving as the judges.

Tickets are available now, and you can register on The Clinic’s website here. There is a discounted rate for nonprofit attorneys. Price includes lunch, snacks, coffee and refreshments on all three days, along with breakfast on Friday and Saturday and a happy hour on Thursday. **IMPORTANT: It is imperative that you commit to attending all 3 days of the conference, so please do not register unless you can do so.** If you have questions about this, please let me know. Proof of COVID-19 vaccination is also required.

Space is limited, so be sure to get your tickets soon. We hope to see you there!

Genevra W. Alberti, Esq.

The Clinic at Sharma-Crawford Attorneys at Law

515 Avenida Cesar E. Chavez

Kansas City, MO 64108

(816) 994-2300 (phone)

(816) 994-2310 (fax)

genevra@theclinickc.org

http://theclinickc.org

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

“I’m goin’ to Kansas City,

Kansas City here I come,

I’m goin’ to Kansas City,

Kansas City here I come,

They got some crazy great attorneys there,

And I’m gonna train me some!”

— With apologies to the late, great Fats Domino!

🇺🇸🎶Due Process Forever!

PWS

02-07-22

U.S. HISTORY: BEATEN FOR BEING BILINGUAL 🤮 — The Repression ☹️ & Resilience 👍🏾 Of Hispanic Americans — Molly Hennessy-Fiske @ LA Times

https://www.latimes.com/world-nation/story/2022-02-03/speak-spanish-get-paddled-texas-school-segregation-mexican-americans

MARFA, Texas —

Hiding in plain sight on a dusty corner of this remote west Texas town, the Blackwell School stands as a lasting reminder of what Mexican American students endured during decades of segregation.

“I learned about racism here in Marfa,” said Jessi Silva, 73, who attended the school as a child in the 1950s and 1960s.

Sitting in the schoolhouse last month, Silva gestured to a wooden paddle she said teachers used to spank classmates for speaking Spanish.

Opened in 1909 as a three-room “Mexican school,” Blackwell expanded to half a dozen buildings, educating more than 4,000 children before it closed in 1965.

“Students were told to speak only English on campus,” reads a state historic marker outside the stucco and adobe school, which is now a museum. “Spanish words written on slips of paper were buried on the grounds in a mock funeral ceremony.”

“One of the other teachers came into our classroom and wrote the word ‘Spanish’ on the blackboard, gave each one of us a small piece of paper and told us to write the letters that we saw on the blackboard,” Silva recalled.

Afterward, the teacher collected the slips of paper “and then they marched us all out to the flagpole.”

“They already had a hole dug, and they had this box,” Silva recalled. “They put all the students’ papers in that box and said that we can all vote to do away with the Spanish language. Therefore, we were burying ‘Mr. Spanish.’ And we were no longer allowed to speak Spanish in school.”

. . . .

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

Read Molly’s full article at the link.

Kids used to come to a “first master” before me speaking a few words of English. By their second master they were speaking English and helping their family members understand. I’d tell them that they had now surpassed me in language achievement. Bilingualism is a fantastic life skill!

🇺🇸Due Process Forever!

PWS

02-06-22

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