"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Government Misleadingly Posts Enjoined Asylum Regs
As we all know, on December 10, the Departments of Justice and Homeland Security jointly published final rules widely referred to as the “Death to Asylum” regulations. On January 8, a U.S. District Court Judge issued a preliminary injunction blocking those rules from taking effect. The rules remain enjoined at present.
However, EOIR, the agency housing the Immigration Courts and the Board of Immigration Appeals, maintains a Virtual Law Library (“VLL”) on its website. Most EOIR judges, staff attorneys, and law clerks use the VLL to reference applicable law when drafting decisions. Many private lawyers and other interested individuals outside of government use the VLL as a resource as well. In addition to listing all precedent decisions of the BIA and the Attorney General, the VLL contains links to the most current versions of both the Immigration & Nationality Act and the regulations that interpret it.
One clicking on the link to the federal regulations on the VLL is taken to a site called e-CFR, which is maintained by the U.S. Government Printing Office. At present, that site displays the enjoined “Death to Asylum” rules as if they are presently in effect. The site does not state that the regulations have been enjoined, and therefore may not be relied on.
This means that at present, an Immigration Judge, Board Member, law clerk, staff attorney, or anyone else involved in the decision-making process who researches the law applicable to a pending asylum case will read rules that are not actually in force, but that mandate the denial of asylum in cases that should be granted under the actual applicable law. The judges and their staff will see “rules” that require an overly narrow view of what constitutes political opinion or a particular social group; of who may be a persecutor and of how nexus is established. They will see language making it more difficult to find that an asylum seeker could not have reasonably relocated within their country; that discourage reliance on country condition information critical to establishing many elements of individual claims; and that, in some cases, call for the termination of bona fide asylum claims as “frivolous,” a classification that carries a lifetime bar to any and all immigration benefits.
Remarkably, when made aware of the problem, government officials defended the posting of the non-applicable rules on the grounds that their “effective date” had been reached, and seemed unable to understand what the problem was. I would hope that the Biden Administration might instruct these officials why it might actually be a problem for judges to access rules requiring them to deny asylum claims they should actually be granting. They might want to add that it would be a particularly good practice to double-check before posting any rule commonly referred to as “Death to Something.”
In the meantime, attorneys should carefully review all written decisions from EOIR, checking whether they cite to the inapplicable regs.
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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They might want to add that it would be a particularly good practice to double-check before posting any rule commonly referred to as “Death to Something.”
In the meantime, attorneys should carefully review all written decisions from EOIR, checking whether they cite to the inapplicable regs.
Says it all! EOIR = FUBAR 🤡🦹🏿♂️☠️
Hey, it’s only human lives and futures at stake!
And, of course, it’s the job of the job of the private bar to “cite check” the (non) experts @ EOIR!
Just think how justice could be achieved with real expert judges who understand asylum law in the first place and competent judicial (not bureaucratic) management focused on quality, efficiency, best practices, and most of all, correct, just results that comply with due process and fundamental fairness? What if all Federal Courts (including the Supremes) functioned in the manner set forth in the previous sentence: Racial justice might become a reality rather than an unfulfilled promise!
Fold up the tent on the “Clown Show” 🤡🦹🏿♂️ and replace it with real judges and real courts. The right folks are out there! But, they are mostly fighting the “malicious incompetence” from the outside, rather than solving problems and promoting justice “from the inside.”
EOIR might not be using the correct version of 8 CFR. But, they DO have wasteful and unnecessary “Judicial Dashboards” on every bench to jack up stress levels, promote “corner cutting and sloppy work,” and check to make sure “deportation quotas” are being made!
Trump Era Immigration Kakistocrat Photo: Bennie Thomas, Creative Commons License“Luke Skywalker” A/K/A Professor Lucas Guttentag Yale Law Photo: Duke Law via YouTube
Professor Lucas Guttentag has tracked “every known Trump-era immigration policy from January 2017 through the end of the administration.” There are over 1,000! This “easy to use” tool should be a great resource for policy makers, litigators, legislators, journalists, students, historians and teachers looking to grasp and dismantle Trump’s anti-American, anti-humanity immigration initiatives!
Needless to say, there is a whole section for the EOIR Clown Show/Kakistocracy 🤡🦹🏿♂️ containing 173 separate entries!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, February 19, 2021 (There has been no change in two weeks, but news may still come later today). There is no announced date for reopening NYC non-detained at this time.
WaPo: President Biden signed executive actions Tuesday ordering the review and potential reversal of the Trump administration’s deterrent policies along the Mexico border and the barriers they created to legal immigration, calling his predecessor’s actions “very counterproductive to our security.” The directives also create an interagency task force to reunite families separated by former president Donald Trump’s “zero tolerance” border crackdown.
WaPo: U.S. Immigration and Customs Enforcement is preparing to issue new guidelines to agents this week that could sharply curb arrests and deportations, as the Biden administration attempts to assert more control over an agency afforded wide latitude under President Donald Trump, according to internal memos and emails obtained by The Washington Post.
U.S. News: Neither ICE nor Customs and Border Protection will conduct immigration enforcement actions at vaccination sites and clinics, the agency said. The Federal Emergency Management Agency will work to set up fixed facilities, pop-up locations and temporary vaccination sites, including mobile vaccination clinics, DHS said.
NPR: The Biden administration is ending agreements with the governments of El Salvador, Guatemala and Honduras that the Trump administration said were meant to help drive down the number of migrants seeking asylum at the U.S. border.
CBS: In the order, Mr. Biden called for an expansion of the decades-old U.S. refugee program, which was gutted by former President Trump, who frequently portrayed refugees as economic and security risks. After former President Obama set a 110,000-person ceiling before leaving office, Mr. Trump slashed it every fiscal year, allocating a historically low 15,000 spots in 2020.
Politico: Alejandro Mayorkas was confirmed on Tuesday to serve as secretary of Homeland Security, putting him in charge of carrying out the Biden administration’s immigration agenda and tackling national security concerns.
NYT: A State Department official said in federal court last month that, as of Dec. 31, more than 380,000 immigrant visa applicants were awaiting a consular interview. Immigration experts said it would take up to a year under normal circumstances to work through that many applications.
Buzzfeed: Mexico’s foreign ministry said the country continues to accept Central American nationals expelled by US border officers, but that there had been some changes at the local level in the last few days. The department said this was due to the implementation of the child protection law.
USA Today: The number of unaccompanied immigrant minors arriving at the U.S. border with Mexico is on a steep rise, posing an early challenge to ambitious plans by President Joe Biden to loosen immigration rules.
Gothamist: Immigration and Customs Enforcement says its detention center at the Bergen County Jail in New Jersey is about 50% over capacity, raising concerns about the spread of the coronavirus as lawyers continue to struggle to get medically-compromised immigrants out of detention.
WaPo: Mexican police participated in a massacre last month that left 19 people dead, including at least 13 who appear to have been Guatemalan migrants on their way to the United States, a state prosecutor said late Tuesday.
ABC: U.S. federal prosecutors have filed motions saying that Honduran President Juan Orlando Hernández took bribes from drug traffickers and had the country’s armed forces protect a cocaine laboratory and shipments to the United States.
Vox: The Court planned to hear two cases — now known as Mayorkas v. Innovation Law Lab and Biden v. Sierra Club — which questioned the legality of anti-immigration policies put in place during the Trump administration.
But the Biden administration rescinded one of these policies and drastically curtailed the other, and asked the justices to remove arguments in both Innovation Law Lab and Sierra Club from its calendar in light of these policy changes.
NYLAG: In a significant victory for open government advocates, the U.S. Court of Appeals for the Second Circuit ruled that people can sue to enforce the Freedom of Information Act (FOIA) requirement that federal agencies post certain documents online so that they are accessible to the public. The decision was issued in New York Legal Assistance Group (NYLAG) v. Board of Immigration Appeals, in which Public Citizen Litigation Group served as lead counsel along with NYLAG as co-counsel.
Unpublished BIA decision reopens proceedings sua sponte for respondent from Haiti to adjust status through U.S. citizen wife following reentry under grant of advance parole. Special thanks to IRAC. (Matter of Pierre, 6/11/20) AILA Doc. No. 21020501
Unpublished BIA decision equitably tolls MTR deadline and terminates proceedings against respondent whose convictions where vacated due to misconduct by a chemist working in the state drug lab. Special thanks to IRAC. (Matter of Santiago, 6/10/20) AILA Doc. No. 21020500
Unpublished BIA decision remands for consideration of request for administrative closure in light of intervening decision in Zuniga Romero v. Barr (4th Cir. 2019), to seek provisional unlawful presence waiver. Special thanks to IRAC. (Matter of Ventura Santizo, 6/9/20) AILA Doc. No. 21020402
Unpublished BIA decision rescinds in absentia order entered by Orlando immigration court where NTA indicated that hearing would be held in Miami. Special thanks to IRAC. (Matter of Marrero Soca, 6/5/20) AILA Doc. No. 21020401
Unpublished BIA decision rescinds in absentia order because NTA was sent to UPS mailbox that respondent was no longer renting. Special thanks to IRAC. (Matter of Kiss, 6/2/20) AILA Doc. No. 21020400
ASISTA: The 1st Circuit found that the BIA had abused its discretion in failing to follow Matter of Sanchez-Sosa in adjudicating the U visa petitioner’s Motion to Reopen and ordered remand. Click on the links to access the Amicus Brief and the Decision.
President Biden issued an Executive Order revoking certain past presidential actions on refugee admissions and resettlement; directing government agencies to take steps to improve URSAP; to complete a review of SIV programs; and to submit a report on climate change and its impact on migration. AILA Doc. No. 21020530
On 2/2/21, the White House issued an executive order to implement a comprehensive three-part plan for safe, lawful, and orderly migration across the southern border, as well as to review the MPP program. The order also directs a series of actions to restore the asylum system. (86 FR 8267, 2/5/21) AILA Doc. No. 21020237
On 2/2/21, the White House issued an executive order requiring agencies to conduct a review of recent regulations, policies, and guidance that have set up barriers to our legal immigration system, and ordering immediate review of agency actions on public charge inadmissibility. (86 FR 8277, 2/5/21) AILA Doc. No. 21020235
On 2/2/21, the White House issued an executive order establishing a task force to reunite families that remain separated and also revokes the Trump administration’s executive order that sought to justify separating children from their parents (EO 13841). (86 FR 8273, 2/5/21) AILA Doc. No. 21020236
CBP announced that, effective February 2, 2021, it is enforcing the requirement that travelers wear face masks at all air, land, and sea ports of entry. The new requirement applies to all persons older than two years of age, with limited exceptions, and will remain in effect until further notice. AILA Doc. No. 21020432
CUNY Immigration Seminar Series, Spring 2021: Feb 5: Holding Fast, Feb 19: Hyper Education, Mar 5: Citizenship Reimagined, Mar 12: The President and Immigration Law, Mar 26: The Browning of the New South, Apr 9: Reuniting Families, Apr 23: Represented But Unequal, Apr 30: Pursuing Citizenship in the Enforcement Era.
Our Symposium’s focus will be on the practical aspects of immigration law and the current policy debates surrounding the field. Our goal is to present a compelling CLE program for immigration and non-immigration practitioners alike, as well as to provide an engaging educational experience for current law students. This year’s theme is “The Road to Rehabilitation: Reconnecting with Humanity.”
Attendees will have the opportunity to hear a variety of notable immigration attorneys, leaders, and scholars speak on current issues within the field of immigration law in the United States.
Our event is made possible through the generous sponsorship of Terry Bassham (’85) & Zulema Carrasco Bassham.
Featured Speakers and Panelists
Eduardo Beckett
Immigration Attorney featured in “Immigration Nation” Docuseries on Netflix
Shaw Drake
Staff Attorney and Policy Counsel, Border and Immigrants’ Rights, ACLU of Texas
Celina Moreno
President and CEO, Intercultural Development Research Association (IDRA)
Eitan Peled
UNICEF USA Child Migration & Protection Program Manager
Cristina Rodriguez
Leighton Homer Surbeck Professor of Law, Yale Law School
Teresa Romero
President, United Farm Workers of America
Erica Schommer
Clinical Professor of Law, St. Mary’s University School of Law
Karla Vargas
Senior Attorney, Texas Civil Rights Project
Register Today. We Look Forward to Seeing You.
This CLE event is pending approval by the State Bar of Texas for 5 CLE credit hours (including 1 hour of ethics).
Registration is now open and available through February 26:
Attorney registration $85
Government employee and non-attorney registration $55
Immigration volunteer registration $25
Student registration $10 (scholarships available for St. Mary’s School of Law students only; please email lawscholar@stmarytx.edu from your St. Mary’s email address telling us why you would like to attend)
St. Mary’s School of Law faculty/staff and Scholar Volume 23 member registration is free
The Scholar: St. Mary’s Law Review on Race and Social Justice is a student-run law review at St. Mary’s University School of Law in San Antonio, Texas. The goal of The Scholar is to give a voice to the voiceless and the vulnerable in our society. The Scholar publishes three issues per volume on a variety of legal topics through the lens of race and social justice. Additionally, The Scholar hosts an Immigration Symposium annually during the spring semester.
Professor Cristina Rodriguez is the co-author (with Professor Adam B. Cox of NYU Law) of the widely acclaimed book The President & Immigration Law. Recently she worked on EOIR issues for the Biden-Harris Transition Team.
Shaw Drake is Staff Attorney & Policy Counsel, Border & Immigrants’ Rights, ACLU of Texas. He was one of my all-star Refugee Law & Policy students @ Georgetown Law and a Charter Member of the New Due Process Army (“NDPA”).
Last year, I was on this outstanding program. It was one of my last “in person” appearances before COVID restrictions set in.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, February 19, 2021 (no change from last week at this time). NYC non-detained remains closed for hearings. You can also check this site for which courts are closed due to inclement weather.
NPR: Today’s action restores to prosecutors their traditional discretion to make charging decisions based on a careful review of the particular facts and circumstances of individual immigration cases.”
Reuters: President Joe Biden plans to sign a directive modernizing the U.S. immigration system on Tuesday, later than previously expected due to delays in confirming a new secretary for the Department of Homeland Security, the White House said on Friday.
CNN: A federal judge in Texas said Friday that he’ll likely extend his hold on the Biden administration’s deportation moratorium until February 23. Earlier this week, Judge Drew Tipton of the Southern District of Texas, a Trump appointee, blocked the administration’s 100-day pause on deportations, delivering a blow to one of President Joe Biden’s first immigration actions.
USA Today: While they are in the early stages of putting together their legislative strategy on the immigration plan, the seven congresswomen will likely become the face of the bill in the House, as they continue to work closely with the White House to pass the first comprehensive immigration reform legislation in more than 30 years.
OIG: We determined that CBP rapidly implemented the pilot programs and expanded them without a full evaluation of the pilots’ effectiveness. Additionally, we determined there are potential challenges with the PACR and HARP programs related to how aliens are held and provided access to counsel and representation, and how CBP and USCIS assign staff to program duties and track aliens in the various agency systems.
U.S. News: An executive order signed by President Joe Biden on Tuesday aiming to end the use of private prisons by the Justice Department does not apply to private facilities used by the Department of Homeland Security to detain immigrants.
HRW: The records reveal previously undisclosed details about how the Department of Homeland Security (DHS) and its component agencies, US Customs and Border Protection (CBP) and US Immigration and Customs Enforcement (ICE), touted the ENV program as a way to expedite the repatriation of many Central Americans without obtaining travel documents from their home country, a process which traditionally involved contact with foreign consulates.
NYT: The complaint accuses Kenneth T. Cuccinelli II of “gross mismanagement, gross waste of government funds and abuse of authority” over the labor agreements he signed with the immigration agents’ union the day before President Biden’s inauguration.
Law360: The Biden administration asked the U.S. Supreme Court on Monday to cancel upcoming oral arguments in two cases challenging funding for the U.S.-Mexico border wall and the Migrant Protection Protocols.
A district court issued a Temporary Restraining Order (TRO) to enjoin the government from executing the 100-day pause on the removal of individuals already subject to a final Order of Removal, as outlined in the DHS memo on January 20, 2021. (State of Texas v. USA, et al., 1/26/21) AILA Doc. No. 21012634
ACLU: A federal appeals court in Washington, D.C., is allowing a Trump-era anti-immigration rule to temporarily go into effect as the case, P.J.E.S v. Pekoske, is litigated. The lawsuit involves a challenge to a Trump administration policy that authorizes the summary removal of unaccompanied children without any due process — even if the child is fleeing danger and seeking protection in the United States and shows no signs of having COVID-19.
Acting Attorney General Monty Wilkinson issued a memo rescinding the department’s 2018 policy directive on “Zero Tolerance for Offenses Under 8 U.S.C. § 1325(a).” Wilkinson called the policy “inconsistent with our principles.” AILA Doc. No. 21012730
USCIS notification of two preliminary injunctions issued in 2020 against the USCIS fee rule published at 85 FR 46788. The notification states that DHS is complying with the terms of these court orders and is not enforcing the regulatory changes set out in the final rule. (86 FR 7493, 1/29/21) AILA Doc. No. 21012832
Health and Human Services (HHS) notice providing the annual update of the HHS poverty guidelines to account for last calendar year’s increase in prices as measured by the Consumer Price Index, effective 1/13/21. (86 FR 7732, 2/1/21) AILA Doc. No. 21020131
BIA ruled that if an NTA fails to specify time/place of initial removal hearing, a subsequent NTA with the information perfects the deficient NTA and ends the accrual of physical presence for purposes of voluntary departure. Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021) AILA Doc. No. 21012636
BIA ruled that individuals who cooperate with law enforcement may constitute a particular social group if their cooperation is public and the evidence reflects that the society in question recognizes and provides protection for such cooperation. Matter of H-L-S-A, 28 I&N Dec. 228 (BIA 2021) AILA Doc. No. 21012833
ASISTA: The 1st Circuit found that the BIA had abused its discretion in failing to follow Matter of Sanchez-Sosa in adjudicating the U visa petitioner’s Motion to Reopen and ordered remand.
Vacating the BIA’s order denying the petitioner’s motion to reopen and remanding, the court held that the BIA erred in failing to consider the petitioner’s request for equitable tolling on the merits, because she had properly raised the issue before the BIA. (Nkomo v. Att’y Gen., 1/21/21) AILA Doc. No. 21012536
DHS Acting Secretary announced he has extended Syria’s TPS designation for 18 months. Current beneficiaries under Syria’s TPS designation are eligible to reregister for an extension of their status for 18 months. Syrians who entered the U.S. after 8/1/16 and otherwise eligible may also register. AILA Doc. No. 21012930
On 1/25/21, President Biden issued a proclamation suspending and limiting the entry, with exceptions, of noncitizens who in the previous 14 days were present in the Schengen Area, the U.K., Ireland, Brazil (all effective 1/26/21), and South Africa (effective 1/30/21). (86 FR 7467, 1/28/21) AILA Doc. No. 21012538
On January 28, 2021, USCIS extended the flexibilities it announced on March 30, 2020, for responding to certain agency requests. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and March 31, 2021, inclusive. AILA Doc. No. 20050133
DOS provided information on how individuals who were not required to submit a Form I-864W, Affidavit of Support, but who paid the affidavit of support fee on or after 2/24/20, can request a refund of that fee. Notice includes eligibility requirements and instructions for requesting a refund. AILA Doc. No. 21012735
USCIS announced that, in accordance with the settlement agreement in Mendez Rojas, it has updated the Form I-589 filing information and asylum information on its website. USCIS has implemented a Uniform Procedural Mechanism (UPM) for the filing and processing of the form. AILA Doc. No. 20082430
IAN: The settlement sets forth policies and procedures that DHS, ORR, and EOIR must provide to class members when it seeks to rearrest them based on gang allegations, and requires that the government provide such class members with hearings after their rearrest.
CUNY Immigration Seminar Series, Spring 2021: Feb 5: Holding Fast, Feb 19: Hyper Education, Mar 5: Citizenship Reimagined, Mar 12: The President and Immigration Law, Mar 26: The Browning of the New South, Apr 9: Reuniting Families, Apr 23: Represented But Unequal, Apr 30: Pursuing Citizenship in the Enforcement Era.
Subject: [immprof] Amicus Brief on Behalf of Immigration Law Scholars on “Monster” Asylum Rule
Dear Colleagues:
Happy New Year! I hope you are staying well. We are pleased to share an amicus brief filed in the Northern District of California last week challenging the “monster” asylum rule, published as a final rule in December 2020. We are grateful to the immigration law scholars who signed onto this brief. The brief is focused on three aspects of the rule: 1) expansion of discretionary bars in general; 2) discretionary bars on unlawful entry and use of fraudulent documents in particular; and 3) expansion of the firm resettlement bar. The brief argues that these bars conflict with the immigration statute and further that the Departments have failed to provide a reasonable explanation for departing from past statutory interpretation with regard to these bars.
Co-counsel included Loeb & Loeb, Peter Margulies, and myself. We are grateful to the Harvard Immigration and Refugee Clinical Program and other organizations who served as counsel to plaintiffs in this case.
Best wishes, Peter and Shoba
Shoba Sivaprasad Wadhia (she, her)
Associate Dean for Diversity, Equity and Inclusion
Samuel Weiss Faculty Scholar | Clinical Professor of Law
Many thanks to Peter, Shoba, Loeb & Loeb, and all the many great minds with courageous hearts ♥️ involved in this effort!
I’ve said it often: It’s time to cut through the BS and bureaucratic bungling that have plagued past Dem Administrations and put progressive practical scholars like Shoba, Peter, and their NDPA expert colleagues in charge of EOIR, the BIA, and the rest of the immigration bureaucracy. It’s also time to end “Amateur Night at the Bijou” 🎭🤹♀️and put “pros” like this in charge of developing and implementing Constitutionally compliant, legal, practical, humane immigration and human rights policies that achieve equal justice for all (one of the Biden-Harris Administration’s stated priorities), further the common interest, and finally rationalize and optimize (now “gonzo out of control”) immigration enforcement.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, January 22, 2021 (no change from last week posted at this time, possibly due to holidays). NYC non-detained remains closed for hearings.
CN: The Trump administration failed to satisfy the requirements of a landmark settlement when it sought to impose new rules governing the detention and release of immigrant children in federal custody and therefore cannot terminate the agreement, a Ninth Circuit panel ruled Tuesday.
CN: In a 2-1 decision penned by U.S. Circuit Judge Daniel Collins, a Trump appointee, the appellate court ruled that the proclamation was within the president’s authority and reversed a federal court decision to block implementation of the order.
CBS: Through a proclamation issued 20 days before Inauguration Day, Mr. Trump ordered a three-month extension of the visa restrictions, which were first enacted in April as a ban on some prospective immigrants and expanded in June to also halt several temporary work programs.
FPA: Subsumed within the $900 billion spending bill passed by Congress on Dec. 21, 2020, was a provision extending the Liberian Refugee Immigration Fairness program, or LRIF, for one more year
AZ Republic: Immigration lawyers are upset over a recent decision that forces a return to appear in-person for hearings at the Eloy Immigration Court amid a rising number of COVID-19 cases in Arizona. The development comes as nearly two dozen immigration courts across the country have had to close in recent weeks for cleaning after possible exposure to COVID-19.
Reuters: U.S. immigration arrests fell by 27% in 2020 as the coronavirus pandemic led to fewer border crossings and reduced operations, a falloff that pro-immigrant activists say should continue when President-elect Joe Biden takes office in January.
SCOTUSblog: Biden has pledged to end both construction of the wall and the “remain in Mexico” policy, although it is not clear when he will do so. Perhaps as a nod to the possibility that the oral arguments in both cases could be canceled, the two cases were both scheduled on the same day as another argument – the only two days of the argument session with two arguments.
The court held that substantial evidence supported the BIA’s denial of withholding of removal to petitioner where he had failed to establish a nexus between his treatment by the police and his membership in the particular social group of his immediate family. (Ruiz-Varela v. Barr, 12/23/20) AILA Doc. No. 20123106
Rejecting the petitioner’s argument that her asserted persecution was based on membership in a proposed social group consisting of “Guatemalan women,” the court found that the scope of the petitioner’s persecution did not extend beyond a personal vendetta. (Pojoy-De León v. Barr, 12/21/20) AILA Doc. No. 20123105
The court reversed an injunction of PP 9945, which requires IV applicants to demonstrate acquisition of health insurance or ability to pay for future healthcare costs. The court found the proclamation within the president’s executive authority. (Doe, et al., v. Trump, et al., 12/31/20) AILA Doc. No. 21010436
USCIS provided guidance for completing Form I-9 for employees with extended work authorization under DACA. Per USCIS, employees may present their unexpired EAD with category code C33 issued on or after 7/28/20, along with an I-797 Extension Notice showing a one-year extension under DACA. AILA Doc. No. 21010431
USCIS announced that the filing period for certain Liberian nationals and certain family members to apply for adjustment of status under the Liberian Refugee Immigration Fairness (LRIF) provision has been extended from one year to two years. USCIS must now receive applications by December 20, 2021. AILA Doc. No. 20123107
President Trump issued a proclamation continuing Proclamations 10014 and 10052, which suspended the entry of certain immigrants and nonimmigrants into the United States in light of the COVID-19 pandemic. The proclamations have been continued until March 31, 2021. AILA Doc. No. 21010100
President Trump issued a memorandum extending his 4/10/20 memorandum imposing visa sanctions on any country that denies or delays the acceptance of its citizens after being asked to accept them during the COVID-19 pandemic. The memorandum will continue in force until terminated by the President. AILA Doc. No. 20123103
DOS provided an update on the extension of Presidential Proclamations 10014 and 10052. The proclamations have been extended until March 31, 2021. AILA Doc. No. 20042435
EOIR issued a memo (PM 21-12) rescinding and cancelling Operating Policies and Procedures Memoranda (OPPM) 90-09 and 91-1 concerning El Salvadoran and Guatemalan cases subject to temporary protected status and settlement in American Baptist Churches v. Thornburgh and ABC v. Thornburgh. AILA Doc. No. 21010430
On December 31, 2020, the OCIJ updated its Immigration Court Practice Manual, a comprehensive guide on uniform procedures, recommendations, and requirements for practice before immigration courts. AILA Doc. No. 21010435
USCIS notice withdrawing a previous notice published at 85 FR 72682 on 11/13/20, which requested comments on proposed revisions to Form I-821D, Consideration of Deferred Action for Childhood Arrivals. (85 FR 86946, 12/31/20) AILA Doc. No. 20123100
DOS updated its announcement and FAQs on the phased resumption of visa services, noting that resumption would occur on a post-by-post basis, but that there are no specific dates for each mission. DOS also announced that it has extended the validity of Machine Readable Visa (MRV) fees to 9/30/22. AILA Doc. No. 20071435
DOS announced that it has temporarily expanded consular officers’ ability to waive in-person interviews for individuals applying for a nonimmigrant visa in the same classification. Applicants whose nonimmigrant visas expire within 24 months are now eligible. The policy is effective until 3/31/21. AILA Doc. No. 20082503
Looking forward to your report for the week of January 25, 2021, Elizabeth!Thanks for all you and those around you have done to “keep the due process fires”⚖️🔥 burning during the darkness of the last four years of cruelty, human rights abuses, scofflaw officials, and unrestrained kakistocracy. I see some light at the end of the tunnel here, although there is still lots of work to be done!
President-elect Joe Biden, who pledged to serve all Americans, can respond boldly to address the needs of large swaths of rural America where people feel left behind. In the first 100 days of his administration, he can prove that he wants to see real change and will act to secure broader prosperity.
Drawing on more than 20 years of working in communities across four rural states, we see actionable, specific opportunities for Biden to make federal policy work for rural places. Here’s what we recommend:
• Engage in genuine conversations in rural places about the role of the federal government. The pandemic aside, fundamental economic changes, limited career pathways and crumbling (or non-existent) infrastructure plague many rural places. These challenges require public-private partnerships, directed by local needs and leadership. Many of the federal programs designed to address the underlying issues in rural places fail because they were designed for the rural reality of 1960, not of today. Let’s get current, understand why programs aren’t working and make them better.
• Elevate rural to the level it deserves in the president’s Cabinet. Rural places are currently served through a web of programs spread across numerous federal agencies. One might think this approach would help address policy deficiencies, but in fact, when everyone is in charge, no one is. The Biden administration can send a strong message that it means business by putting someone clearly in charge of its rural agenda and creating a new Department of Rural Development dedicated to improving, centralizing, and deploying the support and services necessary for rural people and places to thrive.
• Invest in doing economic development differently in rural places. Federal employees work diligently on their mission, providing grants and other services to constituents as directed by statute. And yet, the available tools for solving complicated, systemic and immediate issues are limited. To do economic development differently – and better – we need to eliminate programs that have limited utility, expand others that focus on building capacity in rural places, increase the flexible application of federal dollars and move the measurement of economic development outcomes beyond one-dimensional (and fleeting) metrics like job creation.
• Focus on and communicate about rural-urban connections rather than the divide. Rural places don’t benefit from being talked about as a monolith, a backwater or fly-over country. Rather, we as a nation need to raise up narratives and policies that recognize differences in rural places across the country, and that celebrate and support the natural, community, and economic assets that define those communities and their relationship to nearby urban areas. The stereotype of the American dream is changing. We now have a tapestry of rural, suburban and urban, and an opportunity to focus on collective prosperity rather than competition, exclusion and negative trade-offs.
The first hundred days will show how the Biden presidency will serve all Americans. Yes, there is a pandemic raging, but the widening gulf between rural and urban, rich and poor, red and blue requires a new tone, a new path and new solutions. Let’s get to it.
Rob Riley is president of the Northern Forest Center, a regional innovation and investment partner that creates rural vibrancy across Maine, New Hampshire, Vermont and New York. The center co-founded the national Rural Development Innovation Group with the Aspen Institute and the U.S. Endowment for Forestry & Communities.
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Read Rob’s full article at the link.
These are great, and timely ideas. They also present an outstanding opportunity to use the power of immigration to make our country a better place for everyone.
Immigrant entrepreneurs, small businesspeople, and investors can pool their ideas, skills, and resources with rural communities. Innovative rural Americans can help redesign and tailor methods that have worked in other countries for the American situation.
Immigrants with experience in agriculture and product marketing can help alleviate some of the labor shortages in rural areas.
Immigrants with tech skills can partner with rural Americans to help insure that, rather than sometimes being left behind, rural areas are on the cutting edge of accessible, high speed, state of the art technology that will integrate many educational and commercial activities with those now centered in “urban hubs.” (For example, why couldn’t a high tech area in rural America where land and housing are cheaper and a skilled (or highly motivated and trainable) workforce is eager for work be just as effective as Crystal City, VA as the next big tech hub?)
Immigrants with health service backgrounds can assist even more rural communities in insuring that first-class healthcare (and the jobs and economic opportunities it creates) is available everywhere in America.
My experience is that immigrants of all types, like rural Americans, highly value education, particularly for future generations. Innovative educational programs can be developed to meet the common needs of immigrant and rural communities.
There are just a few of the opportunities that come to mind. Obviously, I’m not a labor economist. But, I’m sure that if immigrant advocates concentrate on ways to actively engage and integrate immigrants into solving problems and improving the quality of life in rural and small-town America there are many other great opportunities for success out there just waiting to be tapped.
Immigrants have always been “part of the solution” rather than “part of the problem” in America. After four years of counterproductive unrestrained bigotry, false narratives, and hate-driven lies, its time for “truth, justice, and the American way” to come to the forefront again.
Knightess of the Round TableHon. Ilyce Shugall U.S. Immigraton Judge (Retired)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
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Thanks to our friends Steve Schulman 😇 and Michael Stortz 😇 at Akin Gump for their truly outstanding pro bono assistance on this brief.Couldn’t do it without you!😎
Such an honor to be “fighting the good fight” for due process and fundamental fairness with my colleagues on the Round Table🛡⚔️👩⚖️🧑🏽⚖️👨🏻⚖️. We have made a difference in the lives of some of the most vulnerable and deserving among us. 🗽We have also helped educate the Federal Courts and the public on the ugly realities of our failed, unjust, and totally dysfunctional Immigration “Courts” ☠️🤡🦹🏿♂️, modern day “Star Chambers” ☠️⚰️😪that have become weaponized appendages of “White Nationalist 🤮🏴☠️⚰️👎🏻 nation.”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
⚖️🗽Due Process Forever!
Happy New Year! 🍾🥂🎉Looking forward to Jan. 20 and the end of the kakistocracy!👍🏼⚖️🗽😎🇺🇸
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, January 22, 2021. NYC non-detained remains closed for hearings.
Vox: Excluded from stimulus relief up until now, US citizens and permanent residents who filed a joint tax return with an undocumented spouse will receive a check for $600, as well as $600 per dependent child. The benefits phase out for individuals making more than $75,000 and couples making more than $150,000.
AP: Susan Rice, Biden’s incoming domestic policy adviser, and Jake Sullivan, his pick for national security adviser, as well as Biden himself, warned that moving too quickly could create a new crisis at the border.
TRAC: Detailed case-by-case government records obtained by TRAC after successful litigation show that in early 2018, the number of federal prosecutions for all immigration-related charges climbed sharply and crested 12,000 for the first time in May after the Department of Justice’s “zero-tolerance” policy went into effect.
TRAC: Not surprisingly, Immigration Court closures and delays in hearings for courts that are conducting hearings have drastically reduced the number of completed cases for the first two months of this fiscal year as compared with prior years at the same time.
MPI: Based on their analysis of data from the Census Bureau’s American Community Survey (ACS), Migration Policy Institute (MPI) researchers find that during the first three years of the Trump administration, participation in TANF, SNAP, and Medicaid declined twice as fast among noncitizens as citizens.
WaPo: A new policy allowing Iranian women to pass down their citizenship to their children marks a long-sought victory for activists and is raising hopes for an estimated 1 million undocumented children born to foreign fathers in the country.
Changes the default filing deadline for non-detained individual hearings from 15 days to 30 days. There also is guidance on the contents of motions for extensions.
DHS and DOJ issued a joint final rule based on a 7/9/20 NPRM clarifying that the danger to the security of the U.S. statutory bar to eligibility for asylum and withholding of removal may encompass emergency public health concerns. Rule is effective 1/22/21. (85 FR 84160, 12/23/20) AILA Doc. No. 20122311
Law 360: A Texas federal judge seemed likely at a hearing Tuesday to strike down an Obama-era program protecting young unauthorized immigrants, but he indicated he may leave open a window to “slice and dice” the program or send it back to the government to revise it.
SCOTUSblog: If the justices take up the border-wall case, it will be the second case added to the court’s docket this term involving the legality of border-wall construction.
The BIA ruled that a conviction for child neglect in the second degree under §163.545(1) of the Oregon Revised Statutes is categorically a “crime of child abuse, child neglect, or child abandonment” under INA §237(a)(2)(E)(i). Matter of Rivera-Mendoza, 28 I&N Dec. 184 (BIA 2020) AILA Doc. No. 20122205
The court held that substantial evidence supported the BIA’s denial of withholding of removal to petitioner, finding he had failed to prove a nexus between the alleged persecution and membership in his proposed particular social group of “Honduran landowners.” (Marquez-Paz v. Barr, 12/18/20) AILA Doc. No. 20122109
Law360: The Sixth Circuit on Tuesday held that migrant children are not guaranteed a free lawyer when fighting deportation in immigration court, upholding a Guatemalan man’s conviction for entering the U. S. without authorization after he was deported as a teenager. In a published opinion, a three judge panel said that foreign-born minors do not have a constitutional right to a government-provided lawyer in immigration court, finding that certain sufficient “safeguards” already exist for them, including that immigration judges help pro se immigrants develop the court record and that the government must produce clear evidence that an individual should be deported.
The court found that the petitioner had failed to exhaust his administrative remedies before the BIA for his argument that his 2019 motion to reconsider was timely because it related back to his still-pending 2004 motion to reconsider. (Hernandez-Alvarez v. Barr, 12/16/20) AILA Doc. No. 20122112
The court issued an order granting the petitioner’s unopposed motion to vacate the BIA’s decision in Matter of E-R-A-L-, which pertains to establishing a particular social group based on landownership, and remanded to the BIA for further proceedings. (Albizures-Lopez v. Barr, 12/10/20) AILA Doc. No. 20122203
The court held that USCIS’s denial of the H-1B visa was arbitrary and capricious where USCIS had ruled that computer programmers did not “normally” require a bachelor’s degree, despite relevant language in DOL’s Occupational Outlook Handbook (OOH). (Innova Solutions, Inc. v. Baran, 12/16/20) AILA Doc. No. 20121733
The court held that vehicular homicide in Florida is a crime involving moral turpitude (CIMT), and thus upheld the BIA’s determination that the petitioner was removable for having been convicted of two or more CIMTs pursuant to INA §237(a)(2)(A)(ii). (Smith v. Att’y Gen., 12/18/20) AILA Doc. No. 20122113
A district court judge granted summary judgment in favor of two nationwide classes suing USCIS and ICE for failing to timely produce the class members’ immigration files (A files). (Nightingale, et al., v. USCIS, et al., 12/17/20) AILA Doc. No. 20122104
A district court granted the plaintiffs’ motion for class certification and motion to amend the nationwide preliminary injunction in a lawsuit challenging USCIS policy limiting asylum jurisdiction over UAC applicants. (J.O.P. et al., v. DHS, et al., 12/21/20) AILA Doc. No. 20122321
CGRS: A group of asylum seekers and immigrant services organizations are suing the Department of Homeland Security (DHS), purported Acting Secretary Chad Wolf, and purported Acting DHS General Counsel Chad Mizelle to vacate two rules that have drastically curtailed access to work authorization and identity documentation for people who flee to the United States and apply for asylum protection.
CGRS: Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture.
AIC: The fee increase rule scheduled to take effect January 18 would apply when individuals facing deportation submit certain applications, appeals, and motions to the nation’s immigration courts or the Board of Immigration Appeals, both of which are overseen by the Executive Office for Immigration Review, within the Department of Justice.
CLINIC: Seven Temporary Protected Status (TPS) beneficiaries — who live in the District of Columbia, Maryland, Virginia, and Miami, Florida — and the Central American Resource Center (CARECEN) filed a motion for a preliminary injunction in their suit against the Trump administration for unlawfully blocking TPS beneficiaries’ path to permanent U.S. residence.
DHS announced that it has extended the flexibilities in rules related to Form I-9 compliance during the COVID-19 pandemic until January 31, 2021. AILA Doc. No. 20032033
USCIS determined that for January 2021, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference categories must use the Dates for Filing chart. Applicants in all employment-based preference categories must use the Final Action Dates chart. AILA Doc. No. 20122305
USCIS announced it is publishing a notice in the Federal Register revising Form I-131 to remove sections on the Haitian Family Reunification Parole and the Filipino World War II Veterans Parole programs. These changes will terminate the programs when form instruction changes are finalized. AILA Doc. No. 20122312
DHS notice of agreement between the government of the United States of America and the government of the Republic of El Salvador for cooperation in the examination of protection claims. (85 FR 83597, 12/22/20) AILA Doc. No. 20121631
DHS announced that the United States and Honduras have concluded the implementation accords for the Asylum Cooperative Agreement, under which certain migrants requesting asylum or similar humanitarian protection at the border will be transferred to Honduras to seek protection in Honduras. AILA Doc. No. 20122108
Published Dec. 27, 2020
Updated Dec. 29, 2020, 10:07 a.m. ET
Last Wednesday, I broke the news to Heather Cox Richardson that she was the most successful individual author of a paid publication on the breakout newsletter platform Substack.
Early that morning, she had posted that day’s installment of “Letters From an American” to Facebook, quickly garnering more than 50,000 reactions and then, at 2:14 a.m., she emailed it to about 350,000 people. She summarized, as she always does, the events of the day, and her 1,120 words covered a bipartisan vote on a spending measure, President Trump’s surprise attack on that bill, and a wave of presidential pardons. Her voice was, as it always is, calm, at a slight distance from the moment: “Normally, pardons go through the Justice Department, reviewed by the pardon attorney there, but the president has the right to act without consulting the Department of Justice,” she wrote. “He has done so.”
The news of her ranking seemed to startle Dr. Richardson, who in her day job is a professor of 19th century American history at Boston College. The Substack leader board, a subject of fascination among media insiders, is a long way from her life on a Maine peninsula — particularly as the pandemic has ended her commute — that seems drawn from the era she studies. On our Zoom chat, she sat under a portrait that appeared as if it could be her in period costume, but is, in fact, her great-great-grandmother, who lived in the same fishing village, population a bit over 600.
She says she tries not to think too much about the size of her audience because that would be paralyzing, and instead often thinks of what she’s writing as a useful primary document for some future version of her historian self. But there was no ignoring her metrics when her accountant told her how much she would owe in taxes this year, and, by extension, just how much revenue her unexpected success had brought. By my conservative estimate based on public and private Substack figures, the $5 monthly subscriptions to participate in her comments section are on track to bring in more than a million dollars a year, a figure she ascribes to this moment in history.
“We’re in an inflection moment of American politics, and one of the things that happens in that moment is that a lot of people get involved in politics again,” she said.
Many of those newly energized Americans are women around Dr. Richardson’s age, 58, and they form the bulk of her audience. She’s writing for people who want to leave an article feeling “smarter not dumber,” she says, and who don’t want to learn about the events of the day through the panicked channels of cable news and Twitter, but calmly situated in the long sweep of American history and values.
Dr. Richardson’s focus on straightforward explanations to a mass audience comes as much of the American media is going in the opposite direction, driven by the incentives of subscription economics that push newspapers, magazines, and cable channels alike toward super-serving subscribers, making you feel as if you’re on the right team, part of the right faction, at least a member of the right community. She’s not the only one to have realized that a lot of people feel left out of the media conversation. Many of the most interesting efforts in journalism in 2021, some of them nonprofit organizations inspired by last summer’s protests over racism, will be trying to reach people who are not part of that in-group chat. One new nonprofit, Capital B, plans to talk to Black audiences, while another well-regarded model is Detroit’s Outlier Media, which is relentlessly local and often delivered by text message. For Dr. Richardson’s audience, it’s an intimate connection. She spends hours a day answering emails from readers. She spent most of Saturday sending thank-you notes for Christmas presents.
The challenge for many of those efforts, and for nonprofit news organizations in general, has been reaching large numbers of people. Dr. Richardson, whose run of short essays began when she was stunned by the response to one she posted last September, has done that by accident, though she credits her huge audience of older women to the deepening gender gap in American politics.
“What I am doing is speaking to women who have not necessarily been paying attention to politics, older people who had not been engaged,” Dr. Richardson said. “I’m an older woman and I’m speaking to other women about being empowered.”
Dr. Richardson confounds many of the media’s assumptions about this moment. She built a huge and devoted following on Facebook, which is widely and often accurately viewed in media circles as a home of misinformation, and where most journalists don’t see their personal pages as meaningful channels for their work.
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Read Ben’s full article at the link.
Dr. HCR is certainly a favorite at our house! Her writing is very “accessible” — you don’t have to be a scholar or an academic to understand her “info packed” daily letters.
She also illustrates the important role of history and the liberal arts at promoting critical thinking and informed analysis at all levels of our educational system.
“Conspiracy theories,” intentionally false narratives, myths, racial bias, inequality, and hatred all flourish in the dark.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, January 8, 2021. NYC non-detained remains closed for hearings.
USCIS: In response to the coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services is extending the flexibilities it announced on March 30, 2020…This flexibility applies to the above documents if the issuance date listed on the request, notice, or decision is between March 1, 2020, and Jan. 31, 2021, inclusive.
Vox: The Asylum Cooperative Agreement, signed in September 2019 with the approval of Salvadoran President Nayib Bukele, is one of three such pacts that the US has made in an effort to discourage regional migration. The other agreements are with Honduras and Guatemala, although only the agreement with Guatemala has gone into effect so far, leading to the deportations of nearly 1,000 Hondurans and Salvadorans.
ProPublica: Last year, Congress quietly passed a bill allowing thousands of Liberian immigrants to apply for green cards. But the Trump administration hardly made it easy, and now the application window is closing.
Buzzfeed: On Friday, six families from Guatemala and six families from El Salvador were taken to separate airports to be deported by ICE, said Shalyn Fluharty, an attorney with Proyecto Dilley, which offers legal services to detained families. Some of the families were pulled from the plane at the last minute while asylum officers reviewed their claims, but at least one family was deported.
Documented: New York Gov. Andrew Cuomo (D) finally signed the Protect Our Courts Act after the New York State Legislature approved it in July. This bill is meant to stop law enforcement from arresting undocumented immigrants at courthouses. Between 2016 and 2018, the U.S. Immigration and Customs Enforcement activity in and around New York courthouses grew from 11 operations to 202 operations.
SCOTUSblog: The Supreme Court on Friday ruled that it was too early to resolve the legality of the Trump administration’s plan to exclude people who are in the country illegally from the state-by-state breakdown used to allocate seats in the House of Representatives. The decision puts at least a temporary end to the litigation challenging the president’s plan. But the ruling, from which the court’s three liberal justices dissented, leaves open the possibility that the challengers could return to court if the Trump administration implements the plan during its final month in office.
As a result of class action litigation in Vangala v. USCIS challenging USCIS’s “No Blank Space” policy, USCIS has agreed to stop implementing the rejection policy for asylum applications and U visa petitions starting December 28, 2020. AILA provides a practice alert with additional details. AILA Doc. No. 20122100
USCIS and ICE Must Give People Access to Their Immigration Files After Losing Lawsuit
AIC: People who need access to their government immigration records scored a huge victory on December 17. A judge ruled that a nationwide class of individuals should have access to their immigration files—called A-Files—within the timeframes outlined by law.
The BIA ruled that expert testimony is evidence, but only an immigration judge makes factual findings, and that when a factual finding is inconsistent with an expert’s opinion, judges should explain the reasons behind the factual findings. Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020) AILA Doc. No. 20121736
The court dismissed the petitions for review of the IJ’s decisions denying the petitioners’ motions to reopen their credible fear determinations on the basis that IJs lack jurisdiction to reopen credible fear proceedings under 8 CFR §1208.30(g)(2)(iv)(A). (Singh v. Barr, 12/9/20) AILA Doc. No. 20121632
CA9 concluded that USCIS’s denial of an H-1B petition was arbitrary and capricious because it misrepresented the OOH and failed to consider OOH language providing that a “bachelor’s degree” is the “[t]ypical level of education” for computer programmers. (Innova Solutions v. Baran, 12/16/20) AILA Doc. No. 20121733
The court held that the government had failed to rebut the presumption that the petitioner, a son of the chief of the Challa tribe who had received death threats from members of the rival Atwode tribe, had a well-founded fear of future persecution in Ghana. (Addo v. Barr, 12/14/20) AILA Doc. No. 20121635
The court upheld the denial of Convention Against Torture (CAT) relief as to petitioner, who alleged he had been attacked in Nigeria in 2006 because of his homosexuality, finding that the BIA’s adverse credibility determination was supported by substantial evidence. (Igiebor v. Barr, 12/7/20) AILA Doc. No. 20121634
The court held that petitioner was bound by her attorney’s concession of removability because it was not obviously incorrect and because it was not a product of her attorney’s unreasonable professional judgment or so unfair that it led to an unjust result. (Dos Santos v. Att’y Gen., 12/11/20) AILA Doc. No. 20121636
DOS announced that immigrant visa applicants who are named plaintiffs in Young v. Trump should contact the National Visa Center for guidance on scheduling a visa interview, or if they case had previously been scheduled, their nearest embassy or consulate. AILA Doc. No. 20121731
USCIS updated guidance regarding adjustment of status (AOS) interview criteria and guidelines for refugees and asylees. USCIS updated the list of categories of AOS cases in which USCIS may waive the required interview, and updated and clarified interview criteria for asylee and refugee AOS cases. AILA Doc. No. 20121531
USCIS issued a stakeholder message noting that a significant increase in filings in recent weeks and facility capacity restrictions as a result of the COVID-19 pandemic are causing “significant delays for processing receipt notices” for forms and applications filed with the USCIS Lockbox. AILA Doc. No. 20121534
DHS and DOJ final rule which finalizes, with minor changes, the Interim Final Rule published at 84 FR 33829 on 7/16/19, which barred from asylum eligibility individuals who transit through a third country without seeking protection. The rule is effective 1/19/21. (85 FR 82260, 12/17/20) AILA Doc. No. 20121633
EOIR final rule increasing the filing fees for applications, appeals, and motions that are subject to an EOIR-determined fee. The rule is effective 1/19/21. (85 FR 82750, 12/18/20) AILA Doc. No. 20121533
EOIR final rule making changes to the regulations on asylum and withholding of removal. The final rule adopts the notice of proposed rulemaking published at 85 FR 58692 on 9/23/20 with few changes. The rule is effective 1/15/21. (85 FR 81698, 12/16/20) AILA Doc. No. 20121637
EOIR final rule amending the regulations on the processing of immigration appeals, as well as amending the regulations regarding administrative closure. The rule is effective 1/15/21. (85 FR 81588, 12/16/20) AILA Doc. No. 20121130
CLINIC: he Executive Office for Immigration Review, or EOIR, has updated the webpage for the Recognition and Accreditation program to indicate that as of Dec. 14, 2020, EOIR will no longer accept previous versions of Forms EOIR-31 and EOIR-31A. The versions dated February 2020 will be required after that date.
MacKenzie Scott Gives Away $4.2 Billion in Four Months
By Sophie Alexander and Ben Steverman, December 15, 2020, 12:44 PM EST, updated at December 15, 2020, 3:21 PM EST
MacKenzie Scott is giving away her fortune at an unprecedented pace, donating more than $4 billion in four months after announcing $1.7 billion in gifts in July.
The world’s 18th-richest person outlined the latest contributions in a blog post Tuesday, saying she asked her team to figure out how to give away her fortune faster. Scott’s wealth has climbed $23.6 billion this year to $60.7 billion, according to the Bloomberg Billionaires Index, as Amazon.com Inc., the primary source of her fortune, has surged.
“This pandemic has been a wrecking ball in the lives of Americans already struggling,” she wrote in the post on Medium. “Economic losses and health outcomes alike have been worse for women, for people of color and for people living in poverty. Meanwhile, it has substantially increased the wealth of billionaires.”
Scott’s gifts this year approach $6 billion, which “has to be one of the biggest annual distributions by a living individual” to working charities, according to Melissa Berman, chief executive officer of Rockefeller Philanthropy Advisors.
Berman said Scott’s donations show that it’s possible to give large amounts quickly without requiring nonprofits to “jump through a lot of hoops to get the money.” The size of Scott’s gifts also disprove a common theory that’s it’s hard to deploy vast amounts of money without running into trouble or proving wasteful.
Sharing Results
Scott’s advisers zeroed-in on 384 groups to receive gifts, she said in the post, after considering almost 6,500 organizations. Donations were focused on those “operating in communities facing high projected food insecurity, high measures of racial inequity, high local poverty rates, and low access to philanthropic capital.”
Recipients include more than 30 institutions of higher education, including several tribal colleges and historically Black colleges and universities. More than 40 food banks received money, as did almost four dozen local affiliates of Goodwill Industries International.
Scott King, the executive director for Meals on Wheels of Tampa, said he didn’t even apply for the grant they received. Instead, her team contacted the nonprofit, which delivers food to about 850 homes and makes about 2,600 meals each day.
“This comes at a great time for us,” he said. “There are areas in and around Tampa that aren’t being served and need to be.”
Betsy Biemann, CEO of Maine-based Coastal Enterprises Inc., said it received $10 million, equivalent to the size of their annual operating budget. It’s a show of how powerful Scott’s enormous fortune is, especially when she decides to give to smaller organizations.
“It’s an amazing day at the end of what’s been a very challenging year,” said Biemann, whose nonprofit provides financing and advice to small businesses and entrepreneurs, especially those from rural areas or disadvantaged groups.
Scott listed the names of the groups that received the money, just as she did for the 116 organizations in her July letter. In her announcement this summer, Scott said she decided to make the gifts public in part to call attention to “organizations and leaders driving change.”
Philanthropy experts applauded Scott’s work not only for how quickly she’s given away her fortune, but also how she’s gone about it.
. . . .
Updates with recipient comment in eighth paragraph.)
To contact the reporters on this story:
Sophie Alexander in San Francisco at salexander82@bloomberg.net;
Ben Steverman in New York at bsteverman@bloomberg.net
To contact the editors responsible for this story:
Pierre Paulden at ppaulden@bloomberg.net
Steven Crabill, Sophie Alexander
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Members In Training Session https://www.flickr.com/photos/rasputin243/ Creative Commons LicenseElizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, January 1, 2020 (This is the date announced last week. It is unclear whether there will be an update this week, since a longer-than-usual postponement was announced last week, likely in light of the holidays). NYC non-detained remains closed for hearings.
HRW: In the waning days of the current administration, the Trump U.S. Departments of Homeland Security and Justice have rammed through a sweeping final rule, set to go into effect on January 11, 2021, that guts what remains of protection for refugees seeking asylum in the United States…Under the rule, the Trump administration is likely to, among many other harmful actions: Deny asylum to refugees who improperly entered the United States…Deny asylum to a woman who is harmed for gender-based violence…Deny asylum to LGBTQ refugees… Redefine persecution…Redefine “political opinion”… increasing the complexity of credible fear screenings… new grounds for declaring asylum applications “frivolous,”… See also EOIR Memo on implementation of the regs.
VOA: The so-called Temporary Protected Status (TPS) for some citizens of El Salvador, Haiti, Nicaragua, Sudan, Honduras and Nepal was extended by the Department of Homeland Security (DHS) until at least October 2021.
Law360: The rule, proposed in August, will curtail the ability of immigration appellate judges to hear cases on their own accord, impose a time limit on appeals, and create a mechanism for lower immigration judges to seek reversal of appellate judges at the Board of Immigration Appeals by petitioning a political DOJ appointee.
Law360: The U.S. Department of Justice proposed implementing electronic filing across all immigration courts, allowing immigration attorneys to submit documents, access case files and view court decisions virtually.
The Trump administration expelled unaccompanied migrant children in violation of a court order
Vox: The Trump administration has expelled at least 67 unaccompanied migrant children who arrived on the US-Mexico border since November 18, continuing to invoke Covid-19 as a rationale in defiance of a court order.
ProPublica: The administration is rushing to implement dozens of policy changes in its final days. We’re following some of the most consequential and controversial.
DocumentedNY: Cuomo announced Wednesday that the Department of Health and Human Services and Centers for Disease Control and Prevention had agreed to remove the requirements on vaccine reporting data that could determine whether vaccine recipients are U.S. citizens.
Intercept: By August 1, almost 5.5 percent of total U.S. cases, according to the report, were attributable to spread from ICE detention centers. The report is yet another damning indication that ICE’s dereliction in protecting basic human rights, grievous medical neglect, and lack of transparency in how it detains and treats people in its system of over 200 detention centers is a massive public health threat — both to detainees and the greater U.S. population.
ABA: As part of her efforts to build community among LGBTQ immigrants, Gurmu also established the Queer Black Immigrant Project, or QBip, an effort she describes as a black radical lawyering initiative that seeks not only to assist people with asylum claims but also finds solutions to why Black immigrants are leaving their homelands.
FP: Fleeing a civil war shaped by the West, Cameroonians have been met on American shores with hostility, high-risk conditions, and now unconscionable deportation.
Vox: Biden claims that he would not simply return to the Obama-era status quo on immigration, which involved record-level deportations and an expansion of family detention.
The Hill: The problem is the training program for new judges does not spend enough time teaching immigration law to give them the knowledge they will need as immigration judges. Unlike in many courtrooms, these new judges generally will be expected to issue an oral decision at the end of each hearing, which does not give them time to do research or get advice from more experienced judges.
NPR: This is one of 29 construction projects being performed by 13 different contractors from San Diego to Brownsville, Texas. In Arizona, contractors have added shifts — they’re working all night long under light towers to meet Trump’s goal of 450 miles of new barriers before his term is over.
Buzzfeed: BuzzFeed News spoke with 12 current and former ICE officials who served during the Trump administration about their experiences and their thoughts about the future. Many, like Schwab, said the new president must find a way to correct the excesses of the past four years and restore public trust in the agency by revamping policies and tactics. But many also cautioned that it won’t be easy.
SCOTUSblog: In a brief and unanimous opinion by Justice Clarence Thomas, the Supreme Court upheld the 2nd Circuit’s ruling. Thomas pointed to the text of RFRA, which allows an individual whose exercise of religion has been burdened to “obtain appropriate relief against a government.” That phrase, Thomas explained, permits someone who has been injured to sue government officials in their personal capacities.
NBC: The Trump administration had urged the court to take the case on a fast track and issue a decision before the president is required to submit the census report to Congress in early January. But by the time the case was argued Nov. 20, the Census Bureau conceded that it has no idea yet know how many people would be excluded or when it will have the answer. It appeared Monday that the justices declined to act for that reason.
The court denied the petition for review, finding that the petitioner, a Lebanese citizen who was admitted to the United States as a lawful permanent resident (LPR) in 1991, had abandoned his LPR status after living and working in Canada for six years. (Mahmoud v. Barr, 11/30/20) AILA Doc. No. 20120708
The court held that to qualify for a derivative U visa as a spouse, a person need not have been married to the principal applicant at the time the Form I-918 application was filed, so long as the marriage exists when the principal applicant receives a U visa. (Tovar v. Zuchowski, 12/3/20) AILA Doc. No. 20120839
The court concluded that the plain language of INA §241(a)(5) bars the reopening of a reinstated removal order where a noncitizen has illegally reentered the United States following his or her initial removal, and thus denied the petition for review. (Alfaro-Garcia v. Att’y Gen., 11/30/20) AILA Doc. No. 20120709
Law360: A California federal judge on Friday blocked enforcement of President Donald Trump’s COVID-19-related rule barring noncitizens from moving to the U.S. on new green cards, specifically as the rule pertains to 181 families, finding that the families showed they’d suffer irreparable harm.
The district court found that DHS’s new detention-placement policy of the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) programs did not violate statutory, regulatory, or constitutional requirements. (Las Americas Immigrant Advocacy Center v. Wolf, 11/30/20) AILA Doc. No. 20120838
DHS and DOJ final rule making multiple changes to the regulations governing the procedures for asylum, withholding of removal, and protection under the CAT. The final rule adopts the notice of proposed rulemaking published on 6/15/20 with few substantive changes. (85 FR 80274, 12/11/20) AILA Doc. No. 20121030
EOIR issued a memo (PM 21-09) establishing EOIR policy and procedures regarding new DHS and DOJ regulations, effective January 11, 2021, about credible fear and reasonable fear review screenings and the adjudication of asylum, statutory withholding of removal, and protection under CAT claims. AILA Doc. No. 20121400 See also Final Rule: Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review.
EOIR issued a memo (PM 21-08) consolidating and updating EOIR policies related to pro bono legal services. This memo replaces OPPM 97-1, Maintaining the List of Free Legal Service Providers, and OPPM 08-01, Guidelines for Facilitating Pro Bono Legal Services. AILA Doc. No. 20121133
EOIR issued a policy memo (PM 21-07) rescinding PM 20-08, Definitions and Use of Adjournment, Call-Up, and Case Identification Codes, dated February 13, 2020, and setting forth updated codes used to track the case hearing process. AILA Doc. No. 20121038
EOIR final rule amending the regulations on the processing of immigration appeals, as well as amending the regulations regarding administrative closure. The final rule will be published in the Federal Register on 12/16/20 and will be effective 30 days after publication. AILA Doc. No. 20121130
DOJ provided a table of EAD expiration dates that were issued under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. EADs with expiration dates listed in the table and a category code of A-12 or C-19 are now valid through October 4, 2021. AILA Doc. No. 20121401
USCIS: In compliance with an order of a United States District Court, effective December 7, 2020, U.S. Citizenship and Immigration Services (USCIS) is: Accepting first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order.
Thanks to former EOIR attorney Nolan Rappaport over @ The Hill for highlighting the disgraceful “expertise deficit” at EOIR. Nolan’s article was also cited by Judge “Sir Jeffrey” Chase of the Round Table 🛡⚔️ in a recent post.
And, as always, thanks Elizabeth, for all you do to keep us well-informed!
The only real question is how much wanton damage can the EOIR Clown Show 🤡🏴☠️ inflict on humanity and our legal system before the curtain falls on January 21? Apparently, like the Trump/Barr “holiday execution extravaganza” 🎅🏻⚰️ & “COVID spreading spree,”🤮 they are going for “maximum kills.” ☠️⚰️
