ALERTS
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Non-detained Reopening
- With courts reopening, please be aware that mask and courtroom policies may vary by judge/court. Judges have voted to require masks at 26 Federal Plaza, but this is not always the case at the other NY courts.
- NY non-detained does have WebEx capabilities, but use is up to the discretion of the judge and be aware that bandwidth may be low.
- Just a quick reminder that the NY Immigration Court home page has the wrong links to the standing orders, but you can find the correct links on the operational status page.
- For courts that reopened last week, don’t forget that email filing will no longer be allowed as of September 4, 2021.
- The attorney entrance to 26 Federal Plaza remains closed. Allow sufficient time to enter by the main security line.
Prosecutorial Discretion
- See OPLA NYC instructions attached.
- Despite the stated requirement for a certificate of good conduct for PD with OPLA NYC, it sounds like this is most relevant in cases where termination is being requested and there have not been biometrics taken.
NY no longer allows remote notarization: New York’s State of Emergency expired on June 24, 2021. The Executive Order authorizing remote notarization is no longer active. Notary publics can no longer perform notary services remotely.
TOP NEWS
Biden Will End Detention for Most Pregnant and Postpartum Undocumented Immigrants
NYT: Since 2016, ICE has arrested undocumented pregnant immigrants more than 4,000 times, according to internal government data shared with The Times.
‘Traumatizing and abusive’: Immigrants reveal personal toll of ankle monitors
Guardian: The news comes amid an effort by the Biden administration to boost the use of the monitors as an alternative to putting people in brick-and mortar prisons as they await the outcome of their immigration cases.
As migrants arrive from more nations, their paths to U.S. border diverge, new data show
WaPo: While social media and word-of-mouth play a role in channeling some migrants toward certain crossing points, smuggling organizations are taking advantage of uneven enforcement policies to convert sections of the U.S. border into designated entry lanes for specific nationalities and demographic groups.
States Plan to Deploy National Guard, Police to US-Mexico Border
VOA: In recent weeks, states including Arkansas, Florida, Iowa, Nebraska, Ohio, South Dakota and Wisconsin have announced plans to deploy National Guard troops or law enforcement personnel along the southern border. See also Almost 150 guards are staffing an empty Texas prison as state officials work on Gov. Greg Abbott’s plan to use it for immigrants.
The Trump administration used an early, unreported program to separate migrant families along a remote stretch of the border
WaPo: In May 2017, Border Patrol agents in Yuma, Ariz., began implementing a program known as the Criminal Consequence Initiative, which allowed for the prosecution of first-time border crossers, including parents who entered the United States with their children and were separated from them.
Settlement reached over free immigration detention hotline
AP: Immigrant advocates say they have reached a settlement with the U.S. government so they can keep operating a free hotline that lets detained immigrants report concerns about custody conditions.
Virus cases are surging at crowded immigration detention centers in the U.S.
NYT: As their populations swell nearly to prepandemic levels, U.S. immigration detention centers are reporting major surges in coronavirus infections among detainees.
LITIGATION/CASELAW/RULES/MEMOS
CA1 Says BIA Erred in Not Considering Individualized Hardship When It Reversed IJ’s Grant of Adjustment Application
The court held that the BIA erred in reversing the IJ’s grant of petitioner’s adjustment of status application, finding that it was required to consider in an individualized manner the hardship he might suffer if he were required to return to El Salvador. (Perez-Trujillo v. Garland, 6/28/21) AILA Doc. No. 21070734
CA2 Says Burden-Shifting Framework for Late-Filed Appeals Imposed by BIA in Matter of J.M. Acosta Is Unreasonable
The court concluded that the BIA’s interpretation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) to require a noncitizen pursuing a late-filed appeal to make a merits-based showing at the notice stage is unreasonable. (Brathwaite v. Garland, 7/1/21) AILA Doc. No. 21070933
CA4 Upholds Asylum Denial to Honduran Petitioner Convicted of Unlawful Wounding in Virginia
The court held that petitioner was ineligible for asylum based upon his conviction for unlawful wounding in Virginia, and found that the BIA did not err in denying his claims for withholding of removal or Convention Against Torture (CAT) protection. (Moreno-Osorio v. Garland, 6/23/21) AILA Doc. No. 21070736
CA5 Finds It Has Jurisdiction to Determine What Constitutes “Exceptional and Extremely Unusual Hardship”
The court held it had jurisdiction to review the agency’s determination that events that would befall the petitioner’s U.S.-citizen children if he were removed would not amount to “exceptional and extremely unusual hardship” as Congress intended the phrase. (Guerrero Trejo v. Garland, 7/2/21) AILA Doc. No. 21070938
CA5 Finds That Petitioner’s Conviction in Texas Fell Within BIA’s Definition of “Crime of Child Abuse”
Where the IJ ordered the petitioner removed due to his conviction for online solicitation of a minor in Texas, the court held that the BIA did not err in determining that his conviction was a removable offense under INA §237(a)(2)(E)(i) for a crime of child abuse. (Adeeko v. Garland, 7/1/21) AILA Doc. No. 21070934
6th Circ. Revives Honduran Mother And Son’s Bid For Asylum
Law360: The Sixth Circuit has given a Honduran mother and her son another chance to seek asylum in the U.S., saying the Board of Immigration Appeals must take another look at her petition in light of changes in policy under the new administration.
CA7 Says Petitioner Forfeited Objection to Defect in NTA by Not Bringing It to Attention of IJ During Removal Proceeding
The court found that petitioner forfeited any objection to the deficiency in his Notice to Appear (NTA) by not timely raising it in the removal proceeding, and that he had not shown cause for forfeiture nor prejudice resulting from the defect in the NTA. (Mejia-Padilla v. Garland, 6/29/21) AILA Doc. No. 21070832
CA7 Says BIA Erred by Requiring Petitioner to Show Prejudice from His Defective NTA
Where petitioner received a procedurally defective Notice to Appear (NTA) for his removal proceedings and made a timely objection, the court held that BIA erred in finding he was not entitled to relief unless he could demonstrate prejudice from the NTA. (Avila de la Rosa v. Garland, 6/24/21) AILA Doc. No. 21070738
CA7 Holds That Illinois Burglary Statute Is Not Divisible
The court held that the BIA erred by applying the modified categorical approach to determine that the petitioner’s two Illinois convictions for burglary were removable offenses under federal law, finding that the Illinois burglary statute is not divisible. (Parzych v. Garland, 6/28/21) AILA Doc. No. 21070830
CA8 Upholds BIA’s Conclusion That Petitioner Could Reasonably Relocate Within Guatemala to Avoid Vigilante Group
Upholding the denial of withholding of removal, the court found that petitioner had failed to establish membership in a particular social group, and that BIA did not err in determining he could reasonably relocate in Guatemala to avoid a vigilante group. (Bautista-Bautista v. Garland, 7/6/21) AILA Doc. No. 21070940
CA9 Reverses Denial of Voluntary Departure Where NTA Lacked Date-and-Time Information
The court held that petitioner’s Notice to Appear (NTA)—which lacked the time and date of his removal proceedings—did not terminate his period of physical presence in the United States, and thus BIA erred in finding him ineligible for voluntary departure. (Posos-Sanchez v. Garland, 7/7/21) AILA Doc. No. 21071231
CA9 to Rehear En Banc Case Involving Illegal Reentry Under INA §241(a)(5)
The court ordered rehearing en banc and vacated its prior decision in Tomczyk v. Garland, which held that the act of reentering illegally under INA §241(a)(5) requires some form of misconduct by a noncitizen rather than merely the status of inadmissibility. (Tomczyk v. Garland, 7/6/21) AILA Doc. No. 21071230
CA9 Applies Circumstance-Specific Approach to Find That Amount of Marijuana in Petitioner’s Possession Exceeded 30 Grams
The court held that the circumstance-specific approach applies to the 30-gram limit of INA §237(a)(2)(B)(i)’s personal-use exception, and that the circumstances of the case established that the amount of marijuana in the petitioner’s possession exceeded 30 grams. (Bogle v. Garland, 6/23/21) AILA Doc. No. 21070834
CA9 Remands Where IJ Failed to Consider Favorable Factors in Denying Voluntary Departure to Petitioner
The court held that the IJ had failed to evaluate the factors weighing in favor of granting voluntary departure to the petitioner, and thus granted in part the petition for review and remanded to the BIA. (Zamorano v. Garland, 6/25/21) AILA Doc. No. 21070833
CA9 Upholds District Court Order Requiring DHS to Stop Detaining Certain Minors in Hotels for More Than Three Days
The court affirmed the district court’s order requiring DHS to apply the 1997 Flores Settlement Agreement to certain minors detained in hotels for more than a few days pending their expulsion from the United States under the CDC’s Title 42 order. (Flores v. Garland, 6/30/21) AILA Doc. No. 21070632
USCIS Settles Fight Over Blank Space Application Rejections
Law360: U.S. Citizenship and Immigration Services has reached a tentative deal with three individuals whose applications for immigration benefits were rejected because they left fields empty, a settlement that could affect thousands of individuals.
Feds Buck Asylum-Seekers’ Requests For Waitlists
Law360: The Biden administration bucked asylum-seekers’ request that it retrieve waitlists of migrants who weren’t immediately allowed to enter the U.S., telling a California federal court that the request goes beyond their claims against the policy of “metering.”
Texas Sheriffs Seek To Force More ICE Arrests
Law360: A group of Texas sheriffs and a law enforcement nonprofit asked a federal judge for a sweeping block on current immigration policy, requesting a five-part injunction that would increase immigration detention and force authorities to arrest more migrants.
ICE and Detainees Reach Settlement Agreement over Implementation of COVID-19 Protocol
The district court released a proposed settlement agreement between ICE and detained immigrants at three detention centers in Florida, in which ICE agreed to implement certain COVID-19 vaccination guidelines and protocol, among other things. (Gayle, et al. v. Meade, et al., 6/28/21) AILA Doc. No. 21070831
ICE Agrees to Continued Use of National Immigration Detention Hotline for At Least Five Years
Freedom for Immigrants (FFI) reached a settlement with ICE, under which ICE agreed to provide uninterrupted access to FFI’s National Immigration Detention Hotline for at least a five-year period and to pay FFI $100,970 in attorneys’ fees. (Freedom for Immigrants v. DHS, 7/1/21) AILA Doc. No. 19121634
DHS Notice on Extension and Redesignation of Yemen for TPS
DHS notice of Temporary Protected Status extension and redesignation of Yemen for 18 months from 9/4/21 through 3/3/23. (86 FR 36295, 7/9/21) AILA Doc. No. 21070932
ICE Issues Updated Guidance in Identifying and Monitoring Pregnant, Postpartum, or Nursing Individuals
ICE issued a directive stating that it should not detain, arrest, or take into custody for an administrative violation individuals known to be pregnant, postpartum, or nursing, unless release is prohibited by law or exceptional circumstances. Guidance effective 7/1/21. AILA Doc. No. 21070930
Practice Alert: DOS Confirms NIEs Automatically Extended for 12 Months
AILA’s DOS Liaison Committee provides an alert concerning member reports received from posts in Europe and confirmed in official guidance from DOS that NIEs issued by DOS in the last 12 months have been automatically extended for 12 months.
RESOURCES
EVENTS
ImmProf
Monday, July 12, 2021
Sunday, July 11, 2021
Saturday, July 10, 2021
Friday, July 9, 2021
Thursday, July 8, 2021
Wednesday, July 7, 2021
Tuesday, July 6, 2021
Monday, July 5, 2021
Thanks, Elizabeth.