"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Elizabeth Gibson 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 9, 2020. [Note: Despite the standing order about practices upon reopening, an opening date has not been announced for NYC non-detained at this time.]
DocumentedNY: In July 2020, judges in New York City’s immigration courts completed 273 cases combined, a fraction of the estimated 2,200 cases completed in July 2019. While the judges were slowing down, ICE filed over 100,000 new immigration cases nationwide during just the first two-and-a-half months of the current shutdown.
Guardian: Immigrants in a US Immigration and Customs Enforcement (Ice) detention center in Georgia are being subjected to horrific conditions and treatment, including “jarring medical neglect” and a high rate of hysterectomies among women, according to a whistleblower complaint filed by several legal advocacy groups on behalf of a nurse who works there.
Gothamist: The march calling for the abolition of ICE hadn’t gone more than a few blocks through Lower Manhattan on Thursday afternoon when NYPD officers ran into the crowd, tackling marchers to the ground, and taking them into custody.
Daily News: A security guard flashed her gun at Abolish ICE protesters who stormed inside a federal building in Lower Manhattan, video posted on social media shows.
ProPublica: Department of Homeland Security and Justice Department inspectors general are investigating allegations that ICE guards assaulted detainees in camera blind spots.
NPR: The Trump administration has undertaken more than 400 executive actions on immigration, according to the Migration Policy Institute. Those include tougher border and interior enforcement, restricting asylum, rolling back Deferred Action for Childhood Arrivals (DACA), slashing refugee visas, streamlining immigration courts and creating Remain in Mexico.
CNN: The nomination hearing comes as courts and the Government Accountability Office have raised concerns about the legitimacy of Wolf’s appointment to lead DHS. Over the objections of the department, the GAO stood by its August opinion that Wolf and his deputy Ken Cuccinelli were appointed as part of an “invalid order of succession.”
NPR: The 9th Circuit Appeals Court’s decision affects citizens from El Salvador, Haiti, Nicaragua and Sudan, many of whom have lived in the U.S. for decades, have U.S.-born children and have been considered essential workers during the coronavirus pandemic. At issue is the termination of temporary protected status, a form of humanitarian relief created by Congress and administered by the Department of Homeland Security.
TRAC: These included nearly a million filings by immigrants previously present in the court files TRAC received that had gone missing. The resulting public outcry caused the EOIR to restore most of these records but persistent problems remained: each month, new records continued to disappear.
USCIS: U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to update and clarify the procedures USCIS officers follow when termination of asylum status is considered in relation to adjudicating an asylum-based adjustment of status application.
Finding that the plaintiffs are unlikely to succeed on their challenge to Presidential Proclamation 10052, a district court judge in D.C. held that injunctive relief would not remedy plaintiffs’ claimed irreparable harms or be in the public interest. (Panda, et al. v. Wolf, et al., 9/16/20) AILA Doc. No. 20091804
The district court preliminarily enjoined the defendants from enforcing a subset of the new asylum employment authorization document (EAD) rules as applied to individual members of Casa de Maryland and Asylum Seeker Advocacy Project. (Casa de Maryland, Inc., et al. v. Wolf, et al., 9/11/20) AILA Doc. No. 20091507
Granting summary judgment in favor of the plaintiffs, a federal district court in New York concluded that President Trump’s July 2020 memo exceeded the authority of the president and constituted an ultra vires violation of the statutes. (State of New York, et al. v. Trump, et al., 9/10/20) AILA Doc. No. 20091400
Unpublished BIA decision holds that 2004 conviction for third degree grand larceny under N.Y.P.L. 155.35 is not a CIMT under Obeya v. Sessions, 884 F .3d 442 (2d Cir. 2018). Special thanks to IRAC. (Matter of Diaz Ortiz, 4/13/20) AILA Doc. No. 20091404
Unpublished BIA decision finds conviction vacated under Calif. Penal Code 1473.7(3) is no longer valid for immigration purposes. Special thanks to IRAC. (Matter of Antunez Delgado, 4/29/20) AILA Doc. No. 20091800
Unpublished BIA decision rejects DHS argument that the respondent’s conviction remained valid for immigration purposes because the state court order vacating conviction was drafted by his attorney. Special thanks to IRAC. (Matter of Fearon, 4/17/20) AILA Doc. No. 20091607
Unpublished BIA decision reopens proceedings sua sponte for respondent with TPS to adjust status in light of intervening decision in Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017). Special thanks to IRAC. (Matter of Castellanos, 4/14/20) AILA Doc. No. 20091505
Unpublished BIA decision holds that Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), does not apply retroactively to convictions for theft under Texas Penal Code 31.03. Special thanks to IRAC. (Matter of Ozougwu, 4/9/20) AILA Doc. No. 20091403
Unpublished BIA decision holds that burglary of building under Texas Pen. Code 30.02 is not a CIMT because the target offense is not an element and could include simple assault. Special thanks to IRAC. (Matter of De Leon Gonzalez, 4/15/20) AILA Doc. No. 20091506
Unpublished BIA decision equitably tolls the MTR deadline and terminates proceedings where respondent filed motion more than two years after Ninth Circuit decision holding that conviction did not qualify as an aggravated felony. Special thanks to IRAC. (Matter of Dang, 5/7/20) AILA Doc. No. 20091801
Unpublished BIA decision remands for further consideration of ineffective assistance claim in light of evidence submitted on appeal that the respondent’s complaint against his prior attorney was referred to a disciplinary committee. Special thanks to IRAC. (Matter of Nguyen, 4/22/20) AILA Doc. No. 20091608
The court held that although the district court correctly found that Youth Ministries for Peace and Justice had Article III standing to sue over USCIS’s denial of N-648 waivers, it did not fall within the zone of interests of the INA, the APA, or the Due Process Clause. (Moya v. DHS, 9/15/20) AILA Doc. No. 20091612
The court rejected Matter of Castro-Tum’s conclusion that administrative closure is not within an IJ’s authority to take “any action” appropriate and necessary for the disposition of cases pursuant to 8 CFR §1003.10(b). (Meza Morales v. Barr, 6/26/20, amended 9/3/20) AILA Doc. No. 20070207
Upholding the denial of deferral of removal under the Convention Against Torture (CAT), the court held that the BIA did not err in determining that the petitioner had failed to show he would more likely than not be tortured if removed to Bangladesh. (Ahmed v. Barr, 9/4/20) AILA Doc. No. 20091604
The court issued a panel decision vacating a district court’s preliminary injunction to terminate TPS designations of Sudan, Nicaragua, Haiti, and El Salvador. (Ramos v. Wolf, 9/14/20) AILA Doc. No. 20091405
The court reversed and vacated the U.S. District Court for the Central District of California’s injunction barring ICE from issuing detainers based solely on searches of electronic databases to make probable cause determinations of removability. (Gonzalez, et al. v. ICE, et al., 9/11/20) AILA Doc. No. 20091500
The court held that substantial evidence did not support the BIA’s conclusion that the government of El Salvador was willing and able to control the Mara-18 gang that attacked the petitioner and killed his son, and found that the gang continues to be a threat. (J.R. v. Barr, 9/11/20) AILA Doc. No. 20091605
The court held that the BIA erred by not reviewing the IJ’s factual findings for clear error, as required by 8 CFR §1003.1(d)(3)(i), when it reversed the IJ’s grant of deferral of removal under the Convention Against Torture (CAT). (Guerra v. Barr, 3/3/20, amended 9/11/20) AILA Doc. No. 20030632
USCIS announced updates to some design features of the USCIS online account creation process to make it easier for representatives to link certain paper-filed cases to newly-created online accounts; to identify which paper-filed forms are eligible for online linking; and more. AILA Doc. No. 20091809
On September 18, 2020, DHS updated its fact sheet on measures to limit non-essential travel across the U.S.-Canada and U.S.-Mexico borders and to limit the spread of the coronavirus. The measures have been extended until October 21, 2020. AILA Doc. No. 20032336
USCIS updated guidance in its Policy Manual regarding the residency requirements for children and spouses of service members or U.S. government employees stationed overseas to acquire citizenship under INA §320, as amended by the Citizenship for Children of Military Members and Civil Servants Act. AILA Doc. No. 20092130
THE GIBSON REPORT — 09-15-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
Elizabeth Gibson 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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
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
(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 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 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 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
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:”
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?’
Don Ayer American Lawyer Former U.S. Deputy Attorney GeneralHonorable Mimi Tsankov U.S. Immigration Judge Eastern Region Vice President National Association of Immigration Judges (“NAIJ”)Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
Elizabeth Gibson, New Due Process Army Superstar & Editor Publisher Of The Renowned Weekly “Gibson Report”reports:
Hi Everyone,
I want to flag an upcoming NYCBA webinar series on Preserving the Rule of Law in an Age of Disruption. Full disclosure, I’m on the taskforce organizing the event, but I highly recommend it. The speaker list is top-notch.
For immigration practitioners in particular, Session 4will feature IJ Tsankov, representing NAIJ, and the session will discuss “deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.”
It’s free for NYCBA members, $15 for other lawyers, and free for the general public (including law students and fellows). Please circulate widely.
New York City Bar Association Announces Five-Part Forum on the Rule of Law
Fall Series to Feature Former Officials, Judges, Scholars and More
New York, August 10, 2020 – The New York City Bar Association has announced a five-part Forum on the Rule of Law, to take place this fall beginning on September 15. (Full schedule and speaker list below.)
The “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” will feature panels of respected experts from across the political spectrum – including former government officials, judges and scholars – who will identify current challenges and threats to the rule of law in America, discuss why they matter and propose remedies. Participants will include Nicole Austin-Hillery, Donald Ayer, Mitchell Bernard, Preet Bharara, Robert Cusumano, Hon. Mary McGowan Davis, John Feerick, Charles Fried, Daniel Goldman, Harold Hongju Koh, Errol Louis, Margaret Colgate Love, David McCraw, Barbara McQuade, Dennis Parker, Myrna Perez, Hon. Jed Rakoff; Anthony Romero, Cass Sunstein, Hon. Mimi Tsankov,Joyce Vance, and Cecilia Wang. City Bar President Sheila S. Boston will introduce the series, and Professor Timothy Snyder of Yale University, author of On Tyranny and The Road to Unfreedom, will kick off the opening session with a survey of the “Threats to the Rule of Law in America.”
All sessions will be carried live on Zoom and will be open to the public free of charge ($15 for non-member lawyers):
Session 1: Threats to the Rule of Law in America: A Survey
(Sept 15, 1:00 p.m. – 4:00 p.m.)
Session 2: Checks, Balances and Oversight — the Distribution of Governmental Power and Information
(Sept 22, 1:00 p.m. – 4:00 p.m.)
Session 3: Interference with Judicial Independence and Local Law Enforcement
(October 8, 11:00 a.m. – 2:00 p.m.)
Session 4: Threats to Individual and Societal Rights
(Oct 21, 1:00 p.m. – 4:00 p.m.)
Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?
(Nov 18, 1:00 p.m. – 4:00 p.m.)
“The rule of law is the foundation of our democracy,” said City Bar President Sheila S. Boston. “It’s at the core of our Constitution that sets forth the powers of our government and the rights of our people, and the supremacy of the law in our nation ensures that no one can claim to be above it. The rule of law is what provides for transparency and equity in our society, enables us to confront challenges, foreign or domestic, and protects our security and welfare so that the right to life, liberty and the pursuit of happiness exists for us all.”
“While we hope these individual reports have been useful to our members and the public, they illustrate a broader theme – threats to the Rule of Law itself – that we believe has not received sufficient in-depth attention in either the public or the legal profession,” said Stephen L. Kass, Chair of the Task Force. “Our goal is to create an ongoing and thought-provoking discussion among the legal profession, the academic community and the public about what can and should be done to assure that America remains a nation governed by law even in a time of crisis – or especially in a time of crisis – and to identify the actions necessary for our justice system to promote the impartial, equitable and effective enforcement of those laws.”
In addition to the work of the Task Force on the Rule of Law, the City Bar has been speaking out on rule-of-law issues for decades through its committees on Federal Courts, Government Ethics, Immigration and Nationality Law, and its Task Force on National Security and Rule of Law (the predecessor of the Task Force on the Rule of Law).
Full Schedule:
Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption
This session will broadly survey recent developments that implicate, and may signal rejection of, traditional Constitutional roles and customary norms of behavior within the national government and each of its branches. Session 1 will also take an inventory of recent challenges to laws and norms involving the impartial administration of justice by law enforcement, prosecutors, the courts and the Executive, as well as threats to individual and societal rights generally and to marginalized communities in particular. Individual speakers will focus on constitutional checks and balances, politicization of the administration of justice, dramatic changes in how governmental agencies ascertain facts and make decisions, and trends in derogation of individual and societal rights, including voting rights and the promise of impartial justice for all.
Introduction: Sheila S. Boston, President, New York City Bar Association
Keynote Speaker: TimothySnyder, Professor of History, Yale University; author, Tyranny and The Road to Unfreedom
Dennis Parker, Director, National Center for Law and Economic Justice
Cass Sunstein, Professor of Law, Harvard Law School
Joyce Vance, Professor of Law, University of Alabama School of Law; former U.S. Attorney for the Northern District of Alabama
This session will focus in depth on the rule of law challenges arising out of disruption of traditional “checks and balances” among the branches of the government, the ideas of “independence” and “oversight” among the agencies of government, and the ability of the Congress or Inspectors General and “whistleblowers” to perform their functions in the face of Executive secrecy, limits on Congressional subpoena power, governmental job insecurity and public statements critical of the bureaucratic levers of government.
Keynote Speaker: Donald Ayer, Partner at Jones Day; former U.S. Deputy Attorney General under President George H.W. Bush; former Principal Deputy Solicitor General under Solicitor General Charles Fried.
Moderator: Errol Louis, CNN Political Analyst; Host of NY1’s “Inside City Hall”
Mitchell Bernard, Executive Director, National Resources Defense Council
Preet Bharara, former U .S. Attorney for the Southern District of New York
Daniel Goldman, Counsel to the House Intelligence Committee
Barbara McQuade, Professor of Law, University of Michigan Law School; former U.S. Attorney for the Eastern District of Michigan
This session will explore the effects of Executive disruption of several distinct justice systems – civil and criminal courts, the immigration court system and local law enforcement. Speakers will explore the implications of Executive interference with investigations and trials, castigation of individual judges and jurors, the deployment of military and/or federal forces in connection with local law enforcement and the issuance of pardons without traditional due diligence for civilian and military crimes.
Keynote Speaker: Charles Fried,Professor of Law at Harvard Law School; former U.S. Solicitor General under President Ronald Reagan
Margaret Colgate Love, Executive Director, Collateral Consequences Resource Center; former U.S. Pardon Attorney
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Jed Rakoff, Senior U.S. District Court Judge, Southern District of New York
This session will survey recent trends that question the role of law and courts in the pursuit of a just and democratic society. Is adherence to the rule of law deteriorating and, if so, is that because of limitations on the ability (or inclination) of citizens and courts to prevent violations of individual rights or, more broadly, the rules governing a functioning democracy? Speakers will discuss the most salient of the deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.
Keynote Speaker: Anthony Romero, Executive Director, American Civil Liberties Union
Nicole Austin-Hillary, Executive Director, Human Rights Watch U.S. Program
David McCraw, Senior Vice-President and Deputy General Counsel, New York Times
Myrna Perez, Director, Voting Rights and Elections Program, Brennan Center for Justice
Hon. Mimi Tsankov, Vice President, Eastern Region, National Association of Immigration Judges
Cecilia Wang, Deputy Legal Director and Director of the Center for Democracy, American Civil Liberties Union
This session will explore the role of individual lawyers, professional organizations and citizens in protecting the rule of law as a guiding principle in American public life and in restoring the norms and standards by which we may remain a society governed by transparent rules equitably applied. Speakers will discuss the history of efforts by the organized bar to support and sustain impartial justice, the scope of pro bono work by the private bar and the private sector, the ethical standards guiding government officials and the education of the public about the necessity of acting to protect a fair and equitable rule of law. Speakers will draw on their own experience to offer lessons for members of the bar on building on one’s own background and training to promote the rule of law domestically and abroad.
Keynote Speaker: John Feerick, Fordham Law Dean Emeritus and Norris Professor of Law, Fordham Law School
Robert Cusumano, founder and CEO, Legal Horizons Foundation; former Corporate General Counsel
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Mary McGowan Davis, Former New York Supreme Court Justice; Member, UN Committees of Independent Experts in International Humanitarian and Human Rights Law
The mission of the New York City Bar Association, which was founded in 1870 and has 25,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world.www.nycbar.org
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☠️⚠️‼️DISCLAIMER: Of course, the following are just my views, not the views of anyone on the All-Star cast of speakers at this upcoming event, the NYCBA, or anyone else of any importance whatsoever!
Don is my former partner at Jones Day and a long time colleague going back to our days together at a “Better DOJ.” Mimi and I have been friends and colleagues for years in the NAIJ, the FBA, and on the Immigration Court.
Elizabeth is my former student at Georgetown Law, a former intern at the Arlington Immigration Court, a former Judicial Law Clerk at the NY Immigration Court, and a “charter member” and leader of the “New Due Process Army” (“NDPA”). She’s still early in her career, but already establishing herself as one of the “best legal minds” in the business — in immigration, human rights, Constitutional Law, or any any other field. Elizabeth and others like her are indeed “the future of American law and the nation!”
In nearly five decades as a lawyer in the public, private, and academic sectors, I have never seen such a concerted attack on the rule of law and the institutional underpinnings of American democracy as that being carried our by the Trump regime.
Perhaps most shocking and disappointing to me has been the ineffective “pushback” and often outright complicity or encouragement offered to “the scofflaw destroyers” by our supposedly independent Article III Judiciary.
Let’s cut to the chase! The only real role of the Federal Judiciary is to protect our nation from tyranny and overreach from the the other two branches of Government. That’s it in a nutshell! If they can’t do that, they really have no purpose that couldn’t be fulfilled by the State and Local Courts.
In this role, the Article IIIs have failed — miserably! With a “disappearing Congress,” the Article IIIs, starting with the lousy performance of the Supremes, overall have been unwilling effectively to stand up to Trump’s corrupt, overtly racist, divisive, and illegal White Nationalist agenda. An agenda that is destroying our society and mockingthe Constitutional guarantees of “equal justice for all.”
I call the regime’s strategy “Dred Scottification” or “dehumanization of the other before the law.”It targets people of color, particularly immigrants and asylum seekers.
Outrageously, rather than emphatically rejecting this clearly unconstitutional “throwback to Jim Crow,” a Supremes’ majority has embraced and furthered it:from the “Muslim Bam;” to illegally letting legitimate asylum applicants rot, be abused, and die in Mexico; to allowing a deadly irrational, racist attack on the health and public benefits of the legal immigrant community; to turning their back on refugees who are are potentially being sentenced to death without any recognizable legal process; to allowing GOP politicos to blatantly suppress Black and Hispanic voting rights for corrupt political gain, the “tone-deaf” and spineless Supremes’ majority has misused its life tenure to clearly install itself on the wrong side of history — with racists and human rights abusers of the past!
We see it playing out every day; it will continue to get worse if we don’t get “regime change.” We need a functional Congress, without Mitch McConnell’s poisonous intransigence, and better Federal Judges, at all levels. Judges who actually believe in equal justice for allunder our Constitution and have the guts and intellectual integrity to stand up for it — whether the issue is voting rights, criminal justice, rights of asylum seekers, immigrants’ rights, effective Congressional oversight of the Executive, or putting an end to the “due process parody” going on daily in the “weaponized and politicized” Immigration “Courts” (that are not “courts” at all by any commonly understood meaning of the word).
For example, as American justice implodes, AG Billy Barr and several GOP Supremes have decided that the “real enemy” is “nationwide injunctions” by US District Court Judges. This is nothing short of “legal absurdism” being spouted by folks who are supposed to be functioning as “responsible public officials!”
As those who live in the “real world” of the law, peopled by actual human beings, nationwide injunctions are one of the few effective tools that defenders of our Constitution (many serving pro bono) have to stop life-threatening illegal attacks by the regime on individual rights, particularly in the field of immigration and human rights. Otherwise, the regime’s “violate the law at will and fill the courts with frivolous litigation strategy,” adopted by the DOJ and furthered by the Supremes, would simply bury and overwhelm the defenders of individual rights and the rule of law.
Without nationwide injunctions against illegal Executive actions, by the time the regime’s legal transgressions worked their way to the Supremes, most of the bodies would be dead and buried. ⚰️⚰️Indeed, we see the results of this illegal abrogation of U.S. asylum law and international protections, sans legislation or legitimate rationale, which daily returns legitimate refugees, many women and children, to harm, torture, or death, without any process whatsoever, let alone the “due process” required by the Constitution. ☠️🤮⚰️🏴☠️
You might ask yourself what purpose is served by a Supremes’ majority that has encouraged and facilitated this type of deadly “outlaw behavior” that will stain our nation’s soul and reputation forever in the eyes of history? It’s not “rocket science” — really just Con Law 101, common sense, and human decency, which seem to have fled the scene at our highest Court.
The complete breakdown of professional and ethical standards within the Executive, particularly the DOJ, that used to govern positions taken, arguments made, and evidence submitted to Federal Courts also is shocking to those of us who once served in the DOJ. Likewise, the overall failure of the Federal Courts to enforce even minimal standards of professionalism and the duty of “candor to a tribunal” for Government lawyers is surprising and disheartening.
Yes, Federal Judges sometimes “pan” or “wring their hands” about the bogus positions, disingenuous reasoning, and contemptuous actions of agencies and Government lawyers. But, they seldom, if ever, take meaningful corrective action. For Pete’s sake, both “Wolfman” and “Cooch Cooch” have been held by a Federal Judge to have been illegally appointed to their acting positions!Yet every day, these “illegals” continue to mete out injustice, and racist-driven policies on largely defenseless migrants . What kind of judiciary allows this kind of “in your face nonsense” to continue unabated?
This judicial fecklessness hasn’t been lost on folks like Billy Barr, Chad “Wolfman” Wolf, Stephen Miller, “Cooch Cooch,” Mark Morgan, Noel Francisco, and other Trump sycophants who continue to flood the Federal Courts with false narratives, bogus positions, and what many would characterize as “unadulterated BS” without meaningful consequences, other than to stretch the “battle lines” of the pro bono opposition to the breaking point. Indeed, as many fearless immigration and human rights litigators will confirm, it has become the burden of the private, usually pro bono or “low bono,” bar to “fact check” and disprove the false narratives and incomplete or misleading accounts submitted by the DOJ to the Federal Courts.
How does this “misplacing of the burden” further the interests of justice and encourage representation of the most vulnerable in our society? Clearly, it doesn’t, which is the entire point of the DOJ’s destructive and unprofessional “strategy!” Certainly, these are unmistakable signs of widespread systemic breakdown in our Federal justice system.
I urge everyone to attend and learn more about why the rule of law is “on the ropes” in today’s America, what efforts are being made to save and preserve it, and to ponder the consequences ofwhat another four years of a corrupt, scofflaw, White Nationalist regime and complicit Federal Judges could mean for everyone in America and perhaps the world!
Due Process Forever! If you don’t stand up for it, you’ll find yourself living in the “world’s highest-GNP failed state,” governed by a hereditary kakistocracy enabled by feckless “judges” more interested in their life tenure than in YOUR rights under the law!🤮☠️🏴☠️👎
“Due Process of Law”
As Reenvisioned By Trump & Billy Barr
This is what “Dred Scottification” or the “end of the rule of law” as promoted by Trump, Miller, Barr and their cronies, and enabled by a tone-deaf and “insulated from the human suffering they cause” Supremes’ majority looks like:
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
THE GIBSON REPORT — 08-31-31 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
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 some non-detained courts: Hearings in non-detained cases at courts without an announced date are postponed through, and including, September 18, 2020. [Note: Despite the standing order about practices upon reopening for Federal Plaza, an opening date has not been announced for NYC non-detained at this time.]
Wrong Link for Standing Order: The Federal Plaza Immigration Court’s website has the wrong link to a 5/1/2020 standing order. The correct link can be found on the general EOIR operational status page.
ERO Check-Ins: NYC check-ins are still telephonic and people have been getting details regarding how to contact the assigned duty officer by emailing nyceroattorneyinquiries@ice.dhs.gov. Don’t forget about ERO when doing telephonic hearings once the courts reopen.
WaPo: “However, averting this furlough comes at a severe operational cost that will increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs,” said Edlow, who runs USCIS on a day-to-day basis as President Trump has not appointed or nominated a director.
AILA: “The proposal gives the Director of the Executive Office for Immigration Review (EOIR) extraordinary adjudicatory power over appeals, authorizing him to reverse, singlehandedly, BIA decisions at the request of immigration judges.”
The City: Applicants say that state Department of Motor Vehicles appointments remain scarce, while IDNYC offices shuttered in March and have not yet reopened.
On 8/21/20, Senators Durbin (D-IL), Whitehouse (D-RI), and Hirono (D-HI) led all Senate Judiciary Committee Democrats in sending a request to the GAO to investigate the politicization of the immigration courts and EOIR’s mismanagement of the immigration courts during the COVID-19 pandemic. AILA Doc. No. 20082504
NBC: Earlier this month, ICE removed 30 Vietnamese Americans, including some refugees thought to be protected under a 2008 agreement between the U.S. and Vietnam.
WSJ: They found out only minutes before the ceremony that President Trump would attend, and they didn’t know it would be aired during the Republican convention that night.
LITIGATION/CASELAW/RULES/MEMOS
Immigration Review Podcast: This is a fantastic podcast that summarizes new precedential immigration case law.
USCIS: This travel does not satisfy the “inspected and admitted or paroled” eligibility requirement for obtaining adjustment of status to lawful permanent residence.
NLJ: “These procedures plainly violate Congress’s requirements,” U.S. Senior District Judge Richard Leon said of the training border patrol agents receive to conduct credible fear assessments for asylum-seekers.
The AILA New Jersey Chapter filed a complaint in district court seeking to enjoin the Newark Immigration Court from forcing immigration attorneys to appear for in-person proceedings during the COVID-19 pandemic. (AILA New Jersey Chapter v. EOIR, 7/31/20) AILA Doc. No. 20080301
Granting the petition for review, the court held that the BIA had failed to satisfactorily justify its conclusion that the losses suffered by the victims of the petitioner’s insurance fraud offense had exceeded $10,000. (Rampersaud v. Barr, 8/19/20) AILA Doc. No. 20082833
The court held that the petitioner’s convictions for felony possession of narcotics with intent to sell in violation of Connecticut General Statutes §21a-277(a)(1) qualified as crimes involving moral turpitude (CIMTs). (Mota v. Barr, 8/17/20) AILA Doc. No. 20082830
Reversing DOS’s revocation of the plaintiff’s passport, the court held that the plaintiff did not fraudulently obtain his passport where he used the name and birthdate listed on his certificate of naturalization in his passport application. (Alzokari v. Pompeo, 8/26/20) AILA Doc. No. 20082732
The court concluded that there was not a categorical match between the petitioner’s statute of conviction, involuntary deviate sexual intercourse in Pennsylvania, and the corresponding generic federal crime, sexual abuse of a minor under INA §101(a)(43)(A). (Cabeda v. Att’y Gen., 8/18/20) AILA Doc. No. 20082836
Public Citizen, on behalf of immigrant advocacy groups Ayuda, Northwest Immigrant Rights Project, and CASA de Maryland, filed a lawsuit in the U.S. District Court in D.C. alleging that USCIS’s new fee rule is unlawful. (Northwest Immigrant Rights Project, et al. v. USCIS, et al., 8/21/20) AILA Doc. No. 20082505
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
On 7/1/20, the Knight Institute filed a complaint on behalf of NAIJ challenging EOIR policies that impose a prior restraint on the speech of immigration judges. On 8/6/20, the court held that it lacked jurisdiction over NAIJ’s claims and accordingly denied the motion for a preliminary injunction. AILA Doc. No. 20070204
The district court vacated the Minimum Service Requirements in DOD’s N-426 policy, which required noncitizens in the military to meet certain durational and type of service requirements before obtaining a Form N-426, Certification of Honorable Service. (Samma, et al., v. DOD, et al., 8/25/20) AILA Doc. No. 20082733
USCIS provided guidance on how it will implement DHS Acting Secretary’s 7/28/20 DACA memo. Among other things, USCIS will reject all initial DACA requests from individuals who have never received DACA and will limit grants of deferred action and employment authorization to no more than one year. AILA Doc. No. 20082431
DOS announced that posts will resume K visa application processing as local conditions and resources allow. Consular officers may revalidate the I-129 petition in four-month increments. For most cases impacted by suspension of visa services, it will not be necessary to file a new I-129 petition. AILA Doc. No. 20083130
DOD OIG found that use of DOD title 10 personnel to support DHS’s southern border security operations was authorized by federal laws and consistent with DOD policies, and that DOD personnel supporting DHS and use of DOD funds for troop support complied with applicable federal laws and DOD policies. AILA Doc. No. 20082435
Elizabeth Gibson 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 some non-detained courts: Hearings in non-detained cases at courts without an announced date are postponed through, and including, September 11, 2020. [Note: Despite the standing order about practices upon reopening for Federal Plaza, an opening date has not been announced for NYC non-detained at this time.]
SD Trib: A San Diego Union-Tribune analysis of 10 years of court outcomes uncovered many symptoms of the system’s biases — shortcomings that date to the system’s creation.
DocumentedNY: The House on Saturday passed a bill to provide emergency funding to U.S. Citizenship and Immigration Services, which is set to furlough almost 70% of its staff on Aug. 31. The Senate won’t return until September to vote on the bill, though any senator can bring it up and ask for it to be passed through unanimous consent.
TRAC: Monthly case completions before the March shutdown were running over 40,000. During January 2020, for example, they were 42,045 and in February completions were 41,793. During the period from April to July they fell precipitously to around 6,000. In July 2020, only 5,960 cases were completed.
GAO denied DHS’s request to rescind decision on the legality of the service of Acting DHS Secretary and Senior Official Performing the Duties of DHS Deputy Secretary because DHS did not show GAO’s decision contained material errors of fact or law or provided information that warranted reversal. AILA Doc. No. 20082101
GAO examined what ICE does with oversight inspection data and information from detainee complaints and found that ICE doesn’t comprehensively analyze inspection or complaint information to identify trends in deficiencies, and that ICE doesn’t have reasonable assurance that complaints are addressed.
Law360: A nonprofit coalition is asking a Maryland federal court to sanction the Trump administration, saying the government is intentionally misleading the public and disobeying multiple court orders after the U.S. Supreme instructed it to reinstate the Delayed Action for Childhood Arrivals program.
NPR: Steve Bannon, President Trump’s former political adviser, has pleaded not guilty through his counsel to wire-fraud and money-laundering charges related to an online scheme that federal prosecutors said was responsible for defrauding hundreds of thousands of people.
NBC: In early May 2018, after weeks of phone calls and private meetings, 11 of the president’s most senior advisers were called to the White House Situation Room, where they were asked, by a show-of-hands vote, to decide the fate of thousands of migrant parents and their children, according to two officials who were there.
DocumentedNY: Some states have lifted immigration employment restrictions in certain industries, but New Jersey will be the first do so across the board.
USCIS announced that due to EAD production delays, employees may use Form I-797, Notice of Action, with a notice date on or after 12/1/19 through 8/20/20 informing approval of an Application for Employment Authorization (Form I-765) as a list C #7 document for Form I-9 compliance until 12/1/20. AILA Doc. No. 20081936
The District Court for the Western District of Washington has scheduled a hearing for 11/4/20 for consideration of a proposed settlement in Mendez Rojas v. Wolf, a suit involving individuals who have filed, or will be filing, an asylum application more than one year after arriving in the U.S. AILA Doc. No. 20082430
USCIS issued policy guidance in the USCIS Policy Manual to update and clarify the procedures USCIS officers follow when termination of asylum status is considered in relation to adjudicating an asylum-based adjustment of status application. The policy is effective 8/21/20; comments are due 9/22/20. AILA Doc. No. 20082132
Advance copy of EOIR notice of proposed rulemaking proposing multiple changes to the processing of immigration appeals, as well as amending the regulations regarding administrative closure. The proposed rule will be published in the Federal Register on 8/26/20 with a 30-day comment period. AILA Doc. No. 20082161
USCIS provided guidance on how it will implement DHS Acting Secretary’s 7/28/20 DACA memo. Among other things, USCIS will reject all initial DACA requests from individuals who have never received DACA and will limit grants of deferred action and employment authorization to no more than one year. AILA Doc. No. 20082431
The coalition will be seeking an emergency nationwide injunction of the rule to prevent it from going into effect on October 2, 2020. AILA Doc. No. 20082133
On August 14, 2020, DHS updated its fact sheet on measures to limit non-essential travel across the U.S.-Canada and U.S.-Mexico borders and to limit the spread of the coronavirus. The measures have been extended until September 21, 2020. AILA Doc. No. 20032336
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.
New 26 Federal Plaza Standing Order: All master calendar hearings for represented respondents will be conducted telephonically. The standing order also provides detailed information regarding requesting telephonic individuals or decisions on the papers, including requirements for consent forms waiving the right to appear in person.
Buzzfeed: If implemented, the rule would take effect for 90 days and block immigrants who’ve been in Mexico or Canada within the last two weeks from legal protections.
WaPo: Trump has repeatedly circumvented the Senate confirmation process by installing appointees to interim positions, and then has left them in those roles indefinitely without a formal nomination or the backing of Congress.
USA Today: U.S. Citizenship and Immigration Services notified about 13,400 of its 20,000 employees that they would be furloughed Aug. 30 because of budget shortfalls, which the agency hoped Congress would fill in its next relief package before negotiations stalled last week.
AP: U.S. District Judge Leonie Brinkema agreed to a request from lawyers of inmates who have filed a lawsuit over conditions to allow a medical expert to conduct an inspection at the private facility in Farmville.
NYT: Under emergency coronavirus orders, the Trump administration is using hotels across the country to hold migrant children and families before expelling them.
Buzzfeed: The continued sexual harassment and assaults the immigrants allegedly experienced at the hands of ICE officers were detailed in a complaint filed with the El Paso County District Attorney, the US Attorney’s Office for the Western District of Texas, and the Department of Homeland Security’s Office of Inspector General this week. The allegations inside the El Paso Processing Center (EPPC) were first reported by ProPublica.
AP: Contact tracers take pains to reassure patients that nothing will be passed along to immigration officials, that they don’t have to provide Social Security or insurance information, and that their contacts won’t know who shared their names and phone numbers.
Bloomberg: The group asked a court Monday to be allowed to add the industry’s voice to a lawsuit opposing the ban, saying it’s causing “irreparable harm on businesses and the nation’s economy.”
CSM: There’s a nagging myth that immigration and crime go hand in hand, despite data to the contrary. Our reporters look at why the misperception endures.
Nevada Ind: A letter dated June 2020 from the Office of the Inspector General addressed to the senator’s office explains an investigation had already been underway and determined that a postal office employee in Salt Lake City had intentionally discarded the missing federal immigration documents.
The court limited its injunction on DHS public charge rules to within the Second Circuit (Connecticut, New York, and Vermont). USCIS has not yet issued guidance on how it will implement these differing public charge standards. (Make the Road New York, et al. v. Cuccinelli, et al., 8/12/20) AILA Doc. No. 19101103
The government dismissed its appeal of a district court’s ruling that the Trump administration had illegally appointed Ken Cuccinelli to serve as the acting director of USCIS and that two immigration directives issued by him were “invalid.” (L.M.-M., et al., v. Cuccinelli, 8/13/20) AILA Doc. No. 20030335
Several immigration advocacy organizations filed a lawsuit in the U.S. District Court for the District of Maryland challenging two new DHS final rules pertaining to employment authorization documents (EADs) for asylum seekers. (Casa de Maryland, Inc., et al. v. Wolf, et al., 7/21/20) AILA Doc. No. 20081235
The plaintiff, a naturalized U.S. citizen who entered the U.S. Army through the Military Accessions Vital to National Interest (MAVNI) Program, filed a class action lawsuit challenging DoD’s allegedly discriminatory MAVNI-based security clearance policies. (Kaden v. Esper, et al., 8/13/20) AILA Doc. No. 20081730
Unpublished BIA decision holds that convictions vacated under Cal. Penal Code 1473.7 are no longer valid for immigration purposes because the statute requires a procedural or substantive defect in underlying criminal proceedings. Special thanks to IRAC. (Matter of C-H-C-, 3/30/20) AILA Doc. No. 20081303
Unpublished BIA decision holds that Colorado’s definition of marijuana is broader than the federal definition because it includes marijuana stalks. Special thanks to IRAC. (Matter of Arellano-Casas, 3/17/20) AILA Doc. No. 20081200
Unpublished BIA decision finds that respondent was not convicted of an aggravated felony under INA 101(a)(43)(U) where the IJ dismissed the corresponding charge under INA 101(a)(43)(M) because the loss to the victim was less than $10,000. Special thanks to IRAC. (Matter of Gray, 3/6/20) AILA Doc. No. 20081401
Unpublished BIA decision declines to consider interlocutory DHS appeal challenging administrative closure for respondent with approved Form I-360 to await a current priority date. Special thanks to IRAC. (Matter of D-J-B-F-, 3/20/20) AILA Doc. No. 20081201
Unpublished BIA decision rescinds in absentia order where the respondent’s attorney was not present when next hearing date was announced and the address listed on the hearing notice omitted the word “street.” Special thanks to IRAC. (Matter of Sayevych, 4/1/20) AILA Doc. No. 20081304
Unpublished BIA decision reopens proceedings sua sponte following vacatur of conviction underlying sole charge of removability and notwithstanding respondent’s physical removal from United States in 2014. Special thanks to IRAC. (Matter of Garcia-Navarro, 3/16/20) AILA Doc. No. 20081102
Unpublished BIA decision holds that involuntary manslaughter under Geo. Code Ann. 16-5-3(a) is not a CIMT because it requires only criminal negligence. Special thanks to IRAC. (Matter of Kolubah, 3/11/20) AILA Doc. No. 20081101
Unpublished BIA decision holds that exploitation of an elderly person under Fla. Stat. 825.103(1) is not an aggravated felony theft offense because it does not include lack of consent as an element. Special thanks to IRAC. (Matter of Joseph, 3/10/20) AILA Doc. No. 20081100
The court held that the BIA did not abuse its discretion in finding that the rescission of the petitioner’s removal order was incorrect, and that his 98-day absence from the United States barred him from Temporary Protected Status (TPS) relief. (Machado Sigaran v. Barr, 8/5/20) AILA Doc. No. 20081330
Granting the petition for review, the court held that the IJ abused his discretion by failing to reconsider pursuant to 8 CFR §1208.16(e) his discretionary denial of asylum to the Sri Lankan petitioner, who was subsequently granted withholding of removal. (Sathanthrasa v. Att’y Gen., 7/30/20) AILA Doc. No. 20081103
The court held that the petitioner’s conviction for sexual assault of a child under Texas Penal Code section 22.011(a)(2) was a categorical match to a “crime of child abuse” as defined by the BIA, rendering him removable under INA §237(a)(2)(E)(i). (Garcia v. Barr, 8/4/20) AILA Doc. No. 20081300
The court upheld the denial of asylum to the Albanian petitioner, who had been threatened and attacked by members of his country’s Socialist Party, finding no error in the BIA’s conclusion that the petitioner’s injuries did not amount to past persecution. (Gjetani v. Barr, 7/31/20) AILA Doc. No. 20081104
The court dismissed the petition for review for lack of jurisdiction, finding that the petitioner—who alleged that confusion about his hearing date constituted an exceptional situation—had failed to administratively exhaust the claims he raised in his petition. (Cuevas-Nuno v. Barr, 8/7/20) AILA Doc. No. 20081301
The court held that the BIA erred in denying the Iraqi petitioner’s motion to remand, finding that his new evidence, particularly two 2017 DOS reports on human rights and religious freedom in Iraq, could be significant to his Convention Against Torture (CAT) claim. (Marqus v. Barr, 7/30/20) AILA Doc. No. 20081131
Upholding the BIA’s denial of deferral of removal, the court found that the Iraqi petitioner’s argument that he would likely be tortured upon return to Iraq because of his criminal convictions was based on a chain of assumptions and speculation. (Alzawed v. Barr, 7/31/20) AILA Doc. No. 20081133
The court held that the BIA had correctly found that petitioner, who was a member of an ethnic minority, must show more than a pattern of general ethnic violence in South Sudan to meet the likelihood of torture requirement under the Convention Against Torture (CAT). (Lasu v. Barr, 7/31/20) AILA Doc. No. 20081132
The court held that the BIA did not err in denying the petitioner’s motion to reopen his removal proceedings based on changed conditions in Somalia, finding that al-Shabaab’s activities between 2008 and 2018 did not represent a material increase in violence. (Shire v. Barr, 7/23/20) AILA Doc. No. 20081034
The court held that the BIA had misapplied Matter of A-B-, as well as past precedent, in concluding that the petitioner’s proposed social group comprised of “indigenous women in Guatemala who are unable to leave their relationship” was not cognizable. (Diaz-Reynoso v. Barr, 8/7/20) AILA Doc. No. 20081430
In an action alleging that an undocumented immigrant’s Fourth Amendment rights were violated when he was arrested in a Montana courthouse, the court affirmed the denial of qualified immunity to the defendants, a local judge and sheriff’s deputy. (Reynaga Hernandez v. Skinner, et al., 8/10/20) AILA Doc. No. 20081233
Granting the petition for review, the court held that substantial evidence did not support the BIA’s conclusion that petitioner had failed to establish the Nicaraguan government was unable or unwilling to protect her from persecution by her domestic partner. (Davila v. Barr, 8/7/20) AILA Doc. No. 20081431
Granting the petition for review, the court held that INA §101(a)(43)(S), which describes an aggravated felony offense relating to obstruction of justice, unambiguously requires a nexus to an ongoing or pending proceeding or investigation. (Valenzuela Gallardo v. Barr, 8/6/20) AILA Doc. No. 20081302
Denying the petition for review, the court held that the BIA did not err in concluding that the petitioner’s conviction under California Penal Code §646.9(a) for criminal stalking was categorically a crime involving moral turpitude (CIMT). (Orellana v. Barr, 7/28/20) AILA Doc. No. 20081037
The court held that Oregon Revised Statute §475.992(1)(a), which criminalizes the manufacture or delivery of a controlled substance, is divisible as between its “manufacture” and “delivery” terms, and that a conviction under that statute is an aggravated felony. (Dominguez v. Barr, 7/21/20) AILA Doc. No. 20081036
The court held that the Colorado statute under which the petitioner was convicted for possessing hydrocodone was broader than its federal counterpart, the Controlled Substances Act (CSA), and that no categorical match existed between the state statute and the CSA. (Johnson v. Barr, 7/31/20) AILA Doc. No. 20081134
The court held that, under INA §242(a)(2)(B), it lacked jurisdiction over the petitioner’s claim that the BIA had misapplied its precedent in weighing the level of hardship that the petitioner’s U.S. citizen spouse would face upon his removal. (Galeano-Romero v. Barr, 8/4/20) AILA Doc. No. 20081432
USCIS released a memo in response to a FOIA request outlining the settlement process for Historical Fingerprint Enrollment cases as cases are prepared for denaturalization. Special thanks to Matthew Hoppock. AILA Doc. No. 20081433
ICE updated its guidance on its response to the COVID-19 pandemic, providing information on how it screens new detainees. ICE notes that it tests all new detainees at ICE-owned facilities for COVID-19, houses all new detainees separately for 14 days after arrival, and monitors their symptoms. AILA Doc. No. 20031658
I think it’s interesting that, as Elizabeth reports, respondents still properly win at least some “unpublished” appeals to the BIA. (Practice hint, the amazing Ben Winograd, Esquire, keeps track ofall the BIA’s unpublished cases.As pointed out by “The Asylumist” Jason Dzubow recently, that’s over 99% of the BIA’s total work product.) Yet, “winners” for respondents among published BIA precedents have come virtually extinct.
I can’t remember offhand the last time I saw a precedent decision where the respondent clearly prevailed that wasn’t then “certified” to the AG for reversal. Heck, the Trump AGs even have “certified” cases that DHS won, just to eradicate some non-dispositive finding that might have been helpful to future respondents.
What if we got rid of political interference in the “quasi-judicial” process by biased AGs? What if we had an expert BIA, well-versed in asylum, human rights, immigration, and constitutional law, that consistently treated respondents fairly on appeal and published the results to promote the granting of deserved relief before Immigration Judges and to instruct attorneys on how to prepare well-documented cases?
Due Process Forever! And, as always, many thanks to Elizabeth!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.
Vox: The United States Postal Service is dealing with crippling backlogs of letters and packages. A postmaster in upstate New York recently told their union that the regular mail was two days behind and, for the first time in their career, Express Priority Mail was not going out on time. Despite a surge in package delivery during the pandemic, postal workers are no longer able to work overtime, and fewer mail trucks are on the road. If your own mail seems delayed or unpredictable, it’s not a one-off problem.
WaPo: A recent surge in arrests along the Mexico border has been partly driven by soaring numbers of migrants trying to enter the United States again and again, as emergency pandemic measures that rapidly “expel” most detainees have had the unintended consequence of allowing them to try repeat illegal crossings, according to two Department of Homeland Security officials with knowledge of the unpublished statistics.
WaPo: In late June, new fine print appeared on USCIS’s website. It said the no-blanks policy would extend to at least one document that must be filled out by law enforcement officials — someone over whom immigrants and their lawyers had no control. These officials must complete and sign a form certifying that immigrants applying for the crime-victim (U) visa are assisting with an investigation or prosecution.
NPR: By Rand’s analysis, there are more than 300,000 people who in years past would be naturalized in time to vote but will almost certainly miss out this year.
AVClub: The six-part docuseries was filmed over three years and made with the full cooperation of ICE, at least initially: According to the New York Times, the administration tried to delay the Netflix series’ release until after the presidential election once ICE officials got a look at the filmmakers’ drafts.
DocumentedNY: A coalition of 78 organizations expressed “grave concern” about payment freezes and underscored the urgency of maintaining funding for the New York Immigration Family Unity Project and the Liberty Defense Project, as well as its $10 million allocation to the budget for the 2021 fiscal year.
The Hill: Recent research from Stanford University’s Immigration Policy Lab suggests that just making the form low-income immigrants use to apply for a fee waiver more complex would reduce annual naturalization applications by as much as 10 percent.
WaPo: The past few years of executive orders, regulations and proclamations have made it virtually impossible for refugee and asylum officers to do our jobs and offer protection to those who need it.
NBC: A 72-year-old Canadian man who had tested positive for the coronavirus died in ICE custody on Wednesday night at a Virginia hospital, the agency said Friday in a statement.
HuffPo: Arpaio, the infamous anti-immigrant former sheriff who received a Trump pardon after being criminally convicted, won’t be getting his old job back.
Upworthy: Bush is celebrating American immigrants with a new book of paintings “Out Of Many, One: Portraits of America’s Immigrants” which will be published on March 2. It includes 43 portraits by the 43rd president. Many of the subjects are people he knows personally. It’s hard not to notice the political statement the book makes coming out at time when the current Republican president, and party at-large have, made anti-immigrant sentiment a big part of their collective identity.
On 8/6/20, the U.S. District Court for the Southern District of Ohio (Eastern Division) extended the TRO until 8/24/20 to permit counsel for the Plaintiff and USCIS to negotiate the terms of a consent decree. (Subramanya, et al., v. USCIS, et al., 8/6/20) AILA Doc. No. 20080438
BIA ruled that reopening of proceedings to rescind removal based on improper notice is not warranted for an individual who was personally served with an NTA advising of requirement to notify the court of correct address and failed to do so. Matter of Nivelo Cardenas, 28 I&N Dec. 68 (BIA 2020) AILA Doc. No. 20080532
The court held that, based on the administrative record, the Venezuelan petitioner, who had been convicted of heroin trafficking and found removable under INA §101(a)(43)(B), was ineligible for deferral of removal under the Convention Against Torture. (Sanabria Morales v. Barr, 7/24/20) AILA Doc. No. 20080631
The court upheld a preliminary injunction of the DHS public charge final rule but limited the scope to the states of New York, Connecticut, and Vermont. Note: this decision does not impact the July 29, 2020, nationwide injunction. (Make the Road New York, et al. v. Cuccinelli, 8/4/20) AILA Doc. No. 20080437
The court upheld the BIA’s asylum denial, finding that petitioner, who feared religious persecution in China, had failed to sufficiently explain inconsistencies in his testimony, and that the IJ’s adverse credibility determination was supported by substantial evidence. (Gao v. Barr, 7/28/20) AILA Doc. No. 20080633
Upholding the BIA’s denial of the petitioner’s motion to reopen, the court held that it was bound by its precedent in Pierre v. Holder to reject the petitioner’s argument that former INA §321(a)(3) unconstitutionally discriminates on the basis of sex. (Dale v. Barr, 7/23/20) AILA Doc. No. 20080632
The court held that the BIA and IJ had misstated the court’s precedent in three ways in determining that the harm the Honduran petitioner had suffered did not rise to the level of past persecution, including by requiring him to show severe physical harm. (Blanco v. Att’y Gen., 7/24/20) AILA Doc. No. 20080732
The court overturned a district court injunction and held that the DHS Public Charge Rule is a permissible interpretation of the INA’s public charge provision. Note: this decision does not impact the July 2020, nationwide injunction. (Casa de Maryland, Inc., et al. v. Trump, et al., 8/5/20) AILA Doc. No. 20080636
The court held that the petitioner, who claimed that violence against his Dalit caste in India had worsened since his removal order was issued, had failed to establish the materially changed country conditions necessary to succeed on a successive motion to reopen. (Deep v. Barr, 7/27/20) AILA Doc. No. 2008073
The court upheld the BIA’s finding that the IJ’s adverse credibility determination was not clearly erroneous under the totality of the circumstances, and found that the Salvadoran petitioner could not prevail on his due process claim. (Santos-Alvarado v. Barr, 7/21/20) AILA Doc. No. 20080733
USCIS stated that due to the July 2020, district court injunction of its public charge final rule, it will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether Part 6, or Part 5, respectively, has been completed or left blank. AILA Doc. No. 20073140
EOIR announced the appointment of Michael P. Baird, Sunita B. Mahtabfar, and Sirce E. Owen as appellate immigration judges in EOIR’s Board of Immigration Appeals. Notice includes the judges’ biographical information. AILA Doc. No. 20081030
Executive order on federal contracting and hiring practices, directing federal agencies to review federal contracts; assess any negative impact of contractors’ use of temporary foreign labor or offshoring of work on U.S. workers; and to take corrective action, if necessary. (85 FR 47879, 8/6/20) AILA Doc. No. 20080309
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
THE GIBSON REPORT 08-03-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
COVID-19
Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.
USCIS Visitor Policy (If requesting telephonic appearance of counsel at an interview, don’t forget to send the client to the interview with a signed G-28 that contains the number where USCIS should call you.)
Buzzfeed: The US now joins the ranks of Iran, Fiji, and Australia in charging a fee. In the US, there will be a $50 charge on asylum applications starting in October…The asylum fee is just one of many changes included in the rule issued by USCIS, which is primarily funded by immigrants’ applications, such as filing for a green card or work permit. The agency is required to review its fee structure every two years. The final rule will make it so immigrants seeking to naturalize and applying to become US citizens will have to pay upwards of $1,170, a jump from $640. See also Changes to USCIS Fee Schedule; USCIS Pleads for Money to Avoid Furloughs, Democrats Float Making the Funds Contingent on Policy Changes.
AP: The Trump administration said Tuesday that it will reject new applications and shorten renewal periods for an Obama-era program that shields young people from deportation, taking a defiant stance after the U.S. Supreme Court refused to let it be scrapped completely.
Reuters: A Federal Labor Relations Authority (FLRA) official on Friday rejected the Trump administration’s bid to dissolve a union that represents U.S. immigration judges, saying the judges are not “management officials” who are barred from joining unions.
WaPo: Federal law allows CBP and other agencies to take cash from travelers as a way to combat drug trafficking and other criminal enterprises, but the new report by the Institute for Justice found nearly 70 percent of such cases are like Nwaorie’s — no arrest accompanies a seizure.
Politico: White House officials had accused Albence of favoring humanitarian concerns about the treatment of immigrants over the chance to take more aggressive action.
Intercept: For the second time in two years, Border Patrol launched a raid against No More Deaths within days of the group releasing embarrassing information about the agency.
Gothamist: In an extraordinary move six months ago, Governor Andrew Cuomo pardoned the 26-year-old Gambian immigrant from the Bronx for the one adult criminal conviction on his record — for robbing two gold chains from a female neighbor’s neck, which he said he didn’t do. His attorneys and the legion of activists who are supporting him thought that would pave the way for authorities to release him. That hasn’t happened.
Law 360: President Donald Trump will sign an executive order Monday that will require federal agencies to prioritize U.S. citizens and nationals for contractor roles, expanding on previous orders limiting immigration from June and April.
A district judge issued a nationwide injunction on both the DOS and DHS public charge rules due to COVID-19. (Make the Road New York, et al., v. DHS, 7/29/20) AILA Doc. No. 20072935
Ruling on the application of the categorical approach to determining aggravated felonies and that respondent’s conviction for grand larceny in the second degree in NY was an aggravated felony, the AG vacated BIA’s decision in Matter of Reyes. Matter of Reyes, 28 I&N Dec. 52 (A.G. 2020) AILA Doc. No. 20073131
The Newark Asylum Office is adding a Manhattan branch which will open for interviews on Aug. 17, 2020…The Manhattan branch will be located in the federal building at 201 Varick Street in lower Manhattan. The main asylum office, currently located in Lyndhurst, N.J., has been closed to the public due to recent, ongoing facility issues.
Courthouse News: A California federal judge denied a motion from nonprofit legal service providers to intervene in a decades-old case that determines the treatment and release of immigration children held by the United States.
The AILA New Jersey Chapter filed a complaint in district court seeking to enjoin the Newark Immigration Court from forcing immigration attorneys to appear for in-person proceedings during the COVID-19 pandemic. (AILA New Jersey Chapter v. EOIR, 7/31/20) AILA Doc. No. 20080301
ImmProf: A federal judge for the U.S. District Court of Massachusetts issued a preliminary injunction Friday ordering that the Department of Education could not deny funding authorized by the Coronavirus Aid, Relief, and Economic Security (CARES) Act to a Bunker Hill Community College student based on her immigration status.
USCIS and EOIR proposed rule allowing DHS and DOJ to consider “emergency public health concerns based on communicable disease due to potential international threats from the spread of pandemics” when determining whether an individual is ineligible for asylum or withholding of removal on security grounds. AILA Doc. No. 20070831
USCIS provided information on how it plans to adjudicate applications or petitions in light of the July 29, 2020, injunction from the U.S. District Court for the Southern District of New York which enjoins the government from enforcing USCIS’s Inadmissibility on Public Charge Grounds Final Rule. AILA Doc. No. 20073140
DHS updated a previously issued PIA to provide notice to the public of biometric DNA collection from individuals detained by ICE and CBP and the associated privacy risks. DHS reissued the PIA to note that CBP Office of Field Operations is expanding the minimum age for DNA collection from 18 to 14. AILA Doc. No. 20072701
ICE final rule which requires surety companies seeking to overcome a bond breach determination to exhaust administrative remedies, and which sets forth “for cause” standards so that ICE may decline bonds from companies that do not cure their deficient performance. (85 FR 45968, 7/31/20) AILA Doc. No. 20073134
USCIS announced that it has added special instructions regarding eligibility requirements, filing, and adjudication of adjustment of status applications based on the Liberian Refugee Immigration Fairness provision in the NDAA. Individuals should read these special instructions before applying. AILA Doc. No. 20042034
El Salvador: Treatment of witnesses by criminal gangs (GLO2020-14) – ENG
El Salvador: Treatment on the basis of political party affiliation (GLO2020-17) – ENG
Colombia: Scope of action of dissident ex-FARC members regarding the law enforcement, informants and family members of their enemies after the signature of the peace accords (AME2020-01) -ENG
Honduras: Threats Toward Witnesses by Barrio 18 Family Members (AME2020-02) – ENG
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.
On 7/22/20, the Office of Information and Regulatory Affairs (OIRA) completed review of a final rule increasing many of USCIS’s filing fees. AILA anticipates that the Federal Register will post a copy of the rule for public inspection in the coming days, before publishing it officially. AILA Doc. No. 20072402
CNN: Earlier this week, two Democratic senators are called on the agency to postpone its planned furloughs. The request came after revised estimates showed the agency will end the fiscal year with a surplus, not the originally projected deficit, according to the lawmakers.
Reuters: A Canadian court on Wednesday ruled invalid a bilateral pact that compels asylum seekers trying to enter Canada via the American border to first seek sanctuary in the United States, saying U.S. immigration detention violates their human rights.
NPR: Trump now faces a total of three new federal lawsuits that are joining ongoing legal challenges surrounding the 2020 census. A fourth lawsuit may be coming from California State Attorney General Xavier Becerra’s office, which is planning to file a complaint against the Trump administration, Sarah Lovenheim, an adviser to Becerra, tells NPR.
NYT: The surprise admission came as the Trump administration unexpectedly reversed its decision to bar New Yorkers from programs that allow travelers to speed through airports.
AILA: For the first time in our nearly 75 year history, AILA has decided to take action and urge our members to oppose the re-election of the President.
WBUR: WBUR heard from more than a dozen immigration attorneys in New England who say they’ve had hearings advanced or postponed with no written notice from the federal government. In many cases, the attorneys only discovered the rescheduling by checking an online portal or repeatedly calling the court.
Law360: The Trump administration’s failure to fully restart the Deferred Action for Childhood Arrivals program, despite court orders telling it to do so, leaves the government on shaky legal ground and may put immigration officials at risk of court penalties.
Trump Cuts Legal Immigrants By Half And He’s Not Done Yet
Forbes: By next year, Donald Trump will have reduced legal immigration by 49% since becoming president. That will have significant repercussions for the nation’s economic growth, according to a new analysis. The cuts to legal immigration have come in several categories, and it appears the Trump administration is not finished restricting immigration.
NYT: A new documentary peers inside the secretive world of immigration enforcement. The filmmakers faced demands to delete scenes and delay broadcast until after the election.
Gothamist: About a dozen refugees, mostly from Afghanistan, are working from their new residences in New Jersey sewing masks to help protect against COVID-19. Shut out of the regular workforce because of the pandemic, they have produced more than 2,000 $10 organic fabric masks in a variety of styles. The masks are sold online through their resettlement agency’s Global Grace Marketplace, and at local farmers’ markets and fair trade stores across the country.
The court affirmed in part the district court’s injunction against enforcement of the government’s new credible fear policies, finding that the “condoned-or-completely-helpless” standard and USCIS’s choice-of-law policy were arbitrary and capricious. (Grace, et al. v. Barr, et al., 7/17/20) AILA Doc. No. 20072134
CentroLegal: Today the USF Immigration & Deportation Defense Clinic and Migration Studies program in conjunction with 40 organizations who do work in Honduras, Mexico, Guatemala, El Salvador, and the United States filed a request for a thematic hearing before the Inter-American Commission on Human Rights.
The BIA issued a decision stating that §13-3407 of the Arizona Revised Statues, which criminalizes possession of a dangerous drug, is divisible with regard to the specific “dangerous drug” involved in a violation of that statute. Matter of P-B-B-, 28 I&N Dec. 43 (BIA 2020) AILA Doc. No. 20072336
Justia: The court held that the government is equitably estopped from initiating rescission proceedings to reopen plaintiff’s adjustment of status application or placing her in removal proceedings. In this case, the undisputed facts show that USCIS failed to issue a rejection notice, despite controlling regulation and, consequently, plaintiff was not advised of any defect in her application, depriving her of the opportunity to correct the issue.
Applying the categorical approach, the court held that the BIA erred in finding the petitioners removable for having been convicted of a firearms offense under the INA, because their New York convictions criminalized conduct that the INA does not. (Jack v. Barr, 7/16/20) AILA Doc. No. 20072135
The court held that the petitioner’s convictions for leaving an accident in violation of Va. Code Ann. §46.2–894 and for using false identification in violation of Va. Code Ann. §18.2–186.3(B1) were not categorically crimes involving moral turpitude (CIMTs). (Nunez-Vasquez v. Barr, 7/13/20) AILA Doc. No. 20072033
The court found that the petitioner’s contention that the BIA should have weighed the equities more in his favor failed to establish that the agency had acted ultra vires by applying a heightened standard to his waiver of inadmissibility application. (Nastase v. Barr, 7/1/20) AILA Doc. No. 20072034
The court upheld the BIA’s denial of deferral of removal, finding that nothing in the record proved that any mistreatment the petitioner might face in Bosnia due to her family ties and criminal past was more likely than not to rise to the extreme level of torture. (Kilic v. Barr, 7/10/20) AILA Doc. No. 20072131
Granting the petition for review, the court held that the BIA erred in disregarding evidence that the petitioner, who had engaged in anticorruption whistleblowing activities, would be criminally prosecuted for his political opinion if he was returned to Russia. (Skripkov v. Barr, 7/20/20) AILA Doc. No. 20072192
The court upheld the BIA’s denial of asylum to the Mexican petitioner, who sought relief based on threats of physical violence she had received because of her gay sexual orientation, concluding that substantial evidence supported the agency’s decision. (Escobedo Marquez v. Barr, 7/13/20) AILA Doc. No. 20072132
The court held that it lacked jurisdiction to review the vast majority of the petitioner’s arguments concerning his motion to reopen his asylum and withholding of removal claims based on changed country conditions in Somalia. (Sharif v. Barr, 7/7/20) AILA Doc. No. 20072233
The court affirmed the district court’s permanent injunction barring DOJ from withholding or denying Edward Byrne Memorial Justice Assistance Grants to plaintiffs, but limited the geographical reach of the injunction to California. (City and County of San Francisco v. Barr, et al., 7/13/20) AILA Doc. No. 20072235
The court held that petitioner’s conviction for petty theft in California was a CIMT, and that the BIA did not abuse its discretion in denying his motion to reopen to seek asylum based on changed country conditions in the Philippines. (Silva v. Barr, 7/10/20) AILA Doc. No. 20072234
The court held that the denial of the plaintiffs’ Form I-129 was final agency action under the Administrative Procedure Act (APA), and that INA §242(b)(9) and (g) did not bar the plaintiffs’ challenge to the visa petition denial. (Canal A Media Holding, LLC, et al. v. USCIS, et al., 7/8/20) AILA Doc. No. 20072200
The court held that the BIA erred in retroactively applying the stop-time rule to the petitioner’s pre-Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) conviction, and thus that he was eligible for cancellation of removal. (Rendon v. Att’y Gen., 7/14/20) AILA Doc. No. 20072103
President Trump issued a memo on 7/21/20 noting that for the purpose of the reapportionment of representatives following the 2020 census, any immigrants who are not in a lawful immigration status under the INA will be excluded from the apportionment base. (85 FR 44679, 7/23/20) AILA Doc. No. 20072100
ICE SEVP issued follow-up guidance stating that active F and M students, as well as schools, should abide by SEVP guidance originally issued in March 2020, which enables schools and students to engage in distance learning in excess of regulatory limits due to COVID-19. AILA Doc. No. 20072492
The CIS Ombudsman’s Office provided an update regarding card production delays at USCIS, which are expected to continue for the foreseeable future. The Ombudsman’s Office is assisting individuals by sending weekly spreadsheets to USCIS to verify card requests are in line to be processed. AILA Doc. No. 20072232
USCIS launched updated versions of all USCIS websites, including uscis.gov, myUSCIS, and Case Status Online. The updates include a new look to all USCIS websites, an “Explore My Options” feature to the forms section, enhanced on-page search and filter-by features, and more. AILA Doc. No. 20072133
Item #3 under “Top News” on how a Canadian court has held that the U.S. is no longer a “safe” country for refugees is not surprising, but serves as a confirmation of how far America has fallen under Trump’s White Nationalist kakistocracy.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.
NYC Certificate of Conduct and Non-Criminal Fingerprint Section: Due to the COVID-19 pandemic and the need to limit the number of people gathered in one place, ALL fingerprinting services will now require an appointment. Walk-ins WILL NOT be accepted. Applicants will be fingerprinted and/or photographed. Please call 646-610-5541 to schedule an appointment.
TRAC: The latest judge-by-judge data from the Immigration Courts indicate that more judges are resigning and retiring. Turnover is the highest since records began in FY 1997 over two decades ago.
Reuters: President Donald Trump is expected to soon issue an executive order that would ban undocumented immigrants from being included in the 2020 census count of every person living in the United States, a source familiar with the matter said on Friday.
NYT: The presidential order under consideration would be based on the same statute in the Immigration and Nationality Act used in a 2017 travel ban on several predominantly Muslim countries.
Inside Higher Ed: The Trump administration is refusing to process new applications for the Deferred Action for Childhood Arrivals program despite a Supreme Court ruling that required reinstatement of the program, the Los Angeles Times reported Thursday.
Business Insider: President Donald Trump is interested in a new National Review article arguing that a recent Supreme Court decision enables him to bypass Congress to impose policies, Axios reported.
The Nation: For days, federal agents in unmarked cars have reportedly been snatching Portland protesters off the streets…. A memo consisting of internal talking points for the federal agency responsible for the arrest, Customs and Border Protection (CBP), and obtained exclusively by The Nation provides some answers—and raises even more questions.
NPR: To help figure out the U.S. citizenship status of every adult living in the country, the Trump administration has made agreements to accumulate driver’s license and state identification card information from states including Iowa, Nebraska, South Carolina and South Dakota, NPR has learned.
LA Times: More than a year after launching an internal investigation into 138 employees for “inappropriate social media activity,” Customs and Border Protection — the parent agency of the Border Patrol — has removed four employees, suspended 38 without pay and disciplined an additional 27 “with reprimands or counseling,” according to data provided to The Times by the agency.
InsiderNJ: After months of action by immigrant rights organizers, the Elberon Development Group has decided to cut ties with their tenant, CoreCivic and their property, the Elizabeth Detention Center (EDC), a private immigration detention center that has a long history of inhumane conditions.
USCIS is consolidating existing policy guidance in its Policy Manual regarding officers’ application of discretion in adjudications. The new guidance, among other things, provides an overview of the discretionary analysis and provides lists of discretionary factors that officers should consider. AILA Doc. No. 20071531
ACLU: The American Civil Liberties Union and Center for Gender & Refugee Studies challenged the policies that sought to speedily send women and children and other asylum seekers back to countries where they faced brutal violence and death. The U.S. Court of Appeals in Washington, D.C., today upheld key aspects of a lower court ruling against the administration. The case is Grace v. Barr.
Plaintiffs filed a class action lawsuit in federal district court on behalf of certain individuals in Minnesota who are ineligible to apply for a provisional unlawful presence waiver because their removal proceedings are not administratively closed. (Lopez, et al. v. Barr, et al., 7/13/20) AILA Doc. No. 20071790
AILA, Justice Action Center, and Innovation Law Lab, with pro bono support from Mayer Brown LLP, sued the Trump Administration on behalf of 23 individual and organizational plaintiffs to prevent the devastating effects of President’s Trump’s unlawful and unconstitutional immigration ban. AILA Doc. No. 20071701
Judge Paul W. Grimm in the Maryland District Court vacated DACA’s rescission and enjoined DHS from implementing or enforcing the rescission and from taking any other action to rescind DACA that is not in compliance with applicable law. (Casa de Maryland, et al., v. DHS, et.al., 7/17/20) AILA Doc. No. 20071741
Clarifying the proper approach for determining “official capacity” for the purpose of deciding CAT protection, the AG vacated the BIA’s decision in Matter of O-F-A-S-, 27 I&N Dec. 709 (BIA 2019), and remanded the case for review. Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020) AILA Doc. No. 20071433
BIA ruled that under INA §235(b)2(c), an individual who is arriving on land from a contiguous foreign territory may be returned by DHS to that country pursuant to MPP, regardless of whether the individual arrives at or between a designated POE. Matter of M-D-C-V-, 28 I&N Dec. 18 (BIA 2020) AILA Doc. No. 20071400
Applying the standard set in Cotzojay v. Holder to petitioner’s motion to suppress evidence, the court concluded that the petitioner had submitted sufficient evidence of an egregious Fourth Amendment violation to warrant an evidentiary hearing. (Millan-Hernandez v. Barr, 7/13/20) AILA Doc. No. 20071738
Granting the petition for review, the court held that pursuant to INA §208(a)(2)(D), changed circumstances presenting an exception to the one-year deadline for filing an asylum application need not arise prior to the filing of the application. (Ordonez Azmen v. Barr, 7/13/20) AILA Doc. No. 20071732
The court found that “intervening” decisions in Obeya v. Sessions and Mellouli v. Lynch did not compel the conclusion that criminal possession of stolen property was not a crime involving moral turpitude at the time of the petitioner’s conviction. (Ottey v. Barr, 7/7/20) AILA Doc. No. 20071731
DHS and DOJ provide the criteria they will use to determine when they will resume MPP hearings. Once the criteria is met, they will provide public notification at least 15 calendar days prior to resumption of hearings with location-specific details AILA Doc. No. 20072000
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.
New
Opening dates for some non-detained courts: Hearings in non-detained cases at courts without an announced date, including the New York City non-detained courts, are postponed through, and including, July 24, 2020. Check EOIR site for which courts have announced reopening dates.
Requesting NYS Court Records: Records can be obtained in person or via mail/fax. Visitors have to self-check for symptoms (Instructions in English and Spanish). Security guards will be using infra-red temperature scanners to check visitors before entering. Everyone must wear a mask inside the court house.
BuzzFeed: The Trump administration selected Tracy Short, previously the lead ICE prosecutor, for the chief immigration judge role. ICE prosecutors often take up roles as immigration judges, but the selection of Short, formerly ICE’s principal legal adviser, left some claiming the move would undercut the appearance of neutrality at the court. Christopher Santoro, the acting chief immigration judge, appeared to signal that in his message to court employees announcing his resignation.
WaPo: The Trump administration is preparing broad new immigration restrictions that would deny humanitarian refuge to anyone from a country with a disease outbreak, deeming those asylum seekers to be a danger to public safety.
DocumentedNY: Despite making up only 7.2 percent of the noncitizen population in the US, more than 20 percent of people facing deportation on criminal grounds are Black.
BuzzFeed: If Congress does not provide US Citizenship and Immigration Services with emergency funding before Aug. 3, the employees, who make up more than 60% of all staffers, will be furloughed for up to three months due to the budget crisis…While the reasons for the funding shortage are debated — agency officials cite a massive decline in immigration applications due to the pandemic, while immigrant advocates and experts argue that the Trump administration’s policies have played a part in the budget issues — the impact to the immigration system is not.
The Nation: The Board of Immigration Appeals, once an impartial appellate court, has become a new front in the Trump administration’s war against migrants.
CLINIC: The report concludes that in light of the large number of potential applicants, USCIS’ failure to successfully adjudicate and approve a single application four months into the program, and the ongoing COVID-19 pandemic, Congress should extend the December 20, 2020, deadline for at least an additional year to ensure that all eligible Liberians are able to apply for relief.
AIC: While the report critiques the agency for not meeting its own standards, it also allows CBP to avoid meaningful accountability for numerous failures in meeting the health needs of those detained.
NIJC: A federal court has ruled that the failure of U.S. Immigration and Customs Enforcement (ICE) officers to consider less restrictive settings before transferring unaccompanied immigrant youth to ICE detention on their 18th birthdays violates U.S. immigration laws.
A federal judge found the government unlawfully promulgated the 2019 interim final rule that categorically disqualified individuals from receiving asylum unless they sought protection in another country before entering the southern border. (CAIR Coalition et al., v. Trump et al., 6/30/20) AILA Doc. No. 20070104
The Hill: The Knight First Amendment Institute, a legal group at Columbia University, filed a lawsuit on Wednesday in federal court on behalf of the National Association of Immigration Judges (NAIJ). The suit alleges that the speech restrictions against immigration judges amount to violations of the First and Fifth Amendments and asks the court to impose a preliminary injunction blocking the policy.
The EOIR Director ruled that an amicus curiae is not a party in recognition and accreditation proceedings and has no authority to seek further action following the conclusion of an administrative review. Matter of Bay Area Legal Services, Inc., Applicant, 28 I&N Dec. 16 (DIR 2020) AILA Doc. No. 20070208
The court held that substantial evidence supported the BIA’s conclusion that the attackers who threatened the petitioner were motivated by a desire to prevent him from reporting his brother’s murder to the police, and not by the petitioner’s family ties. (Cedillos-Cedillos v. Barr, 6/26/20) AILA Doc. No. 20070205
Where the evidence was conflicting, the court held that a reasonable adjudicator could conclude that the petitioner had failed to overcome the presumption that he had received notices of his hearing that were mailed to his aunt and uncle’s address. (Valadez-Lara v. Barr, 6/26/20) AILA Doc. No. 20070691
Granting petition for review, the court rejected Matter of Castro-Tum’s conclusion that administrative closure is not within an IJ’s authority to take “any action” appropriate and necessary for the disposition of cases pursuant to 8 CFR §1003.10(b). (Meza Morales v. Barr, 6/26/20) AILA Doc. No. 20070207
The court upheld the BIA’s denial of petitioner’s application for deferral of removal under the Convention Against Torture (CAT), finding that the IJ had clearly erred in forecasting that petitioner would more likely than not be tortured if returned to Somalia. (Abdi Omar v. Barr, 6/26/20) AILA Doc. No. 20070692
The court upheld a lower court’s injunction preventing the implementation of DHS/DOJ joint interim final rule that categorically denies asylum to individuals arriving at the U.S./Mexico border. (East Bay Sanctuary Covenant, et al. v. Barr, et al., 7/6/20) AILA Doc. No. 20070636
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.
USCIS Signature Guidance: For forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency. This temporary change only applies to signatures.
AIC: The new rule, which goes into effect on August 25, 2020, would block work permits for almost all asylum applicants who arrive at the U.S.-Mexico border. It bans work permits for anyone who crosses the border between ports of entry to seek asylum.
WaPo: Three-fourths of the U.S. Citizenship and Immigration Services workforce — more than 13,000 employees — could be told as soon as Wednesday that they face extended furloughs starting Aug. 3 that would cut off their salaries and severely curtail the agency’s work, the union representing the employees has said.
Law360: The U.S. Department of Justice will soon hike fees on immigration court filings following opposition from advocacy organizations and attorneys who claimed the fee increases, which could surpass 700%, will undermine due process for low-income immigrants.
NYT: The move is fiercely opposed by business leaders, who say it will block their ability to recruit critically needed workers from countries overseas.
Law360: President Donald Trump’s 200th confirmation to the federal courts builds on a transformation of the judiciary that could rattle the U.S. immigration system for years to come, especially if Trump wins reelection.
AIC: According to a leaked internal government document, the Department of Homeland Security (DHS) deployed more than 700 personnel in the Washington, D.C. area alone.
Denverite: Some attorneys are working remotely to defend clients they’ve never met in person, others are delaying cases until they might feel comfortable returning to court in person.
Washington Examiner: The Trump campaign is highlighting the president’s immigration record under the banner of “Promises Made, Promises Kept,” citing an 84% reduction in apprehensions along the southern border.
Union-Trib: More than 150 people from 42 countries were naturalized in an unusual drive-thru ceremony Wednesday morning held by the U.S. Citizenship and Immigration Services agency.
Guardian: Residents repeatedly urged the authorities to do something, but they were told the group could not be brought to shore because to do so would risk spreading coronavirus. Worried that people’s lives were in immediate danger, they took matters into their own hands and sailed out with ropes to tether the boat to safety.
ImmProf: Immigration proved to comprise a significant part of the U.S. Supreme Court’s docket for the 2019 Term. Eight decisions directly or indirectly address immigration issues… At least for now, there do not appear to be any major cases on the Court’s docket for the 2020 Term.
SCOTUSblog: In a 7-2 decision, the Supreme Court in Department of Homeland Security v. Thuraissigiam upheld a scheme of limited and narrow judicial review over expedited removal, a bare-bones administrative process created under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.
RollCall: The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that the Department of Homeland Security did not have to go through federal rule-making procedures before making the change in July 2019.
CNN: A federal judge temporarily blocked the Trump administration from removing a 16-year-old Honduran boy from the United States who was at risk of being expelled as a result of new border restrictions relating to coronavirus.
A federal judge concluded that the petitioner established a preponderance of evidence that she had no meaningful association with the China Communist Party (CCP), and thus she was not ineligible for naturalization under INA §313. Courtesy of Baolin Chen. (Crosby v. Miller, et al., 2/3/20) AILA Doc. No. 20062905
The U.S. District Court for the District of Maryland held that DOS erred in concluding that a child born in Canada to same-sex, naturalized U.S. citizens via assisted reproductive technology and surrogacy was born out of wedlock under INA §309. (Kiviti, et al., v. Pompeo, et al., 6/17/20) AILA Doc. No. 20062233
The court held that the BIA’s denial of the petitioners’ motion to reopen failed to account for relevant evidence of changed country conditions for Christians in Indonesia, and that 8 CFR §1003.2(c)(1) did not require them to submit a new asylum application. (Tanusantoso v. Barr, 6/23/20) AILA Doc. No. 20062536
The court held that the record supported the BIA’s conclusion that petitioner had not presented a case warranting relief because of a credible fear of persecution or torture, and that the BIA had correctly determined that a waiver signed upon his entry was valid. (Ferreyra v. Barr, 6/16/20) AILA D
The court held that the BIA erred in finding that the petitioner’s conviction in Minnesota for obstruction of legal process was categorically a crime involving moral turpitude (CIMT), and thus granted the petition for review and vacated the BIA’s order of removal. (Ortiz v. Barr, 6/23/20) AILA Doc. No. 20062537
Denying the petition for review, the court held that the BIA had properly concluded that the petitioner’s proposed particular social group (PSG) of wealthy landowners in Colombia was not cognizable, because it lacked particularity and social distinction. (Cordoba v. Barr, 6/16/20) AILA Doc. No. 20062539
Unpublished BIA decision holds that simple battery family violence under Ga. Code Ann. 16-5-23(f) is not a CIMT. Special thanks to IRAC. (Matter of Cooke, 3/5/20) AILA Doc. No. 20062402
Unpublished BIA decision holds Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), which held that TPS holders are deemed admitted for adjustment purposes, as a fundamental change in law sufficient to warrant reopening sua sponte. Special thanks to IRAC. (Matter of Acevedo, 3/2/20) AILA Doc. No. 20062401
Unpublished BIA decision finds that respondent’s prior attorney provided ineffective assistance of counsel by failing to argue that indecent exposure under Iowa Code 709.9 was not a CIMT. Special thanks to IRAC. (Matter of Kahn, 2/28/20) AILA Doc. No. 20062303
Unpublished BIA decision holds that possession of a firearm under 18 Pa. Const. Stat. 6105(a)(1) is neither an aggravated felony nor firearms offense because the state definition encompasses some antique firearms. Special thanks to IRAC. (Matter of Engelund, 2/27/20) AILA Doc. No. 20062302
USCIS final rule making multiple changes to the regulations governing asylum applications and eligibility for employment authorization based on a pending asylum application. The rule is effective 8/25/20. (85 FR 38532, 6/26/20) AILA Doc. No. 20062236
On 6/22/20, President Trump issued a proclamation continuing Proclamation 10014 and suspending and limiting the entry, with exceptions, of individuals seeking entry on an H-1B, H-2B, J, or L visa, including individuals accompanying or following to join people on these visas. (85 FR 38263, 6/25/20) AILA Doc. No. 20062237
DOS final rule removing from the regulations a provision relating to a defunct immigrant visa classification for women who lost U.S. citizenship as a result of marrying a foreign national prior to September 22, 1922. The rule is effective 6/26/20. (85 FR 38321, 6/26/20) AILA Doc. No. 20062600
USCIS 60-day notice and request for comments on proposed revisions to Form I-485, Application to Register Permanent Residence or Adjust Status, and related forms. Comments are due 8/24/20. (85 FR 38151, 6/25/20) AILA Doc. No. 20062535
On June 23, USCIS announced that on June 26, 2020, the Texas Service Center (TSC) will move to a new address. Although the move is scheduled for June 26, USCIS cannot accept mail at the new address until Monday, June 29. AILA Doc. No. 20062330
Thanks, Elizabeth, for chronicling the cruelty, stupidity, illegality, immorality, and “malicious incompetence” of America’s White Nationalist regime. The real question: How have we as Americans and human beings allowed this outrage to happen on “our watch?”
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.
New
• Opening dates for some non-detained courts: The Honolulu Immigration Court resumed hearings in non-detained cases on Monday, June 15, 2020. The Boston, Buffalo, Dallas, Hartford, Las Vegas, Memphis, and New Orleans Immigration Courts will resume hearings in non-detained cases on Monday, June 29, 2020. Hearings in non-detained cases at all other immigration courts are postponed through, and including, Thursday, July 2, 2020. All immigration courts will be closed Friday, July 3, 2020, in observance of Independence Day. The Chicago, Cleveland, Philadelphia, Saipan, and San Diego Immigration Courts will resume hearings in non-detained cases on Monday, July 6, 2020.
• USCIS Reopening
o Newark Asylum Office Remains Closed due to unresolved facility issues unrelated to COVID-19
o New York City and Brooklyn field offices are listed as closed to public, emergency services only
Closures
• EOIR Operational Status & Standing Orders
• EOIR Case Status
• EOIR Updates via Twitter
• 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’s Signature Policy Update
• USCIS Announces Flexibility for Requests for Evidence, Notices of Intent to Deny
TOP NEWS
Trump suggests another attempt at rolling back DACA
Roll Call: The president in a series of tweets said the administration “will be submitting enhanced papers shortly in order to properly fulfil the Supreme Court’s ruling & request of yesterday.” See also DACA ‘unlawful’ despite Supreme Court ruling, acting Homeland Security chief says.
The Trump Administration Will Soon Deny Work Permits For Asylum-Seekers Who Enter The US Without Authorization
BuzzFeed: The policy, which was first reported by BuzzFeed News in August, will make asylum-seekers who do not cross into the country at a port of entry ineligible for a work permit in most cases. It will also delay the time it takes for those who apply for asylum — either while already in the US or after crossing the border and referred to immigration court — to become qualified to get a work permit, from 150 days to 365 days. Asylum-seekers who do not file for protections within one year of arriving in the US will also be denied a permit.
Businesses Brace for Possible Limits on Foreign Worker Visas
NYT: Citing the economic slump, the president could act this week to limit H-1B, L-1 and other visas as well as a program allowing foreign students to work in the United States after they graduate. See also Chasing Down the Rumors: Possible Extension and Expansion of Presidential Proclamation Suspending Entry of Certain Immigrants into the United States (Updated 6/19/20).
Representation at Bond Hearings Rising but Outcomes Have Not Improved
TRAC: Despite the rising rate of representation, bond grant rates have not improved. During FY 2015 and FY 2016, immigration judges granted bond at 56 percent of these hearings. This fell to 50 percent during FY 2018. Since FY 2018 grant rates have fallen to 48 percent where they have remained for the last three years.
Immigration attorneys face courtroom challenges amid pandemic
Roll Call: Even when courts remain open, to limit personal contact, most procedures are being conducted by video or phone, lending themselves to technical problems that have made it difficult, if not nearly impossible, for lawyers to effectively consult with clients.
Under Threat & Left Out: NYC’s Immigrants And The Coronavirus Crisis
CUF: Immigrant New Yorkers are enduring unprecedented economic pain from the pandemic—and yet they have been almost completely shut out of government programs created for those in need, CUF research and interviews with two dozen nonprofit leaders reveals.
LITIGATION/CASELAW/RULES/MEMOS
Supreme Court Upholds DACA, Says DHS’s Decision to Rescind Was Arbitrary and Capricious
On June 18, 2020, the U.S. Supreme Court ruled that DHS’s decision to rescind the Deferred Action for Childhood Arrivals Program, also known as DACA, was arbitrary and capricious under the Administrative Procedure Act. (DHS v. Regents of the University of California) AILA Doc. No. 20061801
CA2 Remands CAT Claim of Petitioner Who Fled El Salvador After Threats from MS-13 Gang
The court held that the IJ erred as a matter of law in penalizing the petitioner for her prompt flight from El Salvador after members of the MS-13 gang threatened her, and thus remanded her Convention Against Torture (CAT) claim to the BIA. (Martinez De Artiga v. Barr, 6/10/20) AILA Doc. No. 20061702
Naturalization Applicants File Lawsuit Seeking to Compel USCIS to Conduct Immediate Administrative Naturalizations
The plaintiffs, who have been unable to complete the naturalization process due to the COVID-19 pandemic, filed a class action lawsuit seeking to compel USCIS to conduct immediate administrative naturalizations pursuant to INA §337(c). (Campbell Davis, et al. v. USCIS, et al., 6/10/20) AILA Doc. No. 20061602
BIA Issues Decision on K-1 Visas and INA §204(c)(2)
The BIA ruled that an individual who has conspired to enter into marriage for the purpose of evading immigration laws by seeking to secure a K-1 fiancé(e) nonimmigrant visa is subject to the bar under INA §204(c)(2). Matter of R.I. Ortega, 28 I&N Dec. 9 (BIA 2020) AILA Doc. No. 20061909
BIA Reverses Finding That Misdemeanor Conviction Was a Particularly Serious Crime
Unpublished BIA decision reverses finding that conviction for third degree assault under N.Y.P.L. 120.00(01) was a particularly serious crime because offense was a misdemeanor unaccompanied by any unusual circumstances. Special thanks to IRAC. (Matter of G-G-G-, 2/27/20) AILA Doc. No. 20061608
BIA Upholds Termination of Proceedings Based on Regulatory Violation
Unpublished BIA decision upholds termination of proceedings based on DHS’s violation of 8 C.F.R. 287.3(d), which requires ICE to decide within 48 hours of arrest whether to grant bond and issue an NTA. Special thanks to IRAC. (Matter of Pablo-Nicolas, 2/25/20) AILA Doc. No. 20061607
BIA Holds Florida Aggravated Battery Does Not Require Use of Force
Unpublished BIA decision holds that aggravated battery under Fla. Stat. 784.045(b) does not require the use of force because it encompasses simple battery against a pregnant victim. Special thanks to IRAC. (Matter of Campbell, 2/19/20) AILA Doc. No. 20061606
CA1 Finds Salvadoran Petitioner Was Denied Her Statutory Right to Counsel
The court concluded that the IJ had denied the Salvadoran petitioner her statutory right to be represented by the counsel of her choice, and found that the assistance of a lawyer likely would have affected the outcome of her removal proceedings. (Hernandez Lara v. Barr, 6/15/20) AILA Doc. No. 20061905
CA4 Reverses District Court with Instructions to Dismiss Plaintiffs’ Complaints in Travel Ban Case
In light of the U.S. Supreme Court’s decision in Trump v. Hawaii, the court reversed the district court’s order of May 2, 2019, denying the government’s motion to dismiss, and remanded with instructions to dismiss the plaintiffs’ complaints with prejudice. (IRAP v. Trump, 6/8/20) AILA Doc. No. 17031332
CA5 Upholds BIA’s Denial of Asylum to Petitioner from Trinidad and Tobago Who Alleged Membership in Three PSGs
The court held that petitioner had failed to demonstrate a legal or constitutional error in BIA’s denial of his application for asylum based on membership in three alleged particular social groups (PSGs), including children unable to leave a family relationship. (Alexis v. Barr, 6/8/20) AILA Doc. No. 20061704
CA6 Upholds Denial of Asylum to Salvadoran Who Was Found to Be a UAC at Time of Entry
The court held that the IJ had properly exercised jurisdiction over the case of the petitioner, who had entered the United States when he was 18 years old and had been found by an immigration official to be an unaccompanied child (UAC) at the time of his entry. (Garcia v. Barr, 6/8/20) AILA Doc. No. 20061811
CA9 Holds Petitioner’s Conviction for Being Under the Influence of Amphetamines in California Rendered Him Removable
The court held that a conviction for being under the influence of a controlled substance in violation of California Health and Safety Code §11550(a) is divisible with respect to controlled substance and thus the modified categorical approach applied and was satisfied. (Tejeda v. Barr, 6/8/20) AILA Doc. No. 20061913
CA9 Rejects Petitioner’s Equal Protection Challenge to Former Derivative-Citizenship Statute
The court dismissed the petition for review, rejecting the petitioner’s argument that the second clause of INA §321(a)(3) discriminates by gender and legitimacy and thus violates the U.S. Constitution’s guarantee of equal protection. (Roy v. Barr, 6/4/20) AILA Doc. No. 20061912
CA11 Upholds Denial of Motion to Remand Based on Ineffective Assistance Where Petitioner Did Not Substantially Comply with Lozada
The court held that petitioner had failed to meet the three Lozada requirements for presenting an ineffective assistance of counsel claim, finding that his attorney lacked actual notice of allegations that his assistance had been ineffective. (Point Du Jour v. Att’y Gen., 6/4/20) AILA Doc. No. 20061914
AILA and Partners Send Letter to EOIR on Premature Decision to Resume the Non-Detained Docket
AILA, the Council, CLINIC, HRF, NIJC, and NIPNLG sent a letter to EOIR recommending that the overwhelming majority of non-detained hearings be postponed for the duration of the national public health emergency. Additional recommendations include a moratorium on the issuance of in absentia orders. AILA Doc. No. 20061500
DHS Extends Flexibility in Requirements Related to Form I-9 Compliance
DHS announced that it has extended the flexibilities in rules related to Form I-9 compliance during the COVID-19 pandemic by an additional 30 days. The accommodations, which now expire on July 19, 2020, include discretion to defer physical presence requirements and extension for NOIs served in 3/20. AILA Doc. No. 20032033
DHS Acting Secretary Announces Extension of Border Restrictions
DHS Acting Secretary Chad Wolf announced that DHS will continue to limit non-essential travel at U.S. land ports of entry with Canada and Mexico due to the COVID-19 pandemic, and that DHS’s Canadian and Mexican counterparts agree with the need for this extension. AILA Doc. No. 20042031
DHS Announces Imposition of Visa Sanctions on Burundi
DHS announced that it has imposed visa sanctions on Burundi “due to lack of cooperation in accepting its citizens and nationals ordered removed” from the U.S. As of 6/12/20, the Bujumbura U.S. embassy has discontinued issuance of all NIVs, with exceptions, for Burundian citizens and nationals. AILA Doc. No. 20061903
RESOURCES
• Post-Supreme Court Decision DACA Guidance
• ILRC: Understanding the 2020 Supreme Court Decision on DACA
• ILRC: All Those Rules About Crimes Involving Moral Turpitude (June 2020)
• Practice Alert: Impact of the Supreme Court Decision Blocking DACA Rescission
• Practice Alert: Submitting Initial Evidence and Documentation with Form I-485
• Practice Alert: COVID-19 and the Public Charge Rule
• Practice Alert: Presidential Proclamations Suspending Entry Due to 2019 Novel Coronavirus
• Think Immigration: Fight Back Against Chevron Deference in Asylum and Withholding Cases
• DHS Releases Fact Sheet on Measures on the Border to Limit the Further Spread of Coronavirus
• Bite-Sized Ethics: Dual Representation and Secrets Between Clients
• OIG: CBP Struggled to Provide Adequate Detention Conditions During 2019 Migrant Surge
• COVID-19 IN ICE CUSTODY Biweekly Analysis & Update
• Practice Advisory: Criminal Consequences Updates from the BIA and the Ninth Circuit
EVENTS
Note: Check with organizers regarding cancellations/changes
• 6/22/20 The Supreme Court Ruling on DACA: What the Decision Means and What’s Next
• 6/24/20 I-730 Petition Training
• 6/24/20 Thought Getting an EAD Was Straightforward? Think Again!
• 6/26/20 Our Asylum System at Grave Risk: What You Can Do
• 6/29/20 Climate Change and Migration: Converging issues, diverging funding
• 7/7/20 Winning Withholding of Removal and Convention Against Torture Cases
• 7/15/20 Understanding Motions to Reopen Based on Changed Country Conditions
• 7/16/20-7/30/20 Webinar Series: Navigating Refugee and Asylee Issues in Turbulent Times
• 7/20/20 2020 AILA Virtual Annual Conference on Immigration Law
• 7/22/20 Tax Issues in Immigration Cases
• 7/23/20 Defending Immigration Removal Proceedings 2020
• 7/30/20 How to File a Successful Travel Ban Waiver
• 8/5/20 Unraveling Aggravated Felonies and Crimes Involving Moral Turpitude
• 8/18/20 Strategies for I-601 Waivers in Adjustment of Status Cases
• 8/26/20 Immigration Legal Services in Rural America
• 8/27/20 Crafting a Winning Particular Social Group for an Asylum Case
• 9/14/20 Working with Domestic Violence Immigrant Survivors: The Intersection of Basic Family Law, Immigration, Benefits, and Housing Issues in California 2020
• 9/22/20 Defenses to Denaturalization
• 9/23/20-10/7/20 3-Part Webinar Series: Integrating Technology to Improve Your Immigration Legal Services
• 10/1/20 Representing Children in Immigration Matters 2020: Effective Advocacy and Best Practices
ImmProf
Monday, June 22, 2020
• Immigration Article of the Day: Banished and Overcriminalized: Critical Race Perspectives of Illegal Entry and Drug Courier Prosecutions by Walter Goncalves
Sunday, June 21, 2020
• Will President Trump Make the Supreme Court’s DACA Decision a 2020 Presidential Campaign Issue?
• Immigration Article of the Day: Discriminatory Cooperative Federalism by Ava Ayers
Saturday, June 20, 2020
• “DREAMers” versus the Labels Used in Government Documents and Judicial Opinions in Department of Homeland Security v. Regents of the University of California by Professor Maritza Reyes
• The Equal Protection Claim in the DACA Cases
• World Refugee Day – June 20, 2020
Friday, June 19, 2020
• DACA Victory at Supreme Court Is Precarious at Best
• Immigration Article of the Day: Injustice and the Disappearance of Discretionary Detention Under Trump by Robert Koulish
• DACA, College and University Students, and the Future of U.S. Immigration Law
• Guest Post: Minyao Wang, The Supreme Court Decides DACA Rescission Case on Administrative Law Grounds, Avoids Deciding Lawfulness of DACA
Thursday, June 18, 2020
• Responses to Department of Homeland Security v. Regents of the University of California
• Breaking News: DACA Lives Another Day: Supreme Court Vacates Rescission of DACA
• Some more good news: DACA recipients and noncitizens win two lawsuits that provide financial assistance
• Proposed rule bars colleges from granting covid-relief funds to DACA recipients [Updated 6/17/20]
• Immigration Article of the Day: Law Enforcement in the American Security State by Wadie Said
Wednesday, June 17, 2020
• From the Bookshelves:Mary Jordan, The Art of Her Deal: The Untold Story of Melania Trump
• Immigration Article of the Day: Making Litigating Citizenship More Fair
• UVA to Enroll Students Regardless of Immigration Status
Tuesday, June 16, 2020
• From The Bookshelves: Dominicana by Angie Cruz
• Immigration and Economic Recovery Symposium
Monday, June 15, 2020
• White House attributing covid-19 increase to travel from Mexico
• Lessons learned in the journey from Prop. 187 to DACA to the Supreme Court
• Supreme Court Denies Cert in United States v. California, State Sanctuary Law Case
• Supreme Court Grants Review in Immigration Detention Case
• DACA Decision Today?
• “Trump is quietly gutting the asylum system amid the pandemic President Trump’s election-year push to foreground immigration is officially in full swing.”
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Just so we understand the work authorization fraud perpetrated by Trump, currently individuals who seek asylum at ports of entry are “rocketed” to the exceptionally dangerous countries of Mexico, El Salvador, Guatemala, and Honduras (none of which have a fair or functional asylum system) without any hearing, meaningful inquiry, or a chance to apply for asylum in the U.S. So, no work authorization for them.
Those who recognize the futility of trying to use our now-fraudulent legal system to seek protection might therefore cross the border and turn themselves in to DHS or, if they get to the interior, turn themselves in to USCIS to apply for asylum. They also will be denied work authorization under the latest Trump scheme.
So you, or some Federal Judge actually interested in upholding the law, might ask: “Who gets employment authorization under Trump’s shell game?” The answer: “Pretty much nobody.”
So, you might then ask, isn’t this government fraud, or at least grotesque dishonesty? Of course, but but “it’s only refugees not real humans.” For the most part, courts have allowed Trump, Miller, and company to run roughshod over the legal rights and humanity of migrants, with particular emphasis on looking the other way while refugees, women, and children are abused. So, it’s OK. Until Trump strips you of your humanity without recourse.
As if to punctuate the Constitutional malpractice and moral vapidity of everyone on the Supremes save Justice Sonia Sotomayor, on Saturday Trump headed off to Tulsa, Oklahoma, the site of one of the worst White-led race massacres in U.S. history, one day after the Juneteenth Celebration of African American liberation in America. Given the timing and the mood in the nation, it appeared to be a rather thinly disguised attempt by Trump to provoke some type of racial confrontation that he thought would benefit him politically.
Failing that, and faced with a smaller-than-expected audience of cultists, Trump turned the evening into a celebration of lies, hate, insults, and racism – denying the reality and justice of the cause of equal justice under law, using an offensive racist slur against Asians, and “joking” about 120,000 dead Americans and his totally incompetent response to COVID-19, to name just a few of his very public and intentional transgressions against our nation and human decency.
America can’t go any further with Trump and the GOP in charge and promoting an agenda of racism, hate, division, and inequality. But, it’s also worth asking how far we can get with eight Justices who are willfully blind to Trump’s obvious racism, his and his lawyers’ lack of honesty and ethics, and the toxic agenda of prolonging and deepening institutional racism in America that he and his supporters so ardently back and, to be frank, only exists because the Supremes and other government institutions have assisted it for more than a century.
Over more than two centuries, America has failed over and over again to deal honestly, ethically, courageously, and realistically with racism. At some point, the failures will become fatal for our republic. A house divided against itself and with rot in its structural integrity cannot stand for much longer.
Those in charge might claim cluelessness; but you should have your eyes open to the pernicious effects of malicious incompetence and systemic racism.
Some day, the full ugly truth of the Trump regime, its unbridled racism, its total dishonesty, its selfishness, its cowardice, its “crimes against humanity,” and our disgraceful national complicity will come out. It always does. Then, those in charge who were derelict their duties and looked the other way in the face of tyranny and needless human suffering will claim “just doing my job” or “how could I have known?” Don’t let them and/or their apologists get away with the “Nuremberg Defense!”We know; they know! It’s time to end the willful blindness and deal with the truth!
Due Process Forever! Complicit Institutions, Never!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.
TRAC: TRAC has concluded that the data updated through April 2020 it has just received on asylum and other applications for relief to the Immigration Courts are too unreliable to be meaningful or to warrant publication. We are therefore discontinuing updating our popular Immigration Court Asylum Decisions app.
TIME: The Immigrant Defense Project, an advocacy organization that provides legal services to immigrants, shared a video Friday afternoonshowing a man they say is of Puerto Rican descent being detained by a group of men, one of whom is wearing a vest identifying him as a member of Homeland Security Investigations (HSI), a division under Immigration and Customs Enforcement (ICE).
CLINIC: On May 27, 2020, the USCIS Fee Rule transitioned back to the Office of Management and Budget’s Office of Information & Regulatory Affairs, or OIRA. That means the rule is in the process of finalization. Advocates following the progress of the rule estimate that the final rule will be published during the Summer of 2020. Major rules such as this must be made effective at least 60 days after the date of publication in the Federal Register, allowing time for Congressional review. In emergency situations, a major rule can be made effective before 60 days.
TRAC estimates that cancelled immigration court hearings due to COVID-19 will “increase hearing delays for months and probably years to come.” TRAC estimates that with scheduling delays in the court’s exiting backlog taken into account, 850,000 immigrants may well be affected by the shutdown. AILA Doc. No. 20060531
Daily Beast: Detainees can be held for weeks or months before seeing a judge. The Justice Department gave “the word of the agency under penalty of perjury” that it would fix that—but only in NY.
Politico: Trump is expected to slowly wind down the program and use that as leverage to try and strike a broader immigration deal with Democrats this summer, according to six people familiar with the situation.
Gothamist: Each organization has to follow the same eligibility requirements. They have to choose immigrants who don’t qualify for any government assistance. Recipients can get between $400 and $1000 dollars depending on family size. The grant will fund 20,000 families.
Law360: A U.S. Department of Homeland Security official blamed an “unintentional internal disconnect” after the department sent out conflicting guidance on how migrants stuck in Mexico can pick up their rescheduled U.S. immigration court dates, causing confusion at the border.
SCOTUSblog: With the grant in Niz-Chavez v. Barr, the justices added another immigration case to their docket for next term. At issue in the case is the kind of notice that the government must provide to trigger the “stop-time rule,” which stops noncitizens from accruing the time in the United States that they need to become eligible for discretionary relief from deportation. See also On the home stretch? The term’s remaining decisions.
HRW: The United States government should initiate an internal investigation into the Trump administration’s “Remain in Mexico” program, Human Rights Watch said today after submitting a formal complaint to the Department of Homeland Security (DHS). The department should be held accountable for its failure to protect asylum seekers under the Migrant Protection Protocols (MPP) program from routine targeting in the Mexican state of Tamaulipas.
Unpublished BIA decision reopens and terminates proceedings sua sponte after the respondent’s criminal conviction was vacated because he had not been advised of the immigration consequences of his guilty plea. Special thanks to IRAC. (Matter of Deltoro-Aguilar, 2/12/20) AILA Doc. No. 20060502
Unpublished BIA decision holds that misuse of a social security number under 42 U.S.C. 408(a)(7)(8) is not a CIMT because seeking to obtain a job and support one’s family is not reprehensible. Special thanks to IRAC. (Matter of M-E-A-, 2/10/20) AILA Doc. No. 20060501
Unpublished BIA decision holds that possession with intent to deliver a controlled substance under 35 Pa. Cons. Stat. 780-113(a)(30) is not categorically an aggravated felony. Special thanks to IRAC. (Matter of G-L-C-, 2/5/20) AILA Doc. No. 20060500
The court held that the Connecticut statute under which the petitioner had been convicted for carrying a pistol or revolver without a permit criminalized conduct that is not a “firearms offense” under the INA, and was therefore not a removable offense. (Williams v. Barr, 5/27/20) AILA Doc. No. 20060538
Aligning with the Ninth Circuit’s decision in Robles-Urrea v. Holder, the court held that misprision of a felony in violation of 18 USC §4 is not categorically a crime involving moral turpitude (CIMT), and granted the petition for review. (Mendez v. Barr, 5/27/20) AILA Doc. No. 20060536
The court held that the petitioner’s conviction for third-degree sexual assault under Connecticut General Statutes §53a-72a(a)(1) fell categorically under the definition of an aggravated felony crime of violence as defined in 18 USC §16(a). (Kondjoua v. Barr, 5/28/20) AILA Doc. No. 20060535
The court held that the petitioner did not make a timely objection to the adequacy of her initial Notice to Appear (NTA), which was received in 2010 and had omitted the time and place of her hearing, and that she could not show excusable delay and prejudice. (Chen v. Barr, 5/29/20) AILA Doc. No. 20060832
The court denied the petitions for review, finding that the petitioners, who had pleaded guilty to possessing methamphetamine in violation of Minnesota’s fifth-degree possession statute, were removable under INA §237(a)(2)(B)(i). (Bannister v. Barr, 5/26/20) AILA Doc. No. 20060836
The court found that the BIA’s denial of asylum to the petitioner, a citizen of El Salvador who claimed he would suffer persecution based on his opposition to joining the Mara 18 gang, was supported by substantial evidence in the record. (Prieto-Pineda v. Barr, 5/28/20) AILA Doc. No. 20060838
Granting the petition for review, the court held that the government violated the petitioners’ due process rights by failing to provide them a full and fair opportunity to rebut the government’s fraud allegations before terminating their asylum status. (Grigoryan v. Barr, 6/2/20) AILA Doc. No. 20060839
The court upheld the BIA’s determination that the petitioner’s conviction for felony vehicular flight from a pursuing police car while driving against traffic in California was categorically a crime involving moral turpitude (CIMT) that rendered him removable. (Lepe Moran v. Barr, 6/2/20) AILA Doc. No. 20060840
On 5/29/20, President Trump issued a proclamation suspending the entry of certain Chinese nationals seeking to enter the United States on an F or J visa to study or conduct research, with noted exceptions. The proclamation is effective at 12:00 pm (ET) on June 1, 2020. (85 FR 34353, 6/4/20) AILA Doc. No. 20052990
DHS OIG reported CBP separated at least 60 asylum-seeking families from May 6-July 9, 2018, despite reporting only seven separations. DHS OIG determined that the separations were based solely on the parents’ prior nonviolent immigration violations and were inconsistent with DHS’s public messaging. AILA Doc. No. 20060233
Item 6 under “Top News” is particularly enlightening. It shows how instead of exercising leadership and integrity on social justice, the Supremes’ majority is so “in bed” with the White Nationalist Administration that Trump is already assuming that the Supremes will ignore the lower Federal Courts’ correct rulings to enable his scofflaw (and irrational) shafting of “Dreamers” so that Trump can use them as “hostages” for dumping on other categories of immigrants and further racist abuses. The Supremes’ continuing support for the regime’s racist agenda and their continuing “Dred Scottification” of African Americans and Hispanics is not likely to go unnoticed, particularly as to the the cruelty, stupidity, and lack of humanity in going after Dreamers at this point in time.
The Dreamers more then deserve long term protection on their own merits; the idea that there has to be a “trade-off” for doing something clearly in the public interest and the “right thing to do” is total B.S. It reinforces the Trump charade that immigration is somehow “bad” for America. It isn’t.
We’re fortunate that the Dreamers are here and that we still have a chance to make up for past mistakes and integrate them fully into our society. We’re also fortunate that many of our other “undocumented” neighbors have been willing to risk their lives to keep our economy and our society afloat during the pandemic. The real “drag on our society” has been Trump, Miller, Barr, Wolf, and the rest of the gang of “malicious incompetents” in the kakistocracy who did so little to help stem the pandemic and so much to sow racism, injustice, divisions, and unrest in our society.
Hopefully, the Dems will give Trump’s disingenuous scheme a pass, and the voters will figure out that the first step to racial healing in American is to get rid of Trump’s racist regime and its GOP “fellow travelers” at the ballot box. That’s also the way to get started on the reforms of the police, the Supremes, and the rest of the Article III Judiciary needled to make “equal justice for all” a reality rather than an eternally unfulfilled promise.
AlJazeera (from 2017): Black migrants are being assimilated into the terror of the prison industrial complex at an alarming rate. The over-policing, over incarceration, and overt violence of the policing apparatus that is at the core of the #BlackLivesMatter movement is also an immigrant rights issue.
Featured June 10 event from the NYCBA with a fantastic panel:
Tsion Gurmu, Legal Director, Black Alliance for Just Immigration, Founder and Director, Queer Black Immigrant Project
Amaha Kassa, Founder and Executive Director, African Communities Together
Yatta Kiazolu, a named Plaintiff in ACT et al. v. Trump et al., and a Liberian DED holder
Patrice Lawrence, Co-Director, UndocuBlack Network
COVID-19
Note: Policies are rapidly changing, so please verify the latest policies on the relevant government websites and with colleagues on listservs as best you can.
Roll Call: The Justice Department offered buyouts to pre-Trump administration career members on its influential immigration appeals board as part of an ongoing effort to restructure the immigration court system.
WaPo: Though USCIS is scheduled to begin a phased reopening next week, the agency has not committed to resuming a full slate of ceremonies nor has publicly released a plan for rescheduling the approximately 150,000 naturalizations that have been postponed because of the closures.
DocumentedNY: Private donors and independent organizations have connected to move millions of dollars in aid across a gaping hole left in the government’s COVID-19 response.
DocumentedNY: The report, titled “When Help Is Nowhere to Be Found,” is focused on Operation Matador, which was launched by ICE’s Homeland Security Investigations department in May 2017 to combat MS-13. According to the report, Operation Matador was initially envisioned as a 90-day effort but has since become a permanent operation.
NBC: The NYC Council voted Thursday to ban the “dehumanizing and offensive” words in local laws, rules and documents, said Speaker Corey Johnson. The term that officials will use going forward will be “noncitizen.”
AIC: According to recent reports from attorneys for the detained families, on May 13 and 14, ICE gave the parents a “binary choice:” agree for their child to be released without them or waive the child’s right to release under the longstanding Flores settlement that governs custody of immigrant children.
Intercept: The men who were with Escobar Mejia in his final days say they did everything they could to alert ICE and CoreCivic, the private prison corporation that runs Otay Mesa, of his worsening condition, and that the officials responsible for his well-being failed to take those alerts seriously. See also Second man with COVID-19 dies in US immigration custody.
NTY: The leader compared the requests for help to prank calls, the latest controversy over his government’s response to record levels of violence against women.
The Supreme Court found that 8 U. S. C. § 1252(a)(2)(C) and (D) do not preclude judicial review of factual challenges to an order denying relief under CAT, which protects noncitizens from removal to a country where they would likely face torture. (Nasrallah v. Barr, 6/1/20) AILA Doc. No. 20060132
CAIR: A federal court has ruled the Trump administration must provide fair hearings for people in immigration detention and requires the government to justify detention at a bond hearing. The ruling also requires immigration judges to consider people’s financial circumstances when setting bond amounts and forms of release.
The court upheld the BIA’s denial of asylum, finding that the IJ’s adverse credibility determination was supported by substantial evidence, and that the introduction of law enforcement gang database records did not violate the petitioner’s due process rights. (Diaz Ortiz v. Barr, 5/15/20) AILA Doc. No. 20052634
The court held that the BIA erred when it found that the pardon issued to the petitioner by the Connecticut Board of Pardons and Paroles was not effective for purposes of establishing entitlement to a waiver of removal under INA §237(a)(2)(A)(vi). (Thompson v. Barr, 5/21/20) AILA Doc. No. 20052636
Justia: The court held that the government failed to show that misprision rises to the level of base, vile, conscience-shocking conduct traditionally attributed to the gravest and most inherently evil offenses. Furthermore, nothing in the misprision statute suggests that the crime has, as an element, the fraudulent intent necessary for misprision to constitute a CIMT.
The court granted the petition for review, holding that the BIA erred in retroactively applying the new standard for theft-related crimes involving moral turpitude (CIMTs) that it had promulgated in Matter of Diaz-Lizarraga to the petitioner. (Francisco-Lopez v. Att’y Gen., 5/15/20) AILA Doc. No. 20052637
Finding that substantial evidence supported BIA’s denial of asylum, the court held that petitioner had failed to meet his burden to establish that it would be unreasonable for him to relocate to another part of Mexico, away from his father’s extortionists. (Munoz-Granados v. Barr, 5/12/20) AILA Doc. No. 20052638
The court found that the BIA’s conclusion that the government showed by a preponderance of the evidence that the Guatemalan petitioner could internally relocate and that it would be reasonable for her to do so was not supported by substantial evidence. (Juan Antonio v. Barr, 5/19/20) AILA Doc. No. 20052640
Granting the petition for review of the BIA’s denial of withholding of removal, the court found that the IJ and BIA erred in failing to give the petitioner an opportunity to explain why he could not reasonably obtain certain corroborative evidence. (Guzman-Vazquez v. Barr, 5/18/20) AILA Doc. No. 20052639
The court found that the BIA should not have faulted petitioner for failing to provide his initial counsel with information significant to a potential U visa application, but denied petition for review because he could not prove prejudice. (Alvarez-Espino v. Barr, 3/6/20, amended 5/20/20) AILA Doc. No. 20031802
The court held that the petitioner’s “settled course of adjudication” argument was barred by the court’s general rule that it lacks jurisdiction to review claims that the BIA should have exercised its sua sponte power in a given case. (Lona v. Barr, 5/15/20) AILA Doc. No. 20052641
The court held that the BIA erred in ruling that the IJ lacked jurisdiction to move sua sponte to reopen petitioner’s removal proceedings, finding that the post-departure bar does not apply to the IJ’s own sua sponte authority to reopen removal proceedings. (Reyes-Vargas v. Barr, 5/14/20) AILA Doc. No. 20052642
A federal court in Washington ordered ICE to explain why it cannot immediately begin testing detainees at the Northwest Detention Center (NWDC) for COVID-19 on a voluntary basis and implement a plan for those that refuse testing. (Castañeda Juarez v. Asher, 5/28/20) AILA Doc. No. 20060133
AILA and partners filed a complaint requesting a preliminary and permanent injunction enjoining the government from implementing or enforcing any part of the April 20, 2020, Proclamation to protect minors who may age out. (Gomez, et al., v. Trump, et al., 5/28/20) AILA Doc. No. 20052837
AILA, Justice Action Center, and Innovation Law Lab, with pro bono support from Mayer Brown LLP, have filed a lawsuit on behalf of U.S. citizens and LPRs petitioning for their children and derivative relatives to join them in the U.S. who would “age-out” while the administration’s ban is in place. AILA Doc. No. 20052838
EOIR announced the appointment of David H. Wetmore as the chairman of the Board of Immigration Appeals (BIA). Wetmore was appointed by Attorney General William Barr as the Chief Appellate Immigration Judge of the BIA in May 2020. Notice includes Wetmore’s biographical information. AILA Doc. No. 20052932
On May 10, 2020, DOJ EOIR and DHS issued a joint statement on the rescheduling of MPP hearings. This practice alert provides an overview of the changes made by this statement to prior DHS procedures for MPP cases without individual notice to affected migrants or their attorneys. AILA Doc. No. 20051347
AILA has recently been made aware that USCIS has been issuing notices to applicants and attorneys regarding Form I-485 adjustment of status applications that were wrongfully rejected by the Lockbox on the basis of an expired form version. AILA Doc. No. 20041738
CDC order extending the 3/20/20 order that suspended the introduction of certain persons traveling from Canada and Mexico until the CDC determines that the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health. (85 FR 31503, 5/26/20) AILA Doc. No. 20052037
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I particularly recommend the first item in Elizabeth’s report, “Do Black Lives Matter in the immigrants rights movement?” by Jamila Osman. “The immigrant rights movement has never fully addressed the needs of black migrants in its advocacy work.”
The Trump regime’s “Dred Scottification Project,” often aided by a feckless Congress and complicit Article III Courts, is part of a White Nationalist, far-right agenda that aims at dehumanizing a much larger group than migrants and the Hispanic community. They just happen to be the convenient, easy victims, as shown by the effective repeal of Constitutional due process protections, asylum laws, and immigration laws by the regime using Executive fiat and obvious pretexts (many middle schoolers in the U.S. probably could tell you exactly what Trump’s racist intent is, even if the J.R. Five, the Fifth Circuit Court of Appeals, certain panels of the Second Circuit, and most of the GOP disingenuously claims otherwise) that have garnered neither the widespread outrage (short of a few feckless Dems) nor effective “pushback” from Congress and the Article III Courts that they deserved!
The African-American community is no stranger to the abuses heaped on people of color by bogus and disingenuous calls for “law and order.” The treatment of Haitian TPS holders is every bit as outrageous, racist, and lawless as the Administration’s threats to end DACA — threats enabled and made worse by a Supreme Court without the courage and decency to do its job and“just say no” to the regime’s continuing White Nationalist abuses of our Constitution, our laws, and our national humanity.
What might recent history have been if the Supremes had stood up to Trump’s initial Constitutionally abusive, politically motivated, racially and religiously bigoted pretextual “Travel Ban” instead of going “belly up” and fecklessly inviting more abuses in the name of fabricated “national security?”What if Congress by veto-proof margins had stood up for the legal rights of asylum seekers at the Southern Border and of brown-skinned children not to be “put in cages?” Instead, many GOP politicos actually joined in and egged on these disgusting abuses of humanity and degredations of our justice system. What if the Supremes had delivered a united condemnation of the GOP’s overtly racist schemes to disenfranchise minority voters and deny them the political power they have earned? Everybody ultimately pays a price for spinelessness in the face of tyranny!
America needs and deserves better, from our Executive, our Congress, and our Courts. There’s unlikely to be much long-term equilibrium and “normalcy” in the U.S. until we get substantial changes in the composition, competency, and compassion of all three branches of our failing Government and its democratic institutions.
Government is actually there to provide and guarantee “equal justice for all,” not for the self-preservation of existing institutions and those privileged ones who temporarily inhabit them and apparently believe themselves to be “above the fray” and the human pain and suffering caused by their fecklessness and complicity.
It’s also worth noting, that despite the lack of a systemic response from the Article III’s putting an end to EOIR’s unconstitutionally abusive “enforcement masquerading as a court” system, individual court decisions continue to find abuses by the BIA in fairly applying the “basics” of asylum and immigraton laws. Elizabeth’s report lists a number of recent instances.
Oh, that the Article IIIs would “connect the dots” and ask themselves why a system supposedly set up to provide due process to individuals regularly goes out of its way to misapply the law to wrongfully subject individuals to deportation, sometimes to situations where they have a substantial risk of death or torture upon return?
This November, vote like you life depends on it. Because it does!
Due Process Forever! Complicit Institutions & Those Who Hide in Them, Never!
