"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”
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.
VOA: A U.S. State Department annual report highlighted concerns about continuing human rights abuses in Russia, China, Iran, Venezuela, Egypt and other authoritarian nations, as well as the impact the coronavirus pandemic has had on rights practices around the world.
Reuters: The 210,000 migrants arrested in March, a figure made public in a court filing on Friday night, is the highest monthly total on record since February 2000, according to U.S. Customs and Border Protection statistics dating back to 2000.
RAICES: On Monday, April 18th, 2022, immigrant legal services providers, advocates and community members will hold a press conference to announce the launch of the Harris County Immigrant Legal Services Fund (ILSF), which will provide free legal representation for immigrant members of the county who are detained and facing the threat of deportation. As of February 2022, Harris County had the most residents with pending immigration court cases in the country.
CNN: While immigration advocates celebrated the decision to reverse Title 42, many moderate Democrats have sounded the alarm warning that lifting the policy without an adequate plan in place will lead to a rapid influx of migrants at the Southern border, something that Republicans will be quick to seize on the campaign trail.
AP: The bill was filed after Wyandotte County passed a “sanctuary” ordinance in February that would provide local identification cards for immigrants and other residents and would prevent local law enforcement from helping the federal government enforce immigration laws unless public safety is threatened. Lawrence and Roeland Park have similar ordinances.
Law360: A federal watchdog rebuked U.S. Immigration and Customs Enforcement for an $87 million no-bid contract to house migrant families in hotels, saying the agency hadn’t justified directly awarding the deal to a nonprofit inexperienced in emergency family residential services.
Denver Gazette: The Cuban government has not been accepting deportations of Cuban nationals from the U.S. for more than six months, at a time when tens of thousands are leaving the island to reach the U.S. in the largest exodus since the 1980s Mariel boatlift.
WTTW: An expanded class of low-income workers will permanently get a larger tax break via the Earned Income Tax Credit, and that benefit will be extended to those who file taxes with an Individual Taxpayer Identification Number (ITIN), something that Rep. Aaron Ortiz, D-Chicago, said is important to many immigrants who play an important role in the state’s economy. Illinois is allocating $70 million for healthcare for undocumented immigrants. See also Illinois launches health care coverage for older immigrant adults aged 55 to 64.
Law360: The Fourth Circuit refused to award attorney fees to a man who convinced the full appeals court that the federal government had arbitrarily rejected him for special immigrant juvenile status, saying the U.S. was justified in fighting the suit.
Law360: The Seventh Circuit seemed unconvinced Wednesday that it should unsettle the dust in a dispute over a Trump-era public charge rule that the Biden administration has already begun redrafting by letting a group of Republican-led states enter the fray.
Law360: U.S. Citizenship and Immigration Services will grant naturalization requests made by two immigrant veterans after federal courts refused to toss the soldiers’ lawsuits alleging the agency unfairly disqualified them from expedited processing of their citizenship bids.
Law360: A D.C. federal court has denied the U.S. Department of Homeland Security’s bid to block inspections of detention facilities that immigration advocates say are denying inmates access to counsel, but the government did get its choice of monitor for the probe.
Law360: Eighteen additional states on Thursday signed on to a lawsuit started by Arizona, Louisiana and Missouri to challenge the Biden administration’s decision to wind down a pandemic-related order known as Title 42 that allows the quick expulsion of migrants arriving at U.S. land borders.
Hill: A coalition of immigrant rights groups filed a lawsuit Thursday seeking information from Immigrations and Customs Enforcement (ICE) about the agency’s Intensive Supervision Appearance Program (ISAP), a so- called alternative to detention program that has ballooned during the Biden administration.
NJ Monitor: Police do not have to — and should not — advise crime suspects that their cooperation could impact their immigration status, a New Jersey appeals court ruled Friday.
USCIS: Today, the Department of Homeland Security (DHS) announced the designation of Cameroon for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of April 14, 2022, will be eligible for TPS.
DHS: The key program areas include: Applying for naturalization; Accessing humanitarian protection during immigration processing
Bidding on DHS contracts; Countering all forms of terrorism and targeted violence; Filing complaints and seeking redress in DHS programs and activities; Airport screening; Accessing Trusted Traveler Programs.
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.
EOIR: Since April 2021, Judge Cheng has served as the Regional Deputy Chief Immigration Judge for the Eastern Region at EOIR. She previously served as a Deputy Chief Immigration Judge from 2017 to 2021, and she was the Acting Principal Deputy Chief Immigration Judge from August 2020 to February 2021. Judge Cheng has also served in the New York Immigration Court both as an Assistant Chief Immigration Judge from 2015 to 2017, and as an Immigration Judge from 2009 to 2015. Before joining EOIR, she served as Assistant Chief Counsel for the Department of Homeland Security, Immigration and Customs Enforcement, from 2002 to 2009; and before that, she practiced immigration law in New York from 2000 to 2002.
AILA: EOIR announced the appointment of Beth Liebmann as a member of BIA by Attorney General Merrick B. Garland. Biographical information for Liebmann has been provided.
BIA: Whether, in light of U.S. v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en banc), and regardless of the specific mens rea of an underlying crime, the commission or attempted commission of a felony, theft, or an assault under Texas Penal Code § 30.02(a)(3) necessarily supersedes or implicitly contains generic burglary’s intent element, which requires an “intent to commit a crime” upon entry into a building or habitation. Due Date: May 3, 2022
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
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.
NIJC: On Friday (4/8) we learned from the government that it would not file an appeal in AsylumWorks v. Mayorkas. This means, happily, that the EAD Rules that delayed and in some cases denied access to EADs for asylum seekers are fully vacated. The vacatur applies to both the 30-day adjudication rule and the larger rule that had more than a dozen changes to EAD eligibility for asylum seekers.
NY EOIR Asks ICE to Submit PD Stance 3 Days Before Hearings
EOIR: In an effort to reduce our interpreter non-usage and our continuance rates, the New York – Federal Plaza Immigration Court has asked DHS that PD positions be provided to the court on matters scheduled for a hearing at least three days before the hearing. This would allow cancellation of the interpreter order without cost to the court, and would permit another previously scheduled case to be advanced into the open hearing slot. In addition, the court is endeavoring to identify cases already scheduled which are likely to be granted PD based upon DHS guidelines. We have requested DHS’s assistance in this endeavor. [It is unclear whether other courts will request the same.]
NYT: The C.D.C. finally announced at the beginning of April that it would lift its public health border restrictions on May 23, around the time of the year when migration typically increases. But this past week, the issue of Title 42 flared up again as Senate Republicans and some Democrats in Congress held up Covid funding in an effort to protest the administration’s decision to lift the health rule and tensions over the issue flared in both parties. See also The Democratic revolt over Biden’s border policy.
Hill: Sens. Thom Tillis (R-N.C.) and Dick Durbin (D-Ill.) told The Hill that they want to bring together a group of senators interested in trying to revive immigration discussions — a perennial policy white whale for Congress — after a two-week recess.
NPR: Visitations at federal and state prisons have largely resumed. Last year, for example, the Washington state Department of Corrections determined it was safe to reinstate visitations. But those who want to talk to loved ones in ICE detention must still rely on old-fashioned phone calls or video.
WaPo: Although the Florida Keys have been an entry point for refugees fleeing communist Cuba since the 1960s, officials say the increase in arrivals of migrants by boat represents a shift in migration patterns. Since the start of the year, more than 800 Haitians have landed in the 113-mile-long Florida Keys, made up 1,700 small islands. Two of the landings occurred in Ocean Reef, an exclusive gated community near Key Largo that is home to some of nation’s wealthiest residents, officials said.
WaPo: Cuban migrants are coming to the United States in the highest numbers since the 1980 Mariel boatlift, arriving this time across the U.S. southern land border, not by sea.
AP: Texas Gov. Greg Abbott on Wednesday delivered new orders along the U.S.-Mexico border and promised more to come as former Trump administration officials press him to declare an “invasion” and give state troopers and National Guard members authority to turn back migrants.
Reuters: U.S. appeals court on Wednesday said federal agencies properly withheld documents related to how they vet applicants for immigration benefits with the aim of uncovering possible terrorist ties, reversing a judge who ordered their disclosure.
Law360: The Third Circuit declined to halt the deportation of a man from India claiming he suffered political persecution there, reasoning that the immigration judge was correctly skeptical of his inconsistent accounts of the violence he claimed to have experienced.
CA5: [W]hether an applicant’s subjective belief that authorities would be unwilling or unable to help them is sufficient for asylum eligibility when paired with country condition evidence supporting that belief, notwithstanding that the underlying events do not support that conclusion. We think not… When she checked in, the police informed her “that the process would take at least two weeks.” She fled before those two weeks expired, and there is no evidence of what happened with the claim. Thus, the evidence supports the BIA’s finding that Sanchez-Amador “successfully reported one incident with the gang member to the police, but did not pursue the issue.”
LexisNexis: “Petitioner Jose Santos Boch-Saban, a citizen of Guatemala, seeks review of a Board of Immigration Appeals decision dismissing, as untimely, his appeal of an immigration judge’s order denying, as time and number barred, his motion to reopen and dismiss. We VACATE the Board’s decision and REMAND the case for consideration in the first instance of the issue of equitable tolling.”
DHS: Al Otro Lado v. Mayorkas is a lawsuit that relates to the U.S. government’s use of “metering” at land ports of entry on the U.S.-Mexico border. The Court in this lawsuit issued a Preliminary Injunction(PI) prohibiting the U.S. government from applying a rule known as the “third-country transit rule”(TCT)to certain people who were subject to “metering” before the rule took effect on July 16, 2019.
AP: Pennsylvania State Police settled a federal lawsuit alleging troopers routinely and improperly tried to enforce federal immigration law by pulling over Hispanic motorists on the basis of how they looked and detaining those suspected of being in the U.S. illegally, officials announced Wednesday.
NYT: Clients paid fees up to $30,000 as part of the yearslong scheme, an affidavit said. Some applications falsely claimed the clients had been abused by their spouses, prosecutors said.
Law360: The city of San Antonio, Texas, has agreed to pay the state $300,000 to settle both allegations lodged by the state’s attorney general that it was violating the state’s “anti-sanctuary city law,” and a subsequent lawsuit seeking to remove the police chief from office for the alleged violations.
Law360: People who were banned from the U.S. under now-defunct Trump-era travel restrictions urged a California federal judge to order the Biden administration to revisit their denied visa applications, saying the administration’s attempts to redress the harm don’t go far enough.
Law360: A D.C. federal judge extended the stay of his order directing the State Department to issue more than 9,000 diversity visas while the Biden administration appeals to the D.C. Circuit, but he unfroze his directive for the department to update the technology for processing the visas.
Law360: The House Judiciary Committee voted to advance a bill that would eliminate the Immigration and Nationality Act’s per-country cap for employment-based visas and raise similar caps on family-based visas, aimed at trimming immigration backlogs.
AILA: On 4/1/22, CDC released an order to terminate its Title 42 public health order on 5/23/22. The document assesses the current state of the COVID-19 pandemic, provides legal considerations, and describes plans for DHS to mitigate COVID-19 and resume use of Title 8. (87 FR 19941, 4/6/22)
AILA: On 3/11/22, CBP issued a memo to its Office of Field Operations stating that noncitizens in possession of a valid Ukrainian passport or other valid Ukrainian identity document, and absent national security or public safety risk factors, may be considered for exception from Title 42.
AILA: USCIS is issuing individual notices to certain TPS Syria beneficiaries whose applications to renew Form I-766 are pending. The notices extend the validity of their EADs until September 24, 2022. Guidance on filing Form I-9 is available.
DHS: The U.S. Customs and Border Protection (CBP) Unified Immigration Portal (UIP) provides agencies involved in the immigration process a means to view and access certain information from each of the respective agencies from a single portal in near real time (as the information is entered into the source systems). CBP is publishing this Privacy Impact Assessment (PIA) to provide notice of implementation of the UIP and assess the privacy risks and mitigations for the UIP.
USCIS: U.S. Citizenship and Immigration Services (USCIS) today announced a policy update to adopt a risk-based approach when waiving interviews for conditional permanent residents (CPR) who have filed a petition to remove the conditions on their permanent resident status.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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 issue in Sanchez-Amador is whether a reasonable person in her position would believe that the Government of Honduras is “unwilling or unable” to protect her. On the facts set forth in the court’s decision, any reasonable person in her position would hold such a objectively reasonable view. Therefore asylum should have been granted.
The Honduran Government is so totally corrupt, inept, and disinterested in protecting its citizens, particularly women, that recent past “President Juan Orlando Hernandez [is] on the United States’ Corrupt and Undemocratic Actors list, under Section 353 of the United States–Northern Triangle Enhanced Engagement Act.” https://www.state.gov/u-s-actions-against-former-honduran-president-juan-orlando-hernandez-for-corruption/
Ricardo Zuniga, the U.S. Special Envoy to Central America recently said: “‘All we’re trying to do now is halt the slide’ of democracy and accountability, Zúniga said in an interview with The [L.A.] Times, ‘so that we can have some place to build from.’” https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A.
In other words, any a semblance of the rule of law and honest, minimally effective government in the Northern Triangle has long disappeared. Conditions are rapidly getting worse, rather than better. Conditions are so bad, that a better Administration or a better BIA could probably establish a “rebuttable presumption of failure of state protection in the Northern Triangle,” thus properly shifting to the DHS the burden of establishing, against all odds, that “state protection” against gangs and other basically uncontrolled third-party actors would actually be effective in a particular case.
This common sense action would also facilitate rapid, efficient, consistent, and correct approval of many credible, valid asylum claims now stuck in the endless, largely self-inflicted, backlogs at the Asylum Office and in Garland’s dysfunctional courts, not to mention at the border following two years of illegal suspension of our asylum laws. That’s as opposed to the unseemly “Institutionalized Refugee Roulette” now being played by Garland and his subordinates.
According to the Supremes in Cardoza-Fonseca and the BIA itself in Matter of Mogharrabi, asylum law is supposed to be generously applied to grant protection even where persecution, although reasonably possible, is significantly less than likely. But, in Garland’s dysfunctional “courts,” the current reality for vulnerable asylum seekers has moved far, far away from those supposed “norms.”
Although most asylum applicants come from nations with well-established records of serious endemic human rights abuses, “asylum denial rates” at EOIR range from 10% or less to a beyond outrageous 98% or more denials! Cases with basically the same facts might be routinely granted in one courtroom while being uniformly denied, usually for specious reasons, in the next.
Moreover, while the overall nationwide grant rate of around 37% appears unreasonably low but perhaps still within the outer bounds of “plausibility,” most of those grants are “concentrated” in a relatively small number of Immigration Courts, basically in the Northeast and in California. A disturbing number of IJs and courts are allowed, perhaps even encouraged, by Garland and his denial-oriented, Trump-holdover BIA to establish “asylum free zones.” In other words, Garland has looked the other way while some of “his courts” have basically become de facto “asylum death squads.”
Back to Ms. Sanchez-Amador. Under the circumstances shown by Ms. Sanchez-Amador, a “reasonable woman” would not expect any effective protection from the Honduran Government. The respondent has shown that her “expectation of no protection” was “fulfilled” in this case.
The respondent credibly testified that a gang member said she had a week to either pay him money or become “his woman,” join the gang, and have involuntary sex with him, that is, he threatened to rape her. When she dutifully reported this to the police (despite their well-deserved reputation for indifference to attacks on women), she was told that they would investigate but that it would take two weeks, and offered her no other protection or options in the interim.
In other words, in response to an imminent, credible threat of harm, the police told the respondent that they would do nothing to stop the harm that would be inflicted upon her in a week. By the time the police “investigated,” assuming they ever did which seems doubtful in light of conditions in Honduras, the respondent would be either extorted or raped and forced to join a gang against her will. While police in Honduras might have a well-deserved reputation for corruption and ineffectiveness, gangs, on the other hand, have a reputation for being ready, willing, and able to carry out their threats against women, usually with impunity.
Elementary asylum law tells us that it is neither reasonable nor required that a refugee wait to actually be persecuted before fleeing to safety. That’s exactly what a “well-founded fear” is!
Yet a panel of male, right-wing judges of the Fifth Circuit nonsensically and disingenuously concludes that “one would be hard-pressed to find that the authorities were unable or unwilling to help her [because] she never gave them the opportunity to do so.” Poppycock!
The police failed to offer the respondent any semblance of effective protection. Given the conditions in Honduras, and the credible threats the respondent had received, a reasonable woman in the respondent’s position would flee to safety at the first opportunity rather than waiting for the gang to carry out its credible threat of harm and for the police to, perhaps, but likely not, investigate after the fact!
Indeed, it’s no stretch to say that under the facts of this case, NO reasonable woman would have remained in Honduras if able to escape. Moreover, NO reasonable factfinder would conclude that she lacked a reasonable possibility of persecution there!
The panel judges have perverted, perhaps intentionally, the criteria for asylum, the standard for review, and misconstrued the record to deny legal protection to this refugee woman. But, there is an even deeper problem here. And, it goes to Attorney General Garland and his mismanagement of the entire, broken Immigration Court system.
I daresay that NO asylum expert would have handled this potentially perfectly grantable case the way this Immigration Judge and the BIA did. This whole process documents an ongoing, biased, unprofessional, designed-to-deny asylum system that unfairly attacks and threatens “the most vulnerable among us” — targeting women of color in a particularly racist-misogynistic way!
I hope that this particular example of injustice, inhumanity, and unprofessionalism at all levels of the judiciary isn’t what awaits long suffering asylum seekers if and when the Administration finally lifts the illegal “Title 42 Blockade/Charade” on May 23. But, I have little reason for optimism.
Beyond long overdue reversals of several Sessions/Barr bogus anti-asylum, anti-immigrant “precedents,” neither Garland or Mayorkas has shown much inclination to actually get asylum law right. Nor have they empowered or employed the human rights and due process experts who could lead them out of the wilderness in which their entire “denial and deterrence-oriented” system now wanders.
Perhaps ironically, the all-too-often lawless Fifth Circuit refuses to acknowledge even those modest actions by Garland to correct the law, notwithstanding the supposed “great deference” they claim to show the Executive in the area of immigration. Like much that the Fifth Circuit does these days, that “deference” appears reserved for White men and is not applied to vindicate the rights of “persons” who happen to be migrants, women, or people of color.
“Dred Scottification” of “the other” is NOT a legitimate legal theory. No, it’s part of the “anti-democracy activism” that threatens to destroy our legal system and take our nation down with it! ☠️
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
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.
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.
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.”).
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.
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.
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.
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.
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.
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: 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…
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
On its face, the “Doyle Memo” on PD looks good. But, as is always the case with ICE, it all depends on how it is interpreted, used, and applied on the “Field Office Level” and before the Immigration Courts.
On Title 42, interestingly, GOP states that were fine with the Trump regime’s racist attacks on the rule of law now are apoplectic about the Biden’s Administration’s long overdue effort to restore law, order, and human rights to the border.
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.
Experts like Blaine Bookey, Legal Director of the Center for Gender & Refugee Studies; Eleanor Acer, Director of Refugee Protection, Human Rights First; Lee Gelernt, Deputy Director, ACLU Immigrants’ Rights Project, and many others have pointed out that the “Trump/Miller Title 42 Blockade” was an illegal (not to mention immoral) pretext “from the git go.”
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!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
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 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.
TRAC: The largest segment where age was recorded, some 32,691, were children from zero to four years of age. This represents 12 percent of cases received this fiscal year, or a little less than one out of every eight.
Reuters: DHS in a notice published in the Federal Register said the “expedited removal” process is best focused on people who recently entered the U.S. and remain in close proximity to the border, rather than those targeted by Trump’s sweeping 2019 expansion, who have been in the country longer and developed ties to their communities.
Watchdog recommends relocation of detainees from ICE facility, citing unsanitary conditions and staff shortages CBS: The Department of Homeland Security Office of Inspector General (OIG) issued a damning report on Friday documenting unsanitary conditions, staff shortages and security lapses at ICE’s Torrance County Detention Center in New Mexico. The OIG found the conditions so unsafe that it took the highly unusual step of urging ICE to immediately remove all persons detained at the facility. ICE is refusing to comply with this recommendation and has contested the integrity of the OIG’s investigation.
AP: Faced with the likelihood of eventually reopening its southern border to asylum seekers, the United States government is urging allies in Latin America to shore up immigration controls and expand their own asylum programs.
AP: In 2019, Jackson temporarily blocked the Trump administration’s plan to expand fast-track deportations of people in the country illegally, no matter where they are arrested.
Politico: When it comes to immigration, Durbin said, “I don’t want to hear the word reconciliation,” referring to the budgetary rules that can allow for the Senate to sidestep a filibuster. “That holds up false hope. … The question is: is there anything we can do on the subject of immigration that can win 60 votes in the Senate? We’re going to test that.”
WaPo: The towers use thermal imaging, cameras and radar to feed an artificial intelligence system that can determine whether a moving object is an animal, vehicle or person, and beam its location coordinates to U.S. Border Patrol agents.
BIA: Larceny in the third degree under section 53a-124(a) of the Connecticut General Statutes is not a theft offense aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because it incorporates by reference a definition of “larceny” under section 53a-119 of the Connecticut General Statutes that is overbroad and indivisible with respect to the generic definition of a theft offense. Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009), and Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004), not followed.
SCOTUSblog: Biden v. Texas (April 26): Whether the Department of Homeland Security must continue to enforce the Migrant Protection Protocols, a policy begun by President Donald Trump that requires asylum seekers at the southern border to stay in Mexico while awaiting a hearing in U.S. immigration court.
Law360: Foreigners locked out of the U.S. due to former President Donald Trump’s now-defunct travel bans will get a new chance to fight their case, after a California federal judge reopened two lawsuits over the policy on Tuesday.
Law360: A recent HIV diagnosis alone does not put a Mexican national at greater risk of state-sanctioned violence if he’s returned home, the Fifth Circuit ruled Monday in a unanimous published opinion denying the man’s asylum bid.
LexisNexis: Because the BIA erred in concluding its affirmance of the IJ’s adverse credibility determination effectively disposed of Thraiyappah’s pattern-or-practice claim for CAT protection based on his Tamil ethnicity, we Grant the petition, Vacate in part and Remand to the BIA.
Law360: A man facing deportation from the U.S. for burglarizing an empty Florida property got another chance to challenge his removal after the Eleventh Circuit questioned a finding by immigration judges that his crime constituted “moral turpitude.”
Law360: The Massachusetts chapter of the American Civil Liberties Union sued U.S. Immigration and Customs Enforcement Wednesday seeking records it says will show whether the Biden administration followed through on a promise to reform immigration enforcement policies.
AILA: USCIS stated that following the February 7, 2022, court decision in Asylumworks v. Mayorkas, USCIS must process all initial EAD applications from asylum applicants within 30 days. Given certain conditions regarding Form I-765, some applicants may be considered Rosario class members.
AILA: Advance copy of DHS notice rescinding the July 23, 2019, notice Designating Aliens for Expedited Removal, which expanded the application of expedited removal procedures. The notice will be published in the Federal Register on 3/21/22 and will be effective on that date.
AILA: Secretary of Homeland Security Mayorkas announced the designation of Afghanistan for Temporary Protected Status (TPS) for 18 months. The designation will take effect upon publication of a forthcoming Federal Register notice, which will also include instructions for applying for TPS and an EAD.
AILA: The Attorney General issued a memo to heads of executive departments and agencies with guidelines for the fair and effective administration of the Freedom of Information Act (FOIA). The memo includes guidelines for removing barriers to access and reducing FOIA request backlogs, among other things.
AILA: DOS states that U.S. citizens physically present overseas with their Afghan, Ethiopian, and Ukrainian immediate family members can request to locally file a Form I-130 petition at the nearest U.S. embassy or consulate that processes immigrant visas. DOS specifies who citizens can file for.
AILA: DHS has automatically extended the validity of certain EADs with a Category Code of A12 or C19 issued under TPS for Somalia through September 12, 2022. Information on updating expiration dates and reverification is available.
AILA: ICE issued directive 10036.2, which states that ICE personnel are generally prohibited from using or disclosing information protected by Section 1367 to anyone other than DHS or DOJ employees. This includes information on applicants for T & U visas, continued presence, or VAWA based benefits.
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 3/16/22, through 3/16/23. (87 FR 14757, 3/16/22)
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the group page and request to be added.
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
Many congrats to Attorney Shernette G. Noyes of Stratford, CT for doing the near impossible: Notching a well-deserved win for an immigrant in a “crimmigration” case before one of the toughest BIA panels this side of Dodge City!
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.”
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the group page and request to be added.
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!
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?
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?
USCIS: Effective Oct. 1, 2021, applicants subject to the immigration medical examination must complete the COVID-19 vaccine series and provide documentation of vaccination to the civil surgeon in person before the civil surgeon can complete an immigration medical examination and sign Form I-693, Report of Medical Examination and Vaccination Record. This guidance applies prospectively to Form I-693 signed by civil surgeons on or after Oct. 1, 2021.
WaPo: Up until Oct. 1, the Postal Service said it should take no more than three days for a piece of first-class mail to be delivered anywhere in the country. After Oct. 1, it will take between two and five days. From Oct. 3 to Dec. 26, the Postal Service is raising prices on some products through a holiday season surcharge. The price hikes are modest for some products (30 cents more for first-class package service), a bit more for others ($1 more for parcel-return service, deliveries from consumers back to retailers), and heftier still for others ($5 more for priority mail, priority express mail, parcel select and retail ground services for items weighing between 21 and 70 pounds).
NBC26: Organized by Voces de la Frontera, this action aims to increase economic and political pressure on President Biden, Vice President Harris and Congressional Democrats to deliver on their promise to pass a path to citizenship in the Build Back Better reconciliation budget bill this year.
Teen Vogue: This excerpt from “Not ‘A Nation of Immigrants’” explains how Italian immigrants used Christopher Columbus to assimilate to American culture and whiteness. For decades, Native Americans and their allies have demanded the end of celebrating Columbus, rightly characterizing him as a mercenary of the Spanish monarchy, an actor in and symbol of the onset of European genocidal colonization of the Indigenous Peoples of the Western Hemisphere.
WaPo: A U.S.-based economist won the Nobel prize in economics Monday for pioneering research that transformed widely held ideas about the labor force, showing how an increase in the minimum wage doesn’t hinder hiring and immigrants do not lower pay for native-born workers.
NYGov: Threats to report a person’s immigration status can currently be treated as a crime in cases of labor trafficking and sex trafficking, but were not previously treated as potential extortion or coercion offenses.
Documented: The courts have been pushing individual hearings forward often too soon for immigrants and attorneys to properly prepare. Individual hearings, particularly for asylum cases, require rigorous preparation both from immigrants, who must recount traumatic details of their lives for a successful case, and attorneys, who must submit dozens of pages of paperwork and work alongside their clients to equip them for the court date.
WaPo: The NBPC does not encourage members to get vaccinated and has said it would like to file a legal challenge to Biden’s mandate that all federal employees be immunized by Nov. 22, but it has not yet found lawyers willing to take the case.
AP: A federal appeals court on Tuesday tossed out California’s ban on privately owned immigration detention facilities, keeping intact a key piece of the world’s largest detention system for immigrants.
Business Insider: During his appearance on Fox News, Trump repeatedly claimed that Haitians trying to enter the US are infected with AIDS… Contrary to his assertions, the prevalence of HIV among Haitian adults aged 15 to 49 is around 1.9%, according to data from the United Nations. While that’s higher than the global rate of 0.7%, reports say Haiti’s HIV prevalence rate has declined significantly in recent decades.
Law360: A U.S. Air Force veteran has another chance to fight his deportation to Trinidad after the Third Circuit found that an immigration appeals board used the wrong legal standard to bar evidence that he may be tortured if deported.
AILA: The court held that, given petitioner’s status as a pro se litigant, her Notice of Appeal was sufficiently specific to inform the BIA of the issues challenged on appeal, and thus the BIA violated her right to due process by summarily dismissing her appeal. (Nolasco-Amaya v. Garland, 9/28/21)
Law360: The Ninth Circuit confirmed that a conviction under a state assault law criminalizing HIV transmission amounts to a federal “crime of violence” for the purposes of deporting a Salvadoran man who shot his friend, saying the key common ingredient is intent.
Law360: A California law banning private immigration detention facilities and other private prisons doesn’t pass legal muster because it would impede the federal government’s immigration enforcement, a split Ninth Circuit ruled Tuesday, undoing a lower court’s decision to keep most of the law in place as litigation proceeds.
AILA: The court granted the plaintiffs’ motion for summary judgment, holding that DOS’s interpretation of several Presidential Proclamations to prevent U.S. consulates and embassies in those countries from adjudicating visas was unlawful. (Kinsley, et al. v. Blinken, et al., 10/5/21)
AILA: The parties reached a settlement to resolve the plaintiffs’ Motion for Award of Attorneys’ Fees and Costs under the Equal Access to Justice Act (EAJA), in which the government agreed to pay $1,150,000 in attorneys’ fees and litigation costs. (Flores, et al. v. Garland, et al., 9/30/21)
CGRS: The Lowenstein Project at Yale Law School submitted today an emergency request for precautionary measures against the United States on behalf of asylum seekers who face grave dangers because the Biden administration continues to illegally block and expel them. The request was submitted under Article 25 of the Rules of Procedure to the Inter-American Commission on Human Rights (IACHR).
Law360: Texas and Louisiana called on the full Fifth Circuit to reinstate a block on the Biden administration’s policy curbing immigration enforcement operations, saying Thursday that the federal government was ducking its obligation to arrest noncitizens convicted of serious crimes.
Law360: A Libyan man formerly employed as a government worker under the Gaddafi regime and his wife have filed suit in Michigan federal court against the federal government and the Chicago asylum processing center, saying five years is too long to wait for an asylum interview.
Law360: An Afghan man who worked with the U.S. government in the Central Asian country told a California federal court that the U.S. Department of State failed to protect his children from the Taliban while their visa applications are processed.
Law360: A bipartisan group of senators announced new legislation this week that would require law enforcement to obtain a warrant before searching Americans’ digital devices at the border.
Law360: The Biden administration asked the Fifth Circuit to shelve its appeal of a lower court order blocking the federal government from approving new applications to the Deferred Action for Childhood Arrivals program while it firms up the details of a replacement rule.
AILA: Office of Refugee Resettlement (ORR) announcement of an inflationary increase to the Refugee Cash Assistance program’s monthly payment ceilings, effective October 1, 2021. (86 FR 54466, 10/1/21)
Call for Examples: The Center for Gender and Refugee Studies (CGRS) is collecting the following information regarding the treatment of asylum and withholding of removal cases following Attorney General Garland’s vacatur of Matter of A-B- I/II, Matter of L-E-A- II, and Matter of A-C-A-A-. To report an outcome in your case and share any sample case documents, please follow the instructions here. To share information regarding OIL’s position in your case, please email the following to CGRS-ABTracking@uchastings.edu. To share information regarding ICE OCC’s position in your case, please complete this survey for each individual case.
Shifting cases around without working with the parties in advance to insure that the new dates are achievable is totally insane! No experienced practitioner or expert would “run the railroad” this way! But, Garland does!
To state the obvious, many attorneys practice in multiple jurisdictions and are already fully or heavily booked. Additionally, my experience was that “move ups” without consultation with both parties, including ICE ACC, often resulted in missing ICE files, unavailable witnesses, unavailable interpreters, or incomplete fingerprint reports which caused additional unnecessary continuances and yet more “ADR.”
“Motions to continue” are not the answer. The system is already backlogged. In an obvious denial of due process, it actually discourages Immigration Judges from granting reasonable continuances in a number of ways, including bogus “case completion quotas” and onerous requirements for justifications for granting continuances. It’s ADR on steroids!
An obvious solution, ignored by Garland and his subordinates:
Return “docket control” to the local Immigration Judges where it has always belonged;
Have Immigration Judges and Court Administrators work cooperatively with the local bar, the ICE OCC, and NGOs, in advance, to come up with rational scheduling procedures that meet everyone’s legitimate needs;
Encourage ICE and the local bar to work cooperatively to identify cases that can potentially be moved up for “short hearings.” Let the parties, who have a strong joint interest in rational dockets, propose the solutions, rather than having politicos impose them from above through clueless agency bureaucrats who are unqualified to “micromanage” dockets!
The real fundamental problem here: Garland is improperly trying to “run” his huge, dysfunctional court system with bureaucrats and politicos who have no recent “real life” experience representing individuals in Immigration Court.
Garland’s inexplicable determination to eschew appointing “progressive practical experts’ with the skills and courage to fix this system has become a (totally unnecessary) national disgrace!
Judge Garland’s gross mismanagement of EOIR is “ratcheting up the pressure” on practitioners in NYC and across the nation!
AIC: On September 30, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued the long-awaited new set of enforcement priorities, entitled “Guidelines for the Enforcement of Civil Immigration Laws”. The guidelines, which will go into effect on November 29, 2021, will replace the February 18 interim enforcement priorities memo issued to U.S. Immigration Customs Enforcement (ICE), as well as Initial interim guidelines issued on January 20, 2021. See also IDP Statement: DHS’s Deportation Memo Reinforces Flawed Policies of the Past.
Politico: A federal court has moved to preserve the Biden administration’s ability to use a Trump-era public health order to expel migrant families arriving at the southern border.
Reuters: The U.S. Department of Homeland Security said on Wednesday it intends to issue a new memo in the coming weeks ending the “remain in Mexico” immigration program.
Intercept: [T]he arrival of Haitians was anticipated, and much of the chaos that ensued seemed preventable with basic planning and logistics. But in the scramble to contain the media crisis, the U.S. employed tactics that set off a cascade of repression and violence on both sides of the border. By allowing the situation to reach critical levels, federal officials created conditions that made a militarized crackdown seem inevitable, making criminals out of people asserting their right to seek asylum. See also Most of the migrants in Del Rio, Tex., camp have been sent to Haiti or turned back to Mexico, DHS figures show.
Texas Tribune: Defense attorneys have started asking courts to set migrants free because local justice systems, overwhelmed by arrests under Gov. Greg Abbott’s border security push, are routinely violating state law and constitutional due process rights.
NJ Monitor: Now the coalition of faith leaders, advocates, formerly incarcerated people, and their family members have formed the Interfaith Campaign for Just Closures. The group aims to push New Jersey’s congressional delegation to support HR 536, which would revamp the immigration detention system.
NYT: The settlement will provide restitution to passengers who were detained, arrested or deported after immigration agents conducted warrantless searches on buses, Washington State’s attorney general said.
BuzzFeed: The new initiative will provide government-funded legal representation to certain children in Atlanta, Houston, Los Angeles, New York, San Diego, San Francisco, Seattle, and Portland. The Executive Office for Immigration Review, which runs the nation’s immigration courts, is also updating training for attorneys who want to handle immigration cases.
AILA: The BIA dismissed the respondent’s appeal after finding that a Notice to Appear that lacks the time and place of an initial removal hearing constitutes a “charging document.” Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021)
AILA: Where the Yemeni petitioner had been kidnapped and tortured before being convicted and sentenced to 10 years’ imprisonment for political opposition to the Houthi regime, the court concluded that the BIA erred in determining that he was ineligible for asylum. (Ghanem v. Att’y Gen., 9/22/21)
Law360: The Third Circuit refused to undo deportation orders against a Peruvian national who had a simple assault conviction, ruling that the offense amounted to a removable crime of violence.
AILA: The court held that the BIA abused its discretion by entirely failing to address the Libyan petitioner’s Convention Against Torture (CAT) claim, where the petitioner had raised his CAT claim several times in his briefing before the BIA. (Abushagif v. Garland, 9/24/21)
AILA: The court upheld BIA’s denial of asylum, finding petitioner’s proposed particular social group of “family unaffiliated with any gangs who refuse to provide any support to transnational criminal gangs in Guatemala” lacked particularity and social distinction. (Osorio Tino v. Garland, 9/20/21)
AILA: The court concluded that the BIA did not abuse its discretion in determining that the petitioner’s 2016 motion to reopen was untimely, nor did it commit legal error in declining to sua sponte reopen her case. (Cui v. Garland, 9/23/21)
AILA: Where the petitioner claimed she was persecuted because of her membership in a house church that was not registered with the Chinese government, the court held that the BIA appropriately relied on two inconsistencies in making its adverse credibility determination. (Li v. Garland, 9/21/21)
AILA: Granting the petition for review, the court held that the petitioner’s convictions in Washington for robbery in the second degree and attempted robbery in the second degree did not qualify as aggravated felony theft offenses under INA §101(a)(43)(G), (U). (Alfred v. Garland, 9/22/21)
AILA: Granting the petition for review and remanding, the court found that the BIA at least partly relied on a legally erroneous—and thus invalid—rationale for declining to exercise its sua sponte reopening authority. (Berdiev v. Garland, 9/21/21)
Law360: The D.C. Circuit on Thursday granted the Biden administration’s bid to stay a district court order that blocked the administration from expelling migrant families, providing it time to pursue an appeal of the ruling, which was slated to go into effect on Friday at midnight.
Law360: A D.C. federal judge banned U.S. Marshals in the nation’s capital from detaining criminal defendants based on suspicion related to their immigration status Thursday, ending a class action over the agency’s practice of holding individuals despite release orders.
AILA: Where USCIS had refused to adjudicate the adjustment of status application of the plaintiff, a Temporary Protected Status (TPS) recipient with advance parole, the court held that the plaintiff was an “arriving alien” who had executed his deportation order. (C-E-M- v. Wolf, et al., 9/29/21)
AILA: A federal district court in Mississippi held that plaintiffs had established unreasonable delay by USCIS in the adjudication of their adjustment of status applications, and ordered USCIS to adjudicate their applications before the end of FY2021. (Parcharne, et al. v. DHS, et al., 9/30/21)
AILA: The federal district court in D.C. ordered DOS to reserve 6,914 diversity visas (DVs) for adjudication pending final judgment for Goodluck-related plaintiffs, and to reserve 481 DVs for Goh plaintiffs to be issued by the end of FY2022. (Goh, et al. v. DOS, et al., 9/30/21)
Law260: A border-focused law enforcement initiative launched by Texas earlier this year suffered setbacks in a state court on Tuesday, with prosecutors agreeing to release dozens of immigrants being held in state custody and to completely drop charges against two of them.
Law360: The Biden administration agreed to pay $1.15 million to attorneys who successfully advocated for the safe custody of migrant children held in border detention facilities, while the attorneys continued to push for additional fees for an appeal the administration abandoned.
AILA: EOIR announced its “Access EOIR” initiative, which attempts to raise representation for individuals appearing before immigration courts. New trainings under the Model Hearing Program are available, and recent EOIR efforts include the development of the Counsel for Children Initiative.
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: DHS issued a statement announcing that it “intends to issue in the coming weeks a new memorandum terminating the Migrant Protection Protocols (MPP).” However, DHS is moving forward with plans to restart the program pursuant to a district court order.
AILA: SAVE announced that DHS will admit Afghans as special immigrant (SI) conditional permanent resident status and CBP will admit Afghans as non-SI parolees. The memo describes both categories, the qualifications for either, the ways their status will be documented, and more.
AILA: DHS automatically extended the validity of certain EADs with a category code of A12 or C19 issued under TPS for Syria through 3/28/22. For Form I-9, TPS Syria beneficiaries may present qualifying EADs along with an individual notice issued by USCIS that indicates extension of EAD.
I’d go even further than the article in The Intercept. The Biden Administration was told by experts during the early Transition Period to make restoring order and the rule of law to the asylum system at our borders one of their highest priorities. That included reviving and expanding the USCIS Asylum Office, reopening legal ports of entry, replacing the BIA with qualified progressive expert Appellate Judges who understood asylum law and would establish practical humane precedents, bringing in progressive, dynamic progressive asylum leadership at both the DHS and DOJ, reopening legal border ports of entry, and instituting a robust refugee programs for the Northern Triangle and the rest of the Americas.
With a 10 week “head start,” these were neither rocket science nor unachievable. Instead the Administration dawdled and fumbled, treating asylum reform as an issue that would “just go away.” Once in office, Mayorkas, Garland, and Harris aggravated the problem by not making the obvious progressive personnel and structural changes necessary to restore the asylum and refugee systems.
Now, we have the worst of all worlds! Disorder at the border, cruelty and abuse of migrants, and folks like Harold Koh, who have the expertise, backbone, and creative solutions that Mayorkas and Garland so stunningly lack fleeing the Administration and speaking out against its inane and inhumane policies.
All so stupid! All so unnecessary! All so damaging to America and humanity!
