THE GIBSON REPORT — 09-15-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify the latest information on the relevant government websites and with colleagues on listservs as best you can.
New
- Opening dates for non-detained courts: Hearings in non-detained cases at courts without an announced date are postponed through, and including, October 2, 2020. [Note: Despite the standing order about practices upon reopening, an opening date has not been announced for NYC non-detained at this time.]
- USCIS Extends Flexibility for Responding to Agency Requests: USCIS will consider a response to certain requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action.
- CBP to Reopen Trusted Traveler Programs Enrollment Centers on September 8
Closures
- EOIR Operational Status & Standing Orders
- EOIR Case Status
- ICE Updates (Including ERO and Detention)
- USCIS Updates
- Consular Updates
- NY Courts Updates
Guidance:
- IJ Email Filings
- BIA Email Filings
- EOIR Standing Orders
- EOIR Electronic Signature Guidance
- EOIR Update Regarding EOIR Practices Related to the COVID-19 Outbreak
- USCIS Visitor Policy
- USCIS Announces Flexibility for Requests for Evidence, Notices of Intent to Deny
- Electronic database of COVID-19 related materials
- NY Notary Guidance
TOP NEWS
Panel Tosses Nationwide Freeze on Trump’s Public Charge Rule
Bloomberg: A nationwide injunction blocking a Trump administration rule that denies legal status to immigrants receiving public assistance was stayed by a Second Circuit panel. The Southern District of New York…likely lacked jurisdiction to enter the injunction while the appeal of its previously-issued injunction was pending, the U.S. Court of Appeals for the Second Circuit said Sept. 11.
USCIS Wants Sponsors To Repay Gov’t For Benefits
Law360: U.S. Citizenship and Immigration Services on Thursday announced an initiative to hold immigrant sponsors legally responsible for reimbursing the government for benefits used by their immigrant sponsees.
US seeks sweeping DNA collection of immigrants, sponsors
AlJazeera: Its proposal also vastly expands the biological information that the Department of Homeland Security (DHS) collects beyond genetic material to include eye scans, voiceprints, and palm prints, the department’s US Citizenship and Immigration Services said in a notice published in the Federal Register.
After a Pandemic Pause, ICE Resumes Deportation Arrests
NYT: Since mid-July, immigration agents have taken more than 2,000 people into custody from their homes, workplaces and other sites, including a post office, often after staking them out for days.
The Life and Death of Administrative Closure
TRAC: TRAC’s detailed analysis of the court records on administrative closure yields four key findings. First, administrative closure has been routinely used by Immigration Judges to manage their growing caseloads as well as manage the unresolved overlapping of jurisdictions between the EOIR and other immigration agencies. Second, TRAC finds that far from contributing to the backlog, administrative closure has helped reduce the backlog. Third, data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status. Fourth, the EOIR significantly misrepresented the data it used to justify this rule.
Immigration to New York City Declines, Amplifying Economic Concerns
WSJ: Immigration to New York City dropped 45% between 2016 and 2019, with about 34,000 immigrants moving to the city last year compared with 62,000 in 2016, according to an analysis of U.S. Census Bureau population estimates by William Frey, senior fellow at the Brookings Institution. City officials and immigration advocates say tighter federal immigration policies and delays in processing visa applications during the pandemic ave reduced the flow of transplants.
US revokes visas for 1,000 Chinese students deemed security risk
BBC: The move follows a proclamation by President Donald Trump in May aimed at Chinese nationals suspected of having ties to the military. He said some had stolen data and intellectual property. China has accused the US of racial discrimination. Nearly 370,000 students from China enrolled at US universities in 2018-19.
The Conversation: In surveys and testimonials, these people say they’re dropping their U.S. citizenship because American anti-money laundering and counter-terrorism regulations make it too onerous and expensive to keep.
DHS Whistleblower Complaint Includes Surprising Insights on Immigration Policy
ImmProf: Mr. Murphy believes former DHS head Kirtjen Nielsen presented Congress with “knowing and deliberate submission of false material information” about the number of [known or suspected terrorists] crossing the southern border.
Immigration agency cuts of 800 Kansas City jobs expected to trigger backlogs, delays nationwide
Kansas Reflector: Members of Congress from the Kansas City region scored a victory last month when a federal immigration agency backed off plans that would have led to thousands of layoffs of government employees in the metro area. But their relief was short lived, as the agency now intends to furlough 800 of its local private contractors instead — a move expected to set off immigration backlogs and processing delays throughout the nation.
Trump administration considers postponing refugee admissions, U.S. official says
Reuters: The refugee cap was cut to 18,000 this year, the lowest level since the modern-day program began in 1980. So far, roughly half that many refugees have been let in as increased vetting and the coronavirus pandemic have slowed arrivals.
LITIGATION/CASELAW/RULES/MEMOS
CNN: The court ruled Thursday that the President’s July order violates the federal laws that set out how congressional seats are apportioned, and granted a permanent injunction blocking the rule. The court did not decide if the President’s memorandum violates the Constitution.
Md. Judge Finds Wolf Likely Appointed Illegally At DHS
Law 360: A Maryland federal judge held Friday that acting Homeland Security Secretary Chad Wolf was likely illegally appointed, and temporarily barred the Trump administration from enforcing new asylum restrictions on members of the advocacy organizations that challenged them.
On 8/21/20, the U.S. District Court for the Southern District of Ohio (Eastern Division) entered a Consent Order and Final Statement in the class action lawsuit challenging delays in issuance of EADs by USCIS following approval of Form I-765 applications. (Subramanya v. USCIS, 8/21/20) AILA Doc. No. 20080438
Batavian: The Worker Justice Center of New York (WJCNY) has filed suit in New York’s Supreme Court against the private, for-profit company, Akima Global Services (AGS), for its exploitation of detained immigrants at the Buffalo Federal Detention Center in Batavia.
CA1 Vacates Preliminary Injunction Against ICE Courthouse Arrests in Massachusetts
The court held that the district court abused its discretion in finding plaintiffs were likely to succeed in showing that the INA implicitly incorporates a common law privilege against civil arrests for individuals attending court on official business. (Ryan, et al. v. ICE, et al., 9/1/20) AILA Doc. No. 20090831
CA1 Upholds BIA’s Denial of Motion to Reconsider Where Petitioner’s VAWA Self-Petition Was Pending
Where the petitioner had premised his motion to reopen on a pending Violence Against Women Act (VAWA) self-petition, the court upheld the denial of his motion to reconsider, holding that the BIA did not err by finding he had failed to make a prima facie case. (Franjul-Soto v. Barr, 8/24/20) AILA Doc. No. 20090331
The court held that the petitioner’s Massachusetts’ drug conviction for possession with the intent to distribute amounted to “illicit trafficking in a controlled substance” and was thus an aggravated felony under INA §101(a)(43)(B). (Soto-Vittini v. Barr, 8/24/20) AILA Doc. No. 20090330
CA2 Stays Nationwide Injunction on DHS Public Charge Rule
The court stayed the district court’s July 29, 2020, preliminary injunction in the DHS public charge rule, thus allowing USCIS to require the Form I-944 in all jurisdictions. (State of New York, et al., v. DHS, et al., 9/11/20) AILA Doc. No. 20091190
The court upheld the denial of asylum to the petitioner, who fled involuntary military service in a government-controlled militia in Syria, finding that the militia was not beyond the scope of the Tier III provision under INA §212(a)(3)(B)(vi)(III). (A.A. v. Att’y Gen., 9/2/20) AILA Doc. No. 20090834
After holding that the substantial evidence standard applies to an IJ’s reasonable fear determinations, the court found that substantial evidence supported the IJ’s conclusion that the Mexican petitioner did not have a reasonable fear of persecution or torture. (Romero v. Att’y Gen., 8/25/20) AILA Doc. No. 20090333
Concluding that the “settled course exception” did not apply in the context of the case, the court held that it lacked jurisdiction to review the BIA’s discretionary decision to decline to self-certify the petitioner’s late-filed appeal. (Abdulla v. Att’y Gen., 8/20/20) AILA Doc. No. 20090332
Finding that the record did not compel the conclusion that the Salvadoran government was unwilling or unable to control the MS-13 gang, the court upheld the IJ and BIA’s conclusion that the petitioner did not qualify as a refugee under INA §101(a)(42)(A). (Portillo-Flores v. Barr, 9/2/20) AILA Doc. No. 20090835
The court held that the BIA did not abuse its discretion in finding that the Mexican petitioner’s motion to reopen, which was filed seven years after the entry of his removal order, was untimely and not entitled to equitable tolling. (Flores-Moreno v. Barr, 8/24/20) AILA Doc. No. 20090334
The court held that the district court properly dismissed the petitioners’ request for nunc pro tunc adjustment of status, because they had failed to adjust their status to lawful permanent residents, and thus could not meet the requirements for naturalization. (Al-Saadoon v. Barr, 8/28/20) AILA Doc. No. 20090336
CA8 Affirms Denial of EAJA Attorney’s Fees Where Government’s Position Was Substantially Justified
The court held that the district court did not err in concluding that the government’s litigation position was substantially justified, and thus affirmed the district court’s order denying the petitioner’s attorney’s fees under the Equal Access to Justice Act (EAJA). (Garcia v. Barr, 8/20/20) AILA Doc. No. 20090335
The court held that the domestic violence waiver established under INA §237(a)(7), and made applicable to cancellation of removal by INA §240A(b)(5), is limited to crimes of domestic violence and stalking, and thus did not cover petitioner’s drug conviction. (Jaimes-Cardenas v. Barr, 9/1/20) AILA Doc. No. 20090836
The court held that substantial evidence did not support the IJ’s and BIA’s adverse credibility determination, finding that, in light of the totality of the circumstances, the evidence compelled the conclusion that the Somali petitioner’s testimony was credible. (Iman v. Barr, 8/25/20) AILA Doc. No. 20090339
Deferring to the BIA’s interpretation of “perjury” as used in the aggravated felony definition of INA §101(a)(43)(S), the court held that perjury under section 118(a) of the California Penal Code is an aggravated felony. (Yim v. Barr, 8/25/20) AILA Doc. No. 20090338
The court held that the BIA abused its discretion in finding that a noncitizen who seeks to reopen an earlier application for relief, and attaches that application to the motion, has failed to attach the “appropriate application for relief” under 8 CFR §1003.2(c)(1). (Aliyev v. Barr, 8/24/20) AILA Doc. No. 20090337
The court held that because the petitioner had pled guilty before the stop-time rule was enacted via the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), applying the stop-time rule retroactively to his conviction was impermissible. (Rendon v. Att’y Gen., 8/26/20) AILA Doc. No. 20090340
Matter of R-C-R, 28 I&N Dec. 74 (BIA 2020)
(1) After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.
(2) The respondent failed to meet his burden of establishing that he was deprived of a full and fair hearing where he has not shown that conducting the hearing by video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him as a result of technical problems with the video equipment.
The U.S. District Court for the Middle District of Florida held that it has jurisdiction to review USCIS’s revocation of the plaintiff’s I-140 petition, and granted the plaintiffs’ request for a preliminary injunction. (6901 Coral Way Management, LLC, et al., v. Cucinelli, et al., 9/10/20) AILA Doc. No. 20091135
USCIS Launches SAVE Initiative to Collect Information on Sponsor Deeming and Agency Reimbursement
USCIS launched a new SAVE initiative asking agencies that administer federal means-tested benefits to share how they use sponsorship information in sponsor assessment and agency reimbursement processes, with the goal of helping agencies make eligibility determinations and hold sponsors accountable. AILA Doc. No. 20091032
DHS Proposed Rule on Use and Collection of Biometrics
DHS proposed rule on the use and collection of biometrics in the enforcement and administration of immigration laws. Comments on the rule are due on 10/13/20, with comments on associated proposed form revisions due 11/10/20. (85 FR 56338, 9/11/20) AILA Doc. No. 20090494
CDC Rule Finalizing Interim Final Rule on Foreign Quarantine
CDC rule finalizing the interim final rule published at 85 FR 16559, which provided a procedure for the CDC to suspend the introduction of persons into the United States from designated foreign countries or places for public health purposes. (85 FR 56424, 9/11/20) AILA Doc. No. 20090833
DHS released a PIA examining the privacy impact of immigration-related information sharing between DHS and the Census Bureau. DHS is providing administrative records to the Bureau to assist in determining the number of citizens, LPRs, and unauthorized immigrants in the U.S. during the 2020 census. AILA Doc. No. 19122704
RESOURCES
- Practice Alert: Advising Clients Concerning Impact of Preliminary Stay in Gomez v. Trump on DV-2020 Selectees
- Practice Alert: U.S.-Canada Safe Third Country Agreement Declared Unconstitutional by Canadian Federal Court
- Practice Pointer: Options for LPRs Seeking Documentation for Form I-9 Verification
- Practice Pointer: Use of a Form I-797 to Satisfy I-9 Documentation Requirements
- Practice Pointer on Asylum Pending EADs
- Featured Issue: Denaturalization Efforts by USCIS
- ASISTA Practice Pointer: DHS Freedom of Information Act Requests
- CLINIC Civic Participation Toolkit
- CLINIC EOIR FOIA Disclosures on Unaccompanied Children
- CLINIC TPS and DED Holders Chart
- Domestic Violence Safety Planning
- CGRS Grace v. Barr Practice Advisory
EVENTS
Note: Check with organizers regarding cancellations/changes
- 9/14/20 Working with Domestic Violence Immigrant Survivors: The Intersection of Basic Family Law, Immigration, Benefits, and Housing Issues in California 2020
- 9/14/20-11/29/20 Comprehensive Overview of Immigration Law (Fall)
- 9/15/20 How Criminal Defense Counsel Can Challenge ICE Detainers
- 9/16/20 Preparing for the Expansion of Expedited Removal
- 9/16/20 Advanced FOIA with DHS
- 9/17/20 The New Asylum EAD Rules: Practice Tips & Litigation Update
- 9/17/20 DOJ Recognition and Accreditation Webinar
- 9/21/20 Launch Event – the Immigrant Advocates Response Collaborative
- 9/21/20-9/22/20 Immigration Law and Policy Conference
- 9/22/20 Defenses to Denaturalization
- 9/23/20-10/7/20 3-Part Webinar Series: Integrating Technology to Improve Your Immigration Legal Services
- 9/24/20 Introduction to Crim/Imm
- 9/25/20 DACA and TPS Under Attack: Using Employment-Based Strategies to Obtain a More Secure Status
- 9/29/20 Beginner U Visa Hot Topics
- 10/29/20-10/30/20 2020 Crimes & Immigration Seminar
- 9/30/20-10/14/20 3-Part Webinar Series: Integrating Technology to Improve Your Immigration Legal Services
- 9/30/20 2020 AILA Virtual Asylum Conference
- 10/1/20 Representing Children in Immigration Matters 2020: Effective Advocacy and Best Practices
- 10/5/20 Green Light Law Training
- 10/6/20 Public Charge Updates
- 10/6/20-10/27/20 Webinar Series: Understanding and Preparing Waivers
- 10/21/20 Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption
- 10/21/20-10/23/20 Case Management Skills & Database Functions
- 10/22/20 Non-LPR Cancellation: Overview of Eligibility & Proving Continuous Presence
- 10/27/20 Seeking Special Immigrant Juvenile Status in Removal Proceedings
- 10/28/20 Advanced U Visa Hot Topics
- 10/29/20 Presenting the Case
- 10/29/20 Marijuana: Bridging the Divide Between State and Federal Law
- 11/4/20 Program Strategies for Removal Defense Practice
- 11/17/20 Employment-Based Immigration Opportunities for Immigrant Youth
- 11/18/20 Applying for Asylum and Related Relief for Clients with Convictions
- 11/12/20 Defying Non-Reviewability: How to Proceed After a Consular Denial
- 11/17/20 Make the Government Pay! Attorney fees in Immigration
- 11/24/20 VAWA Self-Petitioning Fundamentals
- 12/2/20 An Overview of Naturalization
- 12/3/20 Representing Permanent Residents in LPR Cancellation Cases
- 12/3/20-12/4/20 53rd Annual Immigration and Naturalization Institute
- 12/8/20 Litigating Your Way Out of Delay
- 12/9/20 Public Charge in Consular Processing
- 12/15/20 Crimes Involving Moral Turpitude
- 12/16/20 LPRs and Public Charge
- 2/4/21 Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas
- 2/5/21 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2021
ImmProf
Monday, September 14, 2020
- Judge finds DHS Acting Secretary Chad Wolfe unlawfully appointed, asylum restrictions imperiled
- Biden Pledges To Dismantle Trump’s Sweeping Immigration Changes — But Can He Do That?
- The Daily: Inside Trump’s Immigration Crackdown
- Immigration Article of the Day: An Invisible Border Wall and The Dangers of Internal Agency Control by Jill E. Family
Sunday, September 13, 2020
- What’s Crossing the Southern Border? Drugs? People? Nope, Toxic Waste
- Back to Business as Usual: After a Pandemic Pause, ICE Resumes Deportation Arrests
Saturday, September 12, 2020
- More Than 1,000 Chinese Students in U.S. Have Visas Revoked
- Joint Statement of the Deans of the University of California Law Schools About the Value of Critical Race Theory
Friday, September 11, 2020
- From The Bookshelves: Homeland Eligies by Ayad Akhtar
- The Legacy of September 11 on Immigration
- Three-Judge District Court Finds that Trump Memo to Exclude Undocumented Immigrants from Census Apportionment Is “Unlawful”
- Immigration Article of the Day: Refugee Advocacy Scholarship by Rosemary Byrne
Thursday, September 10, 2020
- DHS Whistleblower Complaint Includes Surprising Insights on Immigration Policy
- From the Bookshelves: Abdi Nor Iftin, Call Me American: A Memoir
- He came to America to join the military. Then he sacrificed his life and became a hero
- IN CALIFORNIA’S WINE COUNTRY, UNDOCUMENTED GRAPE PICKERS FORCED TO WORK IN FIRE EVACUATION ZONES
- Immigration Article of the Day: A Brief History of the Brief History of Citizenship Revocation in Canada by Audrey Macklin
Wednesday, September 9, 2020
- Fire Destroys Migrant Camp in Greece
- “Americans are ditching US citizenship in droves”
- Biden creates furor, underscoring bitterness over Obama immigration policy
- Immigration Article of the Day: An Innovative Approach to Movement Lawyering: The Immigrant Rights Case Study by Christine M. Cimini and Doug Smith
Tuesday, September 8, 2020
- Remittances to Mexico, Central America Increase During Pandemic
- The Collateral Consequences Resource Center Releases a New Report on Restoring Rights and Opportunities after Arrest or Conviction
- Michigan’s Muslims Thinking Globally, Acting Locally
- Trump’s law-and-order campaign relies on a historic American tradition of racist and anti-immigrant politics
- Lawsuit Alleges Labor Violations at Immigrant Federal Detention Center Run By Private Contractor
- From the Bookshelves: Family in Six Tones: A Refugee Mother, an American Daughter by Lan Cao & Harlan Margaret Van Cao
- Immigration Article of the Day: Executive Defiance and Judicial Review in Immigration Law by Jennifer Lee Koh
Monday, September 7, 2020
- Wall Street Journal Reports Sharp Decline in Immigration to New York City
- Advance Copy of COVID Border Closure Final Rule
- Institutional Racism Is Rampant in Immigration Enforcement at the U.S.-Mexico Border
- Happy Labor Day! Remember and Thank a Worker
- Hurricane Laura Devastated ICE Facilities, Leaving People Detained in Horrific Conditions
- Immigration Issues Abound for 2020 Election Winner
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So much outrageous conduct by the regime. So little effective “pushback” from the other two branches who largely continue to treat the dissolution of democracy as “just another day at the office.”
With so much “bad stuff” to choose from, here’s my personal “favorite of the week:”
DHS Whistleblower Complaint Includes Surprising Insights on Immigration Policy
ImmProf: Mr. Murphy believes former DHS head Kirtjen Nielsen presented Congress with “knowing and deliberate submission of false material information” about the number of [known or suspected terrorists] crossing the southern border.
Cabinet Secretary lies to Congress. Regime uses lies to proclaim a bogus “national security emergency” at the Southern Border. Some Federal Courts, including the Supremes, accept the pretexts for furthering the Trump/Miller racist, White Nationalist anti-asylum-seekers of color agenda.
Nothing happens to the liars. Congress and the Federal Courts “normalize” lying as a “standard Executive practice,” defer to it, and allow regime to impose potential death sentences without due process. Victims are just a bunch of largely non-White vulnerable humans that righty Federal Judges don’t believe are human or “persons” under our law.
As one of my esteemed, now retired, Arlington colleagues used to say: “The system is broken.”
But, disturbingly, this time it’s not just the Immigration Court system we’re talking about. It’s the whole justice system, the checks and balances, and the separation of powers set up by our Constitution. Lack of accountability for gross misconduct by public officials is the sign of a failing state.
I almost feel sorry for T. Dick Nixon. If he were in office today, the Watergate burglary, conspiracy, and cover-up would have been dismissed by the GOP politicos as “fake news.” And, today’s righty judges on the Supremes and the appellate courts would simply have looked they other way and made up legal gobbledygook and gibberish to cover for their supreme ruler.
Remember, part of Nixon’s downfall was the “missing 18 minutes” of the tapes. There’s nothing missing about the “Trump tapes.”
He’s recorded committing “criminal negligence” in office, lying about it, and endangering the lives and health of tens of thousands of Americans. Then, he and his stooges get up before the public and lie some more about what happened. Then, to prove he really doesn’t give a damn about the American people, he follows up by holding a rally that fails to comply with, and in fact mocks and disparages, his own Administration’s best health advice.
Nixon was a liar. But, I guess not a shameless enough one. And, he didn’t kill as many Americans.
Fortunately for Trump, the dead can’t vote. But, their families, friends, and colleagues can! How many more must die unnecessarily before we finally “throw the bum out” (with apologies to honest bums everywhere) and get a real President into office?’
PWS
09-15-20
