"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
How much of Ukraine will look like this by war’s end? Photo from Previous Russia-Ukraine War by Wojciech Zmudzinski Creative Commons License
Weekly Briefing
briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The content of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
CONTENTS (jump to section)
PRACTICE ALERTS
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICE ALERTS
Virtual EOIR Registration: For new attorney registration, practitioners are no longer required to go to the court personally to show an ID. However, they still may appear personally. To coordinate identification verification please contact: Tina.Barrow@usdoj.gov or by phone at 717-443-9157.
Adjustment-Ready Cases: DHS is filing motions for dismissal for about 1,000 cases nationwide for Adjustment-Ready Cases (ARCs) to allow for pursuit of relief before USCIS. If you don’t want the case dismissed, timely file your opposition.
ICE Appointment Scheduler: Now available in Spanish, French, Portuguese, and Haitian Creole in addition to English.
Hill: Immigration restrictionists celebrated that the bill includes funding increases for ICE and Customs and Border Protection, but worried that the Biden administration will not use those funds to implement the Trump-style strict enforcement measures they favor…“The budget gives ICE money to fund over 5,000 more beds than proposed in funding bills introduced last year in both the House and Senate. These funding levels directly contradict commitments made by the Biden administration and members of Congress to reduce the immigration detention system,” Mary Meg McCarthy, executive director of the National Immigrant Justice Center, said in a release.
WaPo: Advocates for immigrants said they welcomed many of the Biden administration’s early changes, such as ending the travel ban and increasing the number of refugees allowed into the United States. But they said the most recent spending bill increases funding for immigration enforcement and complained that Biden has not kept his campaign promise to end privately run detention, which accounts for the majority of the ICE system.
NYT: The tension has also resonated inside the White House, where senior officials have been anxious that unwinding the Trump-era border restrictions would open the United States to an increase in illegal crossings at the southern border and fuel Republican attacks that Mr. Biden is too lenient on illegal immigration.
NYT: More than 4,100 Russians crossed the border without authorization in the 2021 fiscal year, nine times more than the previous year. This fiscal year, which began Oct. 1, the numbers are even higher — 6,420 during the first four months alone.
RollCall: Now, embassies have shuttered in Russia, Belarus and Ukraine. That could increase pressure on other consular posts in the region already feeling the weight of a visa backlog of nearly half a million cases.
AP: All Florida government agencies would be barred from doing business with transportation companies that bring immigrants to the state who are in the country illegally under a bill sent to Gov. Ron DeSantis on Wednesday.
Miami Herald: Nearly 200 Haitian migrants were returned to Haiti on Friday by the U.S. Coast Guard after their bid to reach U.S. shores ended with their overloaded sailboat running aground behind a wealthy North Key Largo resort in the Upper Florida Keys and some of their compatriots making a harried dash to freedom in the choppy waters. See also Black Immigrants to the U.S. Deserve Equal Treatment.
NYT: Although the bureau did not say how many people it missed entirely, they were mostly people of color, disproportionately young ones. The census missed counting 4.99 of every 100 Hispanics, 5.64 of every 100 Native Americans and 3.3 of every 100 African Americans.
Buzzfeed: Immigration and Customs Enforcement agents obtained millions of people’s financial records as part of a surveillance program that fed the information to a database accessed by local and federal law enforcement agencies, according to a letter sent Tuesday by Sen. Ron Wyden to the Department of Homeland Security inspector general requesting an investigation into whether the practice violated the US Constitution.
Forbes: “International student enrollment at U.S. universities declined 7.2% between the 2016-17 and 2019-20 academic years, before the start of the Covid-19 pandemic,” according a new analysis from the National Foundation for American Policy (NFAP). “At the same time, international student enrollment at Canadian colleges and universities increased 52% between the 2016-17 and 2019-20 academic years, illustrating the increasing attractiveness of Canadian schools due to more friendly immigration laws in Canada, particularly rules enabling international students in Canada to gain temporary work visas and permanent residence.”
Law360: A Salvadoran woman urged the U.S. Supreme Court to review an Eleventh Circuit decision greenlighting her deportation based on a decades-old removal order issued after she voluntarily left the country, saying the ruling conflicted with Fifth and Seventh Circuit precedents.
Law360: The Second Circuit on Thursday revived an asylum application from a man who says he fled political violence in Guinea, finding a string of errors in an immigration judge’s determination that he wasn’t credible.
LexisNexis: Dissent: I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether to grant Chevron deference to the Board of Immigration’s (“Board”) recent interpretation of § 1101(a)(43)(S), providing that an aggravated felony under the INA is “an offense relating to the obstruction of justice, perjury or subornation of perjury, or bribery of a witness.” …Namely, this decision is the first and only to uphold the Board’s 2018 redefinition as reasonable—repudiating the Ninth Circuit’s 2020 decision. Accordingly, by no longer requiring a nexus element, this opinion expands the list of possible state crimes that could trigger immigration deportation consequences for many persons who may not have been otherwise subject to deportation. This is a sizeable impact for many people in our country.
LexisNexis: The Government indicates that the matter should be remanded, in part, to the BIA for consideration of her request for voluntary departure in light of Niz-Chavez. Thus, the petition for review is granted as to the stop-time issue, and this matter is remanded to the BIA for consideration under Niz-Chavez and other relevant precedents.
LexisNexis: The Board granted one extension but denied a second, suggesting that Oluwajana instead submit his brief with a motion seeking leave to file it late. When he did so, less than two weeks after the submission deadline, the Board denied the motion in a cursory-and factually erroneous-footnote. And having rejected the brief, the Board upheld the removal order without considering Oluwajana’s allegations of error by the immigration judge. Based on the undisputed circumstances of this case, we conclude that the Board abused its discretion by unreasonably rejecting Oluwajana’s brief.
Law360: The Ninth Circuit ordered the Board of Immigration Appeals on Wednesday to decide if an immigrant’s rape conviction bars deportation relief, with a dissenting judge saying the decision only delays the “unpalatable” conclusion that the man can seek a removal waiver.
BIA: When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.
LexisNexis: Additionally, the respondents assert that despite informing immigration officials of their intent to get a new attorney and “sort out [their] case,” ICE officials told them that they were not priorities for deportation and there was nothing more they could do with respect to their case (Respondents’ Mot., Tab G). Accordingly, under these circumstances, we will equitably toll the filing deadline for the respondents’ motion to reopen.”
Law360: An Illinois federal judge closed the book on Chicago’s lawsuit challenging certain Trump-era conditions for recipients of a federal public safety grant on Tuesday when he put the final touches on his judgment blocking conditions for receiving the grant to resolve the case’s outlying issues.
LexisNexis: Defendant executed an I-864 Affidavit of Support; therefore, he is contractually obligated to provide Plaintiff and J.K.M.F. any support necessary to maintain their household at an income that is at least 125 percent of the Federal Poverty Guidelines. Plaintiff has received no financial support from Defendant since fleeing to a shelter on October 21, 2021…Accordingly, Plaintiff has alleged a meritorious claim against Defendant for breaching his contractual duty.
Law360: U.S. Immigration and Customs Enforcement’s New York office will overhaul its policy on people suspected of civil immigration offenses while on bond, settling claims it detained suspects beyond what the law allows without a chance to post bail.
Law360: A D.C. district court ordered the federal government to disclose the names of border officers who screened migrants’ asylum claims under a pilot program, saying Friday that asylum-seekers needed to know if they were unwittingly placed in the since-suspended project.
Law360: A woman’s suit contending she was wrongly deprived of pandemic relief payments from the IRS because of her marriage to an immigrant is barred by a federal law prohibiting court challenges that restrain tax collection, a Maryland federal court ruled.
USCIS: U.S. Citizenship and Immigration Services announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
AILA: DOS provided guidance for nationals in Ukraine seeking to enter the United States. The guidance clarifies information on nonimmigrant visas, immigrant visas, COVID-19 entry requirements, humanitarian parole, refugee status, and more.
AILA: EOIR updated appendix O of the policy manual with adjournment code 74. The reason is “Public Health,” and the definition is “Adjourned for public health reasons.”
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The “Top News Section” is a good rundown of the Biden Administration’s “mixed bag” on immigration policy, particularly as it relates to our largely defunct asylum system and the refugee system (still reeling from Trump-era “deconstruction”) that does not appear to be prepared for the inevitable flow of Ukrainian refugees. It also highlights some of the lingering damage to our democracy (e.g., racially biased census undercount) done by the Trump regime and its toady enablers.
My Take: Ukrainian Refugees & The U.S. Response
So far, largely meaningless political rhetoric from the Administration concerning Ukrainian refugees has been predictably “welcoming.” But, the actions to date have amounted to nothing more than taking the obvious step of granting TPS to Ukrainians actually here.
That does little or nothing to address the nearly 3 million refugees who have fled Ukraine in recent weeks. If the Administration has a coherent plan for admitting our share of those refugees and resuming processing of Ukrainians and all other refugees seeking asylum at the border, they have not announced it.
For example, despite U.S. and worldwide condemnation of China’s treatment of Uyghurs — some characterizing it as “genocide” — the Administration has done nothing to speed the processing of the very limited number of Uyghur refugees languishing in our still largely dysfunctional asylum system. If, as I’ve pointed out on numerous occasions, the Administration is unable to address “low hanging fruit” like Uyghurs and Immigration Court reform, in a bold and timely matter, how are they going to respond to more difficult human rights issues?
As this op-ed in today’s NY Times points out, “generous” responses to large-scale refugee situations are often short-lived. As refugees flows inevitably continue and grow, the initial positive responses too often “morph” into xenophobia, nativism, racism, culture wars, and restrictionism.https://www.nytimes.com/interactive/2022/03/15/opinion/ukraine-refugee-crisis.html
Ukrainian refugees have two potential “advantages” over those from Syria, Afghanistan, Iraq, Haiti, Venezuela, Ethiopia, DRC, and the Northern Triangle that could help them realize “more durable” protection. They are 1) mostly White Europeans, and 2) mostly Christian.
Neither of these is a legally recognized international criterion for defining refugees. Fact is, however, that they were not universally descriptive of those aforementioned groups who have often received less enthusiastic receptions from Western democracies. As a practical matter, “cultural attitudes” influence the Western World’s acceptance of refugees, probably to a greater extent than the actual dangers which those refugees face in the lands from which they have fled.
But, that has also been true in Haiti, Syria, Central America, the DRC and many other trouble spots. It has made little positive difference to the U.S. The Trump regime, led by Uber racist-misogynist refugee deniers “Gonzo Apocalypto” Sessions and “Gauleiter” Stephen Miller actually went out of their way to target the most vulnerable women and children fleeing persecution for further abuse.
And, to date, the Biden Administration’s promise to do better and regularize the treatment of those fleeing gender-based violence has been a huge “nothingburger.” Whatever happened to those promised “gender-based regulations” and the “common-sense recommendations” to replace the restrictionist holdover, bad-precedent-setting BIA with real judges who are experts in gender-based asylum?
The flow of refugees from Ukraine, and a much smaller (at this point) flight of dissidents from Russia, has already “exceeded projections” and is not likely to diminish in the coming weeks and months. Moreover, with Russia focusing on civilian targets and leveling parts of many major metropolitan areas in Ukraine, the essential infrastructure and “livability” of many areas is rapidly being destroyed.
Thus, even if a “truce” were declared tomorrow (which it won’t be), many who have fled would not be able to return for the foreseeable future, perhaps never, even if they wanted to. The latter is a particular risk if Russia makes good on its threats to eradicate the current Ukrainian Government and replace it with a Russian puppet regime.
Refugee planning has consistently lagged foreign policy developments even though that has been shown to be problematic over and over. When will we ever learn?
We can’t necessarily prevent all foreign wars and internal upheavals, worthy as that goal might be. But, we can learn to deal better with inevitable refugee displacements.
Indeed, that was the purpose of the UN Convention and Protocol on the Status of Refugees, to which we and the other major democracies are parties. That more than 70 years after the initial Convention was signed we are still groping for solutions (indeed, we have shamefully abrogated a number of our key responsibilities under both domestic and international law)to recurring, somewhat predictable, and inevitable dislocations of humanity is something that should be of concern to all.
Despite all of the nativist propaganda, the truth is that nobody wants to be a refugee and that it could happen to any of us for reasons totally beyond our control! The similarity of the lives of many Ukrainians, up until a few weeks ago, to daily life in Western Democracies has perhaps “brought home” these realities in ways that the equally bad or even worse plight of other refugees in recent times has not.
I hope that we can learn from this terrible situation and treat not only Ukrainian refugees, but all refugees, with generosity, humanity, compassion, kindness, and as we would hope to be treated if our situations were reversed. Because, in reality, nobody is immune from the possibility of becoming a refugee!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
Note: The briefing is back after a short hiatus while I transitioned to a new position at NIJC. It will be coming from my gmail for a few weeks while I set up a more long-term distribution system. In the meantime, please add egibson@heartlandalliance.org to your trusted contact list so that any future messages do not go to spam.
CONTENTS (click to jump to section)
PRACTICE ALERTS
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICE ALERTS
eROPs: EOIR has begun digitizing some paper records of proceedings (ROPs). Once an ROP is an eROP, only ECAS electronic filing will be permitted on that case. However, this will be a lengthy process and it sounds like EOIR is prioritizing conversion of smaller records first.
DHS: Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS.
USCIS: U.S. Citizenship and Immigration Services today announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
AP: A federal appeals court on Friday upheld sweeping asylum restrictions to prevent spread of COVID-19 but restored protections to keep migrant families from being expelled to their home countries without a chance to plead their cases. Almost simultaneously, a federal judge in another case ruled that the Biden administration wrongly exempted unaccompanied children from the restrictions and ordered that they be subject to them in a week, allowing time for an emergency appeal.
Bloomberg: The estimated wait time for a work permit has risen to eight to 12 months, up from about three months in 2020, according to data from U.S. Citizenship and Immigration Services.
Law360: Texas’ Operation Lone Star border security initiative has expanded over the past year despite courtroom setbacks revealing cracks in its legal foundation, and it appears poised to grow further unless the federal government steps in to confront it.
SCOTUS: “Wooden committed his burglaries on a single night, in a single uninterrupted course of conduct. The crimes all took place at one location, a one-building storage facility with one address. Each offense was essentially identical, and all were intertwined with the others. The burglaries were part and parcel of the same scheme, actuated by the same motive, and accomplished by the same means.”
SCOTUSblog: The Supreme Court on Wednesday [in oral arguments] returned to the scope of the right to sue federal officers for damages under Bivens v. Six Unknown Named Agents, in a case arising from events surrounding an (unfairly) disparaged inn and suspicious characters near the U.S.-Canada border.
Lexis: As we noted above, while (b)(4) requires “changed country conditions,” (b)(3) does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law.
Lexis: . After he pled guilty to first-degree home invasion, the Department of Homeland Security initiated removal. But the removal didn’t go as planned: DHS failed to show that Jasso was in fact removable, and the immigration judge terminated the proceeding. So DHS tried again. It started a second removal proceeding based on a new legal theory but the same underlying facts. The problem? The doctrine of claim preclusion prevents parties from litigating matters they failed to raise in an earlier case. Because claim preclusion barred the second removal proceeding, we grant the petition for review, vacate, and remand.
Reuters: A federal appeals court on Monday declined to dismiss an “unprecedented” criminal case filed during the Trump administration against a Massachusetts judge accused of impeding a federal immigration arrest of a defendant in her courtroom.
Law360: Sixteen attorneys general of Democratic-led states, including the District of Columbia, are defending a new Illinois law phasing out immigrant detention contracts and urging the Seventh Circuit to dismiss a challenge by two Illinois counties, saying the policy does not interfere with federal enforcement of immigration law.
NYT: People with health conditions that place them at high risk from Covid-19 have been denied access to coronavirus vaccine booster shots while in federal immigration detention, the American Civil Liberties Union said in a lawsuit filed on Tuesday.
Reuters: The U.S. Embassy in Havana announced on Thursday it would increase staffing and resume some visa processing in Cuba several years after the Trump administration slashed personnel at the facility following a spate of unexplained health incidents.
AILA: EOIR will open immigration courts in Hyattsville, Maryland, and Laredo, Texas, today, February 28, 2022. The Hyattsville and Laredo immigration courts will have 16 and 8 immigration judges, respectively. Both courts will hear transferred cases; EOIR is notifying parties whose locations have changed.
AILA: Due to conflict in both regions, DHS will extend and redesignate South Sudan for TPS for 18 months, and designate Sudan for TPS for 18 months. The extension and redesignation of South Sudan is in effect from 5/3/2022, through 11/3/2023. The memo details eligibility guidelines.
AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.
USCIS: USCIS has clarified Form I-9 guidance related to Native American tribal documents. We also published new guidance regarding T nonimmigrants (victims of human trafficking) and U nonimmigrants (victims of certain other crimes) in the M-274, Handbook for Employers. USCIS has provided these updates to respond to customer needs.
Thanks for all you do for due process and fundamental fairness in America, Liz! And congrats again to both you and NIJC/Heartland Alliance on your new position!
My good friend Heidi Altman, Director of Policy at NIJC, should be delighted, as Liz is a “distinguished alum” of both the CALS Asylum Clinic at Georgetown Law (where Heidi was a Fellow) and my Refugee Law & Policy class. Liz also served as an Arlington Intern and a Judicial Law Clerk at the NY Immigration Court. Liz has been a “powerful force for due process, clear, analytical writing, and best practices” wherever she has been! So, I’m sure that will continue at NIJC! Clearly, Liz is someone who eventually belongs on the Federal Bench at some level.
Heidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.org
Liz’s mention under “Litigation” of the Supremes’ decision in Wooden v U.S., where Justice Kagan for a unanimous Court interpreted the term “single occasion” broadly in favor of a criminal defendant, raises an interesting immigration issue.
Two decades ago, in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), the BIA basically “nullified” the INA’s statutory exemption from deportation for multiple crimes “arising out of a single scheme of criminal misconduct.” Rejecting the 9th Circuit’s contrary ruling, the BIA essentially read the exception out of the statute by effectively limiting it to lesser included offenses.
How narrow was this interpretation? Well, in 21 years on the immigration appellate and trial benches, I can’t recall a single case where the “scheme” did not result in deportation under Adetiba. Taking advantage of the outrageous “doctrine of judicial task avoidance” established by the Supremes in the notorious “Brand X,”the BIA eventually took the “super arrogant” step of nullifying all Circuit interpretations that conflicted with Adetiba! Matter of Islam, 25 I&N Dec. 637 (BIA 2011).
Surprisingly, in my view, in his concurring opinion in Wooden, Justice Gorsuch actually applied the “rule of lenity” — something else the “21st Century BIA” has basically “read out of the law” in their haste to deport! Here’s what Justice Gorsuch said:
Today, the Court does not consult lenity’s rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people’s elected representatives and in laws clear enough to supply “fair warning . . . to the world.” McBoyle, 283 U. S., at 27.7
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
As the ongoing (“backlog enhancing”) “Pereira fiasco” shows, the BIA has had little problem “blowing off” or distinguishing the Supremes to deport or deny when asked by DHS Enforcement to do so. Today’s BIA “rule” for interpreting supposedly “ambiguous” statutes is actually straightforward, if one-sided: Adopt whatever interpretation DHS Enforcement offers even if that means “taking a pass” on a better interpretation offered by the respondent. So, I’m sure that Garland’s current “Miller Lite” BIA will simply distinguish Wooden as dealing with statutory language different from the INA and ignore its broader implications if asked to do so by “their partners” at DHS Enforcement.
But, whether all Circuits will see it that way, and/or allow themselves to continue to be humiliated by “Brand X,” or whether the issue will reach the Supremes, are different questions. In any event, immigration advocates should pay attention to Wooden, even if the BIA is likely to blow it off.
The current Supremes don’t seem to have much difficulty jettisoning their own precedents when motivated to do so! Why they would continue to feel bound by the bogus “Chevron doctrine” or its “steroid laden progeny Brand X” to follow the interpretations of Executive Branch administrative judges on questions of law is beyond me! Somewhere Chief Justice John Marshall must be turning over in his grave!
Efiling is not permitted for cases with a preexisting paper file, but all new cases moving forward require efiling with ECAS.
Once a case is fully ECAS, you do not need to serve ICE separately. However, you still need to submit a certificate of service that lists ECAS as the means of service. eService/mail can still be used on paper files. eService is the only method of filing for PD requests.
Also, EOIR apparently has not come up with a system for filing motions to substitute counsel in ECAS. The system physically will not let you file a new primary E-28 if there already is an attorney, and you cannot file a motion without an E-28. The workaround so far has been to file a non-primary E-28 and then to ask the court to change it to primary. Hopefully, EOIR will fix this soon.
Updated Legal Assistant Directories for NYC (attached)
Reuters: The Biden administration will place hundreds of migrants caught at the U.S.-Mexico border on house arrest in the coming weeks as it seeks cheaper alternatives to immigration detention, according to a notice to lawmakers and a U.S. Department of Homeland Security (DHS) official. A 120-day pilot program will be launched in Houston and Baltimore, with 100-200 single adults enrolled in each location, according to the notice, which was sent by U.S. Immigration and Customs Enforcement (ICE) and reviewed by Reuters. See also Immigrant Rights Organizations Call on Biden to Stop Expansion of Surveillance and End the Immigration Detention System as a Whole.
TRAC: As of the end of January 2022, the pace of Immigration Court work continues to lag as a result of the pandemic. There have been not only fewer case completions, but the average time required to dispose of each case has doubled since before the pandemic began.
LAA Weekly: Valentine’s Day has been strategically selected for the “Day Without Immigrants” protest, as it is a day where an abundance of consumer spending occurs, through labor that is often carried out by immigrants.
NYT: These migrants were instructed to register with Immigrations and Customs Enforcement within 60 days to complete the process the border officials started. But in some parts of the country, local ICE offices were overwhelmed and unable to give them appointments. So the Haitian family and other new arrivals have spent months trying in vain to check in with ICE and initiate their court cases.
AP: The new statement unveiled Wednesday by Citizenship and Immigration Services Director Ur Jaddou is symbolic but somewhat restores previous language after the agency removed a reference in 2018 to the U.S. being a “nation of immigrants.”
Law360: A Washington federal judge has ruled that a Salvadoran citizen’s U.S. naturalization application was properly denied because of her admission that she distributes marijuana as co-owner of a state-licensed dispensary.
Law360: The U.S. Department of Justice’s Executive Office for Immigration Review apologized on Tuesday to an attorney after asking her to delete tweets about immigration court hearings for people enrolled in the controversial “Remain in Mexico” program.
WaPo: A patchwork of federal aid kept many families afloat during the pandemic, but families with undocumented parents did not qualify for most of it, including unemployment insurance, the stimulus payments, Medicaid and food stamps.
LITIGATION/CASELAW/RULES/MEMOS
AO issues NOID for Afghan Who Worked for U.S.
Boston AO: A NOID from the asylum office stated that an individual who worked for the U.S. government as a mechanic had not demonstrated a fear of future persecution based on his imputed political opinion. The AO held there was insufficient evidence the Taliban was or would become aware of his imputed political option. The AO also stated the Taliban does not have the capability to persecute all former employees of the U.S. and the applicant had not demonstrated similarly situated people were being targeted. Counsel has submitted a detailed rebuttal with testimony from a US military official, and the applicant’s mother was granted asylum by a different officer.
AILA: A federal district court vacated the final rules “Removal of 30-day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications” and “Asylum Application, Interview, and Employment Authorization for Applicants.” (AsylumWorks v. Mayorkas, 2/7/22)
NYLAG: Under the settlement, the Board will be required to place nearly all its opinions into an online reading room, accessible to all in perpetuity, ensuring that immigration advocates will have access to these opinions within six months of when they are issued. The Board also must post its decisions dating back to 2017 as well as some from 2016. Posting will begin in October 2022 and will be phased in over several years.
Law360: The Second Circuit on Wednesday granted a Nigerian man’s petition for review of a Board of Immigration Appeals order that denied him asylum, finding that the agency made several legal and procedural errors and did not adequately explain its reasons.
Law360: The federal government properly charged a Nigerian man as inadmissible to the U.S. rather than removable, because his entry to the country on parole constituted an arrival despite his previous admission, the Third Circuit ruled Friday.
Lexis: We hold that § 706(1) allows the federal courts to command USCIS to hasten an unduly delayed “bona fide” determination, which is a mandatory decision under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold, however, that the federal courts cannot invoke 5 U.S.C. § 706(1) to force USCIS to speed up an unduly delayed pre-waitlist work-authorization adjudication, which is a nonmandatory agency action under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold that Plaintiffs have sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U-visa waitlist.
Law360: The Ninth Circuit invalidated the subsection of a law that makes it a crime to encourage unlawful immigration, ruling Thursday it is overbroad and covers speech that is protected by the First Amendment.
Law360: The Board of Immigration Appeals need only to consider the possibility — not the reasonableness — of an immigrant’s safe relocation back to their home region when weighing protections under the Convention Against Torture, the Ninth Circuit ruled Wednesday.
Law360: A New Jersey federal judge signed off Wednesday on a class action settlement that would prevent the U.S. Citizenship and Immigration Services from refusing to place young immigrants on the path to a green card based on Garden State family court findings.
Law360: U.S. Customs and Border Protection is marking the entry records of certain foreign executives’ spouses to show that they are immediately eligible to work in the U.S. without going through the monthslong process of obtaining a work permit.
AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.
AILA: EOIR updated its Operation Status website with information clarifying that alternate filing locations are designated for the purpose of filing emergency motions and explaining how it will treat other filings if a court is closed.
AILA: USCIS updated policy guidance addressing VAWA petitions, specifically changing the interpretation of the requirement for shared residence. The guidance also affects use of INA 204(a)(2), implements the decisions in Da Silva v. Attorney General and Arguijo v. United States, and more.
AILA: DHS, in partnership with the Department of Veterans Affairs and Defense, launched an online center to consolidate resources for noncitizen service members, veterans, and their families, including a request form for current or former service members seeking return to the U.S. after deportation.
USCIS: We are updating our interpretation of the requirement for shared residence to occur during the qualifying spousal or parent-child relationship. Instead, the self-petitioner must demonstrate that they are residing or have resided with the abuser at any time in the past.
We are also implementing nationwide the decisions in Da Silva v. Attorney General, 948 F.3d 629 (3rd Cir. 2020), and Arguijo v. United States, 991 F.3d 736 (7th Cir. 2021). Da Silva v. Attorney General held that when evaluating the good moral character requirement, an act or conviction is “connected to” the battery or extreme cruelty when it has “a causal or logical relationship.” Arguijo v. USCIS allows stepchildren and stepparents to continue to be eligible for VAWA self-petitions even if the parent and stepparent divorced.
After two plus decades of largely wasted time, effort, and resources, EOIR finally moves into the era of E-Filing!
Elizabeth notes one of the “initial workarounds” for motions to substitute counsel. While early glitches are to be expected in any system, this one seems odd because: 1) the system has supposedly been extensively “beta tested;” and 2) motions to substitute counsel have to be one of the most common motions filed at EOIR (particularly with cases often taking many years to complete with the ever-growing 1.6 million case backlog.)
I’d be interested in getting any “practitioner feedback” on how this system (applicable only to newly filed NTAs) is working out for them. You can just put in the “comments box” for this post.
Speaking of backlog, this excellent recent study and analysis from CMS (under “Friday Feb. 11” above) certainly suggests that the majority of the “aged cases” being “warehoused” by Garland’s EOIR relate to law-abiding long-term residents who are already firmly grounded in our society and should be prime candidates for “non-priority” status and removal from the dockets.
Undocumented immigrants contribute to every aspect of the nation’s life.16 During the COVID-19 pandemic, the case for legalization has become increasingly evident to the public and policymakers due, in part, to the fact that a remarkable 74 percent of the nation’s 7.3 million undocumented workers meet DHS’s definition of essential workers (Kerwin and Warren 2020). As the nation ages and its population over age 65 exceeds that under age 15 (Chamie 2021), the need for immigrant workers will only increase. US fertility rates fell for five consecutive years prior to the COVID-19 pandemic, and the US birth rate decreased by four percent in 2020 (Barroso 2021).17
Legalization programs benefit the larger society: they “raise wages, increase consumption, create jobs, and generate additional tax revenue” (Hinojosa-Ojeda 2012, 191).18 One study has estimated that broad immigration reform legislation, including a legalization program and a flexible, rights-respecting, legal immigration system, would add $1.5 trillion to the US gross domestic product over 10 years (ibid., 176). Another study found that a legalization program would increase the productivity, earnings, and taxes paid by the legalized, resulting in increased contributions to the Social Security (SS) program, which would more than offset the SS benefits that they would receive (Kugler, Lynch and Oakford 2013).
Indeed, the data in the CMS study confirms what many of us have suspected for a long time: That deportation of many of the individuals now occupying the Immigration Court’s mind-boggling docket backlog actually would be a counterproductive “net loss” for the U.S.!
So, why are Garland and Mayorkas letting the backlog fester and ooze disorder and injustice? ☠️ Rather than using largely self-created backlogs to support more “enforcement gimmicks” purporting to lead to theforced removal of many productive members of our society, EOIR is long overdue for some form of the “Chen Markowitz Plan” in anticipation of the types of ameliorative legislation outlined in the CMS study.
Donald M. Kerwin Executive Director Center for Migration Studies — He and his friends at CMS have some great ideas on immigration and human rights backed by some of the best scholarship around! Why are Garland, Mayorkas, and others “tuning them out” while they continue to bungle immigration policy, degrade human rights, and undermine our legal system?
Garland’s disgraceful failure to put a “Progressive A-Team” in charge at EOIR continues to drag down our entire justice system.
Note that Sessions and Barr had no trouble and no hesitation installing their “Miller Time” restrictionist team at DOJ and EOIR despite almost universal outrage and protests from human rights advocates, immigration experts, and some legislators!
Why do Dems keep appointing AG’s who are too “tone deaf,” clueless, and timid to fully “leverage” the almost unlimited potential of reforming EOIR to be a font of due process, best practices, and scholarly, efficient judging?
Why do Dems prefer the equal and racial justice “disaster zone” that they have helped to create, aided, and abetted over the past two decades of abject failure and disorder at EOIR?
There is a reason why Chair Lofgren and others on the Hill are pushing for Article I! But, that in no way diminishes or excuses the failure of Garland to make available due process and best practices reforms at EOIR, including a major shakeup of “Trump holdover” judges and managers who aren’t up to the job of running a system “laser-focused” on due process and fundamental fairness!
Subject: Victory for Immigrants and Their Advocates!
All,
I am proud to share that NYLAG and co-counsel Public Citizen reached a historic settlement in NYLAG v. Board of Immigration Appeals (18 Civ. 9495 (S.D.N.Y.)). Under the settlement entered last night, the Board of Immigration Appeals (BIA) will for the first time make the vast majority of its decisions available to the public by publishing them online, helping to level the playing field for immigrants.
NYLAG brought this case to challenge the BIA’s longstanding failure to make its judicial decisions publicly available, which meant that neither immigrants nor their attorneys could access these crucial documents to help them defend their cases and seek relief. This gave an unfair advantage to the government’s lawyers, who could access these same decisions to advocate for removal of NYLAG’s clients and immigrants across the country, in proceedings already stacked against them. To challenge this practice, NYLAG made a request under the Freedom of Information Act (FOIA) that BIA post all of its final orders in immigration cases in its electronic reading room– which FOIA has required since 1996 for all federal agencies.
Last February, NYLAG and co-counsel Public Citizen won a critical victory in the case, when the U.S. Court of Appeals for the Second Circuit ruled that people can sue to enforce the FOIA requirement that federal agencies post certain documents online so that they are accessible to the public.
Last night, the United States District Court for the Southern District of New York approved the settlement agreement between NYLAG and the BIA, under which the BIA has agreed to place nearly all its opinions into an online reading room. This will ensure that immigrants and immigration advocates across the country (including NYLAG’s own Immigrant Protection Unit’s staff and clients) will have access to these opinions within six months of when they are issued. The Board also must post prior decisions dating back to 2016.
This victory is a testament to NYLAG’s ability to create large-scale change. Kudos to the NYLAG attorneys involved in this case – Danielle Tarantolo, Jessica Ranucci, and Jane Stevens (before her retirement) of SLU; and Jodi Ziesemer and Melissa Chua of IPU –and our dedicated co-counsel at Public Citizen. This victory could not have been achieved without their partnership, diligence, and hard work.
Beth
***************************
Congrats to all concerned! As noted in Beth Goldman’s last paragraph, while Garland has been reluctant to make progressive changes and to bring much needed management and substantive reforms to EOIR, advocacy groups have been able to force some systemic improvements through litigation.
It seems like a wise AG would “clean out the deadwood” @ EOIR and bring in dynamic experts who can solve problems and make the necessary changes to restore due process to his ridiculously broken system. But, that apparently would be an AG “other than Garland.”
EOIR: EOIR reminds interested stakeholders that hearings on Feb. 8, 2022, and beyond will proceed as scheduled, subject to local operational and case-specific decisions. Please monitor EOIR’s website for information about the agency’s operations nationwide.
EOIR NYC: In an effort to provide more clarity on operations at each of the NYC immigration courts from Feb. 8 onward, [EOIR] is providing additional guidance. See attached.
USCIS: In the interest of reducing the burden on both the agency and the public, USCIS has revised its guidelines to state that initial and renewal EADs generally may be issued with a maximum validity period of up to 2 years for asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners; or up to the end of the authorized deferred action or parole period to applicants in these filing categories
CBS: After a recent internal review, the Biden administration decided to maintain a pandemic-era order put in place under former President Donald Trump that authorizes the rapid deportation of migrants from the U.S.-Mexico border, the Centers for Disease Control and Prevention (CDC) told CBS News Thursday.
VOA: U.S. House Representative Zoe Lofgren, a Democrat from California who leads the House Subcommittee on Immigration and Citizenship, unveiled the legislation Thursday.
Law360: A group of 148 organizations supporting immigrant and civil rights sent a letter to President Joe Biden and congressional leaders urging them to allocate at least $50 million to provide “immediate and dramatic” expansion of legal representation for people facing immigration proceedings.
CNN: An ongoing feud over President Joe Biden’s immigration policies is escalating in Florida where Gov. Ron DeSantis is threatening to keep long-standing shelters from caring for migrant children, culminating in a heated back and forth unfolding in internal correspondence obtained by CNN.
Law360: Immigrant rights groups urged the Biden administration on Tuesday to release people held in immigration detention in Illinois amid fears that U.S. Immigration and Customs Enforcement will send the detainees out of state as Illinois shuts down its last two detention centers.
WaPo: About a hundred members of the police, National Guard and army on Sunday evicted 381 migrants, mainly Central Americans and Mexicans, from a makeshift camp they had been staying in for almost a year in Tijuana at the U.S. border crossing.
DHS: “The southern border can be an inhospitable place for man and beast, and that is exactly why a machine may excel there,” said S&T program manager, Brenda Long. “This S&T-led initiative focuses on Automated Ground Surveillance Vehicles, or what we call ‘AGSVs.’ Essentially, the AGSV program is all about…robot dogs.”
AILA: BIA found §2C:35-10(a)(1) of New Jersey Statutes Annotated is divisible and the record of conviction can be reviewed under the modified categorical approach to determine whether the specific substance possessed is a controlled substance under federal law. (Matter of Laguerre, 1/20/22)
AILA: BIA found Iowa Code §714.1 is divisible with respect to whether a violation of it involved theft by taking without consent or theft by fraud or deceit, permitting use of modified categorical approach to determine whether violation involved aggravated felony theft. (Matter of Koat, 1/27/22)
AILA: BIA found the amount of forfeiture ordered in a criminal proceeding may be considered in determining whether a crime of fraud or deceit resulted in a loss to victim(s) exceeding $10,000, if the amount ordered is sufficiently traceable to the conduct of conviction. (Matter of F-R-A-, 2/3/22)
LexisNexis: Helen Harnett writes: “I thought you might be interested in this BIA decision. The IJ terminated proceedings because the NTA did not contain a time or date.”
AILA: In light of unexplained irregularities in the record, the court vacated the BIA’s denials of withholding of removal and relief under the Convention Against Torture (CAT) and remanded to the agency for further factfinding. (Bonilla v. Garland, 1/12/22)
AILA: The court held that the petitioner’s conviction for driving a motor vehicle without consent of the owner or lessee under Rhode Island General Laws (RIGL) §31-9-1 did not constitute a categorical aggravated felony theft offense. (Da Graca v. Garland, 1/18/22)
AILA: The court held that the BIA adequately considered the question of extraordinary circumstances called for in Matter of Jean, and found it lacked jurisdiction to consider the relative weight the BIA gave the evidence in denying the inadmissibility waiver. (Peulic v. Garland, 1/11/22)
AILA: The court agreed with the BIA that the Honduran petitioner’s proposed particular social group (PSG) of “prosecution witnesses” lacked particularity, and found no error in the BIA’s decision upholding the IJ’s adverse credibility finding as to petitioner. (Herrera-Martinez v. Garland, 1/5/22)
AILA: Where the petitioner had a pending U visa application, the court held that the BIA abused its discretion in denying his motion for a continuance, finding that the BIA had departed from precedential opinions in holding that he had failed to show good cause. (Garcia Cabrera v. Garland, 1/6/22)
Law360: The Fourth Circuit breathed new life into a Guatemalan migrant’s asylum case, faulting an immigration judge for failing to tie death threats that the man received to his son, who was targeted for gang recruitment.
AILA: The court concluded that the BIA did not abuse its discretion in holding that the petitioner’s proposed particular social group (PSG)— “Honduran women who are unable to leave their domestic relationships”—was not legally cognizable. (Jaco v. Garland, 10/27/21, amended 1/26/22)
AILA: The court concluded that res judicata did not bar the removal proceedings, deadly conduct was categorically a crime involving moral turpitude (CIMT), and petitioner was admitted to the United States when he adjusted to lawful permanent resident (LPR) status. (Diaz Esparza v. Garland, 1/17/22)
AILA: The court held that because petitioner, who was homosexual and identified as transgender, had said that she could probably safely relocate in Guatemala, the BIA did not err in finding that the government had rebutted the presumption of future persecution. (Santos-Zacaria v. Garland, 1/10/22)
AILA: The court affirmed the BIA’s determination that petitioner’s felony assault conviction was a particularly serious crime rendering him ineligible for withholding of removal, because he had failed to show how the alleged errors compelled reversal. (Aviles-Tavera v. Garland, 1/4/22)
AILA: The court denied the petitioner’s petition for panel rehearing, withdrew its prior panel opinion of 8/6/21, and held that the BIA did not abuse its discretion by applying an incorrect legal standard when it denied petitioner’s motion to reopen. (Parada-Orellana v. Garland, 1/3/22)
AILA: The court held that BIA did not abuse its discretion in denying the motion to reopen based on ineffective assistance, finding that Matter of Lozada requires more than a statement that the noncitizen is “not interested” in filing a bar complaint.(Guzman-Torralva v. Garland, 1/13/22)
AILA: The court held that the record supported the IJ’s and BIA’s conclusion that the Chinese Christian petitioner did not meet her burden of establishing her eligibility for asylum given the discrepancies in her testimony and the lack of corroborative evidence. (Dai v. Garland, 1/24/22)
AILA: The court held that the BIA legally erred by considering arguments that the government did not present to the IJ, and that the BIA engaged in impermissible factfinding on the conditions in Kosovo, rendering its decision to deny remand an abuse of discretion. (Osmani v. Garland, 1/24/22)
AILA: The court held that the BIA did not abuse its discretion in denying petitioner’s successive motion to reopen, and that the BIA did not deprive the petitioner of a constitutionally protected liberty interest in declining to reopen proceedings sua sponte. (Urrutia Robles v. Garland, 1/26/22)
AILA: The court rejected the petitioner’s contention that, because she was actually a minor when she was released on her own recognizance without notice of her hearing to a reasonable adult, the notice provided her was inadequate. (Jimenez-Sandoval v. Garland, 1/13/22)
Law360:An Indian man can’t be deported for missing an immigration court date after he received a notice to appear that didn’t specify a date and time, even though that information came in a later notice, the Ninth Circuit has ruled.
AILA: The court held that arson in violation of California Penal Code (CPC) §451 was not a categorical match to its federal counterpart, and thus that the petitioner’s conviction under CPC §451(b) was not an aggravated felony that rendered him removable. (Togonon v. Garland, 1/10/22)
AILA: The court issued an order denying the rehearing en banc of Velasquez-Gaspar v. Garland, in which the court upheld the BIA’s conclusion that the Guatemalan government could have protected the petitioner had she reported her abuse. (Velasquez-Gaspar v. Garland, 1/25/22)
AILA: The court held that the petitioner, who had been convicted of cocaine possession under Florida law, had failed to show that Florida’s definition of cocaine covers more than its federal counterpart, and thus upheld the BIA’s denial of cancellation of removal. (Chamu v. Att’y Gen., 1/26/22)
Law360: The U.S. Department of Homeland Security urged a D.C. federal court to halt immigration advocates’ efforts to inspect a large detention center accused of denying detainees access to counsel, calling a probe “particularly intrusive” amid debate over the lawsuit’s viability.
AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.
Liz’s “Item 4” under “Litigation,” upholding termination for a statutorily defective NTA, inspired the following additional thoughts.
ETHICS ON VACATION @ DHS & DOJ: Apparently a Frivolous DHS Appeal Asking BIA To Publish Intentional Misconstruction of 7th Circuit Law is SOP For Mayorkas, Garland, & Underlings!
By Paul Wickham Schmidt
Courtside Exclusive
Feb. 9, 2022
So, DHS argues on appeal that the BIA should violate, and intentionally and dishonestly, “misconstrue” 7th Circuit precedent. And, for a good measure, publish the result to insure that no IJ in the 7th Circuit gets it right in the future.
Why aren’t there ethical problems with this outrageous, unprofessional DHS appellate argument? Why isn’t this a precedent, as it provides helpful guidance and can be used to prevent future frivolous litigation by DHS? Why is there no accountability for this frivolous appeal, request to publish, and the blatant effort by DHS counsel to “pull the wool over the eyes” of the IJ and the BIA?
The pattern of taking a frivolous appeal, making unethical arguments, and asking the BIA to publish as a precedent shows the arrogant view of ICE that they “have EOIR in their pocket” (certainly consistent with the Sessions/Barr rhetoric) and that there will be neither accountability nor consequences for frivolous and unethical conduct by DHS attorneys! By not publishing the result as a precedent, the BIA leaves it open for other IJs and single Appellate Judge BIA “panels” to get it wrong in the future. It also sends a signal that taking a whack at making misleading arguments for illegal and unethical results has no downside at Mayorkas’s DHS or Garland’s BIA.
Wonder why there are gross inconsistencies and endless backlogs at EOIR?A totally undisciplined, unprofessional system where “anything goes” and “almost anything” will be defended in pursuit of removal orders certainly has something to do with it! It’s simply been building, under Administrations of both parties, since 2001!
The one-sided BIA precedent process — publishing mainly cases favorable to DHS — is no accident either. Pro-DHS rulings can be used by OIL (correctly or incorrectly) to argue for so-called “Chevron deference” or its evil cousin “Brand X” disenfranchisement of Article III Judges.
By contrast, precedents favorable to individuals merely promote due process, fundamental fairness, best practices, consistency, and efficiency. They might also be used to curb misbehavior by IJs and DHS counsel. Nothing very important in the eyes of EOIR’s DOJ political overlords.
GOP AGs, from Ashcroft through Sessions and Barr, have made it clear that precedents favorable to DHS Enforcement are far less likely to be “career threatening” or “career limiting” for their “captive judges.” On the other hand, precedentsstanding for due process, vindicating migrants’ rights, or curbing “outlier” behavior by IJs and DHS attorneys can be risky. And, perhaps surprisingly, Dem AGs in the 21st Century also have been “A-OK” with that, as Garland demonstrates on a daily basis.
Where are Ur Mendoza Jaddou (yes, she’s at USCIS, not ICE, but she’s “upper management,” knows the issues, and has access to Mayorkas) and Kerry Doyle at DHS? Whatever happened to Lisa Monaco, Vanita Gupta, and Lucas Guttentag at DOJ?
These are the types of “real time” problems that leadership can and should be solving by setting a “no nonsense due process first” tone and bringing in and empowering expert Appellate Judges (“real judges”) and DHS Chief Counsel who will put dueprocess, fundamental fairness, and ethics foremost! But, apparently it’s “below the radar screen” of Biden Administration leadership at DHS and DOJ.
The case for an independent Article I Court has never been stronger! Garland’s lack of leadership and furthering of injustice adds to Chairperson Lofgren’s case for fundamental change and removal of EOIR from DOJ, every day!
NPR: President Biden had an ambitious agenda to overhaul the nation’s border policies. But as the end of the year approaches, many of those proposals have been blocked, reversed or simply abandoned.
Reuters: The Biden administration on Wednesday asked the U.S. Supreme Court whether it needed to continue to implement a Trump-era policy that has forced tens of thousands of migrants to wait in Mexico for the resolution of their U.S. asylum cases. See also ‘Remain In Mexico’ Renewal May Bring More Solo Migrant Kids
AP: Since the U.S. withdrawal, U.S. Citizenship and Immigration Services has received more than 35,000 applications for humanitarian parole, of which it has denied about 470 and conditionally approved more than 140, Victoria Palmer, an agency spokesperson, said this week. See also Months later, Afghan evacuees abroad and at US bases still wait to be resettled.
KQED: Advocates say the current system has more safeguards for migrant families and isn’t placing them in detention facilities, but the accelerated pace still makes it tough for asylum seekers like López to find legal representation.
Law360: Federal courts in 2022 will grapple with immigration law questions ranging from the extent of the president’s authority to set immigration enforcement priorities to federal courts’ ability to review immigration decisions made by the executive branch. Here, Law360 breaks down the cases to watch.
ImmProf: The petition, which asks to review a decision of the Fifth Circuit court of appeals, addresses issues relating to the Migrant Protection Protocols, commonly known as the “Remain in Mexico” program.
CA2: In light of the recent surge in Covid-19 infections, beginning January 4, 2022 oral arguments will be conducted remotely, by Zoom or teleconference.
LexisNexis: Lima-Gonzalez v. Garland “Lima-Gonzalez’s NTA did not contain the information required to trigger the stop-time rule. See Niz-Chavez, 141 S. Ct. at 1478-79, 1485; see also § 1229(a)(1)(A)–(G). Neither did any of the subsequent notices of hearing. As a result, the Government has not furnished Lima-Gonzalez with the “single compliant document” required by statute. Niz-Chavez, 141 S. Ct…
WaPo: Three Illinois counties with such federal agreements faced a Jan. 1 deadline to end contracts. While one in downstate Illinois complied last year, two others are involved in a federal lawsuit challenging the law. The case was dismissed last month, but a federal judge on Thursday granted an extension while an appeal is considered. Authorities in McHenry and Kankakee counties now have until Jan. 13.
AILA: DOS proposed rule which would raise several nonimmigrant visa application processing fees, the fee for the Border Crossing Card for Mexican citizens age 15 and over, and the waiver of the two-year residency requirement fee. Comments are due 2/28/22. (86 FR 74018, 12/29/21)
AILA: USCIS and EOIR interim final rule further delaying until 12/31/22 the effective date of the final rule “Security Bars and Processing” (85 FR 84160, 12/23/20). Comments on the extension of the effective date as well as the possibility of a further extension are due 2/28/22. (86 FR 73615, 12/28/21)
AILA: Effective December 31, 2021, 12:01 am (ET), Presidential Proclamation 10315 was revoked, thus rescinding travel restrictions on Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. Vaccine requirements remain in effect.
AILA: USCIS stated that healthcare workers with a pending EAD renewal application, Form I-765, and whose EAD expires in 30 days or less or has already expired, can request expedited processing of their EAD applications. Proof of employment will be required.
Somalia: Situation of ‘Westernised’ Returnees (AFR2021-16)
Mexico: Persecution by and local/national presence of Cartel Jalisco and Familia Michoacana (AME2021-17)
Afghanistan: Treatment of Family Members of Human Rights Activists and Former Government Supporters after the Taliban Take-over (ASI2021-13)
Afghanistan: Availability of Psychiatric Treatment for Returnees with Mental Health Conditions and Treatment of Returnees with Mental Health Conditions by the Taliban (ASI2021-12)
Egypt: Opposing Female Genital Mutilation (FGM), Social Impact, and Availability of State Protection (MEN2021-18)
Egypt: Christians in Egypt & Obtention of Citizenship (MEN2021-17)
EOIR: Appearance Requirements at the New York – Varick Immigration Court (attached)
The problem with “ADR” @ EOIR is chronic! It’s one that Garland seems determined to repeat, despite ample advice to the contrary.
Also, he’s ignored the availability of many “practical experts” on the outside who, if appointed to key EOIR positions, could have helped him solve this without stomping on due process (although, I admit the solution would have been easier in March 2021, when Garland was sworn in as AG, than it is after 9 months of his making it worse — not to mention that his “defiant tone-deafness” has probably “turned off” some of the top-flight talent he needed to “reach out” to). As the KQED article points out:
“But there’s a lot of room for improvement, and I don’t know if the people that are being named to supervise this actually know what’s happening in the trenches.”
Duh! That’s what all of us have been saying. Truth is, they aren’t the right people, and they don’t know what’s happening. Not by a long shot!
I also understand why Torres, who’s trying to maintain a relationship with Garland’s “Clueless Crew” is trying to be charitable.
But, as someone not currently “out there in the trenches,” I don’t have to be so reticent. So, I’ll say what she can’t. This is a totally unacceptable and inexcusable performance from Garland!
Another reason why this program is a massive failure is that, like their ADR-promoting, backlog-building predecessors, Garland & Mayorkas started this misguided and mishandled program without seeking the advice, counsel, and support of the pro bono lawyers who have to staff it to make it work!
Think of the total absurdity of what Garland is doing here! While a pro bono (or low bono) lawyer is having already prepared cases “orbited” years out on the docket (a process that usually requires re-preparation of the entire case), the phone is ringing off the hook with desperate, perspective new clients given unrealistically expedited hearing dates that should have been used for the cases “orbited” to the end of the docket.
Also, having not practiced privately for many years, Garland appears to have forgotten the Code of Ethics.
Attorneys are obligated not to take on work (even pro bono work) that they can’t professionally and timely handle.
Yet, Garland is pushing them to do exactly that! The choice is let folks try to prepare their own cases (literally tantamount to a “death sentence” in many cases); or
Take on work you can’t handle (a clear ethical violation that could have the same unfavorable result for the client).
There actually are ways of working with outside experts to increase pro bono representation. One of the most promising is the the amazing VIISTA Program created and run by Professor Michele Pistone at Villanova Law to train non-attorney “Accredited Representatives” to handle pro bono asylum cases.
I have no knowledge that Garland or anyone at EOJ/EOIR has ever reached out to Professor Pistone, despite recommendations that Garland do so.
Worse yet, Garland has allowed his “EOIR Clown Show” to also create a “new backlog” in the approval process for Accredited Representatives! Talk about clueless, counterproductive mismanagement!
Garland’s mis-handling of EOIR and his new round of “Aimless Docket Reshuffling” raises serious issues about his own performance.
Whatever happened to Democratic oversight of EOIR in Congress? Why is Garland getting a “free pass” on mismanagement of EOIR, his furtherundermining of Due Process in Immigration Court, and his disrespectful treatment of the immigration pro bono and low bono bar?
Respondent Access Portal: EOIR’s Respondent Access allows Respondents to file forms with the immigration court and the Board of Immigration Appeals.
AO Covid Update: USCIS has updated the public website to reflect that field offices are expanding occupational capacities. Beginning November 29, 2021, the New York Asylum Office (ZNY) will be resuming in-person interviews, with the officer and the applicant’s party (including the attorney) in the same room.
Law360: The Biden administration’s proposed rule to reinforce the Deferred Action for Childhood Arrivals, or DACA, program has attracted more than 9,300 responses ahead of Monday’s deadline for public comments, with many calling for broader changes than the regulations set out.
NYT: The City Council is planning to approve a bill that would allow more than 800,000 noncitizen New Yorkers to register as members of political parties and vote in municipal elections, provided they are green card holders or have the right to work in the United States. The measure is expected to be approved on Dec. 9 by a veto-proof margin. It would allow noncitizens to vote in local elections, and would not apply to federal or state contests.
Reuters: The Biden administration and Mexico have not yet agreed to restart a Trump-era program obliging asylum seekers to await U.S. court hearings in Mexico, because certain conditions must first be met, two Mexican officials said on Wednesday. News outlet Axios reported earlier that returns under the program officially known as the Migrant Protection Protocols (MPP) could restart as soon as [this] week.
WaPo: Despite mounting concerns about discriminatory policing, the Trump administration aggressively recruited local law enforcement partners and courted sheriffs who championed similar views on immigration policy, according to dozens of internal ICE emails obtained by The Post.
Reuters: Some 2,000 migrants and asylum seekers departed the southern Mexican city of Tapachula near the Guatemalan border overnight on Sunday in the latest in a series of caravans setting out for the United States.
WaPo: Record numbers of Venezuelan migrants have been crossing into the United States in recent months, posing a new border challenge for the Biden administration and raising concerns that more of the nearly 6 million people displaced from the South American nation could be heading north.
AP: He said he repeatedly told authorities he was American but was rebuffed by immigration agents, according to the suit. Bukle, who derived citizenship when he was 9 and his parents naturalized, was sent to the Mesa Verde Detention Facility in Central California for more than a month until an attorney got immigration authorities to verify his citizenship status and release him.
LexisNexis: SCOTUSblog case page for Egbert v. Boule, Docket No. 21-147 ” Issues : (1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment right
Law360: A Mexican woman facing removal for using a fake Social Security number lost her case Monday when the U.S. Supreme Court declined to hear her arguments for why the offense shouldn’t disqualify her from receiving deportation relief.
AILA: The court held that the IJ erred in informing the pro se petitioner he was eligible for potential relief only under the Convention Against Torture (CAT), and in treating his conviction for drug trafficking as if it were a per se bar to withholding of removal. (DeCarvalho v. Garland, 11/17/21)
Law360: The Fifth Circuit on Monday upheld a ruling that a Mexican citizen who sought refuge in the United States because he is gay cannot remain in the country because the Mexican government “was able and willing to protect” him.
AILA: The court held that the BIA did not err in finding that the petitioner’s second motion to reopen for lack of notice was time and number barred under 8 CFR §1003.2(c)(2), because the petitioner had failed to inform the immigration court of his change in address. (Maradia v. Garland, 11/17/21)
AILA: The court upheld the BIA’s denial of asylum, finding that the Board did not err in holding that governmental changes in the Congo—namely, that the petitioner’s own political party had assumed power—made any future political persecution unlikely. (Mbonga v. Garland, 11/22/21)
LexisNexis: Elhady v. Bradley Maj. – “In short, when it comes to the border, the Bivens issue is not difficult—it does not apply. And district courts would be wise to start and end there.
Law360: A fractured Ninth Circuit panel on Tuesday undid a removal order against an Indonesian couple who say they fear persecution for their evangelical Christian beliefs, handing the parents of three a win on their third turn before the appeals court.
AILA: The court issued an order denying the rehearing en banc of Soto-Soto v. Garland, in which the court held that the BIA erred by reviewing the IJ’s decision de novo rather than for clear error. (Soto-Soto v. Garland, 11/18/21)
AILA: Where petitioner had filed a motion for reconsideration arguing that a recent Supreme Court ruling rendered his conviction no longer a “crime of violence” aggravated felony, the court held that the BIA did not abuse its discretion in denying equitable tolling. (Goulart v. Garland, 11/18/21)
AILA: The court held that the BIA failed to give reasoned consideration to the Sri Lankan petitioner’s claim that, as a Tamil failed asylum seeker, he had a well-founded fear of future persecution, and thus remanded his asylum and withholding of removal claims. (Jathursan v. Att’y Gen., 11/17/21)
AILA: The BIA found that the respondent’s conviction for carjacking under section 215(a) of the California Penal Code is categorically a conviction for an aggravated felony crime of violence. Matter of A. Valenzuela, 28 I&N Dec. 418 (BIA 2021)
AILA: The White House issued a proclamation suspending and limiting the entry for certain immigrants and nonimmigrants who were physically present in countries where the Omicron variant of COVID-19 has been detected. Effective 11/29/21.
AILA: DHS issued updated guidance on the enforcement of civil immigration law. Guidance is effective on 11/29/21 and will rescind prior civil immigration guidance.
AILA: USCIS issued a policy alert that it is incorporating and superseding existing guidance into the USCIS Policy Manual addressing topics in the context of general adjudications, including evidence, sworn statements, and adjudicative decisions.
AILA: EOIR issued guidance to address administrative closure in light of Matter of Cruz-Valdez. Where a respondent requests administrative closure, and DHS does not object, the request should generally be granted and the case administratively closed. Guidance effective as of 11/22/21.
AILA: EOIR announced it will open a new immigration court in Santa Ana, California, on November 29, 2021. The court will include 22 immigration judges. At the time of opening, three judges will hear cases transferred from the Los Angeles – Olive Street court. EOIR has notified the affected parties.
AILA: DOS stated that the guidance to posts for the prioritization of consular services issued in November 2020 has been rescinded. Embassies and consulates have discretion on prioritizing visa appointments among the range of visa classes.
ICE: The ICE Appointment Scheduler is an appointment scheduling and management tool developed by U.S. Immigration and Customs Enforcement (ICE) to help manage the scheduling of individual and family unit (FAMU) noncitizens required to appear before ICE for further immigration case processing. Only noncitizens apprehended and released by U.S Customs and Border Protection (CBP) via Prosecutorial Discretion (PD) can schedule appointments on the website at this time. There is a video tutorial link on the right side of the website.
EOIR has changed the automated case information website. Even though it looks like you have to type the A# one digit at a time, the web form still allows you to copy and paste a complete A# into the form, even with hyphens. Depending on the device you are using to view the website, you may need to scroll down to view the English-Spanish toggle. The web address also has changed, although the old address automatically redirects you for the time being.
USCIS: USCIS mistakenly rejected certain applications for employment authorization (Form I-765, Application for Employment Authorization) from petitioners for U nonimmigrant status that were filed without a fee (or request for fee waiver) from June 14 through Sept. 29, 2021.
WaPo: The reconciliation bill would create the largest mass-legalization program for undocumented immigrants in U.S. history, but it falls well short of a path to U.S. citizenship. Roughly 7 million of the 11 million undocumented immigrants would be eligible to apply for work permits, permission to travel abroad, and benefits like state driver’s licenses, a major step for immigrants from Mexico, Central America and other lands who remain vulnerable to being deported. See also House Sends Biden’s $1.75T Budget Plan To Senate.
CNN: The Department of Homeland Security has stopped the practice of releasing migrants in the United States only with paperwork that tells them to report to an Immigration and Customs Enforcement office, Secretary Alejandro Mayorkas told senators Tuesday.
Law360: Millions of people living in the U.S. illegally face barriers to accessing affordable health care due to their immigration status, but the immigration provisions of a budget bill making its way through Congress could remove some of those obstacles.
Law360: U.S. Secretary of Homeland Security Alejandro Mayorkas blasted the previous administration’s zero tolerance immigration policy and told senators at a contentious hearing Tuesday that possible settlement payments to separated families would not necessarily incentivize future migration.
Documented: In October 2021, all remaining detained immigrants from the Hudson County Jail, and just last week from the Bergen County Jail, were either transferred to other facilities, released or deported. Most were moved from New Jersey jails to two facilities in New York State: the Orange County Correctional Facility in Goshen and the Buffalo Service Processing Center in Batavia, near Buffalo.
Vox: At the current pace, the US won’t come within striking distance of the 125,000 cap by the end of the fiscal year — and, given the State Department’s new refugee guidance, it’s unlikely that refugee agencies will be able to expand capacity to ramp up that pace soon.
Business Insider: The current dearth of workers is mirrored by the number of working-age adults who would have lived in the United States if pre-Trump immigration trends persisted, according to 2020 US Census data.
AIC: The Court’s decisions on these cases will impact access to: Federal court review over certain immigration judge decisions.
Bond hearings for certain noncitizens who have spent months in detention. Personal liability and damages for federal officers’ unconstitutional actions. The Court also will consider whether states can defend immigration policies that the federal government will no longer defend.
BIA: The respondent’s conviction for carjacking under section 215(a) of the California Penal Code is categorically a conviction for an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2018).
Law360: The First Circuit gave a Cape Verdean man a second shot at proving his conviction for possessing oxycodone doesn’t bar him from accessing deportation relief, ordering an immigration authority to weigh whether the decades-old precedent it applied is outdated.
AILA: The court found that the BIA erred by refusing to consider the Sri Lankan petitioner’s country-conditions evidence in its likelihood-of-torture assessment with regard to his Convention Against Torture (CAT) claim, as required by 8 CFR §1208.16(c)(3). (Arulnanthy v. Garland, 11/8/21)
Law360: A legal advocacy group that seeks to restrict immigration to the U.S. urged the full Fifth Circuit on Monday to reverse a panel decision that kept in place the Biden administration’s policy curbing immigration enforcement operations.
AILA: The court found it lacked jurisdiction to review petitioner’s challenge to his expedited removal proceedings, concluding that a recent Supreme Court decision abrogated any colorable constitutional claim exception to INA §242(a)(2)(A). (Guerrier v. Garland, 8/16/21, amended 11/9/21)
AILA: Dismissing the petition for review of an order reinstating petitioner’s removal order, the court held that the petitioner had failed to establish a gross miscarriage of justice that would permit it to entertain a collateral attack on the underlying order. (Lopez Vazquez v. Garland, 11/12/21)
Law360: The Ninth Circuit dismissed a Mexican man’s deportation appeal, finding that his past state conviction for animal cruelty encompassed both a guilty mental state and reprehensible actions, qualifying him for removal, despite his claim that he injured the animal accidentally.
Law360: A divided Ninth Circuit panel refused to reopen a convicted burglar’s deportation case following a Supreme Court decision disqualifying his removal, with two judges locking horns over whether the migrant showed enough commitment to fighting for his rights in the interim.
Law360: The Eleventh Circuit breathed life into a Sri Lankan man’s bid for deportation protections on Thursday, finding that the Board of Immigration Appeals ignored evidence and misstated facts on the record when it denied him relief.
Law360: A Texas federal judge refused to expedite the federal government’s reimplementation of a Trump-era program requiring asylum-seekers to wait in Mexico, saying the government has clearly documented its efforts to reinstate the program formally known as the Migrant Protection Protocols.
Law360: Arizona, Montana and Ohio sued the Biden administration Thursday over guidance issued to U.S. Immigration and Customs Enforcement that aims to narrow the agency’s enforcement operations, marking the second such suit brought by states challenging the policies.
AILA: DOJ provided a status update on the settlement negotiations, which states that on 11/11/21, DOJ made a counteroffer to publish BIA decisions, subject to certain limitations, on a prospective basis and going back approximately five years. (NYLAG v. BIA, 11/17/21)
Law360: The sheriff of Sacramento County has a “shadow” system for transferring inmates to U.S. Immigration and Customs Enforcement, violating California’s restrictions on local police cooperation with federal immigration authorities, according to a lawsuit announced Tuesday.
AILA: The Biden administration filed compliance reports after a district court ordered the administration to submit information on key pieces of data and steps it was taking toward implementation of MPP.
AILA: USCIS clarified that if a naturalization applicant requests oath modification but does not provide oral testimony or evidence, officers should issue a Request for Evidence. Guidance effective 11/19/21, comments due by 12/20/21.
Law360: The Biden administration on Tuesday barred Nicaraguan government officials from entering the U.S. over President Daniel Ortega’s continued assault on democratic processes, civil society and human rights, nine days after elections the White House called a “pantomime.”
Law360: The Biden administration on Thursday lifted Obama-era restrictions on Burundi government officials who that administration held responsible for the human rights abuses that plagued the African country during a former president’s controversial third term.
AILA: DHS provided an update on the horse patrol activity in Del Rio, Texas on September 19, 2021. DHS OIG declined to investigate and referred to CBP’s Office of Professional Responsibility. Once an investigation is completed, CBP management will determine whether disciplinary action is appropriate.
CBS: The U.S. Immigration and Customs Enforcement (ICE) plan, dubbed “Operation Horizon,” is designed to place tens of thousands of migrants who received ad hoc processing near the southern border into deportation proceedings. The agency will be sending migrants “notices to appear,” as well as other documents.
Hoppock: In a memorandum dated November 8, 2021, the Director of the Executive Office for Immigration Review, David Neal, has rescinded the agency’s formal COVID-19 guidance, leaving a number of questions unanswered on how the courts will handle COVID-19 in the coming days and months.
NYT Editorial Board: The Biden administration says that border patrol agents are simply following orders from the Centers for Disease Control and Prevention that were put in place to keep the country safe from Covid-19. But there is little doubt that the administration has used the policy as a stopgap measure to quickly remove migrants who are gathering at the southern border in large numbers, pushed by the economic fallout from Covid in South and Central America and pulled by the rumors of lenient treatment under a more welcoming American president, among other factors. See also Trump CDC official: No ‘public health reason’ for border closure, Title 42.
WaPo: CBP figures show about 1,000 Haitians were taken into custody along the Mexico border last month, down from 17,638 in September, when huge crowds waded across the Rio Grande to a makeshift camp in Del Rio, Tex., creating a humanitarian and political crisis for the Biden administration.
AP: Roughly 35 of the country’s more than 530 immigration judges are assigned to the new docket, according to the most recent data provided by the Executive Office for Immigration Review, which oversees federal immigration courts. Many juggle the duties on top of their normal caseloads. While it’s still early, the effort has made progress: As of mid-September, it was handling nearly 16,000 cases, and more than 100 had received at least an initial decision, according to the agency.
Reuters: Inside the camp, which is fenced in and controlled by police, Reuters spoke to over 20 migrant children, four of whom had documents showing they were born in the United States.
Reuters: Mexico is considering setting tougher entry requirements for Venezuelans, partly in response to U.S. requests, after a sharp rise in border arrests of Venezuelans fleeing their homeland, according to three people familiar with the matter.
Law360: Workers in a half dozen countries, including Haiti, will be newly eligible to come to the United States on temporary, employment-based visas next year, the U.S. Department of Homeland Security announced Tuesday.
Lexis: He asserts that first-degree robbery under section 569.020(1) (now section 570.023) of the Mo. Rev. Stat. is substantially similar to the qualifying crime of felonious assault… the Petitioner has met his burden of establishing, by a preponderance of the evidence, that the offenses are substantially similar.
AILA: The court held that it lacked jurisdiction to consider the petitioner’s claim that the BIA erred by rejecting his proposed particular social group (PSG) of “Brazilian landowners,” finding that the petitioner had failed to exhaust his administrative remedies. (Gomes v. Garland, 11/3/21)
AILA: The court upheld the denial of asylum to the petitioner, holding that substantial evidence supported the IJ’s and BIA’s adverse credibility determination because inconsistencies in petitioner’s testimony were cumulatively persuasive of a lack of credibility. (Mashilingi v. Garland, 11/2/21)
AILA: The court concluded that the definition of crime involving moral turpitude (CIMT) does not violate the U.S. Constitution, and that Virginia’s felony eluding statute, Va. Code §46.2-817(B), constitutes a CIMT. (Canales Granados v. Garland, 11/4/21)
Law360: The Ninth Circuit has upheld a 1996 deportation order against a Mexican man even though his guilty plea for possessing cocaine was vacated, saying the conviction that the order was based on was legally valid when it was issued.
AILA: The court held that the stop-time rule—which sets out the circumstances under which a period of continuous physical presence is deemed to end for cancellation of removal—is not triggered by a final order of removal. (Quebrado Cantor v. Garland, 11/3/21)
AILA: Applying a fact-based inquiry, the court held that the IJ’s refusal to grant a continuance of the petitioner’s merits hearing deprived him of his right to counsel, and thus granted the petition for review. (Usubakunov v. Garland, 11/1/21)
AILA: Temporary Protected Status (TPS) holders filed a class action lawsuit in federal district court challenging USCIS’s rescission of a 30-year policy that allowed TPS holders to seek lawful permanent resident (LPR) status upon return from travel abroad. (Gomez, et al. v. Jaddou, et al., 11/8/21)
AILA: Five asylum seekers filed a class action lawsuit in the U.S. District Court for the Northern District of California challenging USCIS’s allegedly unlawful delay in adjudicating applications to renew employment authorization documents (EADs) for asylum seekers. (Tony N. v. USCIS, 11/10/21)
AILA: AILA and litigation partners Wasden Banias and Steven Brown celebrate the historic settlement with DHS in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long-delayed processing times for EAD applications.
AILA: EOIR announced that eRegistration for ECAS will be fully virtual. Starting November 15, two-phase eRegistration is required to validate a registrant’s identity, but practitioners no longer have to appear in-person to show photo ID. The memo lists registration times and contact information.
AILA: EOIR released guidance stating that its website will be the principal method of communication with the public regarding updates to EOIR’s protocols during the COVID-19 pandemic and will no longer issue these formal documents. Guidance is effective 11/8/21.
AILA: USCIS provided policy guidance stating that current or former members of the U.S. armed forces who serve honorably during specifically designated periods of hostilities may be eligible to naturalize. Guidance is effective 11/12/21, comments are due by 12/31/21.
AILA: ICE ERO updated its COVID-19 Pandemic Response Requirements (PRR) to set forth expectations and to assist detention facility operators in sustaining detention operations during the pandemic. The PRR sets mandatory requirements and best practices for all detention facilities housing ICE detainees.
AILA: DOS stated they can process visa applications for individuals physically present in Brazil, China, India, Iran, Ireland, the Schengen Area, South Africa, and the United Kingdom. Applicants who were refused should request reconsideration, but should not expect readily available visa appointments.
AILA: DHS announced that it will exempt certain filing fees for Afghan nationals who were paroled into the United States for humanitarian reasons on or after July 30, 2021. They will also streamline processing requests for work authorization, Green Cards, and associated services.
AILA: USCIS stated that Afghan nationals with an approved Form I-360 who are employed by the U.S. government or ISAF in Afghanistan and plan to file Form I-485 must be physically present in the United States and provide a U.S. address on Form I-485. Filing fees for Form I-485 may be waived.
The inadequacy of mailed NTAs has been well-established. 80,000 notices mailed to addresses gathered in haste and confusion by an agency renowned for sloppy work! What could possibly go wrong?
Unanswered Questions:
How many older cases that might otherwise have been completed were “reshuffled” to achieve 100 “Expedited Docket” completions?
Reuters: The 9th U.S. Circuit Court of Appeals in a 2-1 ruling said the preliminary injunction issued last year improperly placed ICE’s entire network of detention facilities under the direction of a single federal judge, an error because the plaintiffs failed to show systemic nationwide shortfalls in detainee health protections.
NPR: The Border Patrol recorded nearly 1.7 million migrant apprehensions at the Southern border over the past year — the highest number ever, eclipsing the record set more than two decades ago. But that doesn’t mean it’s the biggest number of individual migrants who’ve illegally crossed from Mexico into the U.S. in a single year. In fact, it’s probably not even close. See also Tired of waiting for asylum in southern Mexico, thousands of migrants march north.
BuzzFeed: The report offers a rare window into the behind-the-scenes dysfunction and confusion surrounding the so-called Remain in Mexico program, which is set to come back.
NYT: More than 160 reports, obtained by Human Rights Watch, reveal details of mistreatment that asylum seekers described experiencing from border officials and while in U.S. custody.
WaPo: A U.S. Customs and Border Protection discipline board found that 60 agents “committed misconduct” by sharing violent and obscene posts in secret Facebook groups but fired only two — far fewer than an internal discipline board had recommended, according to a House Oversight and Reform Committee report released Monday.
Intercept: An internal review of Efraín Romero de la Rosa’s death in ICE custody found almost two dozen policy violations during his stint in detention.
Law360: President Joe Biden hasn’t shied away from using controversial technologies for immigration enforcement, raising concerns that his predecessor’s pet project to build a border wall is being replaced with a “virtual wall” rife with privacy and civil liberties problems.
Newsweek: SLS was previously assigned to build the border wall under the Donald Trump administration, but now it is expected to work with the health department to also offer migrants prescription services and transportation for “safe onward travel.”
Law360: The U.S. Supreme Court on Monday vacated a Third Circuit ruling in a deportation case that barred a Yemeni man from acquiring citizenship through his naturalized but divorced parents, after the Biden administration said the lower court overlooked precedent.
Law360: Advocates of drastically reduced immigration urged the U.S. Supreme Court on Thursday to overturn decisions in the Third and Ninth circuits that said migrants who have been detained more than six months should get a bond review hearing.
Law360: A coalition of conservationists and ranchers has asked the U.S. Supreme Court to review a Ninth Circuit ruling that the federal government need not subject immigration policies to environmental review, saying it created an “impossible” standard for challenging immigration programs.
Law360: The First Circuit revived a Honduran man’s bid for protection from a deportation order, ruling that immigration authorities saw discrepancies in his testimony that he faced persecution as an HIV-positive gay man where there were none.
AILA: The court held that the petitioners’ convictions under Connecticut General Statute §21a-277(a) were controlled substance offenses and aggravated felony drug trafficking crimes, and that the jurisdictional holding of Banegas Gomez v. Barr remained good law. (Chery v. Garland, 10/15/21)
AILA: Granting the petition for review and remanding, the court held that while the BIA was correct in finding that the petitioner had not suffered political persecution in China, its reasons for rejecting religious persecution were flawed. (Liang v. Att’y Gen., 10/12/21)
AILA: The court abrogated Matter of S-O-G- & F-D-B-, holding that 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA the general power to terminate removal proceedings. (Chavez Gonzalez v. Garland, 10/20/21)
Law360: The Fifth Circuit on Wednesday asked the federal government to respond to Texas and Louisiana’s petition for the full appellate court to review a panel’s decision allowing the Biden administration’s policy curbing immigration enforcement operations to remain in place.
Law360: The Fifth Circuit refused to freeze the Biden administration’s appeal of a lower court order stopping the federal government from approving new applications under the Deferred Action for Childhood Arrivals program while it inks a replacement rule.
LexisNexis: Fraihat v. ICE Maj. – “COVID-19 presents inherent challenges in institutional settings, and it has without question imposed greater risks on persons in custody. But plaintiffs had to demonstrate considerably more than that to warrant the extraordinary, system-wide relief that they sought.
AILA: The U.S. District Court for the District of Columbia ordered the defendants to commence processing the 9,905 DV-2020 visas as soon as is feasible, and to conclude such processing no later than the end of FY2022, or September 30, 2022. (Gomez, et al. v. Biden, et al., 10/13/21)
Law360: The federal government urged the D.C. Circuit to erase a lower court’s injunction blocking its use of a public health law to expel migrant families, arguing that the lower court interpreted its powers under the authority too narrowly.
Law360: A D.C. federal judge ordered U.S. Customs and Border Protection on Monday to release previously withheld documents related to the government’s 2017 attempt to unmask a Trump administration critic’s Twitter account, while scolding the agency for its “lackluster efforts” to comply with Freedom of Information Act requirements.
Law360: A Michigan federal judge rejected two brothers’ claims that their due process and religious freedom rights were violated when they were denied travel authorization to Mexico for their grandfather’s funeral, saying that they had no recourse against the officials involved.
AILA: DOJ provided a status update to the court, which states that the BIA and NYLAG are in discussions regarding the possibility of posting certain unpublished BIA decisions online, both prospectively and retrospectively. (NYLAG v. BIA, 10/15/21)
Law360: The Pentagon denied foreign-born soldiers’ contention that it was flouting an injunction to process their citizenship requests, telling a Washington, D.C., court that it was complying and close to doubling the number of requests that are processed annually.
AILA: In balancing respondent’s desirability as a permanent resident with social and humane considerations, the IJ found that respondent was entitled to a waiver of removability for fraud or misrepresentation under INA §237(a)(1)(H). Courtesy of Christopher Helt. (Matter of Mohammed, 9/13/21)
AILA: CBP notification of the continuation of travel restrictions limiting non-essential travel from Mexico into the U.S. at land ports of entry through 1/21/22, while also announcing the intent to lift these restrictions for individuals fully vaccinated against COVID-19. (86 FR 58216, 10/21/21)
AILA: DHS notice establishing procedures for individuals covered by Deferred Enforced Departure (DED) for Hong Kong to apply for employment authorization through 2/5/23. (86 FR 58296, 10/21/21)
Suffolk County DA: Newly created Immigrant Affairs unit. The Chief of the unit is Leslie Anderson and Deputy Chief is Imran Ahmed. Their hotline is 631-852-2950 and the dedicated email address is immigrantaffairsDA@suffolkcountyny.gov.
Sadly, more than eight months in, the Biden Administration lacks:
A coherent vision for the border;
A cogent plan to restore the refugee system and the legal asylum system (the poorly conceived “proposed asylum regs” — mostly opposed by our Round Table and other asylum experts — don’t make it);
The tough, courageous, well-informed leadership to make the necessary border enforcement and Immigration Court reforms and to stand up to the entirely predictable, well-organized nativist opposition, led by Stephen “Gauleiter” Miller and his accomplices.
Not a “recipe for success,” in my view!
Another item worthy of note: The pending settlement between NYLAG and EOIR on making unpublished decisions readily accessible to the public could open new avenues for advocates.
BIA panel decisions favorable to respondents are almost never published as precedents by an organization where judicial independence and due process have long taken a back seat to “job preservation” within the DOJ. Politicos @ DOJ are normally much more interested in supporting enforcement and “false deterrence” goals than with enhancing due process, enforcing immigrants’ rights, and achieving racial justice when it comes to immigrants.
If you or any of the retired IJs wanted to follow-up on the phantom NTA issue, I just wanted to pass along a good source: CLINC webinar @1:07:08: https://cliniclegal.org/training/archive/orders-border. It also affects the ability to file motions to change venue because DHS is serving the NTA on EOIR the day of the master calendar hearing, so there are no proceedings for which to file a motion until the day of court.
Judge Garland isn’t worried! HE doesn’t have to practice before the dysfunctional Immigration Courts! PHOTO: Wikipedia Commons
Absolutely “nutsos!” But just “another day at the office” in the three-ring circus 🎪🤹♀️🤡that “Ringmaster Garland” calls his “courts!” Where’s the accountability for this disgraceful mess? Where is the Congressional oversight? What happened to the essential “Article I legislation” to remove this continuing clown show from a flailing and failing DOJ?
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
ALERTS
EOIR Courts & Appeals Systems (ECAS) Locations: Electronic filing went live on 9/23/2021 at NYC-Broadway and will be available at NYC-Varick on 9/30/2021 (remember that electronic filing is not available for cases that commenced before those dates). No date has been announced for NYC-Federal Plaza, although EOIR has previously indicated all courts should have ECAS by 2022.
Reviewing ROPs: There have been reports of attorneys successfully scheduling appointments to review the record of proceeding at Varick and 290 Broadway. The clerk answering the main phone line at 26 Federal Plaza indicated she was unaware of any policy allowing in-person review of ROPs at this time but stated people could try making a request.
ABC: The proposed regulation attempts to satisfy concerns of a federal judge in Houston who ruled in July that the Deferred Action for Childhood Arrivals program was illegal. It takes on heightened importance as prospects for legislation have dimmed.
WGBH: The Office of the Principal Legal Advisor sends its prosecutors to litigate deportation cases before the Executive Office for immigration Review, the body that oversees the nation’s immigration courts. Doyle has been an outspoken critic of the agency and has led many lawsuits against it.
EOIR: Most recently, Mr. Neal was a consultant specializing in immigration policy and practice. Previously, he held positions at EOIR over two decades. From 2009 to 2019, he served as Chairman of the BIA at EOIR, where he was chief judge of the appeals board and managed judicial and administrative operations.
NPR: As the Biden administration scrambles to relocate thousands of Haitian migrants camped in a small Texas border town, it’s also looking for a private contractor to help operate a migrant detention facility at the U.S. Naval base at Guantanamo Bay, Cuba — and to hire at least some guards who speak Spanish and Haitian Creole.
NYT: Mr. Biden’s decision is unlikely to affect two groups of people most recently in the news: tens of thousands of people from Kabul fleeing the Taliban takeover in Afghanistan and more than 15,000 Haitians in a sprawling, makeshift camp under a bridge at the southern border.
Politico: The inspector general also found that a Customs and Border Protection official asked the Mexican government in December 2018 to block 14 U.S. citizens from entering Mexico as the caravan approached the U.S. border even though it had “no genuine basis” to do so.
NYT: Among the many cruelties of our immigration system is this: Transnational adoptees, whose stories begin with a rupture from their birth families and home countries, have often found themselves deprived of U.S. citizenship and at risk of deportation.
AP: Newsom on Friday signed a law that removes the word from various sections of the California state code. California passed laws in 2015 and 2016 that removed the word from the state’s labor and education code.
AP: But contrary to expectations, nearly all 92,000 people approved for aid so far have qualified for the maximum $15,600 available under the program, the state’s website showed Thursday afternoon. Roughly 223,500 claims have been submitted overall, with a rush coming in recent days.
BIA: A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings.
LexisNexis: Spring, Texas attorney Veronica Semino scored this unpublished BIA remand for her client, who is still detained in Oakdale. In the single-member decision dated Aug. 5, 2021 , Temporary Appellate Immigration Judge Gabriel Gonzalez wrote: “[W]e agree with the respondent that the harm he suffered in Jamaica rises to the level of persecution.
Law360: The Third Circuit Wednesday vacated a Board of Immigration Appeals’ decision that denied a Yemeni man’s request for protection from deportation, saying the board ignored “overwhelming evidence” that the man had been persecuted and could be tortured for his political beliefs.
LexisNexis: Abushagif v. Garland “Abushagif contends that the BIA abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed.
AILA: The court held that the BIA erred by failing to require DHS to make a good faith effort to present for petitioner’s cross-examination the author or declarant of a probation report upon which it relied to make its particularly serious crime determination. (Alcaraz-Enriquez v. Garland, 9/16/21)
AILA: The court held that because the petitioner’s prior removal order was reinstated, he had no right under the INA to seek asylum and no constitutional right to have DHS consider whether, as a discretionary matter, to decline to reinstate that order. (Iraheta-Martinez v. Garland, 9/7/21)
Law360: The Ninth Circuit denied a Chinese national’s bid for asylum over religious persecution, finding that she failed to disclose her 2013 arrest by U.S. authorities and could not offer a plausible explanation for her omission.
Law360: Two immigration courts improperly dismissed evidence supporting a Chinese woman’s claims that government officials forced her to undergo an abortion in her home country, according to the Ninth Circuit, which revived her family’s asylum case.
Law360: A D.C. federal judge approved a plan requiring U.S. Immigrations and Customs Enforcement to attempt to place migrant teens who turn 18 in government custody in less-restrictive housing options than adult detention facilities, stipulating changes to documentation and officer training.
Law360: A Florida federal judge on Tuesday struck down key portions of a 2019 state law banning “sanctuary” immigration policies as unconstitutional, finding a South Florida city and immigration advocates proved discriminatory intent and violations of equal protection rights at a bench trial in January.
LexisNexis: Derek Brouwer, Vermont Seven Days, Sept. 24, 2021 “Border patrol officers can search Vermonters’ cars without a warrant under their special federal authority to conduct “roving” patrols within 100 miles of the U.S. border. But, as of Friday, evidence they collect during the controversial searches can no longer be used to prosecute crimes in state courts, a narrow majority of the Vermont Supreme Court.
Law360: A class of asylum-seekers has asked a California federal judge to oversee the U.S. Department of Homeland Security’s compliance with two orders directing authorities to process some asylum claims, saying the federal government’s foot-dragging has proven the need for court oversight.
Law360: Texas and Missouri have blasted the Biden administration’s delays in complying with a court order to restart a Trump-era program requiring asylum-seekers to wait in Mexico, saying the government need not hash out an agreement with Mexico before reinstating the policy.
Law360: The American Civil Liberties Union urged the D.C. Circuit to maintain a lower court ruling that blocked a Trump-era asylum bar, saying that though the regulation is now moot, vacating the injunction would create “perverse incentives” for the government.
AILA: USCIS announced that, in response to the ongoing COVID pandemic, it extended the flexibilities for responding to certain agency requests. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 15, 2022, inclusive.
AILA: DOJ announced that non-U.S. citizens can request new or replacement Social Security cards using USCIS Forms I-765 or I-485, instead of visiting a local Social Security Administration office. Cards should be received within two weeks after receiving Employment Authorization Documents.
AILA: ICE provided updated statistics on COVID-19 in ICE detainees, by facility. As of 9/23/21, there are 526 positive cases currently in custody among a total detainee population of 22,442.
AILA: On 9/17/21, President Biden signed an executive order imposing sanctions on persons determined to be responsible for humanitarian and human rights violations in Ethiopia, including suspending the immigrant and nonimmigrant entry into the United States of such persons. (86 FR 52389, 9/21/21)
AILA: DOS provided the President’s Report to Congress on the proposed Presidential Determination on Refugee Admissions for FY2022. The report recommends an increase in the refugee admissions target from 62,500 in FY2021 to 125,000 in FY2022, prioritizes admissions, states ORR goals, and more.
“After 16 years of inexcusable delays, I am proud that EOIR’s dedicated work over the past year has culminated in the piloting of a comprehensive electronic filing and case management system,” said [then] EOIR Director James McHenry. “With this important initiative, EOIR joins other court systems in the U.S. that have long provided such capabilities. ECAS will aid the parties and assist judges in hearing cases expeditiously and fairly, and will further augment EOIR’s efforts in tackling the pending case backlog.”
. . . . The program will extend to all remaining immigration courts in 2019.
Las Vegas is giving 50-1 odds that this won’tbe in full operation by the end of 2022. Anyone want to bet on “America’s Clown Courts” 🤡 to beat the odds and deliver?
Meet the New Chief of E-Filing @ EOIR (Looks alot like predecessors). Reportedly, he has a “nose” for the business! PHOTO: Wikimedia Commons
NYT: The Senate’s parliamentarian ruled that Democrats’ plan to give 8 million immigrants a path to citizenship could not be achieved through the reconciliation process.
CNN: The 5th US Circuit Court of Appeals found that the provisions do not eliminate immigration officials’ “broad discretion” to decide who should face enforcement action, according to the ruling. The part of the injunction that was not put on hold is already in line with general enforcement protocol.
Guardian: The Biden administration on Saturday was working on plans to send many of the thousands of Haitian immigrants who have gathered in a Texas border city back to their homeland, a swift response to the huge influx of people who suddenly crossed from Mexico and congregated under and around a bridge. See also How Hope, Fear and Misinformation Led Thousands of Haitians to the U.S. Border.
Newsweek: Despite its number of applications consistently hovering around the eight to 10 million range for the past five years, the U.S. Citizenship and Immigration Services (USCIS) processing times jumped six-fold between 2015 and 2020. The agency now faces a backlog of millions of petitions from people looking to temporarily stay or live in the country, receive humanitarian relief, obtain work authorization or become U.S. citizens.
Gothamist: On Monday, the City Council will hold a hearing on a proposal that would extend voting rights in local elections to people like John, along with 900,000 legal, permanent residents who have been living in New York City for more than 30 days and are otherwise eligible to vote. While the bill (Intro. 1867) is supported by a majority of the current members of the council and a coalition of community organizations, it faces steep obstacles, starting with Mayor Bill de Blasio.
BIA: A person who enters the United States as a refugee and later adjusts in the United States to lawful permanent resident status is not precluded from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2018), based on a conviction for an aggravated felony, because he or she has not “previously been admitted to the United States as an alien lawfully admitted for permanent residence” under that provision.
AILA: The court concluded that the holding in the BIA’s 2010 decision in Matter of Soram applied retroactively to the petitioner’s 2006 New York conviction for child endangerment, and thus the petitioner was removable. (Marquez v. Garland, 9/7/21)
AILA: The court held that the petitioner’s conviction for aggravated identity theft in violation of 18 USC §1028A(a)(1) was a crime involving moral turpitude (CIMT) because it requires fraudulent intent, and thus, he was removable under INA §237(a)(2)(A)(ii). (Sasay v. Att’y Gen., 9/10/21)
AILA: The court granted a stay of the preliminary injunction pending appeal to allow DHS/ICE to rely on Biden’s enforcement priorities memos, in all respects, except for detained individuals subject to mandatory detention or ordered removed. (Texas, et al. v. United States, et al., 9/15/21)
AILA: The court held that USCIS’s new bona fide determination process did not moot the plaintiffs’ case, and that the plaintiffs had sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U visa waitlist. (Barrios Garcia et al. v. DHS et al., 9/13/21)
AILA: The en banc court overruled prior circuit precedents establishing and applying the single factor rule, which required the court to sustain an adverse credibility determination by the BIA if one of the agency’s identified grounds was supported by substantial evidence. (Alam v. Garland, 9/8/21)
AILA: The court held that the law-of-the-case doctrine did not require it to accept a prior Ninth Circuit panel’s determination that the petitioner was not a Christian, and found that he was not required to reattach his application for relief to his motion to reopen. (Etemadi v. Garland, 9/9/21)
AILA: The court held that petitioner, a lawful permanent resident who had been found mentally incompetent, had received adequate safeguards in his removal proceedings, and had failed to exhaust his claim regarding the IJ’s “particularly serious crime” determination. (Benedicto v. Garland, 9/9/21)
AILA: Granting the petition for review, the court held that felony child endangerment in violation of California Penal Code §273a(a) does not constitute a “crime of child abuse, child neglect, or child abandonment” within the meaning of INA §237(a)(2)(E)(i). (Diaz-Rodriguez v. Garland, 9/10/21)
Law360: The Ninth Circuit once again ruled that the Board of Immigration Appeals unfairly denied a Mexican national’s bid to rebut his ex-girlfriend’s testimony from a domestic incident, three months after the Supreme Court vacated its earlier decision and remanded the case.
AILA: The court held that petitioner had failed to preserve whether his defective Notice to Appear (NTA) violated BIA’s claim-processing rules, and found he was removable for his controlled substance conviction, or alternatively, his second-degree assault conviction. (Farah v. Att’y Gen., 9/8/21)
AILA: The court concluded that each of the petitioner’s two Georgia convictions for simple battery under OCGA Section 16-5-23 was “a crime of violence … for which the term of imprisonment [was] at least one year” within the meaning of INA §101(a)(43)(F). (Talamantes-Enriquez v. Att’y Gen., 9/9/21)
AILA: The court granted motions for class certification and preliminary injunction (the PI was stayed for 14 days), to prevent U.S. border officials from using Title 42 to expelling families with young children seeking asylum. (Huisha-Huisha, et al. v. Mayorkas, 9/16/21)
AILA: The Biden administration filed their first Migrant Protection Protocols (MPP) compliance report. Earlier, the district court ordered the administration to submit information on key pieces of data and steps it was taking toward implementation of MPP. (Texas, et al., v. Biden, et al., 9/15/21)
AILA: USCIS released updated policy guidance, effective 9/16/21, revising the criteria that applies when determining whether to refer an asylee or refugee adjustment applicant for an interview. Policy also includes criteria relating to a principal applicant’s underlying asylum claim.
AILA: USCIS temporary final rule extending the expiration date of the temporary final rule on interpreters at asylum interviews published at 85 FR 59655, which was set to expire on 9/20/21, through 3/16/22. (86 FR 51781, 9/17/21)
AILA: DOS and DHS released a statement announcing that the Central American Minors (CAM) program will begin accepting new applications as of 9/14/21. Statement also included a reminder that eligibility for the program was also expanded.
AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.
Politico: With bipartisan immigration talks stalled, the White House and congressional Democrats are pushing to add a path to legal residency for 8 million immigrants to their sprawling social spending plan this fall. In order to steer that help for Dreamers, essential workers and those with Temporary Protected Status past a filibuster, though, the party has to win over the Senate parliamentarian, the chamber’s non-partisan rules arbiter.
TRAC: Alongside the growing number of asylum-seekers assigned to the new Dedicated Docket, new questions emerge about whether these cases will be completed fairly and within the promised timeline, whether Immigration Judges will be able to manage large Dedicated Docket caseloads, and whether the Court is reliably tracking these cases as promised.
AP: A federal task force is launching a new program Monday that officials say will expand efforts to find parents, many of whom are in remote Central American communities, and help them return to the United States, where they will get at least three years of legal residency and other assistance.
Reuters: Nearly three dozen former immigration judges have urged the U.S. Supreme Court to rule that federal appeals courts have the power to review immigration court rulings on whether individuals are eligible for relief from deportation.
NPR: The Dulles Expo Center outside Washington, D.C., is usually reserved for home and garden or gun shows. Now the cavernous center hosts thousands of Afghan refugees. See also US gives 1st public look inside base housing Afghans.
NPR: The workers who’d gathered at Tepeyac started compiling a list, which in the next few days grew to 700 missing people. Almost all immigrants, many undocumented.
Intercept: Djumaev himself has never faced any criminal charge nor even been brought before an immigration court. When he later booked travel to the United States, the authorities blocked his return.
Reuters: The renewals for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan will last until Dec. 31, 2022, according to U.S. Citizenship and Immigration Services, and were required as part of ongoing litigation over former President Donald Trump’s attempts to end most enrollment in the program.
Law360: A majority of the First Circuit’s judges declined on Wednesday to rehear a request for deportation relief from a Venezuelan man who said he was forced to smuggle drugs into the U.S., with one judge writing in her dissent that the full panel’s decision not to rehear the case is a “dangerously slippery slope.”
Law360: A Dominican Republic immigrant who pled guilty to endangering a child in 2006 lost his deportation fight on Tuesday when the Second Circuit ruled in favor of the retroactive application of a 2010 decision, which found such crimes a removable offense.
Law360: As he walked down a Brooklyn block with a loaded gun in his hand on a dry, hot summer evening in 2016, Javier Perez didn’t know he was about to trigger a constitutional dilemma.
AILA: The court held that the petitioner, who spoke “Pidgin” English, was denied due process, because the IJ did not conduct an adequate initial evaluation of whether an interpreter was needed and took no action even after the language barrier became apparent. (B.C. v. Att’y Gen., 9/1/21)
AILA: The court held that, because the petitioner was a naturalized citizen at the time of his conviction for a felony relating to conspiracy to illicitly traffic controlled substances, he was not removable under INA §237(a)(2)(A)(iii)’s aggravated felony provision. (Singh v. Att’y Gen., 8/31/21)
LexisNexis: Gayle v. Warden: Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings.
Law360: A Sierra Leonean national who pled guilty to aggravated identity theft lost his fight to stay in the U.S. on Friday, after the Third Circuit found that he had used fake documents for a bank fraud scheme.
AILA: The court upheld the denial of Convention Against Torture (CAT) relief to the petitioner, finding that the evidence did not compel the conclusion that any torture by the MS-13 gang would occur with the consent or acquiescence of Honduran officials. (Tabora Gutierrez v. Garland, 8/31/21)
Law360: A Fifth Circuit panel on Wednesday peppered attorneys with questions aimed at understanding the effect of an order prohibiting the U.S. Department of Homeland Security from following two Biden administration directives that prioritize the removal of certain immigrants.
AILA: Where the petitioner challenged as unconstitutionally vague INA §241(b)(3)(B)(ii)’s non-per-se “particularly serious crime” (PSC) term, the court found that the statute stands because its text imposes standards that must reference underlying facts. (Mumad v. Garland, 8/27/21)
AILA: The court held that, in making an adverse credibility determination as to petitioner, the IJ was allowed to afford substantial weight to discrepancies associated with a threat by gang members and a report the petitioner procured and submitted to the IJ. (Rodriguez-Ramirez v. Garland, 9/1/21)
Alam v. Garland: The en banc court overruled prior Ninth Circuit precedent establishing and applying the single factor rule, which required the court to sustain an adverse credibility determination from the Board of Immigration Appeals, so long as one of the agency’s identified grounds was supported by substantial evidence.
AILA: The court concluded that the petitioner had failed to present sufficient evidence to permit a rational trier of fact to find that his parents had obtained a “legal separation” as required for him to derive U.S. citizenship under former §321(a) of the INA. (Ghia v. Garland, 9/2/21)
AILA: The court held that the BIA erred in applying Matter of Cortes Medina retroactively to classify the petitioner’s 2011 conviction for indecent exposure under California Penal Code section 314.1 as a crime involving moral turpitude (CIMT). (Reyes Afanador v. Garland, 8/27/21)
LexisNexis: Etemadi v. Garland “Kami Etemadi, a citizen and native of Iran, came to the United States in 1996 and made a life in Los Angeles. After being introduced to an Iranian American church, he converted to Christianity and was baptized in 1999. The government maintains his faith is false, and endeavors to deport him.
AILA: U.S. District Judge Cynthia Bashant of the Southern District of California declared unlawful the government’s practice of systematically denying asylum seekers access to the asylum process at ports of entry (POEs) along the U.S.-Mexico border. (<=”” i=”” style=”box-sizing: content-box; background-clip: border-box;”> (9/2/21)
AILA: U.S. District Judge Amit Mehta of the District of Columbia granted summary judgment to plaintiffs on their claims that the No-Visa Policy violates the Administrative Procedure Act (APA), and that defendants unreasonably delayed their visa applications. (Goh, et al. v. DOS, et al., 9/9/21)
Documented: They said an officer violently tugged at an immigrant’s shackles as she was being transferred into ICE custody, which caused her to bleed and bruise on her hips, ankles and wrists. According to multiple women who had been held there, medical neglect there is an “ongoing systemic problem.”
AILA: EOIR issued a memo establishing a dedicated docket to certain individuals in removal proceedings with a focus on the adjudication of family cases as designated by DHS.
AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.
AILA: USCIS notice of the automatic extension of the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through 12/31/22 from the current expiration date of 10/4/21. (86 FR 50725, 9/10/21)
AILA: USCIS stated that they will extend the time that receipt notices can be used to show evidence of status from 18 months to 24 months for conditional permanent residents with pending Form I-751 or Form I-829. New receipt notices will also be provided to those who file Form I-751/I-829 before 9/4/21.
AILA: ICE provided interim guidance on motions to reopen in light of SCOTUS’s decision in Niz-Chavez v. Garland, stating that some noncitizens may now be eligible for cancellation of removal. Until 11/16/21, ICE attorneys will presumptively exercise prosecutorial discretion for these individuals.
AILA: ICE provided updated statistics on COVID-19 in ICE detainees, by facility. As of 9/7/21, there are 847 positive cases currently in custody among a total detainee population of 23,445.
AILA: CDC notice announcing a blanket humanitarian exemption to the requirement for a negative pre-departure COVID-19 test for evacuees from Afghanistan. The exemption went into effect on 8/15/21. (86 FR 49536, 9/3/21)
Item #1 on immigration reform is interesting, although I think the odds on any major reform passing are still slim. If enacted, remedial legislation would not only help America and recognize the huge contributions and potential of our many undocumented residents, but also would help eliminate the largely self-created Immigration Court backlog.
SCOTUSblog: The Supreme Court on Tuesday night rejected the Biden administration’s plea for a reprieve from a district-court order requiring it to reinstate a Trump-era program known as the “remain in Mexico” policy, which requires asylum seekers to stay in Mexico while they wait for a hearing in U.S. immigration court. The court was divided on the decision to deny relief, with the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – indicating that they would have granted the government’s request and put the district court’s order on hold. See also The Supreme Court’s stunning, radical immigration decision, explained; Biden administration will continue challenging ‘Remain in Mexico’.
Politico: U.S. officials in Kabul gave the Taliban a list of names of American citizens, green card holders and Afghan allies to grant entry into the militant-controlled outer perimeter of the city’s airport, a choice that’s prompted outrage behind the scenes from lawmakers and military officials. See also In evacuation mission’s 11th hour, hope dims for Afghans seeking escape.
AP: U.S. Immigration and Customs Enforcement must test detainees for COVID-19 before they are transferred to the immigrant detention center in Tacoma, a federal judge ordered Monday.
The Intercept: ATLAS helps DHS investigate immigrants’ personal relationships and backgrounds, examining biometric information like fingerprints and, in certain circumstances, considering an immigrant’s race, ethnicity, and national origin. It draws information from a variety of unknown sources, plus two that have been criticized as being poorly managed: the FBI’s Terrorist Screening Database, also known as the terrorist watchlist, and the National Crime Information Center. Powered by servers at tech giant Amazon, the system in 2019 alone conducted 16.5 million screenings and flagged more than 120,000 cases of potential fraud or threats to national security and public safety.
AP: Five months after the Biden administration declared an emergency and raced to set up shelters to house a record number of children crossing the U.S.-Mexico border alone, kids continue to languish at the sites, while more keep coming, child welfare advocates say.
NYT: a new camp sprang up about 55 miles farther west, in the Mexican city of Reynosa, and this one, aid workers say, is far worse than the one at Matamoros ever was. Overcrowded already, with more than 2,000 people, it is filthy and foul-smelling, lacking the health and sanitation infrastructure that nonprofit groups had spent months installing at Matamoros. Assaults and kidnappings for ransom are commonplace.
NYT: . Through July, Border Patrol officials found 383 dead migrants, the highest toll in nearly a decade, and one already far surpassing the 253 recovered in the previous fiscal year.
Law360: Florida Gov. Ron DeSantis demanded the Biden administration provide personal information on undocumented migrants being relocated to Florida, including names, addresses and the number of people who tested positive for COVID-19 or refused the coronavirus vaccine.
Law360: A federal watchdog on Wednesday called on U.S. Citizenship and Immigration Services to improve its employment eligibility verification system, finding shortcomings that kept the agency from accurately confirming workers’ identities and work authorization in at least 800,000 instances.
AILA: The Supreme Court denied the application for a stay and thus preventing the Biden administration’s effort to halt the reminstatement of “Remain in Mexico.” (Biden, et al. v. Texas, et al., 8/24/21)
AILA: The court extended the district court stay on the preliminary injunction on the Biden immigration enforcement memos indefinitely. (Texas, et al., v. USA, et al., 8/27/21)
Law360: A Nepalese asylum-seeker has another shot at avoiding deportation after the Second Circuit ruled Friday that an immigration judge had prematurely declared his story of Maoist intimidation and violence not credible without giving him a chance to address minor discrepancies.
Law360: The Second Circuit rejected an immigrant’s arguments Wednesday that after being beaten by members of a rival political party for his affiliation with a Sikh party, he could not escape the threat of more violence by moving within India, affirming a Board of Immigration Appeals’ decision to deny asylum and deport the man.
Law360: A panel of Fifth Circuit judges vacated a Pakistani man’s deportation order issued after he was convicted for synthetic marijuana possession, finding that the Board of Immigration Appeals failed to fully consider whether his state law conviction is equivalent to federal drug law.
AILA: Where the petitioner alleged that the U.S. Supreme Court’s decision in Sessions v. Dimaya made his removal unlawful, the court held that the BIA did not err by construing his motion as a motion to reconsider nor by denying it as time barred. (Gonzalez Hernandez v. Garland, 8/13/21)
AILA: The court granted the petition for review of the BIA’s denial of the petitioners’ motion to reopen, finding the BIA abused its discretion by departing from established policy when it failed to apply the Matter of Sanchez Sosa factors. (Gonzales Quecheluno v. Garland, 8/12/21)
AILA: Where BIA had reversed the IJ’s findings that petitioner would more likely than not be tortured in Somalia, the court found that BIA applied the correct legal standard to the Convention Against Torture (CAT) claim and did not engage in impermissible fact finding. (Mohamed v. Garland, 8/13/21)
Law360: The Eighth Circuit refused to stop an Ethiopian refugee’s deportation, ruling Friday that a portion of the Immigration and Nationality Act allowing the deportation of certain migrants who face persecution upon return is ambiguous, but not unconstitutionally vague.
Law360: The Ninth Circuit Wednesday revived a Cameroonian rape survivor’s asylum bid, ruling that the immigration judge cherry-picked discrepancies in the woman’s testimony to justify deporting her and “displayed a dubious understanding of how rape survivors ought to act.”
AILA: The court upheld BIA’s determination that petitioner was ineligible for cancellation of removal under INA §240A(b)(1)(C) due to his conviction for an offense described in INA §212(a)(2), even though he had been previously admitted into the United States. (Sanchez-Ruano v. Garland, 8/11/21)
AILA: The court held that the IJ failed to put the petitioner on notice that his alleged false claim of U.S. citizenship would be at issue during his hearing, and that such failure violated due process by denying him a full and fair hearing. (Flores-Rodriguez v. Garland, 8/16/21)
AILA: The court found it lacked jurisdiction to review petitioner’s challenge to his expedited removal proceedings, concluding that the Supreme Court’s decision in DHS v. Thuraissigiam abrogated any colorable constitutional claim exception to INA §242(a)(2)(A). (Guerrier v. Garland, 8/16/21)
AILA: The court held that an Interpol Red Notice, among other evidence, created a serious reason to believe that the petitioner had committed a serious nonpolitical crime before entering the United States, and that he was ineligible for withholding of removal. (Villalobos Sura v. Garland, 8/17/21)
AILA: The court held that the record did not compel the conclusion that the petitioner suffered hardship in India that rose to the level of past persecution, where he did not experience significant physical harm and his harm was an isolated event, among other factors. (Sharma v. Garland, 8/17/21)
AILA: Granting in part the petition for review, the court held that vehicle theft under California Vehicle Code §10851(a) is indivisible in its treatment of accessories after the fact, and thus is not an aggravated felony theft offense under INA §101(a)(43)(G). (Lopez-Marroquin v. Garland, 8/18/21)
AILA: The court denied the petition for review, holding that because petitioner was convicted of a violation of 18 USC §1546(a) and his sentence was greater than one year, his conviction expressly fell under the definition of aggravated felony in INA §101(a)(43)(P). (Germain v. Att’y Gen., 8/18/21)
Law360: A split Eleventh Circuit panel refused Tuesday to grant asylum to a member of a Sri Lankan ethnic minority or to block his deportation, ruling he hasn’t proven past persecution or credible fear of future persecution.
Law360: A Texas federal judge has blocked an executive order from the state’s governor banning the transportation of certain migrants in the state, holding it violates the supremacy clause of the Constitution by authorizing state officials to make federal immigration determinations.
Law360: U.S. Immigration and Customs Enforcement must test immigrants for COVID-19 before transferring them to a Washington state detention center, after a federal judge blamed the agency for 240 detainees and facility staff contracting the virus over the past three months.
Law360: The U.S. Department of Homeland Security has told a California federal judge that it could not produce an administrative record related to its practice of turning back asylum-seekers at the southern border because no such policy existed.
AILA: USCIS provided information regarding a proposed class settlement in A.O., et al. v. Jaddou, et al. No. 19-cv-6151 (N.D. Cal.) regarding juvenile court orders in the California Juvenile Court with subsequent filed Special Immigrant Juvenile (SIJ) petitions after the age of 18 years old.
AILA: DHS released a memo with guidance on immigration processing for certain Afghan nationals, stating that they will be paroled into the U.S. on a case-by-case basis for a two-year period and may be eligible to apply for status through USCIS.
AILA: EOIR launched its FOIA Public Access Link (PAL), which will allow users to submit requests, check the status of requests, download records, browse the FOIA reading room, and correspond with the EOIR FOIA Service Center. The PAL also allows users to pay required fees online.
AILA: ICE issued interim guidance to all OPLA attorneys to guide them in appropriately executing interim civil immigration enforcement and removal priorities and exercising prosecutorial discretion. Note, on 8/19/21, OPLA suspended reliance on this guidance due to litigation.
Thanks, Elizabeth! It’s interesting and satisfying that several Circuits, including the 2d and the 9th, are openly rejecting EOIR’s practice of “nit-picking” asylum applicants’ testimony in an attempt to deny meritorious applications. It’s all part of the “culture of denial” that continues to flourish at EOIR’s deportation assembly line under Garland.
Sadly, the Circuits haven’t yet had the guts to face the larger problem here — the EOIR system, as currently staffed with too many “Trump plants” as judges and a continuing lack of expertise and anti-asylum, anti-immigrant bias is clearly unconstitutional under the Fifth Amendment!
Indeed, some Circuit panels take judicial review seriously, others function as rubber stamps, and most individuals wronged in Immigration Court lack the lawyers and wherewithal to take their case to the Circuits. This means that inconsistent results and lack of consistently applied expertise at all levels of the Federal legal system just add to the inconsistencies and unfairness heaped on migrants in violation of the Due Process Clause. To date, no Circuit has been willing to act on the glaring constitutional defects at EOIR staring them in the face.
Unhappily, Congress also has failed to act on long-overdue legislation to create an independent, Article I Immigration Court. In the interim, it would be possible to ameliorate, if not entirely eliminate, these constitutional problems by replacing marginally qualified IJs and BIA judges with well-qualified progressive experts and then giving them independence to issue precedents and make necessary procedural and structural changes to restore some semblence of Due Process, quality control, fair procedures, and efficiency to this disgracefully dysfunctional, unnecessarily backlogged system. The private bar could be constructively involved in creating universal representation and sane docket management. Indeed experts recommended these very changes to Garland, only to be ignored in favor of the “same old, same old” incredible mess and gross indifference to both the rule of law and human life at EOIR!
Not surprisingly, a recently issued report from the Government Accountability Office (“GAO”) highlighted lack of “shareholder engagement” — something specifically discouraged by the Trump kakistocracy — as an endemic and continuing problem at EOIR. https://www.gao.gov/products/gao-21-104404
Shareholder engagement means having a meaningful dialogue with those practicing before the courts, and honestly considering their input in advance of promulgating new policies. So called “Town Halls” to announce unilaterally developed bureaucratic policies are the antithesis of this meaningful process. It’s no mystery why EOIR continues to founder and stumble under Garland.