Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”
NEWS
US curtailing evacuation flights of Afghans to US for now to prioritize Americans
CNN: As of last Thursday, 1,200 Afghans and their families had been evacuated to America… According to sources familiar with the matter, Biden national security officials told senators during a briefing on Afghanistan Sunday that there are as many as 60,000 Afghans who could potentially qualify as SIV holders or applicants, P1/P2 refugees, or others like human rights defenders and could need evacuation. See also ‘Forget the visas’: The scramble is on to save Afghan partners as Taliban close in; In desperation, U.S. scours for countries willing to house Afghan refugees.
Federal judge orders Biden administration to reinstate ‘Remain in Mexico’ policy
USAToday: Judge Matthew Kacsmaryk, a Trump appointee, directed the Biden administration to reinstate the program, saying the administration “failed to consider several critical factors” when ending the program. Kacsmaryk delayed his order for seven days to give the administration a chance to appeal.
U.S. to expand online asylum registration amid ‘unprecedented’ border arrivals
Reuters: Mayorkas, speaking at a news conference in south Texas, did not provide details about which asylum seekers would be eligible to use the online system, but said further asylum changes would be announced in the coming days.
July was busiest month for illegal border crossings in 21 years, CBP data shows
WaPo: The number of migrants detained along the Mexico border crossed a new threshold last month, exceeding 200,000 for the first time in 21 years, according to U.S. Customs and Border Protection enforcement data released Thursday.
In Texas, a Quarantine Camp for Migrants With Covid-19
NYT: By this week, at least 1,000 migrants were housed at the teeming camp, erected by the nearby city of McAllen as an emergency measure to contain the spread of the virus beyond the southwestern border. About 1,000 others are quarantined elsewhere in the Rio Grande Valley, some of them in hotel rooms paid for by a private charity.
Biden railed against Trump’s immigration policies, now defends them in courts
Politico: Thousands of lawsuits on every aspect of immigration policy are pending from the Trump years — from challenges to the government’s moves to block asylum for specific individuals to roughly 100 lawsuits filed by the government to gain access to or seize land near the southern border for Trump’s border wall.
How a Private Prison Company Profits from Biden’s Broken Immigration Pledge
Newsweek: [S]ix months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.
WaPo: Last week, the Biden administration began the expulsion flights from the United States to the southern Mexican city of Villahermosa in a bid to deter repeat border crossers. Mexico agreed to accept those flights and said it would allow those who feared persecution in their home countries to apply for asylum. But the migrants — mostly from Honduras, El Salvador and Guatemala — who have arrived in the remote Guatemalan border town of El Ceibo describe a chaotic series of expulsions, first from the United States in planes and then from Villahermosa to Guatemala by bus. They say they were not given an opportunity to seek refuge in Mexico.
ICE to avoid arrest and deportation of undocumented victims of crime under new policy
CNN: The agency’s new policy, issued Wednesday, marks the latest effort by the Biden administration to pivot from the Trump administration and tailor enforcement priorities. Going forward, ICE will require agents and officers to help undocumented victims seek justice and facilitate access to immigration benefits, according to the agency.
Some 100,000 Green Cards at Risk of Going to Waste in Covid-19 Backlog
WSJ: The situation complicates what has already been a yearslong wait for many of the 1.2 million immigrants—most of them Indians working in the tech sector—who have been waiting in line to become permanent residents in the U.S. and are watching a prime opportunity to win a green card slip away.
Death toll in Haiti earthquake climbs to 1,297 as search continues for survivors
CBS: The death toll from a magnitude 7.2 earthquake in Haiti soared to at least 1,297 Sunday as rescuers raced to find survivors amid the rubble ahead of a potential deluge from an approaching tropical storm. Saturday’s earthquake also left at least 2,800 people injured in the Caribbean nation, with thousands more displaced from their destroyed or damaged homes.
Hochul’s Past Push to Arrest Immigrants Resurfaces as She Readies to Replace Cuomo
TheCity: Lt. Gov. Kathy Hochul, speaking publicly for the first time as New York’s governor-to-be, insisted Wednesday she’s “evolved” since fighting against driver’s licenses for undocumented immigrants by threatening them with possible arrest and deportation.
LITIGATION/CASELAW/RULES/MEMOS
BIA Dismissed Appeal After Finding NACARA Grant Bars Applicant from Applying for Cancellation
AILA: The BIA dismissed the appeal after concluding that the respondent’s prior receipt of special rule cancellation of removal under the NACARA bars her from applying for cancellation of removal. Matter of Hernandez-Romero, 28 I&N Dec. 374 (BIA 2021)
3rd Circ. OKs NJ AG’s Limit On Sharing Immigration Info
Law360: The Third Circuit signed off Monday on an order from the New Jersey Attorney General’s Office barring law enforcement agencies from sharing certain information with federal immigration authorities, ruling in a precedential opinion that two federal statutes do not bar the directive since they regulate states and not private actors.
CA4 Upholds BIA’s Asylum Denial to Former Member of MS-13 Gang in El Salvador
AILA: The court upheld the BIA’s denial of asylum to the Salvadoran petitioner, finding that his proposed particular social groups of “former members of MS-13” and “former members of MS-13 who leave for moral reasons” were overbroad and lacked social distinction. (Nolasco v. Garland, 8/2/21)
AILA: The court held that it lacked jurisdiction to review the BIA’s finding that the petitioner had not presented prima facie evidence of her eligibility for cancellation of removal pursuant to INA §242(a)(2)(B)(i). (Parada-Orellana v. Garland, 8/6/21)
CA8 Upholds Denial of Motion to Reopen Based on Changed Country Conditions in Somalia
AILA: The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen, where the evidence showed that the poor conditions facing homosexuals and Christians in Somalia have remained substantially similar since the time of her hearing. (Yusuf v. Garland, 8/9/21)
CA8 Finds “Mexican Mothers Who Refuse to Work for the Cartel” Is Not a PSG
AILA: The court held that the BIA did not err in finding that the petitioner’s proposed particular social group (PSG) of “Mexican mothers who refuse to work for the Cartel Jalisco Nueva Generación” was not sufficiently particularized or socially distinct. (Rosales-Reyes v. Garland, 8/4/21)
CA8 Finds BIA Did Not Err in Excluding Petitioner’s Mental Health Issues from PSC Analysis
AILA: The court found that because petitioner had failed to rebut the presumption set out in the Attorney General’s decision in In re Y-L-, the BIA did not err in not considering her mental health as a factor in the particularly serious crime (PSC) analysis. (Gilbertson v. Garland, 8/2/21)
8th Circ. Grants Appeal For U Visa Seeker And Daughters
Law360: The Board of Immigration Appeals was wrong to deny administrative closure to a Mexican woman and her daughters while they had a U visa petition pending, an Eighth Circuit panel ruled, faulting the board’s reliance on now-vacated precedent.
CA9 Holds That BIA Applied Wrong Burden of Proof to Petitioner’s Adjustment of Status Application
AILA: Granting the petition for review, the court held that, because petitioner was not an applicant for admission, the BIA impermissibly applied the “clearly and beyond doubt” burden of proof in finding him inadmissible and therefore ineligible for adjustment of status. (Romero v. Garland, 8/2/21)
AILA: The court remanded for the BIA to consider in the first instance whether the petitioner was eligible for withholding of removal on account of his membership in the particular social group of “people erroneously believed to be gang members.” (Vasquez-Rodriguez v. Garland, 8/5/21)
CA9 Holds That Convictions Under Hawaii’s Fourth Degree Theft Statute Are Not Categorically CIMTs
AILA: The court held that Hawaii’s fourth degree theft statute, a petty misdemeanor involving property of less than $250, is overbroad with respect to the BIA’s definition of a crime involving moral turpitude (CIMT) and is indivisible, and granted the petition for review. (Maie v. Garland, 8/2/21)
CA9 Marijuana Conviction Costs Man Deportation Relief
Law360: The Ninth Circuit denied a Mexican man’s appeal of his deportation order Wednesday, saying the Board of Immigration Appeals was correct in ruling that his past conviction for marijuana possession made him ineligible for cancellation of removal.
AILA: The court held that the petitioner’s conviction in Florida under Fla. Stat. §790.23(1)(a) for being a felon in possession of a firearm did not constitute a “firearm offense” within the meaning of INA §237(a)(2)(C) and its cross-reference to 18 USC §921(a)(3). (Simpson v. Att’y Gen., 8/4/21)
DOJ’s Block Of Texas’ Migrant Transport Order Extended
Law360: A Texas federal judge on Friday extended for an additional 14 days an emergency order temporarily blocking Gov. Greg Abbott’s executive order restricting ground transportation of migrants detained at the border amid the COVID-19 pandemic.
National Security Vetting Is Said To Illegally Delay Green Card
Law360: An American who has waited years for his Pakistani wife to have her green card application processed is suing the federal government, blaming their visa limbo on what they call an illegal national security vetting program.
AILA: ICE released ICE Directive 11005.3, Using a Victim-Centered Approach with Noncitizen Crime Victims, with guidance on how it will handle civil immigration enforcement actions involving noncitizen crime victims.
USCIS Provides Guidance on Afghan Special Immigrant Parolee and LPR Status
AILA: USCIS SAVE issued guidance regarding Afghans who are eligible for Special Immigrant Visas and their special immigrant LPR status or special immigrant parole that meets the special immigrant requirement for certain government benefits.
AILA Doc. No. 21081344
USCIS Temporarily Extending Validity Period of Form I-693
AILA: USCIS stated that 8/12/21 through 9/30/21, it will extend the validity period for Form I-693, Report of Medical Examination and Vaccination Record, from two years now to four years due to COVID-19-related delays in processing. Guidance is effective 8/12/21, and comments are due by 9/13/21.
Executive Order Suspending Entry of Certain Persons Contributing to the Situation in Belarus
AILA: Executive order issued 8/9/21, imposing sanctions on those determined to have contributed to the suppression of democracy and human rights in Belarus, including suspending the unrestricted immigrant and nonimmigrant entry into the United States of such persons. (86 FR 43905, 8/11/21)
Presidential Memo on Deferred Enforced Departure for Hong Kong
AILA: On 8/5/21, President Biden issued a memo directing DHS to defer for 18 months the removal of Hong Kong residents present in the United States on 8/5/21, with certain exceptions. (86 FR 43587, 8/10/21)
RESOURCES
- AILA: Ethics Check: The Conflicts Everyone Forgets
- AILA: Practice Alert: Local OPLA Guidance on Prosecutorial Discretion
- AILA: Bringing Mindfulness to Ethics Training
- CLINIC: New Readers Press Study Guide for Trick Vocabulary in Part 12 of the N-400
- CLINIC: Duncan v. Barr
- CRS: Temporary Protected Status and Deferred Enforced Departure
- Internews: Study Reveals Shortcomings and Opportunities in U.S. Immigration Coverage
- NIP/NLG: Comparing Local OPLA Interim Guidance Requirements For Documenting Criminal Histories
- NIP/NLG: The Harmful and Racist Impact of Criminal Exclusions from Legalization (August 9, 2021)
EVENTS
- 8/17/21 2021 AILA Paralegals Virtual Conference
- 8/18/21 U visa Bona Fide Determinations Webinar
- 8/18/21-8/20/21 CLINIC and NITA’s “Advocacy in Immigration Matters” Training
- 8/19/21 2021 AILA Asylum Virtual Conference
- 8/20/21 Conversation with Humanitarian Subcommittee of USCIS Case Assistance Committee (CAC) / VAWA, U, T Committee
- 8/24/21 All About Cuban Adjustment
- 8/25/21 USCIS Temporary Protected Status (TPS) Webinar
- 8/26/21 Preparing Successful Applications Under the Violence Against Women Act (VAWA)
- 8/26/21 Garland v. Ming Dai, 141 S. Ct. 1669 (2021), and a Deep Dive into Credibility in Asylum Cases
- 8/27/21 A Trauma-Informed, Anti-Racist Approach to Legal Advocacy
- 8/31/21 Hot Topics in Marriage-Based Adjustment of Status
- 9/2/21-9/23/21 Waiver Series: Dealing with Denials
- 0/0/21 APA Litigation: How to Take a USCIS Denial to Federal Court
- 9/15/21 Introduction to BIA Appeals
- 9/15/21 Legal Remedies for Immigrant Survivors: Introductory Seminar Series – Part III: Getting Survivors & Their Families to the Finish Line
- 9/16/21 Managing Immigration Compliance in a Remote and Hybrid Post-Pandemic World
- 9/22/21 Adjustment of Status: Eligibility and Pitfalls
- 9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices
- 9/27/21-9/28/21 Immigration Law and Policy Conference
- 9/28/21 Waiver Series: Overview of the Grounds of Inadmissibility
- 9/29/21 Temporary Protected Status: Updates and Options
- 9/30/21 Crafting a Winning Direct Examination: Practical Tips and Examples
- 9/30/21 Naturalization and Crimes
- 10/5/21 Waiver Series: Working With Clients to Build Strong Waiver Cases
- 10/6/21 Challenging Agency Delays in District Court
- 10/7/21 Introduction to Derivation of Citizenship
- 10/5/21 Waiver Series: Extreme Hardship and Discretion
- 10/13/21 Liberian Refugee Immigration Fairness Act: Updates 10/13/21
- 10/14/21 Detention & Deportation System for Children and Youth
- 10/19/21 Webinar Series: Putting the Case Together
- 10/19/21 The Categorical Approach Now
- 10/20/21 What is Happening with DACA?
- 10/21/21 Public Charge: Advising Clients in the Current Landscape
- 10/26/21 Emerging Issues in Asylum Law
- 10/27/21 Challenging Expedited Removal and Reinstatement Orders
- 11/2/21 U Visa Adjustment
- 11/10/21 Remedies for Surviving Relatives
- 11/11/21 Inadmissibility: A Look at Common Grounds and Red Flags
- 11/16/21 Advocating for Prosecutorial Discretion Under the Current Enforcement Priorities
- 11/23/21 Establishing Social Group in Asylum Claims
- 11/29/21-12/3/21 Partial to Full Accredited Representative Initiative 2021
- 12/1/21 54th Annual Immigration and Naturalization Institute
- 12/2/21 Post-Conviction Relief For Immigrants: New Laws, New Developments, New Advice
- 12/7/21 Hardship in Non-LPR Cancellation Cases
- 12/9/21 December Immigration Update
- 12/15/21 FOIA
ImmProf
Monday, August 16, 2021
- Susan Akram: Abandoning Afghan Allies: The Latest Chapter in Shameful History of US in Afghanistan
- Immigration Article of the Day: The ‘Impractical and Anomalous’ Consequences of Territorial Inequity by Jayanth K. Krishnan
Sunday, August 15, 2021
- Poetry Break: The United States Welcomes You by Tracy K. Smith
- Judge orders U.S. to reinstate Trump-era “Remain in Mexico” asylum policy
Saturday, August 14, 2021
- Immprof Stacy Caplow (Brooklyn) Has Concrete Proposals for Reforming Immigration Courts
- New ICE Guidance on Immigrant Crime Victims
- U.S. immigrant advocates blast ‘cruel’ Biden immigration policies
Friday, August 13, 2021
- Immigration Article of the Day: Making Immigration Law by Hiroshi Motomura
- Soon-to-be NY Governor Once Threated to Arrest Undocumented Immigrants, Says Her Position Has “Evolved”
- “‘Dysfunctional’ doesn’t begin to describe our immigration bureaucracy”
- How a Private Prison Company Profits from Biden’s Broken Immigration Pledge
Thursday, August 12, 2021
- CNN: “Census release shows America is more diverse and more multiracial than ever”
- Call for Papers on Race and Family Law
- CFP American University L Rev Symposium on Race and Youth Injustice
- Effects of declining international student enrollment on universities
- From the Bookshelves: Crimmigration Law by Cesar Cuauhtemoc Garcia Hernandez, Second Edition
- The Immigration Story of Editor in Chief — and DACA Recipient — of the Georgetown Law Journal
Wednesday, August 11, 2021
- How COVID-related government backlogs prevented DACA doctor from treating COVID
- Your Playlist: The Pogues
Tuesday, August 10, 2021
- Study Reveals Shortcomings and Opportunities in U.S. Immigration Coverage
- The Anti-Asian Roots of Today’s Anti-Immigrant Politics
- The law that broke US immigration: Why there are so many undocumented immigrants in the US
Monday, August 9, 2021
- At What Rate Do Noncitizens Appear for Their Removal Hearings?
- Cornell webinar on race, migration, politics (August 12, 2021)
- Video on the Basics of Immigration in Calfornia
- Webinar: Dissecting Discrimination: The Living Legacy of Migration, Race, and Politics
- Tokyo Olympics Close, Great Stories (and Some Immigration Ones)
- Canada wants immigrants but the pandemic is in the way. So it’s looking to keep people already there.
****************
Thanks, Elizabeth!
The article by Anita Kumar in Politico should be an “eye opener” for those progressive advocates who think Garland is committed to due process, equal justice, and best practices in Immigration Court and elsewhere in the still dysfunctional immigration bureaucracy. This particular quote stands out:
“The Department of Justice really was a center of gravity for some of the most…hideous anti- immigrant policies that came out of the Trump administration and really was in some ways ground zero for the anti-immigrant agenda of Donald Trump,” said Sergio Gonzales, who worked on the Biden transition and serves as executive director of the Immigration Hub. “And this is why it’s so critical that DOJ moves swiftly and aggressively to undo that agenda.”
I dare any advocate to claim Garland has moved “swiftly and aggressively” to undo the Miller White Nationalist agenda! Yes, after a crescendo of outrage and public pressure from NGOs, he has vacated four of the worst xenophobic and procedurally disastrous precedents. But, there are dozens more out there that should have been reversed by now.
More important, returning the law to its pre-Trump state is highly unlikely to bring meaningful change and fairer results as long as far too many of the Immigration Judges and BIA Judges charged with applying that law are Trump-era appointees, some with notorious records of anti-immigrant bias and a number who have denied almost every asylum case that came before them. (And, it’s not like A-R-C-G- was fairly and consistently applied during the Obama Administration, which largely gave “the big middle finger” to progressives in appointments to the Immigration Judiciary).
Is an IJ who was denying nearly 100% of A-R-C-G- cases (and in some cases misogynistically demeaning female refugees in the process) even prior to A-B- suddenly going to start granting legal protection? Not likely!
Are BIA Judges who got “elevated” under Trump by being notorious members of the “Almost 100% Denial Club” suddenly going to have a “group ephifany” and start properly and generously applying A-R-C-G- to female refugees and insisting that trial judges do the same? No way!
Is a BIA where notorious asylum deniers are heavily over-represented and others have shown a pronounced tendency to “go along to get along” with Miller-type xenophobic White Nationalist policies now going to do a “complete 360” and start churning out “positive precedents” requiring IJs to fairly and generously grant asylum as contemplated in long-forgotten (yet still correct) precedents like Cardoza-Fonseca, Mogharrabi, and Kasinga? Not gonna happen!
Will a few rumored, long delayed progressive expert appointments to the Immigration Judiciary “turn the tide” of systemic dysfunction, intellectual dishonesty, anti-immigrant, anti-asylum “culture,” lack of expertise, and dereliction of due process and fundamental fairness at EOIR? Of course not!
So, progressives, don’t kid yourselves that Garland has “seen the light” and is on your side. Judge him by his actions and appointments!
Note, that unlike Sessions and Barr, it’s actually hard to judge Garland on his rhetoric, because there isn’t much. He’s five months into running a nationwide system of dysfunctional “star chambers.”
But, to date, he hasn’t uttered a single inspiring pronouncement on returning due process, fundamental fairness, human dignity, decisional excellence, or professionalism to EOIR, connecting the dots between immigrant justice and racial justice, or given any warning that those who don’t “get the message” will be getting different jobs or heading out the door.
I still remember my first personal encounter with AG Janet Reno when she exhorted everyone at the BIA to promote “equal justice for all!” I still think of it, and it’s still “on my daily agenda” — over a quarter century later, even after the end of my EOIR career!
Where are Garland’s “inspiring words” or “statements of values” on immigrant justice and equal justice for all! Actions count, but rhetoric in support of those actions is also important. So far, Garland basically has “zeroed out” on both counts!
Yes, along with the entire immigration community, I cheered the appointment of Lucas Guttentag! But, Lucas isn’t deciding cases, nor has he to date brought the progressive experts to EOIR Management and repopulated the BIA with progressive expert judges who will end the due process abuses and grotesque injustices at EOIR and start holding IJs with anti-asylum, anti-migrant, anti-due-process agendas accountable.
Also unacceptably, progressive litigators haven’t been brought in to assume control of the Office of Immigration Litigation (“OIL”) and end wasteful, and often ethically questionable, defense of the indefensible in immigration cases in the Article IIIs.
We need bold, progressive, due process/fundamental fairness/racial justice reforms! It’s got to start with major progressive personnel changes! And, it should already have started at EOIR!
The best laws, regulations, precedents, and policies in the world will remain ineffective so long as far too many of those judges and senior executives charged with carrying them out lack demonstrated commitment to progressive values, not to mention relevant, practical expertise advancing human and civil rights!
Contrary to what many think, bureaucracy can be moved by those with the knowledge, guts, determination, and commitment to do it! Seven months after Biden’s inauguration, the DOJ remains a disaster with the situation at EOIR leading the way!
It didn’t have to be that way! It’s unacceptable! Foot dragging squanders opportunities, wastes resources, and, worst of all, actually costs lives and futures where immigration is at stake. This isn’t “ordinary civil litigation!” It’s past time for tone-deaf and inept Dem Administrations to stop treating it as such!
The following item from Angelika Albaladejo at Newsweek should also be a “clarion call” to advocates who might have thought this Administration (and even Congressional Dems) has a real interest in human rights reforms.
Here’s the essence:
President Joe Biden promised to end prolonged immigration detention and reinvest in alternatives that help immigrants navigate the legal process while living outside of government custody. These promises were part of Biden’s campaign platform and the reform bill he sent to Congress on his first day in the White House.
But six months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.
Meanwhile, community case management—which past pilot programs and international studies suggest is less expensive while more effective and humane—is receiving comparatively little support.
Same old same old! Election is over, immigration progressives who helped elect Dems are forgotten, and human rights becomes an afterthought — or, in this case, worse!
Progressives must continue to confront a largely intransigent and somewhat disingenuous Administration. A barrage of litigation that will tie up the DOJ until someone pays attention and, in a best case, forces change on a tone-deaf and recalcitrant Administration, is a starting point.
But, it’s also going to take concerted political pressure from a group whose role in the Dem Party and massive contributions to stabilizing our democracy over the past four years is consistently disrespected and undervalued (until election time) by the “Dem political ruling class!”
Legislation to create an Article I Immigration Court and get Garland, his malfunctioning DOJ, and his infuriating “what me worry/care attitude” completely out of the picture has also become a legal and moral imperative, although still “a tough nut to crack” in practical/political terms. But, we have to give it our best shot!
Actions (including, most important, personnel changes) solve problems and save lives! Unfulfilled promises, campaign slogans, and fundraising pitches not so much!
Image: Hernan Fednan, Creative Commons License
😎Due Process Forever! Star Chambers and the New American Gulag, Never!
PWS
08-18-21