"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.
This paper critiques US immigration and asylum policies from perspective of the author’s 46 years as a public servant. It also offers a taxonomy of the US immigration system by positing different categories of membership: full members of the “club” (US citizens); “associate members” (lawful permanent residents, refugees and asylees); “friends” (non-immigrants and holders of temporary status); and, persons outside the club (the undocumented). It describes the legal framework that applies to these distinct populations, as well as recent developments in federal law and policy that relate to them. It also identifies a series of cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and Constitutional rights that extend to non-citizens. It makes the following asylum reform proposals, relying (mostly) on existing laws designed to address situations of larger-scale migration:
The Department of Homeland Security (DHS) and, in particular, US Citizenship and Immigration Services (USCIS) should send far more Asylum Officers to conduct credible fear interviews at the border.
Law firms, pro bono attorneys, and charitable legal agencies should attempt to represent all arriving migrants before both the Asylum Office and the Immigration Courts.
USCIS Asylum Officers should be permitted to grant temporary withholding of removal under the Convention Against Torture (CAT) to applicants likely to face torture if returned to their countries of origin.
Immigration Judges should put the asylum claims of those granted CAT withholding on the “back burner” — thus keeping these cases from clogging the Immigration Courts — while working with the UNHCR and other counties in the Hemisphere on more durable solutions for those fleeing the Northern Triangle states of Central America.
Individuals found to have a “credible fear” should be released on minimal bonds and be allowed to move to locations where they will be represented by pro bono lawyers.
Asylum Officers should be vested with the authority to grant asylum in the first instance, thus keeping more asylum cases out of Immigration Court.
If the Administration wants to prioritize the cases of recent arrivals, it should do so without creating more docket reshuffling, inefficiencies, and longer backlogs
My long-time friend Don Kerwin, Executive Director of CMS, has been a “Lt. General of the New Due Process Army” since long before there even was a “New Due Process Army” (“NDPA”). Talk about someone who has spent his entire career increasing human understanding and making the world a better place! Don is a great role model and example for newer members of the NDPA, proving that one can make a difference, as well as a living, in our world by doing great things and good works! Not surprisingly, Don’s career achievements and contributions bear great resemblance to those of our mutual friend, the late Juan Osuna.
So, when Don asked me to consider turning some of my past speeches about our immigration system and how it should work into an article to honor Juan, I couldn’t say no. But, I never would have gotten it “across the finish line” without Don’s inspiration, encouragement, editing, and significant substantive suggestions for improvement, as well as that of the talented peer reviewers and editorial staff of JMHS. Like most achievements in life, it truly was a “team effort” for which I thank all involved.
Those of you who might have attended my Boynton Society Lecture last Saturday, August 10, at the beautiful and inspiring Bjorklunden Campus of Lawrence University on the shores of Lake Michigan at Bailey’s Harbor, WI, will see that portions of this article were “reconverted” and incorporated into that speech.
Also, those who might have taken the class “American Immigration, a Cultural, Legal, and Anthropological Approach” at the Bjorklunden Seminar Series the previous week, co-taught by my friend Professor Jenn Esperanza of The Beloit College Anthropology Department, and me had the then-unpublished manuscript in their course materials, and will no doubt recognize many of the themes that Jenn and I stressed during that week.
Perhaps the only “comment that really mattered” was passed on to me by Don shortly after this article was released. It was from Juan’s wife, the also amazing and inspiring Wendy Young, President of Kids In Need of Defense (“KIND”):“Juan would be truly honored.”
Donald M. Kerwin Executive Director Center for Migration StudiesJuan P. Osuna (1963-2017) Judge, Executive, Scholar, Teacher, Defender of Due ProcessWendy Young President, Kids In Need of Defense (“KIND”)Me
Angelina Jolie Actress, Writer, Human Rights Advocate
Angelina Jolie writes in Time:
Angelina Jolie: The Crisis We Face at the Border Does Not Require Us to Choose Between Security and Humanity
Angelina Jolie
Jolie, a TIME contributing editor, is an Academy Award–winning actor and Special Envoy of the U.N. High Commissioner for Refugees
We Americans have been confronted by devastating images from our southern border and increasingly polarized views on how to address this untenable situation.
At times I wonder if we are retreating from the ideal of America as a country founded by and for brave, bold, freedom-seeking rebels, and becoming instead inward-looking and fearful.
I suspect many of us will refuse to retreat. We grew up in this beautiful, free country, in all its diversity. We know nothing good ever came of fear, and that our own history — including the shameful mistreatment of Native Americans — should incline us to humility and respect when considering the question of migration.
I’m not a lawyer, an asylum seeker, or one of the people working every day to protect our borders and run our immigration system. But I work with the UN Refugee Agency, which operates in 134 countries to protect and support many of the over 70 million people displaced by conflict and persecution.
We in America are starting to experience on our borders some of the pressures other nations have faced for years: countries like Turkey, Uganda and Sudan, which host 6 million refugees between them. Or Lebanon, where every sixth person is a refugee. Or Colombia, which is hosting over 1 million Venezuelans in a country slightly less than twice the size of Texas. There are lessons — and warnings — we can derive from the global refugee situation.
The first is that this is about more than just one border. Unless we address the factors forcing people to move, from war to economic desperation to climate change, we will face ever-growing human displacement. If you don’t address these problems at their source, you will always have people at your borders. People fleeing out of desperation will brave any obstacle in front of them.
Second, countries producing the migration or refugee flow have the greatest responsibility to take measures to protect their citizens and address the insecurity, corruption and violence causing people to flee. But assisting them with that task is in our interest. Former senior military figures urge the restoration of U.S. aid to Honduras, Guatemala and El Salvador, arguing that helping to build the rule of law, respect for human rights and stability is the only way to create alternatives to migration. The UN Refugee Agency is calling for an urgent summit of governments in the Americas to address the displacement crisis. These seem logical, overdue steps. Our development assistance to other countries is not a bargaining chip, it is an investment in our long-term security. Showing leadership and working with other countries is a measure of strength, not a sign of weakness.
Third, we have a vital interest in upholding international laws and standards on asylum and protection. It is troubling to see our country backing away from these, while expecting other countries, who are hosting millions of refugees and asylum seekers, to adhere to a stricter code. If we go down this path, we risk a race to the bottom and far greater chaos. An international rules-based system brings order. Breaking international standards only encourages more rule-breaking.
Fourth, the legal experts I meet suggest there are ways of making the immigration system function much more effectively, fairly and humanely. For instance, by resourcing the immigration courts to address the enormous backlog of cases built up over years. They argue this would help enable prompt determination of who legally qualifies for protection and who does not, and at the same time disincentivize anyone inclined to misuse the asylum system for economic or other reasons. The American Bar Association and other legal scholars and associations are calling for immigration court to be made independent and free from external influence, so that cases can be fairly, efficiently and impartially decided under the law.
There are also proven models of working with legal firms to provide pro-bono legal assistance to unaccompanied children in the immigration system without increasing the burden on the U.S. taxpayer. Expanding these kinds of initiative would help to ensure that vulnerable children don’t have to represent themselves in court, and improve the effectiveness, fairness and speed of immigration proceedings. Approximately 65% of children in the U.S. immigration system still face court without an attorney.
We all want our borders to be secure and our laws to be upheld, but it is not true that we face a choice between security and our humanity: between sealing our country off and turning our back to the world on the one hand, or having open borders on the other. The best way of protecting our security is by upholding our values and addressing the roots of this crisis. We can be fearless, generous and open-minded in seeking solutions.
TIME Ideas hosts the world’s leading voices, providing commentary on events in news, society, and culture. We welcome outside contributions. Opinions expressed do not necessarily reflect the views of TIME editors.
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Wow! Great thoughts on how caring people might actually help to constructively address human migration issues rather than cruelly making them worse through “malicious incompetence.”
It’s painfully clear that we have the wrong “celebrity” leading our nation. But, Jolie wasn’t on the ballot (not will she be). Nevertheless, in a saner and more law-abiding Government, there should be a place for ideas and leadership from Jolie and others like her.
HISTORICAL NOTE: If my memory serves me correctly, Angelina Jolie once appeared before my esteemed retired colleague U.S. Immigration Judge M. Christopher Grant, as an expert witness in an asylum case before the Arlington Immigration Court.
CNN: Monday’s opinion does not bar all family-based claims, but unless an immediate family has “greater societal import,” it is “unlikely” to qualify for asylum, according to the Justice Department.
DHS notice expanding the categories of persons designated eligible for expedited removal. The notice, including the new designation, is effective on 7/23/19. Comments may be submitted on or before 9/23/19. (84 FR 35409, 7/23/19) AILA Doc. No. 19072200. See also CLINIC’s Expansion of Expedited Removal FAQs.
Vox: On Friday afternoon, the US and Guatemala signed an agreement that will direct Central American migrants who pass through Guatemala hoping to seek asylum in the United States to first apply for protection in Guatemala instead. Those who travel to the US without applying for asylum in Guatemala could be removed by US border officials to that country.
USCIS instructed asylum officers to consider whether it would have been “possible” for asylum seekers to relocate within their countries to avoid persecution rather than flee to the United States, even though the appropriate legal standard is whether such relocation would have been “reasonable.” AILA Doc. No. 19072603
TRAC found that very few asylum seekers forced to remain in Mexico under the Migration Protection Protocols (MPP) have been able to secure representation for their immigration court proceedings. Of the total of 1,155 MPP cases decided, only 14 (just 1.2 percent) were represented. AILA Doc. No. 19072990
CBS: The bill’s supporters pushed to suspend the rules of House and pass the bill before lawmakers left for their August recess. The maneuver, usually reserved for non-controversial bills, required the support of two-thirds of the House, meaning at least 55 Republicans would have needed to break ranks and vote for the measure. The move failed after only 37 Republican lawmakers joined the 230 Democrats voting in favor.
NY Daily News: The General Services Administration, which manages federal buildings, confirmed six new immigration courtrooms are under construction at 290 Broadway. The building is also home to offices for the Environmental Protection Agency and the Internal Revenue Service.
Slate: Ted Lieu: Sofi is not a criminal or a national security threat to the United States as a 3-year-old, correct? Hastings: I don’t know the background in this case, sir.
NBC: An 18-year-old U.S. citizen who was held as an undocumented immigrant for more than three weeks in conditions he called “inhumane” says U.S. officials never apologized for wrongfully detaining him.
TimesUnion: This time last year, Albany County jail held hundreds of immigrants detained after crossing the southern U.S. border, joining a handful picked up locally.
The Attorney General found that the BIA improperly recognized the respondent’s father’s immediate family as a particular social group. Decision notes that all cases inconsistent with this opinion are abrogated. Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) AILA Doc. No. 19072902
U.S. District Judge Jon Tigar issued an order enjoining the government from implementing the 7/16/19 DHS and DOJ joint interim final rule on asylum, pending final judgment or further order of the Court. (East Bay Sanctuary Covenant, et al. v. Barr, et al., 7/24/19) AILA Doc. No. 19071800
In an oral ruling, the district court judge denied the plaintiffs’ motion for a temporary restraining order enjoining the implementation of the interim final rule issued by the Trump administration on 7/16/19. (CAIR Coalition, et al. v. Trump, et al., 7/24/19) AILA Doc. No. 19071802
WaPo: A split Supreme Court said Friday night that the Trump administration could proceed with its plan to use $2.5 billion in Pentagon funds to build part of the president’s wall project along the southern border.
The court granted in part the petition for review, finding that substantial evidence did not support the BIA’s decision to deny the Nepali petitioner’s asylum application, because the government did not rebut the presumption of a well-founded fear of persecution. (Dahal v. Barr, 7/18/19) AILA Doc. No. 19072302
The court granted the petition for review, concluding that Virginia’s statute prohibiting participation in criminal gang activity does not categorically qualify as a crime involving moral turpitude (CIMT) for purposes of INA §237(a)(2)(A)(i). (Rodriguez Cabrera v. Barr, 7/19/19) AILA Doc. No. 19072303
The court held that the IJ did not violate petitioner’s due process rights by failing to adhere to the procedural safeguards that were put in place after his competency hearing, finding that there was no variance that would amount to due process violations. (Pierre-Paul v. Barr, 7/18/19) AILA Doc. No. 19072304
Where the Mexican petitioner claimed she feared persecution as the mother of a cartel member’s child, the court held there was nothing in the record that required BIA to conclude that she had experienced past persecution or reasonably feared future persecution. (N.Y.C.C. v. Barr, 7/19/19) AILA Doc. No. 19072305
The en banc court held that, in the context of eligibility for cancellation of removal, a petitioner’s state law conviction does not bar relief where the record is ambiguous as to whether the conviction constitutes a disqualifying predicate offense. (Marinelarena v. Barr, 7/18/19) AILA Doc. No. 19072307
The court held that the BIA erred in finding that the petitioner had failed to show prejudice from his prior attorney’s ineffective assistance with respect to deferral of removal under the Convention Against Torture (CAT) and relief under former INA §212(c). (Flores v. Barr, 7/18/19) AILA Doc. No. 19072306
The BIA dismissed the appeal, finding that immigration judges (IJs) have the authority to deny applications for temporary protected status (TPS) in the exercise of discretion. Matter of D-A-C- 27 I&N Dec. 575 (BIA 2019) AILA Doc. No. 19072663
Hill: The 9th Circuit Court of Appeals on Monday ruled against the Trump administration’s policy allowing for the indefinite detention of certain asylum-seekers, saying a lower court ruling temporarily blocking it can remain in place. See also DHS Interim Guidance on Parole.
DHS notice expanding the categories of persons designated eligible for expedited removal. The notice, including the new designation, is effective on 7/23/19. Comments may be submitted on or before 9/23/19. (84 FR 35409, 7/23/19) AILA Doc. No. 19072200
Guardian: In a complaint filed in Los Angeles federal court on Tuesday against Customs and Border Protection (CBP) and the FBI, the American Civil Liberties Union (ACLU) alleges that the US government surveilled three not-for-profit organizers, who were included in a secret US database of more than 50 activists and journalists that was leaked earlier this year.
WBUR reports on a federal court case that will center on whether ICE has the right to deport immigrants for past crimes despite a state pardon. AILA Board member Heather Prendergast said Connecticut is not the only state where a board grants pardons, and in other states, ICE honors them. AILA Doc. No. 19072363
James Keegan of Cicero, Illinois, was sentenced to 10 years in federal prison for operating a fraudulent immigration service business that defrauded hundreds of undocumented immigrants. Keegan ran the scheme during a nine-month period in 2017, and falsely claimed that he was a former DHS attorney. AILA Doc. No. 19072662
EOIR released statistics on the number of initial receipts of complaints against immigration judges from FY2009 through the third quarter of FY2019. AILA Doc. No. 18102935
EOIR has released statistics on initial receipts, initial case completions, and initial case completion decisions for family units in select courts—Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York City, and San Francisco—for the period of 9/24/18 to 7/19/19. AILA Doc. No. 19062134
EOIR released statistics on credible fear review and reasonable fear review decisions, from FY2008 through the second quarter of FY2019, as of 3/31/19. AILA Doc. No. 18052340
Reuters obtained guidance given to immigration judges (IJs) on docketing of family unit cases that directs them to schedule the initial hearing in family unit cases within 30 days. AILA Doc. No. 19072660
Reuters obtained the Memorandum of Understanding (MOU) Regarding the Implementation of New Performance Measures for Immigration Judges (IJs) between EOIR and the NAIJ, which includes FAQs on IJ case quotas and defines a status docket, among other things. AILA Doc. No. 19072661
Pacific Standard: Each year, the federal government deports thousands of prisoners who enter the Institutional Hearing Program, but it won’t reveal critical information about its operations.
WaPo: The Trump administration is threatening to impose hundreds of thousands of dollars in civil penalties on immigrants who disobey deportation orders by seeking refuge in churches or elsewhere in the United States, federal officials said.
EOIR released statistics on the percentage of individuals making credible fear claims that are granted asylum. During the second quarter of FY2019 (through 3/31/19), IJs granted asylum to only 13 out of 100 credible fear claimants. AILA Doc. No. 19070532
WaPo: U.S. Customs and Border Protection was aware of the inflammatory Facebook page where alleged Border Patrol agents posted racist, sexist and violent images — and the agency has investigated posts from the group on at least one occasion, an official said. See also CBP Releases Statement on Private Facebook Group Activity.
Daily News: Santiago, who crossed into the United States in 2004, and was hit with an order of deportation after missing a San Antonio court appearance, was busted by federal immigration agents outside Queens Family Court. She was moved to Louisiana last week as her deportation appeared imminent, but lawyers with the New York Legal Assistance Group fought successfully to keep her in the U.S.
NPR: The Justice Department statement came in a court filing released Wednesday. Assistant Attorney General Jody Hunt said, “We at the Department of Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow us to include the citizenship question on the census.”
HRW: Human Rights Watch found that the program, named the “Migrant Protection Protocols” (MPP) by the US government but known colloquially as “Remain in Mexico,” has thus far had serious rights consequences for returned asylum seekers. We found that the returns program is expelling asylum seekers to ill-prepared, dangerous Mexican border cities where they face high if not insurmountable barriers to receiving due process on their asylum claims.
WaPo: A cache of records shared with The Washington Post reveals that agents are scanning millions of Americans’ faces without their knowledge or consent. [Note from Green Light NY: Most importantly, our legislation strictly prohibits disclosure of applicant photos by the DMV without lawful court order, judicial warrant, or subpoena. This means, for example, that if there is an active criminal investigation of an individual, their records could be disclosed to law enforcement… but ICE could not simply conduct a mass search of our DMV photos.]
AIC: The Trump administration’s indiscriminate, aggressive enforcement approach has created new categories of individuals who are more vulnerable to U.S. Immigration and Customs Enforcement encounters, arrest, and potential deportation.
A district court issued an order in Padilla, ordering the government to give certain detained asylum seekers a bond hearing within seven days of their request and requires
the government to justify continued detention in each case. AILA Doc. No. 19070333
FR: This final rule sets forth the Department’s longstanding position that the regulations providing for an affirmance without opinion (AWO), a single-member opinion, or a three-member panel opinion are not intended to create any substantive right to a particular manner of review or decision. The final rule also clarifies that the BIA is presumed to have considered all of the parties’ relevant issues and claims of error on appeal regardless of the type of the BIA’s decision, and that the parties are obligated to raise issues and exhaust claims of error before the BIA.
The U.S. Supreme Court upheld the doctrine of Auer deference, under which courts should defer to an agency’s reasonable reading of its own genuinely ambiguous regulations, but limited Auer’s scope in varied and critical ways. (Kisor v. Wilkie, 6/26/19) AILA Doc. No. 19070230
The administration published a rule which would authorize the attorney general (AG) “to singlehandedly designate Board of Immigration Appeals decisions as precedent—and do so literally overnight, bypassing the necessary legal procedures and without any checks and balances.” AILA Doc. No. 19070236
IRAP: The lawsuit challenges new rules imposed by the Trump Administration that make it far more difficult for asylum seekers to pass their “credible fear interviews.” The interviews, which are conducted by asylum officials to determine whether an asylum seeker has a credible fear of persecution if returned to their home country, represent a life or death scenario for many of those who enter the U.S. in order to reach safety.
A federal judge blocked ICE from making civil immigration arrests inside Massachusetts courthouses, preventing ICE “from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouse.” AILA Doc. No. 19070531
The court found that the evidence demonstrated a reasonable probability that, had the lawful permanent resident (LPR) appellant known the true and certain extent of the immigration consequences of his guilty plea, he would have refused it. (United States v. Carrillo Murillo, 6/24/19) AILA Doc. No. 19070234
The court held that, when viewed as an inclusive whole, the government was substantially justified in denying Convention Against Torture protection to petitioners, and the petitioners were ineligible for an Equal Access to Justice Act (EAJA) award. (W.M.V.C. v. Barr, 6/7/19, amended 6/28/19) AILA Doc. No. 19061800
DHS OIG issued an alert after finding dangerous overcrowding at four of the five Border Patrol facilities visited and prolonged detention at all five facilities visited in the Rio Grande Valley. Among other things, the report notes that over 1,500 detainees had been held for more than 10 days. AILA Doc. No. 19070502
ICE announced that 37 Cambodian nationals were repatriated in accordance with their final removal orders. ICE noted that removals to Cambodia increased 279 percent from FY2017 to FY2018 and that there are approximately 1,900 Cambodian nationals in the United States with final orders of removal. AILA Doc. No. 19070500
DOS announced that Interim President Juan Guaido extended the validity of Venezuelan passports for an additional five years past their printed date of expiration and the U.S. recognized this extension for visa issuance and other consular purposes. AILA Doc. No. 19070330
EOIR final rule to amend the regulations regarding the administrative review procedures of the BIA. The rule is effective 9/3/19. (84 FR 31463, 7/2/19) AILA Doc. No. 19070192
HHS (Department of Health and Human Services) notice of intent to issue up to $300,800,000 of funding for up to 1,300 temporary shelter beds to keep unaccompanied children in custody at Carrizo Springs, Texas. (84 FR 31323, 7/1/19) AILA Doc. No. 19070193
USCIS announced it will automatically extend parole, and employment authorization if applicable, for certain residents of the Commonwealth of the Northern Mariana Islands (CNMI) due to the Northern Mariana Islands Long-Term Legal Residents Relief Act. AILA Doc. No. 19070194
ABA: Statistics compiled by the ABA Journal suggest that as misdemeanor unlawful entry prosecutions rose between 2017 and 2018 in the five federal districts along the southwest border, federal prosecutions for nonmarijuana drug offenses dropped. That’s while apprehensions of people crossing between official ports of entry reached a 17-year low in fiscal 2017, and U.S. Customs and Border Protection drug seizure statistics were largely up, suggesting no lack of referrals.
NYT: “People don’t flee their homes because they want to,” President Nayib Bukele said. “They flee their homes because they feel they have to… It is our fault.”
DocumentedNY: The New York City Area of Responsibility had the third largest increase of ICE arrests in jails and prisons in the nation between 2016 and 2018. In the Buffalo Area of Responsibility, the at-large arrest rate grew about 123 percent, the second highest jump in the country after Philadelphia.
Representing “The Roundtable”: Judge Polly Webber, Judge Jeffrey S. Chase, Judge Lory D. Rosenberg, Judge Cecelia Espenoza, Judge Sue Roy, Judge Carol KIng
AILA Presents the Roundtable of Former Immigration Judges with the 2019 Advocacy Award
WASHINGTON, DC – The American Immigration Lawyers Association (AILA) will recognize the Roundtable of Former Immigration Judges, with the 2019 Advocacy Award for outstanding efforts in support of AILA’s advocacy agenda. The roundtable will accept the award this week during AILA’s Annual Conference in Orlando, FL.
The Round Table of Former Immigration Judges was formed in June 2017 when seven former Immigration Judges and BIA Members united for an amicus brief in Matter of Negusie. In the two years since, the group has grown to more than 30 members, dedicated to the principle of due process for all. Its members have served as amici in 14 cases before six different circuit courts, the Attorney General, and the BIA. The group has made its voice heard repeatedly in support of the rights of victims of domestic violence to asylum protection, and has also lent its arguments to the issue of children’s need for counsel in removal proceedings, the impact of remote detention in limiting access to counsel, and the case against indefinite detention of immigrants. The Round Table of Former Immigration Judges has submitted written testimony to Congress and has released numerous press statements. Its individual members regularly participate in teaching, training, and press events.
Cite as AILA Doc. No. 19062032.
And here are Judge Chase’s “acceptance remarks” in behalf of our entire group:
Thank you; we are humbled and honored to receive this award. Due to the time constraints on our speeches, I don’t have time to either name all of the members of our group, or to thank all those to whom thanks is due. So I will do that in a blog post.
In terms of advocacy, we are all advocates – everyone in this room, all AILA members. The past experience of our group as former judges gives us more of a platform. But it is a special group, in that so many have chosen to spend their post-government careers or their retirement actively fighting to make a difference in these trying times.
In fighting to make that difference, we must all speak for those who have no voice, and must serve as the conscience in a time of amoral government actions. Those whom we advocate for had the courage and strength to not only escape tragedy and make their way to this country, but once here, to continue to fight for their legal rights against a government that makes no secret of its disdain for their existence. We owe it to them to use our knowledge and skills to aid them in this fight.
In conclusion, I will quote the response of one of our group members who isn’t here tonight upon learning of this award: “It’s nice to be recognized. Now let’s get back to work.”
Thank you all again.
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Congrats to all of my 30+ wonderful colleagues in “The Roundtable.” It’s an honor to be part of this group. Also, many, many thanks to all of the firms and individual lawyers who have provided hundreds of hours of pro bono assistance to us so that we could have a “voice.” It’s been a real team effort!
WaPo: With days to prepare, a top state official said he expects a fivefold increase in the number of migrants who will be sent to Juarez as a result of the expansion of the Trump administration’s Migrant Protection Protocols.
WaPo: The strategy, which will apply only to applications for permanent residency — also known as green cards — or U.S. citizenship, probably will be a welcome respite to immigrant communities in cities such as St. Paul, Minn., where some applicants wait up to two years to become citizens. Immigrants in other places could see the process lengthen.
The Conversation: As current anti-immigrant policies diminish the supply of migrant workers (both documented and undocumented), farmers are not able to find the labor they need. So, in states such as Arizona, Idaho and Washington that grow labor-intensive crops like onions, apples and tomatoes, prison systems have responded by leasing convicts to growers desperate for workers.
NYT: Men, women, and children from central Africa — mostly from the Democratic Republic of Congo and Angola — are showing up at the United States’ southwest border after embarking on a dangerous, monthslong journey. Their arrival at the border and at two cities more than 2,100 miles apart — San Antonio and Portland, Maine — has surprised and puzzled immigration authorities and overwhelmed local officials and nonprofit groups.
TIME: Fort Sill, an 150-year-old installation once used as an internment camp for Japanese-Americans during World War II, has been selected to detain 1,400 children until they can be given to an adult relative, according to the U.S. Department of Health and Human Services.
Daily Beast: Former Virginia attorney general Ken Cuccinelli’s long-rumored role as a top coordinator of the Department of Homeland Security immigration policy finally has an official title. According to an email sent to staff at U.S. Citizenship and Immigration Services on Monday, the longtime border hawk has been named acting director of the agency, whose 19,000 employees orchestrate the country’s immigration and naturalization system. See also High Turnover Roils Trump’s Immigration-Policy Ranks and GOP mutters, gently, as Trump sidesteps Senate for top aides.
USCIS provided notice to the class in R.F.M., et al., v. Nielsen, et al. The class involves Special Immigrant Juveniles with applications based on a New York Family Court Special Findings Order issued between their 18th and 21st birthdays. Notice includes next steps. AILA Doc. No. 19061400. See also Legal Aid’s R.F.M. v. Nielsen website.
IDP: has put out a legal alert on the BIA’s new decision in Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019), and why it should not affect the Second Circuit precedent set by Harbin and Hylton. Included are some arguments that could be used to rebut DHS should they try to argue otherwise (please let us know if they do raise this decision and what IJs are deciding).
Fed Defenders: On May 30, 2019, the Second Circuit withdrew the per curiam opinion in Thompson v. Barr, #17-3494, that was issued on May 13. The opinion found that NY assault in the second degree (NYPL § 120.05(1)) is an aggravated felony crime of violence for immigration purposes under the force clause of 18 USC § 16(a).
RollingStone: In the days before he allegedly struck a 23-year-old undocumented Guatemalan man with a government-issued Ford F-150, Border Patrol agent Matthew Bowen sent a text to a fellow agent. In the exchange, which federal prosecutors now claim offers “insight into his view of the aliens he apprehends,” Bowen railed against unauthorized migrants who’d thrown rocks at a colleague as “mindless murdering savages” and “disgusting subhuman shit unworthy of being kindling for a fire.”
Chase: So in summary, Andrade Jaso is inconsistent with all of the AG’s precedent decisions under this administration, and with binding regulations. And yet, a three Board Member panel had no reservations (there wasn’t any dissent) in issuing this decision. Why? Because it prevents the only group of people who actually want to be in proceedings from having the chance to apply for legal status.
AP: federal appeals court in Washington ruled Friday against a Trump administration policy it described as a “blanket ban” preventing immigrant teens in government custody from getting abortions, and it kept in place an order blocking the policy.
NPR: The courts have yet to issue their final word on whether the Trump administration can add a citizenship question to the 2020 census. But starting Thursday, the Census Bureau is asking about a quarter-million households in the U.S. to fill out questionnaires that include the question, “Is this person a citizen of the United States?”
USCIS: As part of USCIS’ implementation of this memorandum, USCIS officers will now be required to remind individuals at their adjustment of status interviews of their sponsors’ responsibilities under existing law and regulations. Our officers must remind applicants and sponsors that the Affidavit of Support is a legal and enforceable contract between the sponsor and the federal government. The sponsor must be willing and able to financially support the intending immigrant as outlined by law and regulations (see INA 213A and 8 CFR 213a). If the sponsored immigrant receives any federal means-tested public benefits, the sponsor will be expected to reimburse the benefits-granting agency for every dollar of benefits received by the immigrant.
CLINIC: The memo, titled “Updated Procedures for Asylum Applications Filed by Unaccompanied Alien Children” and signed by Asylum Division Chief John Lafferty, reverses a 2013 policy, often referred to as the “Kim memo.” Under the Kim memo, USCIS took jurisdiction over asylum applications filed by applicants who had previously been determined by Immigration and Customs Enforcement or Customs and Border Protection to be “unaccompanied alien children” (UC).
The U.S. and Mexican governments proclaimed their commitment to address the increase in migrants moving from Central America, including the deployment of the Mexican National Guard to the southern border and the expansion of Migrant Protection Protocols across the entire southern border. AILA Doc. No. 19061197
ImmProf: While bold immigration proposals continue to be in the news, a lesser noticed regulatory planning document provides info on the timeline and implementation details of known policies. An analysis of the regulatory agenda shows that the administration plans to spend the next year implementing the public charge rule that denies green cards and visas to those who take public benefits and reforming employment visa programs to eliminate work authorization for H1-B spouses.
EOIR SHAKEUP: Chief Immigration Judge, Deputy Director, General Counsel Ousted!
Courtside: Evidently, Chief Immigration Judge MaryBeth T. Keller, General Counsel Jean King, and Deputy Director Katherine H. Reilly all “got the boot” late this week. They are career civil servants. Keller and King were “holdovers” from the prior Administration, while Reilly was appointed to her recent position by former Attorney General Jeff Sessions. Piecing together bits from anonymous sources, it’s likely that the three clashed with EOIR Director James McHenry and Department of Justice (“DOJ”) politicos over some of the more extreme aspects of the Administration’s “master plan.” See also American Bar Association Says Immigration Courts Are ‘On The Brink Of Collapse’.
Reuters obtained a memo with updated procedures for asylum applications filed by unaccompanied alien children (UACs), modifying 5/28/13 guidance. This guidance is effective 30 calendar days after 5/31/19 and applies to any USCIS decision issued on or after the effective date. AILA Doc. No. 19060771
WaPo: The Trump administration’s new immigration enforcement chief said Tuesday that he is preparing to increase arrests and deportations of migrant families living illegally in the U.S. interior, promising the kind of more aggressive approach the White House has been seeking. See also Border Patrol searches have increased on Greyhound, other buses far from border.
WaPo: On the same day the White House heralded veterans on the 75th anniversary of D-Day, a federal watchdog said the government had violated its own rules on deporting former service members — and immigration authorities have no idea how many they have removed.
Salon: The State Department announced this week a major change to the Diversity Immigrant Visa Program, which Trump has repeatedly maligned. The first new rule requires applicants to already have a passport at the time of application. The second mandates that any typographical error on the application results in immediate, unappealable disqualification.
Sunlight Foundation: In answer to our first question— who initiated the removal? — the records turned over under FOIA show that USCIS’ training materials, which had been public for years, were in fact removed at the explicit direction of the Asylum Division’s top official. Even as that official, John Lafferty, acknowledged that the materials were of significant public interest, correspondence shows he rebuffed his own staff’s suggestion to archive them.
NBC: The deaths of three ICE detainees since April, along with the release of several internal and watchdog reports documenting dismal conditions at ICE detention centers, have prompted an outcry from advocates who say the Trump administration is pushing growing numbers of immigrants into a detention system ill-equipped to care for them. See also HHS to house thousands of unaccompanied minor migrants on military bases and at Texas facility.
NYT: A growing number of asylum seekers have found that the journey to the Continent is safer and cheaper than paying smugglers to get them through Mexico.
IOM and UNHCR: The number of Venezuelans leaving their country has reached four million, IOM, the International Organization for Migration, and UNHCR, the UN Refugee Agency, announced today. Globally, Venezuelans are one of the single largest population groups displaced from their country.
QNS: The legislation [would] ensure that conditions for immigrants in New York State county jails comply with legal detention standards. In addition, the law will also limit the expansion of detention facilities in the state unless approved by the legislature.
Politico: A fast-track asylum regulation is currently under review at the White House budget office, according to a related regulatory website.
The regulation — titled “Asylum Eligibility and Procedural Modifications” — would be implemented as an interim final rule, which means it would take effect upon publication in the Federal Register.
WaPo: But it is unlikely that the Senate will consider the bill: McConnell and other Senate Republican leaders made no mention of the bill at their weekly news conference Tuesday afternoon.
From the listservs: If you get calls from family trying to locate someone who was just detained, keep in mind that if they were detained crossing the border then there is a high probability that they are not with ICE, but with the U.S. Marshal Service with pending illegal entry charges. This became much more common over the past year with Zero Tolerance and its implementation through Operation Streamline. So they won’t appear on the ICE Locator. Unfortunately, they will often not appear on BOP’s website either because USMS detainees that are in contract facilities don’t show on the website. One trick is to check on PACER (www.pacer.gov worth getting an account), which will confirm if have a pending criminal 1325 or 1326 case, and will also have their defense atty name.
In a one-sentence order, the U.S. Supreme Court denied the Trump administration’s motion to expedite consideration of the petition for a writ of certiorari. (DHS, et al. v. Casa de Maryland, et al., 6/3/19) AILA Doc. No. 18030734
LexisNexis: “The BIA reversed [an IJ in] Salt Lake City in a detained withholding / CAT case (client is in Tacoma, WA in withholding only proceedings) on the grounds that my client had suffered past persecution at the hands of local [Mexican] police on account of his imputed nationality as a U.S. citizen.”
Gothamist: The civil rights lawsuit, which was filed this week in federal District Court by Legal Services NYC, raises serious questions about the DOE’s commitment to serving a significant demographic in the New York City public school system, that of non-native English-speaking parents.
The GAO responded to a letter sent by 82 members of the House, accepting their request to work within the scope of its authority to review several issues regarding the current backlog of immigration cases managed by USCIS. AILA Doc. No. 19060334
AILA issued a practice alert on EOIR’s policy memo, No Dark Courtrooms, effective Wednesday, 5/1/19. This memo formalizes EOIR’s policy of “no dark courtrooms” and directs “OCIJ managers to ensure…that all blocks of available immigration court time are being utilized for scheduling cases.” AILA Doc. No. 19052970
On 5/31/19, the DOS updated its immigrant and nonimmigrant visa application forms to request additional information, including social media identifiers, from most U.S. visa applicants worldwide. AILA Doc. No. 19060671
DHS OIG issued a report after it conducted inspections of four detention facilities and found violations of ICE’s National Detention Standards, including “immediate risks or egregious violations of detention standards in Adelanto, VA, and Essex County, NJ….” AILA Doc. No. 19060601
USCIS Updates Fee Payment System Used in New York Field Offices
USCIS: U.S. Citizenship and Immigration Services (USCIS) has expanded the fee payment system used in field offices across the country, including the New York, Brooklyn, Long Island, and Queens offices. The improvements, implemented in New York in April, will fully replace the older system on Friday, June 7. Note that after that date, applicants will no longer be able to pay by money order or a cashier’s check at the New York, Brooklyn, Long Island, and Queens offices.
RESOURCES
· Mexican Tarjetas de Visitante por Razones Humanitarias and Firm Resettlement: A Practice Advisory for Advocates (attached)
· Practice Advisory on the SIJS litigation for applicants between the ages of 18-21 (attached)
Buzzfeed: The Trump administration is considering a proposal that would bar asylum for those who transit through a third country, a potential major escalation in the administration’s attempts to deter asylum-seekers, according to sources close to the administration.
WaPo: The White House plans to begin levying the import penalties on June 10 and ratchet the penalties higher if the migrant flow isn’t halted. Trump said he would remove the tariffs only if all illegal migration across the border ceased, though other White House officials said they would be looking only for Mexico to take major action. See also White House Releases Statement from President Trump Regarding Emergency Measures to Address the Border Crisis.
BIA: An Immigration Judge has the authority to dismiss removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7) (2018) upon a finding that it is an abuse of the asylum process to file a meritless asylum application with the U.S. Citizenship and Immigration Services for the sole purpose of seeking cancellation of removal in the Immigration Court.
Vermont Service Center (VSC) no longer entertains requests for supervisory review
VSC: Generally speaking, the Vermont Service Center (VSC) no longer entertains requests for supervisory review of requests for evidence (RFEs), via this email hotline or any other method. If your client disagrees with the RFE or believes that the requested evidence has already been submitted, they may wish to indicate this in their response to the RFE. They may also wish to resubmit the requested evidence. Any information submitted will be reviewed by the adjudicating officer.
U.S. News: President Donald Trump on Thursday signed a memorandum that will direct federal agencies to enforce a longstanding rule requiring the sponsors of legal immigrants to reimburse the government for any public benefits the immigrant uses, such as Medicaid and food stamps.
AIC: Immigration and Customs Enforcement officials regularly place detained immigrants into prolonged solitary confinement, despite findings that such confinement is a form of torture.
NYT: Visa applicants to the United States are required to submit any information about social media accounts they have used in the past five years under a State Department policy that started on Friday.
NYT: Files on those drives showed that he wrote a study in 2015 concluding that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats.
Politico: The Trump administration plans to launch a new panel to offer “fresh thinking” on international human rights and “natural law,” a move some activists fear is aimed at narrowing protections for women and members of the LGBT community.
USA Today: The Transportation Security Administration is preparing to send up to 400 workers to the southern border to assist with the rising number of Central American migrants, but officials say the move shouldn’t affect air travel as the summer travel season gets underway.
WaPo: The Department of Homeland Security personnel will work as “advisers” to Guatemala’s national police and migration authorities, and they will aim to disrupt and interdict human smuggling operations, the officials said, speaking on the condition of anonymity to describe a plan that has not been made public. U.S. authorities hope that the effort will cut off popular routes to the United States and deter migrants from beginning their journeys north through Mexico.
Gothamist: Hundreds of immigrants detained at the southern border have been transferred to jails in the New York City area in the last few weeks, as the Trump administration takes unprecedented steps to manage a growing number of migrants seeking entry to the United States.
NYT: The Trump administration’s crackdown on unauthorized immigration has resulted in the prosecution of tens of thousands of people entering the country illegally. But new data suggests that the government has not prioritized the prosecution of employers, whose jobs represent the biggest lure for those crossing the southern border to reach the United States.
ImmProf: The Trump Administration is seeking Supreme Court review of a Fourth Circuit decision rejecting the administration’s attempt to rescind DACA. Here is the cert petition. In addition, the Supreme Court has granted cert in Hernandez v. Mesa, which asks whether the family of a Mexican teen killed by a U.S. Border Patrol agent in a cross-border shooting can sue the officer for damages (case page at this link).
The AG invites amici on whether judicial alteration of a criminal conviction or sentence should be taken into consideration in determining the immigration consequences of the conviction. Comments due by 7/12/19. Matter of Thomas and Matter of Thompson, 27 I&N Dec. 556 (A.G. 2019) AILA Doc. No. 19052900
NorthJersey: The daughter of a man who died while in immigration custody filed a wrongful death lawsuit Thursday against Hudson County and its jail, where he was held before he died of internal bleeding at a local hospital.
An Immigration Judge has the authority to dismiss removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7) (2018) upon a finding that it is an abuse of the asylum process to file a meritless asylum application with the U.S. Citizenship and Immigration Services for the sole purpose of seeking cancellation of removal in the Immigration Court.
Unpublished BIA decision vacates denial of continuance where IJ did not make preliminary determination whether respondent was prima facie eligible for U visa. Special thanks to IRAC. (Matter of Gomez-Alfaro, 7/31/18) AILA Doc. No. 19052995
Unpublished BIA decision holds that an administratively entered judgment of guilt due to the respondent’s failure to appear in court does not qualify as a conviction for immigration purposes. Special thanks to IRAC. (Matter of Davies, 7/30/18) AILA Doc. No. 19052895
In an unpublished BIA decision, the BIA affirmed the Immigration Judge’s decision to terminate removal proceedings, finding that the crime of fraud under $5,000, in violation of section 380(1)(b) of the Criminal Code of Canada is not a CIMT. Courtesy of Richard Hanus. AILA Doc. No. 19052834
Unpublished BIA decision reopens and terminates proceedings sua sponte in light of holding in United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), that assault under Wash. Rev. Stat. 9A.36.021 is not a crime of violence. Special thanks to IRAC. (Matter of Ibrahim, 8/7/18) AILA Doc. No. 19052896
Unpublished BIA decision holds that making false statement to firearms dealer under 18 USC §924(a)(1)(A) is a not a firearms offense because it applies to dealers who falsify their own records. Special thanks to IRAC. (Matter of Lopez, 8/17/18) AILA Doc. No. 19053135
Unpublished BIA decision holds that online solicitation of a minor under Tex. Penal Code 33.021 is not aggravated felony sexual abuse of a minor or attempted sexual abuse of a minor because it does not require a victim under 16 years of age. Special thanks to IRAC. (Matter of Adeeko, 8/14/18) AILA Doc. No. 19053132
BIA: Vacates order rescinding LPR status because respondent was not given opportunity to cross-examine ex-spouse or USCIS officer who took her statement
The court found that the petitioner, a citizen of Ireland who had entered the United States as a child and had overstayed his visa, was not entitled to a presumption of prejudice, and that he could not make a particularized showing of prejudice. (O’Riordan v. Barr, 5/22/19) AILA Doc. No. 19052831
The court vacated the district court’s dismissal of the plaintiffs’ complaint alleging that the defendants’ failure to engage in discharge planning for the plaintiffs’ serious medical needs prior to release violated their substantive due process rights. (Charles v. Orange County, 5/24/19) AILA Doc. No. 19053130
The court held that the BIA had disregarded and distorted significant portions of the record when it found that the petitioner had failed to establish that the Salvadoran government was unwilling or unable to protect her from persecution. (Orellana v. Barr, 5/23/19) AILA Doc. No. 19052832
The court held that substantial evidence supported the BIA’s determination that petitioner, who had been a police officer in Honduras, had failed to show a nexus between the alleged persecution he suffered and his membership in a particular social group. (Martinez Manzanares v. Barr, 5/24/19) AILA Doc. No. 19052833
The court held that DHS’s failure to include the time and date of the petitioner’s hearing in the Notice to Appear (NTA) was a failure to follow a claim-processing rule, not a jurisdictional flaw, and that petitioner did not timely object to DHS’s misstep. (Ortiz-Santiago v. Barr, 5/20/19) AILA Doc. No. 19052803
The court held that a Notice to Appear (NTA) that is defective under Pereira v. Sessions cannot be cured by a subsequent Notice of Hearing, and therefore does not terminate the residence period required for cancellation of removal. (Lorenzo Lopez v. Barr, 5/22/19) AILA Doc. No. 19052872
The court held that petitioner had failed to show that his 1997 parole constituted an “admission in any status,” and thus found he had not obtained the requisite seven years of continuous residency in the United States to be eligible for cancellation of removal. (Alanniz v. Barr, 5/20/19) AILA Doc. No. 19052871
The district court held that USCIS’s policy of declining to naturalize Military Accessions Vital to the National Interest (MAVNI) applicants until the Defense Department and the Army had determined they were suitable for service violated the Administrative Procedure Act. (Nio v. DHS, 5/22/19) AILA Doc. No. 19052839
CBP announced the creation of a new Border Patrol Processing Coordinator position designed to perform administrative tasks related to the intake and processing of individuals apprehended by Border Patrol agents and brought back to stations. AILA Doc. No. 19052837
USCIS will close its international offices, starting with Ciudad Juarez, Mexico and Manila in the Philippines. All offices, including the main district offices for the separate regions, are scheduled to close by March 10, 2020. Watch this page as AILA tracks which offices are closed. AILA Doc. No. 19053131
One of the earliest stories I heard as a child was that my immigrant great-great-grandfather worked out West on the first transcontinental railroad. Yuan Son, along with tens of thousands of other Chinese workers, blasted tunnels, carved footholds and laid grade at death-defying heights through the most arduous parts of the Sierra Nevada, miraculously making it out alive. I envisioned him tough and swashbuckling — a cross between my tall, bartender grandfather, who often told me these stories while smoking a Marlboro in our home in Queens, and Yosemite Sam.
My great-great-grandfather and his fellow laborers toiled around the clock in rotating shifts, handling explosive nitroglycerine, blasting through miles of granite, hauling tons of rock and dirt, even in upwards of 30 feet of snow. They endured brutal working conditions we would consider unconscionable today to complete the most difficult sections through the Sierra Nevada — the same terrain that stopped the ill-fated Donner Party in its tracks — and finally out to Nevada and Utah’s blistering desert heat. They were paid less and worked longer hours than their Irish or American counterparts, and they had to provide their own food and accommodations. Although some claimed it could never be done, Yuan Son and other Chinese workers completed the task in record time.
It wasn’t until, as an adult, I traveled to Promontory Summit, Utah, and saw the site of the railroad’s completion with my own eyes that I realized the true weight of this legacy. The railroad is a complicated affair for Chinese American descendants like me: The greatest U.S. engineering feat of the 19th century may have physically unified the country when it was finished in 1869, but this new network of rail also brought scores of white workers to the West, many of whom grew resentful when they saw Chinese holding down jobs they considered rightfully theirs. Not 15 years after the completion of the railroad, this ire, coupled with a severe economic depression, helped usher in the Chinese Exclusion Act — the country’s first major federal law that limited immigration based on race, class and nationality — setting the tone for future wide-reaching restrictive immigration policies.
My great-great grandfather was a teenager when he arrived in California, a mere boy, one of upwards of 20,000 Chinese, mainly from the Pearl River Delta area (in Guangdong province), who made up the majority of the Central Pacific Railroad workforce. He, like most of the others, was raised in a poor farming family, in a country that had been hammered by drought, famine, Western colonialism, warlordism and one of the bloodiest civil wars of the 19th century — conditions that would look familiar to many refugees and migrants today. So when the opportunity arose to feed his family by working for a railroad an ocean away, he took it.
As a schoolgirl, I scanned the official photograph that came to symbolize the railroad’s completion — engineers shaking hands, flocks of laborers posing for the camera, the champagne toast, a carefully choreographed scene — more than 100 years later, searching for faces like my great-great-grandfather’s. Only white faces stared back. Chinese workers were written out of this triumphant American story.
Their contributions were already being erased when Chinese Exclusion was enacted, and soon followed by a tsunami of anti-Chinese violence that swept across much of the West — lynchings, expulsions, boycotts of Chinese businesses, politicians jumping on the bandwagon. Nativism was as popular and potent then as it is today. Yuan Son, now an entrepreneurial shop owner, had happily settled in Idaho, where, after the railroad’s completion, Chinese made up close to 30 percent of the population. Although he had been living in the country for almost 30 years, one day he was forced out of his home at gunpoint by a band of masked vigilantes.
Despite these hardships, Yuan Son resettled back into life in China and surprisingly spoke of the work he had done on the railroad with great pride. He even taught my grandfather his first words in English: “Central Pacific,” “Southern Pacific” and “Union Pacific.” My chain-smoking grandfather repeated these names back to me through his ringing Cantonese intonations, in our home half a world away, as if he were a conductor calling out stations.
As the Trump administration attempts to rally support for ever more stringent immigration policies, I can’t help reflecting on railroad pioneers like Yuan Son. These men risked their lives hammering and detonating gunpowder, surviving avalanches and extreme conditions — engaging in the kind of backbreaking, chisel-to-granite “bone-work” that others refused to do. I am confronted by this complicated history, even as some wave patriotic flags amid cries to “make America great again.” One hundred and fifty years ago, my grandfather’s grandfather did help make this nation great, along with scores of his countrymen. It didn’t stop him from getting booted out, decades later, simply for being Chinese.
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Like it or not, supporting Trump means “buying in” to his noxiously false “Whitebread” vision of America’s past and future. It is also to disingenuously decline to recognize our true immigrant heritage and the overwhelming contributions of immigrants of color, enslaved Americans, immigrant women, and native Americans in making America great.
Sadly, the Chinese weren’t the only ones “airbrushed out” of the triumphant picture of the Transcontinental Railroad’s completion. Blacks, women, and Native Americans also made major contributions while suffering disproportionately; yet, they also received little or no appreciation or recognition.
Here’s a “differently take” on the ‘golden spike ceremony.:”
There are several dead links after a DOS website redesign. But the reports are still available. It’s also worth checking out the EOIR country conditions research index.
NPR: The plan would prioritize merit-based immigration, limiting the number of people who could get green cards by seeking asylum or based on family ties. But it would keep immigration levels static, neither increasing or decreasing the number of people allowed to legally enter the U.S. each year.
NYT: Last year, fewer immigrants applied for [U] visas — the first annual decline since 2007 — in what law enforcement officials and lawyers called a sign that immigrants were growing wary of helping the police and prosecutors.
WaPo: An attempt by President Trump’s senior adviser Stephen Miller to engineer a new shake-up at the Department of Homeland Security was blocked this week by Kevin McAleenan, the department’s acting secretary, who said he might leave his post unless the situation improved and he was given more control over his agency, administration officials said. See also Before Trump’s purge at DHS, top officials challenged plan for mass family arrests.
WaPo: “E-Verify is going to be possibly a part of it,” Trump replied. “The one problem is E-Verify is so tough that in some cases, like farmers, they’re not — they’re not equipped for E-Verify. I mean, I’d say that’s against Republicans. A lot of the Republicans say you go through an E-Verify.”
On May 13, 2019, the National Association of Immigration Judges (NAIJ) responded to EOIR’s Myths vs. Fact memo issued on May 8, 2019. Their response outlines key assertions made in the EOIR memo that “mischaracterize or misrepresent the facts.” AILA Doc. No. 19051334
In March of 2019, the Social Security Administration (SSA) began mailing notifications to employers identified as having at least one name and Social Security Number (SSN) combination submitted on wage and tax statement (Form W-2) that do not match its records. AILA Doc. No. 19051500
NBC: A government review of how journalists, attorneys, immigration advocates, and activists were monitored and tracked by U.S. border agencies confirms the Mexican government had a major role in the controversial tracking program.
CNN: DHS ran the DNA pilot program to help identify and prosecute individuals posing as families in an effort to target human smuggling. The Rapid DNA testing, as it’s known, involves a cheek swab and can, on average, provide results in about 90 minutes.
Coixes of NYC: Only weeks before the city will announce how its $92 billion budget for fiscal year 2020 will be allocated, pro-immigrant groups are clamoring for more resources for vital programs that support vulnerable communities.
Newsday: A new bill that has picked up key support in the State Legislature would make it a misdemeanor for an employer to report the “suspected citizenship or immigration status” of an employee to federal authorities.
Tuscon: The statements were made in a text message sent by Agent Matthew Bowen, 39, who is accused of knocking down a Guatemalan man with his Border Patrol vehicle on Dec. 3, 2017, and then lying in a report about the incident, according to documents filed in U.S. District Court in Tucson.
LA Times: He knew Trump planned to get tough on immigration — building a wall and deporting drug dealers, rapists and killers. He never imagined anyone would consider his sweet stay-at-home wife a “bad hombre.”
Nola: Mexico’s statistics institute estimated this month that the U.S.-born population in this country has reached 799,000 – a roughly fourfold increase since 1990. And that is probably an undercount. The U.S. Embassy in Mexico City estimates the real number at 1.5 million or more.
Quartz: More than 544,000 immigrants became US citizens in the first three quarters of fiscal year 2018, overall a 15% increase from the same period a year ago, according to the latest data from the US Department of Homeland Security. The largest year-to-year increase occurred in the first quarter of 2018, however there was a slight decrease in the third quarter. See also Immigrant soldiers now denied US citizenship at higher rate than civilians.
The government filed a memo in support of its motion to dismiss, along with declarations from Cynthia Crosby, Deputy Chief Clerk for the BIA, and Joseph Schaaf, the Supervisory Attorney Advisor who manages EOIR’s FOIA Unit. (NYLAG v. BIA, 5/3/19) AILA Doc. No. 18102232
ACLU: The American Civil Liberties Union of Texas and the ACLU Border Rights Center filed an administrative complaint concerning the mistreatment of migrants detained at Rio Grande Valley Border Patrol facilities.
The court denied the petition for review, finding that the petitioner’s conviction for conspiracy in the second degree to commit a felony—namely, murder in the second degree—under New York law constitutes an aggravated felony. (Santana-Felix v. Barr, 5/9/19) AILA Doc. No. 19051638
The court affirmed the BIA’s order denying the petitioners’ applications for asylum and withholding of removal, finding that the BIA did not err by refusing to consider the petitioners’ reformulated particular social group (PSG) on appeal. (Cantarero-Lagos, et al., v. Barr, 5/6/19) AILA Doc. No. 19051637
The court dismissed the petition for review, holding that, under the plain language of 8 USC §1231(a)(5), it lacked jurisdiction to review the petitioner’s underlying 2005 removal order in the context of his reinstatement proceedings. (Villa v. Barr, 5/9/19) AILA Doc. No. 19051642
ICE announced that 50 people are in law enforcement custody after a federal grand jury returned a 206-count indictment criminally charging 96 people for their alleged roles in a large-scale marriage fraud scheme. AILA Doc. No. 19051432
DHS OIG issued a report on CLAIMS3, its electronic system of record, and found that USCIS has not implemented an effective process to track adjudicative decisions and ensure data integrity, noting that USCIS cannot reliably track decisions back to the officer responsible for those decisions. AILA Doc. No. 15051671
AILA updated its practice alert with a summary of engagement with the NBC on this issue. In early May 2019, the NBC confirmed that their Interim Case Management System (ICMS) Team will review the issue and take action to address it if necessary. AILA Doc. No. 18102905
DHS notice of the re-establishment of a matching program between USCIS and the New York Department of Labor to verify the immigration status of non-U.S. citizens who apply for federal unemployment benefits. Comments are due 6/17/19. (84 FR 22510, 5/17/19) AILA Doc. No. 19051771
Albany, NY Jurisdiction Change Details
USCIS: Applicant cases from the zip codes in the following counties will be permanently realigned from the New York City, NY Field Office to the Albany, NY Field Office: Ulster, Dutchess, Sullivan, Orange, and Putnam. This permanent change will go into effect on Monday, May 27, 2019 and will apply to all immigration benefit types adjudicated in the field office, including naturalization applications and adjustment of status (green card) applications and petitions. The Albany, NY Field Office is located at 1086 Troy-Schenectady Road in Latham, N.Y.
Newark, NJ Temporary Caseload Shift
USCIS: A portion of application cases filed by applicants from Kings and Richmond counties, which are usually adjudicated at the Brooklyn, NY Field Office, will be temporarily realigned to the Newark, NJ Field Office. This temporary change will occur in June 2019. The caseload shift to Newark, NJ applies ONLY to naturalization applications (Form N-400 – Application for Naturalization). Applicants will complete their naturalization interview and civics test at the Newark, NJ Field Office on 970 Broad Street in Newark.
Immigration Court Closures
EOIR: The immigration judge conference will be taking place on June 19th and 20th this year. Hearings on those dates will be rescheduled.
Louise Radnofsky and Natalie Andrews report for the WSJ:
WASHINGTON—President Trump will make a fresh bid Thursday to remake U.S. immigration policy, propos-ing an expansion of skills-based visas offset by new restrictions on family members’ immigration—a proposal likely to ignite a dispute over issues that divide political parties and the country.
Mr. Trump is set to unveil an immigration plan devised in part by son-in-law and senior adviser Jared Kushner that incorpo-rates several ideas that have been gaining currency in Republican circles.
Chief among them: a bill crafted by conservative Republicans that would establish a visa system prioritizing immigrants based on criteria such as education, English-language ability and high-paying job offers.
The proposal also would eliminate the diversity-visa lottery long derided by Mr. Trump as well as immigra-tion routes for family members such as siblings. Moreover, it would limit the number of refugees offered permanent residency to 50,000 a year.
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Those with WSJ access can read the complete article at the link.
More Trump “smoke and mirrors.” No, it isn’t about “diversity” as one Trump toady falsely claims. Trump eliminates the current diversity visas.
It’s largely about the (likely false) assumption by Trump and others in the GOP that they have cleverly defined “merit” in a restrictive way that will bring in more white, English-speaking, highly-educated individuals from Europe, Canada, Australia, New Zealand, etc. and fewer Africans, Hispanics, Haitians, and Syrians, etc.
Contrary to nativist expectations when the basic current system was enacted in 1965, “immigrants of color” have dramatically increased their share of legal immigration over the past half-century. That has led to a diverse, talented, innovative, dynamic, successful yet “less white” America. According to nativist stereotypes, dumping on family members and refugees and increasing skill, educational, and English-language requirements will result in a “whiter” (that is “more meritorious”) immigrant population going forward.
However, like the nativists of 1965, Trump and his nativists might be surprised by the likely results of their own stereotypical assumptions. Actually, English-speaking immigrants from Africa, Haiti, the Middle East, Mexico, and Venezuela are among the highest skilled and best educated.
Of course, Trump’s elitist proposal also ignores that some of our greatest needs for immigrants pertain to important, but less glamorous, occupations for which neither education nor instant English language skills are a requirement. To keep our economy moving, we actually need more qualified roofers, construction workers, agricultural workers, child care workers, health assistants, security guards, janitors, landscapers, and convenience store operators than we do rocket scientists.
And, no, Tom Cotton and David Purdue, there aren’t enough “American workers” available to fill all these positions, even at greatly increased wages (which, incidentally, your fat cat GOP business supporters have no intention of paying anyway)! How high would the wages have to be to make guys like Cotton and Purdue give up their legislative sinecures (where they do nothing except show up for a few judicial votes on far right candidates scheduled by McConnell) and lay roofs correctly in 100-degree heat?
Rather than working against market forces to artificially restrict the labor supply, those wanting to improve wages and working conditions for American workers should favor higher minimum wages, aggressive enforcement of wage and hour and OSHA laws, and more unions. But, the GOP hates all of those real solutions.
The proposal also ignores “Dreamers,” which is sure to be a sore point with the Democrats. On the other side, it fails to sharply (and mindlessly) slash overall legal immigration levels as demanded by GOP nativists. While this proposal does not directly target children or dump on refugees from the Northern Triangle based on race and nationality, the ever slimier Trump sycophant Lindsey Graham has introduced a bill that promises to do both.
Beyond the purely humanitarian considerations, refugees make huge contributions to our economy and society. So, why would we want to screw them over? Family immigrants arrive not only with skills, but with a “leg up”on adjustment and assimilation. So, why would we want to dump on them?
For the most part, this looks more like a Trump campaign backgrounder or a diversion from his endless stream of lies, unethical behavior, and downright stupid actions that are a constant threat to our national security. What it doesn’t look like is a serious bipartisan proposal to give America the robust, expanded, more realistic, market responsive legal immigration, asylum, and refugee systems we need to secure our borders from real dangers (which doesn’t include most asylum seekers and would-be workers) and move America forward in the 21st century. Without regime change and a sea change that would break the GOP’s minority hold on Congress through the Senate, immigration is likely to remain a mess.
NPR: In the memo, Trump said he is giving Attorney General William Barr and acting Homeland Security Secretary Kevin McAleenan 90 days to propose new regulations to speed up the processing of asylum claims, charge application fees for those seeking asylum, and to bar work authorization for certain applicants. See also Asylum seekers leave everything behind. There’s no way they can pay Trump’s fee.
WaPo: The request includes $3.3 billion for humanitarian assistance and $1.1 billion for border operations, and it represents a dramatic escalation of the administration’s efforts to address the situation at the border.
Wa Examiner: The Department of Homeland Security is racing to implement a plan that would give federal law enforcement on the border the authority to conduct interviews with asylum seekers who fear returning to their home countries, according to two sources with firsthand knowledge of the plan.
Vox: Asylum officers have raised concerns with their union. Vox spoke with several of them in their capacity as union members, in meetings facilitated and attended by the head of the union representing immigration officers in US Citizenship and Immigration Services, about how the new procedures have changed their jobs.
NBC: On the same day the Trump administration said it would reunite thousands of migrant families it had separated at the border with the help of a “central database,” an official was admitting privately the government only had enough information to reconnect 60 parents with their kids, according to emails obtained by NBC News. See also Homeland Security Used A Private Intelligence Firm To Monitor Family Separation Protests.
CBS: Caliburn is the parent company of Comprehensive Health Services, which operates Homestead and three other shelters for unaccompanied migrant children in Texas. Prior to joining the Trump administration in January 2017, Kelly had been on the board of advisors of DC Capital Partners, an investment firm that now owns Caliburn.
CNN: For months, President Donald Trump’s son-in-law and senior adviser has been chipping away at a plan to overhaul the country’s immigration system, seizing an issue that’s otherwise belonged at the White House to senior adviser and immigration hardliner Stephen Miller.
ICE announced the reallocating resources to investigate the use of fraudulent documents to “create fake families seeking to exploit U.S. immigration laws.” During April 2019, HSI conducted about 100 family unit interviews and have found evidence of fraud in “more than a quarter of cases.” AILA Doc. No. 19050232
WSJ: The Trump administration is moving ahead to allow an additional 30,000 seasonal workers to return to the U.S. this summer, a higher-than-expected number that reflects internal tensions in the White House’s approach to legal immigration.
WaPo: President Trump on Sunday named a former Obama administration official who has embraced some of Mr. Trump’s hard-line positions on border security as the head of Immigration and Customs Enforcement, part of a broad effort to force federal agencies into a more aggressive crackdown on migrants.
WaPo: The sharp dichotomy between the president’s rhetoric and the tone of his aides reflects how they are waging a battle on separate fronts — one political and the other operational — as the administration struggles to deal with a mounting humanitarian crisis at the U.S. border with Mexico.
WaPo: Migration from Mexico has dropped 90 percent over the past 20 years; this year, for the first time ever, Guatemala and Honduras are on pace to surpass it as the leading sources of illegal immigration to the United States.
WaPo: Just 47 percent of key department slots are filled with confirmed appointees, according to the Political Appointee Tracker published by The Washington Post and the Partnership for Public Service. Only Interior is worse, at 41 percent, among Cabinet-level agencies.
Buffalo News: Twelve states, along with the District of Columbia and Puerto Rico, permit undocumented immigrants to get licenses. They do so, however, in vastly different ways, from two-tiered systems in some cases to making it be only used for driving and not, for instance, as identification to get into federal buildings.
ACLU: The information we uncovered through our lawsuit shows that CBP and ICE are asserting near-unfettered authority to search and seize travelers’ devices at the border, for purposes far afield from the enforcement of immigration and customs laws.
LITIGATION/CASELAW/RULES/MEMOS
No More Filing Window at OPLA-NYC
DHS: Please be advised that the Office of the Principal Legal Advisor New York City (OPLA-NYC) will permanently close the reception window at 26 Federal Plaza effective Monday, June 3, 2019. Starting on that date, OPLA-NYC will no longer accept in-person filings at 26 Federal Plaza. OPLA-NYC will continue to receive documents 24/7 through ICE eService (visit: eserviceregistration.ice.gov)… Although OPLA-NYC will continue to accept service of filings by mail, we will only provide proof of service via ICE eService.
Natz Interview Locations
USCIS: Starting June 1, 2019, Brooklyn and Staten Island residents will be interviewed (only natz cases) at the USCIS Field Office in Newark. Newark Office will be working on Saturdays as well. This is the way USCIS deals with the current backlog.
Booker: The bill would directly combat Attorney General Barr’s efforts to indefinitely detain immigrants by, 1) mandating that all detained immigrants have access to a bond hearing before an immigration judge, and 2) shifting the burden to the government to prove that asylum seekers and other immigrants should be detained because they pose a risk to the community or a flight risk.
Unpublished Decision: Theft of Services not a CIMT (attached)
BDS: affirming Judge Farber’s grant of our motion to terminate because our LPR client’s recent petit larceny conviction is on direct appeal (following a successful late-filed notice of appeal) and his theft of services conviction is not a CIMT.
The BIA held that if a NTA does not specify time/place of initial removal hearing, the subsequent service of a notice with that information “perfects” the deficient NTA and triggers the stop-time rule. Matter of Mendoza-Hernandez and Matter of Capula-Cortes, 27 I&N Dec. 520 (BIA 2019) AILA Doc. No. 19050230
Unpublished BIA decision terminated removal proceedings after finding respondent’s conviction of grand larceny in the second degree under NY law was not an aggravated felony and thus she was not removable under INA §237(a)(2)(A)(iii). Courtesy of Michael Goldman. (Matter of Reyes, 4/24/19) AILA Doc. No. 19050302
Unpublished BIA decision holds that the improper handling of a firearm in a motor vehicle under Ohio Rev. Code 2923.16(E)(1) is not a firearms offense because state has prosecuted under similar statutes for possessing antique firearms. Special thanks to IRAC. (Matter of Edwards, 6/20/18) AILA Doc. No. 19050395
Unpublished BIA decision holds that vehicular manslaughter with gross negligence under Calif. Penal Code 192(c)(1) is not a CIMT because it does not require a sufficiently culpable mental state. Special thanks to IRAC. (Matter of Pourmand, 6/18/18) AILA Doc. No. 19050295
Unpublished BIA decision grants interlocutory appeal of denial of motion to change venue to immigration court close to his attorney where respondent had conceded removability and submitted application for cancellation of removal. Special thanks to IRAC. (Matter of Linares Flores, 6/15/18) AILA Doc. No. 19050195
Unpublished BIA decision holds that Va. Code Ann. 46.2-894 is not a CIMT because it does not require drivers to leave the scene of the accident or realize that the accident resulted in injury or property damage. Special thanks to IRAC. (Matter of Sifuentes-Reyna, 6/15/18) AILA Doc. No. 19050196
The court upheld the BIA’s denial of petitioner’s motion to reopen his 2012 removal order, finding that the petitioner failed to show sufficient prejudice resulting from the alleged ineffective assistance of counsel upon which he based his motion to reopen. (Franco-Ardon v. Barr, 4/26/19) AILA Doc. No. 19042900
The court found that the BIA erred in applying the definition of crimes involving moral turpitude (CIMTs) announced in 2016 in Matter of Diaz-Lizarraga to the petitioner’s 2007 conviction for attempted theft. (Monteon-Camargo v. Barr, 3/14/19, amended 4/26/19) AILA Doc. No. 19031974
The court held that the BIA’s decision not to certify a claim is committed to agency discretion and, in this case, was not subject to judicial review. (Idrees v. Barr, 12/13/18, amended 4/30/19) AILA Doc. No. 19011471
The judge granted two classes to be certified in this case challenging Office of Refugee Resettlement policies that the class has argued makes it too difficult for children to get out of detention and back with their families or in a home with a sponsor. (J.E.C.M. v. Lloyd, 4/26/19) AILA Doc. No. 18121803
DOJ notice and request for comments on proposed revisions to Form EOIR-42A and Form EOIR-42B. Comments are due 5/28/19. (84 FR 17891, 4/26/19) AILA Doc. No. 19042936
USCIS updated its Refugee, Asylum, and International Operations (RAIO) Directorate Officer Training course on credible fear of persecution and torture determinations, to explain how to determine whether an individual subject to expedited removal or an arriving stowaway has a credible fear. AILA Doc. No. 19050602
Elizabeth’s second and third items show how the Trump Administration is compromising the fairness of the credible fear and asylum systems within DHS by skewing the law and procedures against asylum seekers. This is despite both the intent behind the UN Convention and Protocol Relating to the Status of Refugees that asylum seekers be “given the benefit of the doubt” and the Supreme Court’s decision in INS v. Cardoza-Fonseca holding that the term “well founded fear” must be given a generous interpretation so that even those whose chances of persecution are as low as 10% could qualify for asylum.
NPR: In a written decision that overturns a 2005 policy, Barr directed immigration judges not to release migrants on bail once their cases have been approved for expedited removal proceedings — a status granted only after an applicant successfully establishes “a credible fear of persecution or torture” in the home country. See also Border Patrol Holds Hundreds of Migrants in Growing Tent City Away From Prying Eyes.
NYT: A federal appeals court said Friday that the Trump administration could temporarily continue to force migrants seeking asylum in the United States to wait in Mexico while their cases are decided.
Reuters: Former Attorney General Jeff Sessions and his successors have been unusually active in this practice compared to their predecessors, a Reuters analysis of Justice Department data shows. The data describe an unprecedented effort by the Justice Department to quietly advance policy goals and transform immigration law from the top down.
Politico: Some of the countries with the highest rates of overstaying temporary visas are in Africa. Chad, Burkina Faso, Djibouti, Eritrea, Liberia, Somalia, and South Sudan have among the highest overstay rates for short-term tourist and business visas, although they send relatively small numbers of travelers to the U.S. each year.
Gothamist: On Wednesday, a new judge, Monte Horton, was presiding over one new courtroom at Varick Street for quick procedural hearings known as a master calendar session. At the empty table where a DHS lawyer normally sits, to question each immigrant, there was just a big, white cardboard box for immigration lawyers to submit copies of documents filed with the court. But the video feed to Federal Plaza was broken. (Equipment failures have been a problem in court hearings by video.) After a delay, the DHS attorney appeared by telephone.
NPR: The New York State Office of Court Administration issued new rules Wednesday curtailing the ability of federal immigration officials to arrest immigrants in state courthouses without warrants.
QZ: US Citizenship and Immigration Services (USCIS), the federal agency in charge of processing visa and citizenship applications, has been rejecting immigrants who work for the marijuana industry or have admitted to using the drug in states where it’s legal, immigration lawyers and advocates say.
CityLab: On Wednesday, the U.S. Department of Housing and Urban Development (HUD) proposed a new rule that seeks to vet all members of families applying for subsidized or public housing, even those who have declared themselves ineligible in the application.
TRAC: A person’s odds of being arrested and deported vary greatly depending upon where he or she lives. The odds of SC deportations and ICE community arrests showed up to a ten-fold difference among the states. Living in a sanctuary jurisdiction often reduced these odds.
WaPo: After several weeks of waiting for the transit permits, Africans launched a protest outside the immigration office, yelling that Mexican officials were racist. Mexican television broadcast images of the migrants apparently scuffling with security guards in front of the building.
CNN: Earlier this week, videos posted online purported to show migrants being held by a militia known as the United Constitutional Patriots before being turned over to US Border Patrol.
AIC: U.S. Citizenship and Immigration Services’ international field offices provide critical services to Americans living abroad, as well as refugees and other immigrants. But in a supposed effort to cut costs, the Trump administration plans to close all 23 offices that span 21 countries by the end of 2019.
Guardian: Nicole García Aguilar was freed from the Cibola County detention facility in New Mexico on Wednesday night, a week after lawyers filed a habeas corpus writ challenging her unjustified and prolonged detention by Immigration and Customs Enforcement (Ice).
Politico: Last year, we spent 10 days traversing thousands of miles across the state of Puebla, Mexico, and in later months across New York’s five boroughs in a door-to-door search for stories like Jorge’s. We wanted to put names and faces to the story of deportation—a story that is so often told only through statistics.
The Attorney General found that if an individual is transferred from expedited removal to full removal proceedings after establishing credible fear, he is ineligible for bond and must be detained, unless he is granted parole. Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) AILA Doc. No. 19041699
Law360: A legal services nonprofit has agreed to pause a lawsuit challenging a government rule that punishes attorneys who offer limited representation to foreign citizens without formally appearing before the immigration court while the U.S. Department of Justice revises its regulation on attorney representation.
NY DCWP: DCWP has filed a lawsuit in New York County Supreme Court against Angel G. Buitron, Buitron Offices & Associates, Susana T. Abarca, and the Law Office of Susana Abarca, PLLC for allegedly using a multi-part scheme to deceive immigrant consumers. DCWP is seeking a court order to permanently stop the illegal business practices and to prevent Buitron from acting as an immigration assistance service provider. DCWP is also seeking that they return money to consumers, create a consumer restitution fund for other victims, surrender any profits, and pay civil penalties for violations of the City’s Consumer Protection Law.
SCOTUSblog: The U.S. Supreme Court will puzzle over this classic, yet novel, statutory question of “mens rea,” or criminal intent, when it hears argument on April 23 in Rehaif v. United States.
A district court judge issued a preliminary injunction finding that the plaintiffs are likely to succeed on the merits of their APA claims and equal protection claim and enjoining the Trump administration from terminating TPS for Haiti, effective immediately. (Saget v. Trump, 4/11/19) AILA Doc. No. 19041530
A federal district court judge issued an order requiring USCIS to adjudicate Special Immigrant Juvenile petitions for people between the ages of 18 and 21 issued special findings orders by the New York Family Court. (R.F.M. v. Nielsen, 4/8/19) AILA Doc. No. 19041635
A settlement was reached in S.A. v. Trump, the lawsuit challenging the Trump administration’s termination of the Central American Minors (CAM) Parole program, that may allow approximately 2,700 children living in Central America to safely reunite with their parents in the U.S. AILA Doc. No. 18121937
The BIA terminated proceedings and dismissed the government’s appeal after finding that under the plain language of INA §101(a)(43)(H), kidnapping in violation of 18 U.S.C. § 1201(a) (2012) is not an aggravated felony. Matter of A. Vasquez, 27 I&N Dec. 503 (BIA 2019) AILA Doc. No. 19041535
The court affirmed the district court’s dismissal of a lawsuit challenging the constitutionality of ICE’s detainee transfer practices, finding that there is no substantive due process right to family unity in the context of immigration detention pending removal. (Reyna v. Hott, 4/16/19) AILA Doc. No. 19041802
The court granted the petition for review and remanded, finding that the BIA committed several legal errors when it concluded that the petitioner’s conviction for assault with a deadly weapon in New Jersey was a crime involving moral turpitude (CIMT). (Garcia-Martinez v. Barr, 4/16/19) AILA Doc. No. 19041934
The Ninth Circuit issued an order temporarily staying the district court’s preliminary injunction order pending resolution of the emergency stay motion, which allowed the Remain in Mexico policy to continue. (Innovation Law Lab v. Nielsen, 4/12/19) AILA Doc. No. 19021561
EOIR issued an updated Uniform Docketing System Manual covering the case processing system that governs the management of all cases in the immigration court. Operational procedures are amended or created through OPPM issued by the Chief Immigration Judge. AILA Doc. No. 19041570
DOS notice of the designation of the Islamic Revolutionary Guard Corps (and all aliases) as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act. (84 FR 15278, 4/15/19) AILA Doc. No. 19041571
USCIS announced the issuance of additional guidance regarding the adjudication of spousal petitions involving minors, following up on guidance issued in February 2019, including instructions to officers to conduct an additional interview for certain I-30 spousal petitions involving a minor. AILA Doc. No. 19041533
The Homeland Security Advisory Council’s CBP Families and Children Custody Panel released a report that provides findings and recommendations on the best practices from federal, state, and local organizations regarding care for families and children in CBP custody. AILA Doc. No. 19041730
CBP announced that beginning in May 2019, I-94 numbers will be alphanumeric. Prior to May 2019, I-94 numbers were 11 digits long and only contained numbers. This change is due to the depletion of numeric-only I-94 numbers and to create a long-term solution for the creation of new numbers. AILA Doc. No. 19041531
USCIS issued policy guidance in the USCIS Policy Manual to clarify that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization even where that conduct would not be an offense under state law. AILA Doc. No. 19041930
AILA received reports from members of multiple-beneficiary petitions approved by the Vermont Service Center (VSC) that are missing the name of the first beneficiary (alphabetically, by surname) from the I-797B approval notice. AILA reached out to the VSC Premium Processing Unit. AILA Doc. No. 19041799
CORQUÍN, Honduras — The farmer stood in his patch of forlorn coffee plants, their leaves sick and wilted, the next harvest in doubt.
Last year, two of his brothers and a sister, desperate to find a better way to survive, abandoned their small coffee farms in this mountainous part of Honduras and migrated north, eventually sneaking into the United States.
Then in February, the farmer’s 16-year-old son also headed north, ignoring the family’s pleas to stay.
The challenges of agricultural life in Honduras have always been mighty, from poverty and a neglectful government to the swings of international commodity prices.
But farmers, agricultural scientists and industry officials say a new threat has been ruining harvests, upending lives and adding to the surge of families migrating to the United States: climate change.
And their worries are increasingly shared by climate scientists as well.
Gradually rising temperatures, more extreme weather events and increasingly unpredictable patterns — like rain not falling when it should, or pouring when it shouldn’t — have disrupted growing cycles and promoted the relentless spread of pests.
Guatemalans harvesting coffee in Honduras, where there is a shortage of workers.CreditCésar Rodríguez for The New York Times
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Guatemalans harvesting coffee in Honduras, where there is a shortage of workers.CreditCésar Rodríguez for The New York Times
The obstacles have cut crop production or wiped out entire harvests, leaving already poor families destitute.
Central America is among the regions most vulnerable to climate change, scientists say. And because agriculture employs much of the labor force — about 28 percent in Honduras alone, according to the World Bank — the livelihoods of millions of people are at stake.
Last year, the bank reported that climate change could lead at least 1.4 million people to flee their homes in Mexico and Central America and migrate during the next three decades.
The United States has allocated tens of millions of dollars in aid in recent years for farmers across Central America, including efforts to help them adapt to the changing climate.
But President Trump has vowed to cut off all foreign aid to Honduras, Guatemala and El Salvador because of what he calls their failure to curb the flow of migrants north.
Critics contend the punishment is misguided, though, because it could undermine efforts to address the very problems that are driving people to abandon their farms and head to the United States.
“If Donald Trump withdraws all the funds for Honduras, it’s going to generate more unemployment, and that’s going to generate more migration,” said María Esperanza López, the general manager of Copranil, a coffee-growers cooperative here in western Honduras. “And that’s going to result in more abandoned farms.”
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“Climate change is destroying some farms,” said a coffee farmer, Fredi Onan Vicen Peña, right, shown with his father, Juan José Vicen.CreditCésar Rodríguez for The New York Times
Coffee cultivators in the region are at particular risk of disruption because the crop is highly sensitive to weather variations.
Fredi Onan Vicen Peña, the coffee farmer whose brothers, sister and teenage son have already given up and joined the exodus north, reached over and tore a leaf off one of his plants.
It was a mottled yellow and brown: signs of coffee rust, a disease whose spread has been influenced by climate variability. As much as 70 percent of his crop, planted across five acres in a pine forest, had been affected, he estimated, and there was little chance he could salvage it.
“Climate change is destroying some farms,” said Mr. Vicen, 41.
Beyond that, some of his healthier plants had begun to blossom nearly two months ahead of schedule because of a heavy unseasonable downpour, throwing the entire growing cycle into doubt.
“This is not something we predicted,” Mr. Vicen said.
Average temperatures have risen by about two degrees Fahrenheit in Central America over the past several decades, making the cultivation of coffee difficult, if not untenable, at lower altitudes that were once suitable.
That has forced some farmers to search for land at higher altitudes, switch to other crops, change professions — or migrate.
“Some very fine families that have been producing quality coffee for a long time are now facing the decision of whether to stay in coffee,” said Catherine M. Tucker, a professor of anthropology at the University of Florida who has done research in Honduras for more than two decades.
Signs of coffee rust, a disease that devastated Honduran crops in 2012-13 and whose recent outbreaks may have been influenced by climate change.CreditCésar Rodríguez for The New York Times
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Signs of coffee rust, a disease that devastated Honduran crops in 2012-13 and whose recent outbreaks may have been influenced by climate change.CreditCésar Rodríguez for The New York Times
Some climate scientists say that in the absence of long-term meteorological data, it is hard for them to say with certainty whether the increasing variability is caused by long-term changes in the region’s climate. But, they say, they are leaning in that direction.
“It’s becoming so unusual, it’s almost certainly climate change,” said Dr. Edwin J. Castellanos, dean of the Research Institute at the Universidad del Valle de Guatemala, a university in Guatemala City, and one of Central America’s leading scientists in the field of climate change.
Climate change is rarely the sole factor in the decision to migrate. Violence and poverty are prime drivers, but climate change can be a tipping point, farmers and experts say.
“Small farmers are already living in poverty; they’re already at the threshold of not being able to survive,” Mr. Castellanos said. “So any changes in the situation may push them to have enough incentives to leave.”
The outlook for the region seems bleak. Reduced yields of coffee and subsistence crops like corn and beans could significantly increase food insecurity and malnutrition. By some predictions, the amount of land suitable for growing coffee in Central America could drop by more than 40 percent by 2050.
The number of coffee producers in the area where Mr. Vicen lives has dropped by a quarter in the past decade — to about 9,000 from about 12,000 — partly because of pressure from climate change, said Marlon Danilo Mejía, the regional coordinator for the Honduran Coffee Institute, an industry trade group.
A vast majority are small producers, managing less than about nine acres each, he said.
José Edgardo Vicen, 37, one of Mr. Vicen’s brothers, had weighed migrating for years. He had worked in the coffee fields since he was a boy, continuing the family tradition. In this part of Honduras, coffee is a major crop, with an increasing amount bound for North America, Europe and Asia.
Analyzing coffee samples at a cooperative in Las Capucas, Honduras. Cooperatives provide support to farmers and can negotiate better international contracts.CreditCésar Rodríguez for The New York Times
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Analyzing coffee samples at a cooperative in Las Capucas, Honduras. Cooperatives provide support to farmers and can negotiate better international contracts.CreditCésar Rodríguez for The New York Times
But after a rust outbreak and other pressures in recent years, including plunging commodity prices, the younger Mr. Vicen said he could no longer earn enough from his harvest to cover production costs.
He headed north with his 14-year-old son last August, crossed the border illegally and settled in Texas. A brother and a sister, driven by similar circumstances, left Honduras soon afterward and also sneaked into the United States.
“For the small producer, I promise you, there’s no way to get ahead,” said Mr. Vicen, who now works in construction and sends remittances home to support his wife and daughter.
When he was younger, harvest time “was like a party,” he recalled. Now, “there are only losses, no profits.”
Fifteen producers from the Vicens’ coffee cooperative — more than 10 percent of its members — have migrated to the United States in the past year, said Ms. Esperanza López, the general manager of the cooperative. They have joined thousands of others from villages in Honduras’s western highlands.
Stephanie Leutert, director of the Mexico Security Initiative at the University of Texas at Austin, said that government statistics on apprehension of migrants at the southwest border of the United States in recent years reflect a sharp increase in people from western Honduras.
After large caravans of migrants arrived last fall in Tijuana, Mexico, a United Nations survey found that 72 percent of those surveyed were from Honduras — and 28 percent of the respondents had worked in the agricultural sector.
Carlos Peña Orellana growing greenhouse tomatoes, which he produces to supplement his income from coffee crops.CreditCésar Rodríguez for The New York Times
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Carlos Peña Orellana growing greenhouse tomatoes, which he produces to supplement his income from coffee crops.CreditCésar Rodríguez for The New York Times
The exodus of farm workers has worsened already serious labor shortages in western Honduras. Some industry leaders in the region joke that if the caravans in recent months were “the laborer caravans,” the next wave will be “the grower caravans.”
Coffee farmers have been scrambling to adjust to the changes, learning which species are more resistant to plague and drought, and branching out into other crops — like cacao, avocados or trees that produce construction-grade wood.
Nongovernmental and public-private initiatives have also taken root in coffee-growing regions of Central America and around the world to help guide farmers. Some have received the backing of the world’s biggest coffee sellers — like Starbucks, Tim Horton’s and Lavazza — trying to ensure their future supply.
Yet even the application of best practices is no guarantee that everything will be fine.
“The weather is crazy,” said Carlos Peña Orellana, 58, a farmer and member of a local coffee cooperative. “Everything’s out of control.”
He owns 12 acres of land but can afford to farm only about five. He gets by with income from a tomato greenhouse he built with the cooperative’s help, and with remittances from two sons who migrated to the United States after struggling through the rust crisis of 2012-13.
“They’re helping to revive the farm,” he said at his ramshackle ranch one recent afternoon. “It’s really difficult now.”
He turned to his youngest son, Carlos, 12, and saw a future migrant. Pointing a leathery finger, he said: “You’re next, right?” Mr. Peña chuckled. The boy squirmed, saying nothing.
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Can the “good guys” oust the Trump Kakistocracy at the ballot box before it’s too late? I was optimistic after my two-week Scarff Distinguished Professorship at Lawrence University that the upcoming generation understands these issues and is committed to action, not just talk, and certainly will work hard to undo the damage done by the current Administration’s intentionally ignorant and ill-intended approaches to both migration and climate issues.
I am pleased to report that at tonight’s GW Latinx Excellence Awards ceremony – https://mssc.gwu.edu/latinx-leader-awards – our friend, colleague, and alum Professor Paulina Vera, pnvera@law.gwu.edu, won the Alma Award. Please see below. The nominees for this award are charismatic individuals who continuously make a difference and lead by example, not only within the Latinx community, but also throughout our broader community. These individuals, often unsung heroes of our community, inspire others to make a difference and assume their leadership potential.
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Paulina is a former Legal Intern at the Arlington Immigration Court. So proud of her and her many achievements. Paulina is totally brilliant and could have done anything; she has chosen to devote this part of her career to helping humanity, inspiring aspiring lawyers to “be the best that they can be,” and serving as a role model for others.
Thanks, Paulina, for all you do. You are truly inspiring others and bringing out the best in America!
Vox: Homeland Security Secretary Kirstjen Nielsen submitted her resignation to President Donald Trump Sunday night, in an unexpected move that appears related to the president’s ongoing rage over the number of Central American families and asylum seekers coming into the United States. Kevin McAleenan, the head of Customs and Border Protection, will serve as acting DHS secretary. It’s not yet clear whether Trump will formally nominate a successor to Nielsen in the near future.
CNN: President Donald Trump is pulling the nomination of Ron Vitiello to lead US Immigration and Customs Enforcement, saying he wants to go in a “tougher direction” — a move that came at the urging of White House senior adviser Stephen Miller.
WaTimes: Brandon Judd, president of the National Border Patrol Council, said the pilot program will begin in two weeks, with agents deputized to begin hearing “credible fear” claims lodged by migrants who say they need protection in the U.S.
NYT: It may take federal officials two years to identify what could be thousands of immigrant children who were separated from their families at the southern United States border, the government said in court documents filed on Friday.
NPR: Immigration and Customs Enforcement arrested 280 employees at a technology repair company in Collin County, Texas, on charges of working in the United States illegally. It’s the largest work site raid in the country in more than a decade, according to a Homeland Security Investigations official.
NYT: About 633 Central American asylum seekers have been turned away since January, unable to prove sufficient fear of being tortured and persecuted in Mexico.
ABA: Immigration courts have always been susceptible to politics; presidents have, for example, rearranged dockets to suit their political needs. But the NAIJ and others are concerned that the Trump administration has moved from reprioritizing cases to deliberately trying to affect case outcomes.
CNN: Judges at an immigration court in El Paso, Texas, are undermining due process, making inappropriate comments and fostering a “culture of hostility” toward immigrants, according to a new complaint.
WaPo: As President Trump threatened to shut down the U.S.-Mexico border in recent days, his Department of Homeland Security nearly doubled the number of temporary guest worker visas available this summer.
AIC: USCIS is denying some immigrants U.S. citizenship over their work in the legal marijuana industry, exposing a conflict between state and federal laws.
WashEx: The American Civil Liberties Union has issued a travel advisory for “immigrants and people of color to use extreme caution” in Florida because of a pending immigration bill the state legislature is considering that would ban so-called sanctuary cities.
US News: Republican Gov. Bill Lee said Tuesday he’s working to ensure his proposed $125 million school voucher program will be provided only to “legal residents” of Tennessee — a plan that some critics say could be illegal.
TheCity: Fresh off passage of a state budget that included the DREAM Act to fund higher education for undocumented immigrants, some Democrats in the Legislature are looking for a bigger win: New York state-issued driver’s licenses.
On 3/28/19, DHS Secretary Kirstjen Nielsen sent a letter to Congress to request legislative changes to the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) and the Flores settlement agreement to address “root causes of the emergency” along the U.S./Mexico border. AILA Doc. No. 19040801
ABC: The budget motel operator illegally shared the personal information of about 80,000 customers for more than two years, resulting in a “targeted” ICE investigation into guests with Latino-sounding names, the Washington state attorney general’s office announced Thursday.
Law360: New York federal court has ruled two local immigration attorneys can’t shake a suit alleging they misled clients about services they could provide and filed asylum petitions without their clients’ knowledge, which then allegedly plunged the noncitizens into removal proceedings.
NPR: U.S. District Judge George Hazel of Maryland in a 119-page opinion released Friday. Hazel concluded that the decision by Commerce Secretary Wilbur Ross, who oversees the census, to add the question violated administrative law. See also Commission divided on funding needs for census outreach.
The court held that the BIA did not abuse its discretion in finding that the information that the petitioner had provided to immigration officials—the names of his town and county in El Salvador—did not satisfy the notice requirement of INA §242b(a)(1)(F)(i). (Ramos-Portillo v. Barr, 4/1/19)
The court found the BIA did not abuse its discretion when, in applying the Matter of M-R-A- factors and looking to the totality of the circumstances, it determined that petitioner had failed to overcome the weaker presumption of effective service. (Navarrete-Lopez v. Barr, 4/1/19)
The court denied the petition for review, holding that substantial evidence supported the BIA’s determination that the petitioner had failed to show that he would suffer persecution in Somalia because he belonged to the Ashraf minority clan. (Qorane v. Barr, 3/26/19)
The court remanded for BIA to explain why it found it made no difference that petitioner had included a U visa filing receipt in his remand request, when Matter of Sanchez-Sosasuggests that a completed application should pause the removal process. (Caballero-Martinez v. Barr, 4/3/19)
The court granted in part the petition for review, holding that petitioner’s conviction for third-degree robbery in Oregon was not categorically a crime involving moral turpitude (CIMT) that would render the petitioner ineligible for cancellation of removal. (Aguirre Barbosa v. Barr, 3/28/19)
The court issued an order denying the rehearing en banc of Sanchez v. Barr, in which the court held that the petitioner may be entitled to termination of removal proceedings after he made a prima facie showing of an egregious violation of 8 CFR §287.8(b)(2). (Sanchez v. Barr, 4/1/19)
The Justice Department announced that it has reached a settlement agreement with the Housing Authority of Victoria, Texas, after finding that it discriminated against a LPR when it rejected his valid employment documents and fired him. AILA member Paul Parsons represented the employee.
DHS Secretary Nielsen ordered CBP increase its temporary reassignment of personnel and resources to address the influx of migrants at the southern border. She also directed CBP to expand the Migrant Protection Protocols and return hundreds of additional migrants per day to Mexico. AILA Doc. No. 19040174
EOIR issued PM 19-11, No Dark Courtrooms, to ensure that all available courtrooms are used for hearing cases every day during normal court operating hours, including maximizing the use of video teleconferencing and immigration adjudication centers. The memo is effective 5/1/19. AILA Doc. No. 19040130
A complaint filed with DOJ’s EOIR, OIG, and OPR by the American Immigration Council and AILA highlights systemic due process violations that are undermining justice for detained immigrants called before judges at the El Paso Service Processing Center immigration court. AILA Doc. No. 19040260
Elizabeth’s items #1 and #3 (in addition to being totally outrageous and illegal) could spell either a short career for Acting DHS Secretary Kevin McAleenan or some time in Federal Prison.
Trump has no authority to get rid of the Asylum System and Immigration Judges, nor will Congress do so. Moreover, any attempt by Congress to eliminate asylum or a fair hearing process for individuals who entered the U.S. regardless of status would be likely to violate both the Due Process Clause of the Constitution and our international treaty obligations. To the extent that Trump tries to do this through “back door” methods (as other reports have indicated), they clearly will be both illegal and unconstitutional. Any officer carrying them out will be “at risk.”
The “Program,” described in Item #3 of substituting Border Patrol Officers for trained Asylum Officers is clearly illegal. Under the 8 U.S.C. 1325(b)(1)(E), an Asylum Officer must have extensive training in “country conditions, asylum law, and interview techniques comparable to that given full-time adjudicators of asylum applications.” Border Patrol Officers would not normally meet those criteria;
Indeed, this provision is a reflection of Congress’s specific intent that someone other than a law enforcement official make asylum and credible fear determinations;
The statute further requires supervision by an Officer who “has had substantial experience adjudicating asylum applications;” any supervisor who signed off on this bogus program would be acting illegally;
The Government is already under an injunction in Grace v. Whitaker from Judge Sullivan preventing an illegal attempt by former Attorney General Sessions and Kristjen Nielsen to rig the credible fear process against asylum applicants;
The bogus “pilot program” intended to result in illegal rejections of those claiming credible fear by agents patently unqualified to make such determinations under the statute would violate that injunction;
Judge Sullivan has a reputation for not taking much guff from anyone, including the Government;
Implementation of this illegal program should result in the Border Patrol Agents who carry it out as well as McAleenan and hopefully scofflaw Stephen Miller being held in contempt by Judge Sullivan and doing some jail time.
