Weekly Briefing
This 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 contents 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
Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion
ICE: On April 4, 2022, Principal Legal Advisor Kerry E. Doyle issued a memorandum to the OPLA workforce titled Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion (Doyle Memorandum), which will take effect on April 25, 2022. The Doyle Memorandum is consistent with DHS Secretary Alejandro N. Mayorkas’ September 30, 2021 memorandum titled Guidelines for the Enforcement of Civil Immigration Law, which took effect on November 29, 2021. Upon its effective date, the Doyle Memorandum rescinds OPLA’s prior PD guidance.
USCIS Extends Flexibility for Responding to Agency Requests
EOIR Policy Manual Updated with New Records Request Procedures: The EOIR Policy Manual has been updated to address this at Section 12.2, here and BIA Policy Manual at 13.1, here.
USCIS Service Center Expands Credit Card Payment Pilot Program to All Forms
NEWS
Biden rescinds controversial Title 42 order limiting asylum
The Hill: While crafted by the Trump administration just days into the pandemic, Title 42 has been used roughly 1.7 million times by the Biden administration, a figure that includes repeat crossers. See also Republican states sue to stop Biden admin’s lifting of Title 42 border policy; Migrants hopeful, suspicious at US reopening to asylum; Migrants march from south Mexico as US lifts COVID ban; Democrats fractured on response to end of Title 42.
Cash will now expedite your work permit, in new Biden immigration rule
Reuters: The Biden administration on Tuesday released a final rule expanding a program that allows applicants for various employment-related immigration benefits to pay up to $2,500 to speed up the process, in a bid to ease massive backlogs at the agency. See also USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders (USCIS continues to make progress toward a temporary final rule currently named “Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants.”).
Immigration Orgs Urge Mayorkas To Support Sanctuary Cities
Law360: Immigrant rights, community and legal advocacy organizations (including NIJC) asked Homeland Security Secretary Alejandro Mayorkas on Tuesday to abandon attempts to undermine local policies limiting cooperation with DHS agencies and instead terminate enforcement agreements with cities and counties.
Migrants Fleeing Hurricanes And Drought Face New Climate Disasters In ICE Detention
Intercept: The privately run facility where Argueta Anariba was held was one of several new U.S. Immigration and Customs Enforcement facilities in Louisiana. The implications of caging thousands of people in a state that’s notorious for extreme weather crystallized with the intensifying wind.
Facing Demand for Labor, U.S. to Provide 35,000 More Seasonal Worker Visas
NYT: The visa program being expanded, known as the H-2B visa program, allows American businesses to hire foreign workers for seasonal nonagricultural jobs like mowing lawns, cleaning hotel rooms, staffing amusement parks and waiting tables. Industries like landscaping, hospitality and tourism are particularly reliant on foreign nationals to meet high demand during the busy summer months.
LITIGATION & AGENCY UPDATES
Matter Of Wong, 28 I&N Dec. 518 (BIA 2022) on “Conviction”
BIA: A finding of guilt in a proceeding that affords defendants all of the constitutional rights of criminal procedure that are applicable without limitation and that are incorporated against the States under the Fourteenth Amendment is a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act.
2nd Circ. Says USCIS Must Revisit Inadmissibility Finding
Law360: The Second Circuit ruled Monday that U.S. Citizenship and Immigration Services failed to weigh the full facts when denying an Afghan national’s application for permanent residence because he fought opposition forces under duress after being abducted by the Taliban.
CA3 on Cancellation Remand in Cruz-Garcia V. Garland
Justia: The BIA also did not address Cruz-Garcia’s challenge to the IJ’s alleged failure to permit Lesley to testify, but that may have been because the BIA erroneously concluded that Cruz-Garcia had not challenged the IJ’s discretionary determination and therefore did not “reach . . . the arguments raised on appeal.”… Because the BIA failed to address an exhausted argument that ultimately challenges the IJ’s determination that he was not entitled to cancellation of removal, remand is warranted.
CA5 on Credibility & Firm Resettlement
CA5: In his credible-fear interview, Muminov did not describe his alleged 2016 protest of the confiscation of his passport or the beating that he incurred thereafter… Given these discrepancies, a reasonable factfinder could conclude, as the IJ and BIA did, that Muminov’s testimony about politically motivated attacks “was too inconsistent”… He cites his testimony about extortionate fees that he was forced to pay to live in Moscow and the harassment and discrimination that he faced there. This testimony may well support a restricted-residence exception, but we cannot say that the IJ and BIA were compelled to conclude that…
6th Circ. Tells Mom To Return Kids To Venezuela
Law360: A Venezuelan mom must return her children to South America, the Sixth Circuit ordered in a published but split decision, ruling that an incident of domestic violence she said was committed by the father and witnessed by the children was too minor for the court to refuse a Hague Convention petition for their return.
8th Circ. Rejects Christian Somali’s Bid To Fight Deportation
Law360: An Eighth Circuit panel declined Wednesday to review a Somali man’s petition to avoid deportation, saying the immigration judge who looked at the case properly determined that even if the man’s testimony were found credible, he still wouldn’t likely face torture in Somalia due to his Christian beliefs.
CA10: Federal appeals court rules trans Honduran woman should have received asylum in U.S.
Washington Blade: “Any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras,” reads the 10th Circuit ruling.
Court OKs Deal Tying Immigration Bonds To Ability To Pay
Law360: A California federal judge has approved a settlement between a class of unauthorized immigrants and the federal government that prohibits judges from setting unreasonable bond amounts for those detained without considering their ability to pay.
U.S. Must Face Suit Over Trump’s Separation of Migrant Kids
An Arizona federal judge on Friday dismissed the families putative Bivens class action regarding family separation against 15 high-ranking Trump Administration officials but rejected the federal government’s motion to dismiss as to the families’ FTCA claims against the United States.
DHS Enforcement Memo Still Partly Barred Amid Appeal
Law360: An Ohio federal judge refused to shelve his earlier ruling blocking the U.S. Department of Homeland Security from following a Biden administration mandate narrowing immigration enforcement priorities when making custody decisions while DHS appeals his order.
Honduran Migrant’s Rape Case Against ICE Agent Too Late
Law360: A Connecticut federal judge dismissed a Honduran immigrant’s claims that an Immigration and Customs Enforcement officer raped and blackmailed her with the threat of deportation for seven years, finding that her claims are all time-barred.
CDC Provides Public Health Determination and Order on Termination of Title 42
AILA: CDC released an order to terminate its Title 42 public health order on May 23, 2022. The document assesses the current state of the COVID-19 pandemic, provides legal considerations, and describes plans for DHS to mitigate COVID-19, provide vaccinations to migrants, and resume use of Title 8.
USCIS Announces Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders
AILA: USCIS announced actions to reduce caseloads and processing times. These include setting new internal cycle time goals, creating premium processing availability of Form I-539, Form I-765 and Form I-140 in FY2022, and working toward a temporary final rule for streamlining EAD processes.
Concerns about the Immigration Judge and Board Member hiring process
DOJ OIG: In May 2018, eight members of Congress asked the DOJ Office of the Inspector General (OIG) to investigate allegations that after January 2017, offers for Immigration Judge and Board Member positions were withdrawn or delayed for political or ideological reasons. While we were engaged in assessing these allegations, we received additional allegations that other candidates may have been favored in the hiring process because of their connections to the Trump administration, or perceived political affiliation or ideology. The DOJ OIG did not find sufficient evidence based on an assessment of the allegations to warrant opening a full investigation. However, during the course of our assessment, we identified concerns about the Immigration Judge and Board Member hiring process.
RESOURCES
NIJC RESOURCES
GENERAL RESOURCES
EVENTS
NIJC EVENTS
GENERAL EVENTS
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National Immigrant Justice Center
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It will also be telling to see how Federal Courts (particularly the 5th Circuit) that happily facilitated the Executive’s scofflaw, racist assaults on the Constitution and immigrants’ rights during the Trump era react to the Biden Administration’s efforts to restore at least some semblance of asylum laws and due process.
We can only hope that Garland does a better job of defending the termination of Title 42 than he did with the equally illegal and immoral “Remain in Mexico” program. However, having made the bad decision to rely upon and defend Title 42 for the last year, and fecklessly standing by while it was illegally invoked by the Biden Administration over a million times to deny migrants their legal rights, Garland might find some of his best legal arguments foreclosed by his own actions.
It’s also possible that given the unconscionable delay, lack of enthusiasm, and lack of effective planning within the Biden Administration for the termination of Title 42 and for vindicating the rights of immigrants of color in general, some of those in influential positions would not be unhappy if a “Trumpist Federal Court” forced them to keep illegally turning back refugees at our border forever!
