THE GIBSON REPORT — 02-11-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
TOP UPDATES
Talks Over Border Security Break Down, Imperiling Effort to Prevent Shutdown
NYT: Congressional efforts to reach a border security deal ahead of another government shutdown broke down on Sunday over Democratic demands to limit the detention of undocumented immigrants, as President Trump moved more troops to the border and prepared to rally supporters in Texas on Monday. See also Trump to make last-ditch wall pitch on U.S.-Mexico border.
Why the Trump admin wants more detention space for migrants and Democrats want a cap
NBC: ICE is already holding more migrants than Congress authorized. It is authorized to hold 40,000, but there were 49,057 immigrants in detention as of Feb. 6.
USCIS Processing Times Get Even Slower Under Trump
AIC: The average case processing time for all application types has increased 46 percent under President Trump.
Fact-checking President Trump’s 2019 State of the Union address
WaPo: Apprehensions of people trying to cross the southern border peaked most recently at 1.6 million in 2000 and have been in decline since, falling to just under 400,000 in fiscal 2018. The decline is partly because of technology upgrades; tougher penalties in the wake of the 9/11 terrorist attacks; a decline in migration rates from Mexico; and a sharp increase in the number of Border Patrol officers. See also For the Last Time, Here’s the Real Link Between Immigration and Crime.
Groups File FOIA Request to Demand Transparency on Implementation of “Remain in Mexico” Policy
NILC: Advocacy groups are seeking information regarding the Trump administration’s recent changes to the asylum process at the southern border, which have been outlined only in vague terms so far but promise to significantly change the process as we know it.
Letter to Nielsen Shows Potential Catastrophic Impact of Migrant Protection Protocols
AIC: First-hand testimonies of ten asylum-seeking families attest to the violence—including rape, beatings, kidnappings, and ransom—they faced on the Mexican side of our southern border.
Trump’s immigration policies are benefiting smugglers and violent crime groups in Mexico
AZ: Smugglers are also increasingly shifting routes to New Mexico and Arizona, where migrants and advocacy groups can more easily help deliver migrants to U.S. authorities, Correa-Cabrera said. But the border terrain there is also more hostile, with vast deserts and mountains and farther away from major cities, she said.
New Mexico governor withdraws National Guard from the border, slams Trump’s ‘charade’
NBC: While Lujan Grisham ordered the withdrawal of many of the troops, she also directed troops in Hidalgo County and the surrounding southwestern areas to remain in place. Those troops will continue to “assist with the ongoing humanitarian needs of communities there, who have seen large groups of families, women and children crossing over the border in the remote Antelope Wells area in recent months,” she said.
The largest-ever U.S. fentanyl bust came at a legal entry point. That shouldn’t come as a surprise.
WaPo: President Trump has repeated time and again a border wall will prevent illegal drugs from being trafficked into the United States. The Washington Post’s fact-checking team has previously debunked these claims and determined Trump has repeated some version of them at least 71 times.
New York bill targets workplace immigration discrimination
StarTrib: Attorney General Letitia James is proposing legislation to sharpen the language of an existing law, which bars employers from firing, threatening, penalizing or otherwise discriminating against workers who report or blow the whistle on wage violations.
LITIGATION/CASELAW/RULES/MEMOS
BIA Reopens Proceedings Sua Sponte for TPS Holder to Adjust Status
Unpublished BIA decision reopens proceeding sua sponte to let respondent with TPS adjust status under Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017). Special thanks to IRAC. (Matter of Pineda, 2/23/18) AILA Doc. No. 19020802
BIA Holds California Child Abuse Statute Not a CIMT
Unpublished BIA decision holds that child abuse under Cal. Penal Code 273a(a) is not a CIMT because it only requires a mens rea of negligence and can be violated by conduct that is believed in good faith to be in the child’s best interest. Special thanks to IRAC. (Matter of Torres, 2/22/18) AILA Doc. No. 19020630
BIA Rejects DHS Request to Overrule Matter of Cota
Unpublished BIA decision rejects DHS request that it overrule Matter of Cota, 23 I&N Dec. 849 (BIA 2005), over dissent of Member Garry Malphrus. Special thanks to IRAC. (Matter of Madrigal, 2/22/18) AILA Doc. No. 19020632
BIA Declines to Consider Interlocutory DHS Appeal Challenging Three-Month Continuance
Unpublished BIA decision declines to consider interlocutory DHS appeal of decision continuing proceedings from November 2017 to February 2018. Special thanks to IRAC. (Matter of Concha, 2/16/18) AILA Doc. No. 19020540
BIA Rescinds In Absentia Order Because Attorney Failed to Update Address
Unpublished BIA decision rescinds in absentia order because hearing notice was mailed to old address that attorney failed to update after moving offices. Special thanks to IRAC. (Matter of Liu, 2/12/18) AILA Doc. No. 19020438
BIA Equitably Tolls 30-Day Appeal Deadline
Unpublished BIA decision equitably tolls deadline to file appeal in light of ineffective assistance by prior counsel in failing to pursue asylum application. Special thanks to IRAC. (Matter of S-L-H-O-, 2/12/18) AILA Doc. No. 19020439
BIA Finds Respondent Eligible to Adjust Status Under INA §245(i)
Unpublished BIA decision finds respondent eligible to adjust status under INA §245(i), stating that an applicant need only be the beneficiary of either a labor certification or a visa petition filed on or before April 30, 2001. Special thanks to IRAC. (Matter of Dominguez, 2/13/18) AILA Doc. No. 19020532
BIA Rescinds In Absentia Order Because Hearing Notice Omitted “In Care Of”
Unpublished BIA decision rescinds in absentia order because address on hearing notice did not include “in care of” notation listed on respondent’s change of address form. Special thanks to IRAC. (Matter of Mejia-Flores, 2/15/18) AILA Doc. No. 19020533
BIA Rescinds In Absentia Order for Respondent Whose Car Broke Down En Route to Hearing
Unpublished BIA decision rescinds in absentia order under totality of the circumstances against respondent who had appeared at 15 prior hearings and whose car broke down en route to his final hearing. Special thanks to IRAC. (Matter of Gudiel, 2/16/18) AILA Doc. No. 19020504
BIA Rescinds In Absentia Order Because NTA Did Not Specify Immigration Court
Unpublished BIA decision rescinds in absentia order because NTA did not specify the particular immigration court at which the respondent was required to appear. Special thanks to IRAC. (Matter of Ramos, 2/9/18) AILA Doc. No. 19020434
BIA Rescinds In Absentia Order Because Attorney Failed to Notify Respondent of Hearing
Unpublished BIA decision rescinds in absentia order where attorney who received hearing notice conceded that he failed to notify the respondent of the hearing. Special thanks to IRAC. (Matter of Jiminez, 3/1/18) AILA Doc. No. 19021104
BIA Dismisses DHS Appeal as Moot Following Issuance of Immigrant Visa
Unpublished BIA decision dismisses as moot a DHS appeal challenging the termination of proceedings following approval of a provisional unlawful presence waiver because the respondent was issued an immigrant visa while the appeal was pending. Special thanks to IRAC. (Matter of Arroyo, 3/5/18) AILA Doc. No. 19021106
BIA Holds Possession of Drug Paraphernalia in Arizona Is Not a Controlled Substance Offense
Unpublished BIA decision holds that possession of drug paraphernalia under Ariz. Rev. Stat. 13-3415(A) is not a controlled substance offense because Arizona’s drug schedules contain substances not listed on the federal schedule. Special thanks to IRAC. (Matter of Arreaza-Oliva, 2/28/18) AILA Doc. No. 19020803
The court affirmed petitioner failed to exercise the due diligence necessary to equitably toll MTR; found evidence he was on notice of possible ineffective assistance claim prior to, and after, removal order, yet waited nearly five years to file MTR. (Medina v. Whitaker, 1/22/19) AILA Doc. No. 19021105
The court upheld reversal of NACARA cancellation, finding persecutor bar does not require an assistant share persecutors’ motive; bar applies to one who knowingly aided persecution based on protected ground, regardless of whether they held “illicit motive.” (Alvarado v. Whitaker, 1/24/19) AILA Doc. No. 19020836
The court affirmed petitioner only raised “wealthy returning Guatemalans” as protected ground, which precedent says is not PSG; failed to raise family status as potential protected ground; and failed to establish any fear of torture for CAT remedy. (Batres Agustin v. Whitaker, 1/25/19) AILA Doc. No. 19020841
CA1 Upholds BIA Denial of MTR for Failure to Show Material Change in Country Conditions for Asylum
The court found gang and cartel violence in Mexico between 2012 and 2018 had not materially changed; rather, gang/cartel violence was a persistent problem and one that petitioner failed to prove would impact her as an “imputed American citizen.” (Garcia-Aguilar v. Whitaker, 1/16/19) AILA Doc. No. 19020535
The court affirmed I-130 filed after removal order was not statutory exception to deadline, nor was it extraordinary circumstance to trigger equitable tolling; CA6 also declined to decide if §242(a)(2)(D) confers jurisdiction in constitutional-claim context. (Gyamfi v. Whitaker, 1/10/19) AILA Doc. No. 19020536
The court did not reach whether harm constituted persecution or petitioner was member of proposed PSG (related to disabled family member) because it affirmed no nexus; rather, evidence showed rejection of gang membership triggered harassment. (Cortez-Mendez v. Whitaker, 1/7/19) AILA Doc. No. 19020702
CA5 Upholds BIA Denial of Untimely Filed MTR, Finds No Relevant Exceptions
The court held motion to reopen denial based on ambiguous record of mailing address was not abuse of discretion; no jurisdiction to review changed country conditions as it’s question of fact; and no due process violation because no liberty interest exists in MTR. (Mejia v. Whitaker, 1/16/19) AILA Doc. No. 19020805
The court held BIA did not err in relying on inconsistencies between testimony, application, and affidavits; nor did it err in determining that corroborating documentary evidence was reiterative and failed to resolve the inconsistencies within main narrative. (Ghotra v. Whitaker, 1/4/19) AILA Doc. No. 19020804
The court held district court erred in finding unreached claims were “unsuccessful”; per Hensley, they all arose from same course of conduct, were related, and recoverable; held agency conduct and litigation be considered in totality to determine bad faith. (Ibrahim v. DHS, 1/2/19) AILA Doc. No. 19020833
The court held Annachamy foreclosed duress argument, and, thus, was not colorable claim for jurisdiction over otherwise unreviewable determination; also held plain text of material support bar unambiguously contained no exception for de minimus funds. (Rayamajhi v. Whitaker, 1/15/19) AILA Doc. No. 19020832
CA11 Upholds Denial for Failure to Show Membership in a Cognizable Social Group
The court affirmed—whether under Chevron or de novo—that “Mexican citizens targeted by criminal groups because they have been in the US and they have families in the US” was not sufficiently particular nor distinct to be PSG; it also found no nexus. (Perez-Zenteno v. Att’y Gen., 1/25/19) AILA Doc. No. 19021107
The court found petitioner failed to order transcript, and held it could rely on IJ’s record reconstruction; here, record was inadequately memorialized, so CA11 determined it could be incomplete and remanded to determine the scope of the recreation. (Flores-Panameno v. Att’y Gen., 1/22/19) AILA Doc. No. 19020537
ICE Announces Indictment of Eight Individuals for Exploiting Student Visa System
ICE reports eight individuals were indicted and arrested for conspiracy to commit visa fraud and harboring foreign nationals for profit as part of an undercover operation involving a private university in Detroit that was operated by ICE Homeland Security Investigations (HSI) agents. AILA Doc. No. 19013108
CBP Officer Involved in Shooting at Port of Nogales, DeConcini Crossing
CBP announced that an officer was involved in a shooting on 2/7/19 and the driver of the truck involved sustained a gunshot wound. CBP officers were not injured. The driver, a U.S. citizen, is in critical condition. AILA Doc. No. 19021101
USCIS 30-Day Extension of Comment Request Period on Proposed Revisions to Form I-693
USCIS 30-day extension of a comment period originally announced at 83 FR 52228 on 10/16/18 on proposed revisions to Form I-693, Report of Medical Examination and Vaccination Record. Comments are now due 3/4/19. (84 FR 1189, 2/1/19) AILA Doc. No. 19020436
USCIS to Close the Moscow Field Office
USCIS will permanently close its field office in Moscow, Russia, on 3/29/19. The last day it will be open to the public and accepting applications is 2/28/19. The USCIS field office in Athens, Greece, will assume jurisdiction over immigration matters from countries previously covered by Moscow. AILA Doc. No. 19020502
RESOURCES
· Practice Alert: Changes to the USCIS InfoPass Scheduling Process
· DOJ, ICE Recognize International Day of Zero Tolerance for Female Genital Mutilation/Cutting
· Stokeling v. United States: Supreme Court Defines “Crime of Violence”
· A Constitutional Argument for an Independent Immigration Court
· Lawful Permanent Residency 101: Procedural Overview and Visual Step-by-Step
· Matter of A-B- : Case Updates, Current Trends, and Suggested Strategies
· AILA ICE Liaison Committee Meeting Q&As (10/23/18)
EVENTS
- 2/12/19 I-751 Petitions: How to Handle Delays and Changes in Circumstances
- 2/15/19 FJC: Vicarious Trauma and Burnout Please RSVP to sandram@fjcnyc.org.
- 2/21/19 Supporting Your Legal Arguments: Techniques for Researching Immigration Remedies for Survivors of Domestic and Sexual Violence
- 2/26/19 Naturalization Challenges and Strategies in the Trump Era
- 3/8/19 Asylum & Immigration Conference with the Federal Bar Association at NY Law School
- 3/12/19 AILA Spring Federal Court Litigation Conference
- 8/4/19 Legal, Cultural, & Historical Approach to Understanding the Complex and Controversial Issue Dominating Our National Dialogue
ImmProf
Monday, February 11, 2019
Sunday, February 10, 2019
· USCIS Ombudsman Failing Responsibility
· Evangelical Pastor: Immigration is Biblical
· WaPo Covers Congressmen’s Immigration Poster Wars
· The Advantage of Immigrant Actors?
Saturday, February 9, 2019
· FindHello: New App Seeks to Provide Resources to Immigrants, Asylees, Refugees
· At the Movies: The Long Ride, a documentary
Friday, February 8, 2019
· Your Playlist: Malinda Kathleen Reese
Thursday, February 7, 2019
Wednesday, February 6, 2019
· President Trump Delivers State of the Union, Touts Border Wall
Tuesday, February 5, 2019
· From the Bookshelves: Deported Americans: Life after Deportation to Mexico by Beth C. Caldwell
Monday, February 4, 2019
· Government Argues Family Reunification Would Be “Traumatic”
· The Trump immigration plan? Keep whites in U.S. majority
· Shoba Wadhia on the Two Year Anniversary of the Travel Ban
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As always, thanks Elizabeth, for all you do!
PWS
02-12-19