Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
CONTENTS (jump to section)
- ◦NEWS
- ◦LITIGATION & AGENCY UPDATES
- ◦RESOURCES
- ◦EVENTS
PRACTICE UPDATES
Reminder: Mayorkas Enforcement Priorities Memo No Longer in Effect as of 6/24/22
The 6/10/22 order in Texas v. United States vacating the memo went into effect 6/24/22 and has not been stayed at this time. Regardless of the memo, it is important to continue arguing that prosecutorial discretion is a longstanding executive power and DHS retains the ability to join motions, stipulate to relief, etc. See Practice Alert: Judge Tipton Issues Decision Vacating Mayorkas Enforcement Priorities Memo.
Some USCIS Field Office Return to Requiring Masks
USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Check CDC Level for Your Field Office.
NEWS
TRAC: After hovering around 20,000 for several months, Immigration and Customs Enforcement’s detained population reached 23,390 on June 19, 2022—down slightly from the start of the month but still higher than in previous months. About three-quarters (74 percent) of people in detention were arrested by Customs and Border Protection (CBP). The number of immigrants arrested by ICE saw a modest but steady increase up to a total of 5,979. See also GAO: Alternatives to Detention: ICE Needs to Better Assess Program Performance and Improve Contract Oversight; Meet SmartLINK, the App Tracking Nearly a Quarter Million Immigrants.
Detained Immigrant Women Are Facing A Grueling Abortion Struggle
Bustle: At a base level, the abortion restrictions detained women face are similar to the ones that low-income women face across the country because of the Hyde Amendment. For more than 40 years, the Hyde Amendment has prevented women on Medicaid from using federally funded insurance to pay for abortions, except in cases of rape, incest, or danger to the mother’s life. The same type of language exists in appropriations bills and healthcare regulations for all facets of the federal government, including the Immigration and Customs Enforcement agency.
(This article is from 2017, but for an update, compare this list of detention centers with this map of abortion laws.)
Border Patrol paroles migrants to avoid massive overcrowding
AP: The Border Patrol paroled more than 207,000 migrants who crossed from Mexico from August through May, including 51,132 in May, a 28% increase from April, according to court records. In the previous seven months, it paroled only 11 migrants.
US on course to welcome 100,000 Ukrainians fleeing war this summer
Guardian: At least 71,000 Ukrainians have entered the US since March, with Joe Biden’s pledge to welcome 100,000 people fleeing the Russian invasion on track to be met over the summer.
Decades’ Worth of Unused Immigrant Visas Salvaged in House Bill
Bloomberg: The amendment, which faces a long path to the finish line in the appropriations process, would allow DHS to recapture family and employment-based visas that went unused due to bureaucratic snags, processing delays, and other disruptions since 1992.
State Department Denies Substantial Percentage of Employer-Sponsored Immigrant Visas
AIC: Data analyzed by the Cato Institute shows that since Fiscal Year 2008, USCIS denied about 8% of employer-sponsored immigrants while the average denial rate by consular officers was 63%.
White House To Release Final DACA Rule In August
Law360: The Biden administration announced plans to issue a final Deferred Action for Childhood Arrivals rule by August and continue its efforts to undo multiple Trump-era regulations. Here are the main immigration highlights from the administration’s regulatory agenda for spring 2022.
Virginia budget to move funding from DACA students to state’s HBCUs
WaPo: Critics of the measure say it perpetuates a false scarcity problem at a time when Virginia has a budget surplus, and it demands that lawmakers sacrifice one needy group of students for another.
Revelations Show Trump Immigration Policy Was Supposed To Be Harsher
Forbes: In a new book describing her years during the Trump administration, former Education Secretary Betsy DeVos revealed a plan by Stephen Miller to identify children at school for deportation under the pretext of checking for gang members.
Feds Agree To Improve Emergency Shelters For Migrant Kids
Law360: The Biden administration has agreed to impose new living and sanitary standards on temporary emergency facilities housing hundreds of migrant children to resolve advocates’ claims that it was holding minors in unsafe and unsanitary conditions.
Louisiana immigration judges denied 88% of the asylum cases between 2016 and 2021: here’s why
The Advocate: Immigration judges in Louisiana have denied asylum claims at a higher rate than almost any other courts in the nation over the past five years, according to federal data. However, a new federal rule might downsize their role in asylum proceedings.
LITIGATION & AGENCY UPDATES
The 4 remaining Supreme Court cases of this blockbuster term
CNN: The justices are considering whether the Biden administration can terminate a Trump-era border policy known as “Remain in Mexico.” Lower courts have so far blocked Biden from ending the policy.
SCOTUS sends B-Z-R- Mental Health PSC Case back to CA10
SCOTUS: The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022).
Matter of Nchifor, 28 I&N Dec. 585 (BIA 2022)
BIA: A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.
3rd Circ. Rejects Immigration Ruling Over Pa. Eluding Law
Law360: A Dominican man got a new chance to fight his deportation on Tuesday when the Third Circuit ruled that his felony conviction under Pennsylvania’s fleeing and eluding law didn’t necessarily amount to a crime of moral turpitude.
CA5 on Statutory Birthright Citizenship: Garza-Flores v. Mayorkas
LexisNexis: For years, Petitioner Javier Garza-Flores did not believe he had a valid claim to U.S. citizenship. But now he thinks that he does. And he has presented documentary evidence sufficient to demonstrate, at a minimum, a genuine issue of material fact concerning his claim of U.S. citizenship. That is enough to warrant a factual proceeding before a federal district court to determine his citizenship.
CA7: The Board’s main quibble was with the relevance of that evidence to an Ethiopian citizen, which it assumed Menghistab to be. But that assumption was not warranted on the record that was before the Board. Denying the motion to reopen without a full hearing addressing Menghistab’s citizenship and its materiality to his risk of torture was therefore an abuse of discretion.
9th Circ. Says BIA Erred In Not Considering All Torture Risks
Law360: The Ninth Circuit on Friday granted a Salvadoran’s request to have the Board of Immigration Appeals review claims that he would be tortured if sent back to the Central American country, saying the board originally failed to consider all possible risk sources.
CBP Settles FOIA Suit Over Foreign Pot Workers Policy
Law360: U.S. Customs and Border Protection and Davis Wright Tremaine LLP have settled a Freedom of Information Act suit the firm filed over reports the agency decided Canadian cannabis workers weren’t eligible to enter the U.S., which led to an overturned internal document contradicting officials.
Construction Worker Reported To ICE Wins $650K At Trial
Law360: A Boston federal jury has found a construction company and its owner liable for retaliating against an employee by reporting him to immigration authorities after his on-the-job injury triggered a workplace investigation, awarding $650,000 in damages.
INA 212(a)(9)(B) Policy Manual Guidance
USCIS: A noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period
Biden administration halts limits on ICE arrests following court ruling
CBS: While the suspension of ICE’s arrest prioritization scheme is unlikely to place the country’s estimated 11 million unauthorized immigrants in immediate danger of being arrested, the absence of national standards could lead to inconsistent enforcement actions across the U.S., including arrests of immigrants whom agents were previously instructed not to detain, legal experts said.
ICE’s Enforcement and Removal Operations COVID-19 Pandemic Response Requirements
ICE: Deletion: The new facility status determination framework replaces the language limiting population capacity to 75%.
RESOURCES
- AILA: Early-bird rate for Kurzban’s Ends 6/30/22
- AILA: ICE Open Forum
- CLINIC: New Exemptions to Terrorism-Related Inadmissibility Grounds to Aid Afghan Allies
- CLINIC: Supreme Court drastically limits the availability of judicial review in immigration cases
- CLINIC: DHS Details TPS Eligibility for Cameroon
- CRS: U.S. Employment-Based Immigration Policy
- CRS: Permanent Immigration Options for Afghans with Immigration Parole
- Department of Health and Human Services Affirms Government Accountability Project Clients’ Disclosures of Unsafe Conditions Inside Emergency Intake Sites
- DHS Announces Expansion of Citizenship and Integration Grant Program and Open Application Period
- GAO: Alternatives to Detention: ICE Needs to Better Assess Program Performance and Improve Contract Oversight
- GAO: Actions Needed to Better Track Cases Involving U.S. Citizenship Investigations
- Harris: One Pager on new TRIG Exemptions for Afghans
- ILRC: Overview of ICE’s Victim-Centered Directive
- ILRC: Naturalization for Persons with Disabilities
- ILRC: Advocating for Prosecutorial Discretion in Removal Proceedings under the Doyle Memo
- NIPNLG: Practice Advisory: Post-Conviction Relief Motions to Reopen
- NIPNLG: Practice Advisory: Advocating for Prosecutorial Discretion in Removal Proceedings Under the Doyle Memo
- NIPNLG: Biden Administration’s Immigration Report Card: National Coalition Grades USCIS Efforts to Reduce Barriers to Accessing Benefits
EVENTS
NIJC EVENTS
GENERAL EVENTS
- 6/28/22 Hot Topics and Updates from the Annual Conference Open Forums
- 6/29/22 USCIS Asylum Program Quarterly Stakeholder Engagement
- 6/29/22 Videoconferencing Tips
- 6/29/22 Litigating Survivor-based Fee Waiver Denials
- 6/30/22 Uniting for Ukraine Overview and Online Filing Process of Form I-134 for Supporters and Beneficiaries
- 7/6/22-7/27/22 Webinar Series: Overview of Removal Proceedings and Orders of Removal
- 7/12/22 Making a Good Impression on the Reviewing Officers: Practical Tips from Former USCIS and DOS Officials
- 7/13/22 CGRS Using Universal Expert Declaration in Immigration Court
- 7/14/22 Death of a Petitioner or Beneficiary: Options for Surviving Relatives
- 7/21/22 National Engagement on Form I-730 Refugee/Asylee Follow-to-Join Processing
- 7/21/22 PLI: Defending Immigration Removal Proceedings 2022
- 7/27/22 USCIS: An Overview of the T Visa, U Visa, and VAWA Self-Petition
- 7/28/22 VAWA in 2022: Breaking Barriers and Finding Solutions for Relief
- 7/28/22 Intermediate/Advanced U Visa Topics
- 8/5/22-8/12/22 NITA-NIPNLG “Advocacy in Immigration Matters” Training
- 8/10/22-8/11/22 2022 AILA Paralegals Virtual Conference
- 8/16/22 Comprehensive Overview of Immigration Law (COIL)
- 8/16/22 The Child Status Protection Act: Strategies for Keeping the Family Intact
- 8/23/22 Preparing Solid Affidavits of Support: “Show Me the Money!”
- 8/30/22 Naturalization During the Pandemic: “It Was the Best of Times, It Was the Worst of Times”
- 8/31/22 What to Do When You Get a Decision from the Ninth Circuit
- 9/8/22 Post-Conviction Relief: “If I Could Turn Back Time!”
- 9/13/22 PLI: Representing Children in Immigration Matters 2022: Effective Advocacy and Best Practices
- 9/14/22 Partial to Full Accreditation Initiative 2022
- 9/15/22 Advanced Mandamus Trends
- 9/21/22 Breaking Down the Record in a Ninth Circuit Petition for Review
- 9/22/22 Maximizing Second Chances: Filing Appeals, Motions, and Practicing before the BIA
- 9/29/22 Consular Processing Roundup for Families and Survivors
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.orgwww.immigrantjustice.org | Facebook | Twitter
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- According to a new book from former Trump Education Secretary Betsy DeVos:
“Over the din of patrons slurping lattes and crunching salads, Miller’s men described a plan to put U.S. Immigration and Customs Enforcement (ICE) agents into schools under the pretext of identifying MS-13 gang members. The plan was, when agents checked students’ citizenship status for the alleged purpose of identifying gang ties, they could identify undocumented students and deport them. Not only was the prospect of this chilling, but it was also patently illegal. Nate and Ebony turned them down cold. But that didn’t stop Stephen Miller from subsequently calling me to get my thoughts on the idea.
- For years, the BIA has had standard practice of giving short shrift to potentially valid claims for protection under the Convention Against Torture (“CAT”). Without meaningful analysis they simply cite John Ashcroft’s infamous “no CAT precedent” in Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006), requiring that “each link in the chain of torture be proved to be probable.”
Since there is almost always some allegedly “weak link in the chain” that’s an “easy handle” for denial. Also, The IJ and the BIA can “lengthen the chain” or ignore the evidence as necessary to “get to no.” In the process, compelling evidence of likelihood of torture from qualified expert witnesses is either ignored or minimized — again, without much analysis. That’s how the “denial factory” in Falls Church can keep churning out CAT rejections even to countries where torture is rampant and either furthered or willfully ignored by the repressive governments.
At least in the 9th Circuit, the BIA will now have to go “back to the drawing board” for denying CAT and returning individuals to countries where torture with government participation or acquiescence is likely. The 9th Circuit case rejecting the BIA’s “formula for denial” is Velasquez-Samayoa v. Garland. Here’s a link in addition to the one provided by Elizabeth. https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-cat-velasquez-samayoa-v-garland
- Louisiana has long been one of a number of EOIR “courts” — these are actually “prison courts” — where “asylum cases go to die.” The deadly combination of bad Immigration Judges, lack of skilled immigration attorneys able to take these cases pro bono, coercive use of detention in out of the way places in substandard conditions, a “denial oriented” BIA stacked by the Trump DOJ and not “unstacked by Garland,” and an indolent, often virulently anti-asylum 5th Circuit add up to potential death sentences for individuals who could gain protection under a system where due process and fundamental fairness were respected and followed.
As the report in The Advocate referenced by Elizabeth shows, Garland has failed to reform and improve this blot on American justice. And, there is little chance that assigning the cases to USCIS Asylum Office in the first instance under new regulations in this intentionally toxic environment is going to promote justice or efficiency.
One might view the wide discrepancy between “positive credible fear findings” and asylum grants in Immigration Court as a sign of a sick and dying EOIR, not lack of merit for the claims. With less detention, more representation, better Immigration Judges, and a new BIA of true asylum experts willing to grant protection rather than “engineer rejection,” I’ll bet that many, perhaps a majority, of the outcomes would be more favorable to applicants.
As noted by Mitch Gonzalez of the SPLC in the article, “dehumanization,” “de-personification,” and “Dred Scottification,” along with cruelty are the objects of what’s going on at EOIR in Louisiana. The “fit” with the Trump/Miller White Nationalist anti-immigrant program is obvious. What’s less obvious is why Garland and the Biden Administration haven’t intervened to make the necessary changes to restore EOIR in Louisiana and elsewhere to at least some semblance of a fair and impartial “court system.”
🇺🇸Due Process Forever!
PWS
06-28-22
