THE GIBSON REPORT — 03-25-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
TOP UPDATES
SCOTUS Upholds Government Authority to Detain and Deport Immigrants for Past Crimes
AILA: The Supreme Court held that the mandatory detention statute, which plainly provides for detention without any hearing “when” an immigrant “is released” from a prior criminal custody, applies even when the arrest occurs years after their release. (Nielsen v. Preap, 3/19/19) AILA Doc. No. 19031930. See also Justices Leave Room To Challenge Immigrant Detention Law.
Immigration Courts Getting Lost in Translation
Marshall Proj: The head of the immigration-court system emailed judges Dec. 11, telling them to use phone interpreters for languages except Spanish, according to leaders of the National Association of Immigration Judges. See also Anyone Speak K’iche’ or Mam? Immigration Courts Overwhelmed by Indigenous Languages.
Fewer Undocumented Immigrant Crime Victims Are Stepping Forward
WNYC: In 2017, 2,664 people applied for U visa certification from New York City agencies and authorities, including the family courts and district attorneys. But last year, that number fell to 2,282 — a drop of 14 percent. See also Congress Debates Reauthorization of Expired Violence Against Women Act.
Human Rights First Clients Ordered to Remain in Mexico Following Immigration Court Hearings
HRF: [Thursday] two Human Rights First clients were inexplicably returned to Mexico after their initial immigration court hearings under the Trump Administration’s disastrous and unnecessary “Remain in Mexico” plan. The clients, Ariel and Alec*, are among the first asylum seekers to receive interviews regarding their fear of return to Mexico under the new plan. They were returned to Mexico without explanation or notice to their Human Rights First attorney, despite each expressing fears of returning to Mexico.
Undocumented Immigrant Denied Jury Trial Despite High Court Decision
NYLJ: The defendant in the case had asked the judge in the middle of his bench trial for a jury trial after a decision from the state’s highest court said undocumented immigrants should be offered a jury trial if they’re at risk of being deported following a conviction.
An Update on TPS: A Promising New Bill, More Lawsuits, and an Uncertain Future
AIC: the American Dream and Promise Act of 2019 (H.R. 6) would allow over 2 million TPS holders and Dreamers combined to adjust their status to permanent residents.
Newly Arriving Families Not Main Reason for Immigration Court’s Growing Backlog
TRAC: Since September, about one out of every four newly initiated filings recorded by the Immigration Court have been designated by the Department of Homeland Security (DHS) as “family unit” cases. See Figure 1. While there have been a total of 174,628 new court filings recorded over the past six months, only 41,488 of these were designated by DHS as part of family units.
Citizens on Hold: A Look at ICE’s Flawed Detainer System in Miami-Dade County
ACLUFL: Persistent errors in ICE’s detainer system may have resulted in illegal holds being placed on dozens, and possibly hundreds, of U.S. citizens in Miami, according to a report published today by the ACLU of Florida. The report, “Citizens on Hold: A Look at ICE’s Flawed Detainer System in Miami-Dade County,” finds that, since 2017, ICE has targeted over 400 people who were listed as U.S. citizens in County records.
ICE Has Detained a 72-Year-Old Grandfather With Alzheimer’s for Nine Months
DailyBeast: Noé de la Cruz, a grandfather of three, has been in immigrant detention since June 2018—and his family worries that his Alzheimer’s is going untreated.
Trump admin tracked individual migrant girls’ pregnancies
MSNBC: Details of a newly obtained spreadsheet kept by the Trump administration’s Office of Refugee Resettlement, led by anti-abortion activist Scott Lloyd, tracking the pregnancies of unaccompanied minor girls. Brigitte Amiri, ACLU Reproductive Freedom Project senior staff attorney, joins to discuss details of the case.
Migrant boy’s ‘discouraging trauma’ leads judge to block his transfer to fifth home
WaPo: The case, and others like it, is an example of an urgent question facing the U.S. government: What should be done with the children arriving at the southern border?
Airline Assured Flight Attendant She’d Be Safe to Fly to Mexico. When She Returned, ICE Detained
TPG: She has a Social Security number and pays taxes, and was halfway through the process of getting her official citizenship. Leaving the country, she feared, could jeopardize her DACA status. But Mesa Airlines insisted she was legally all right to fly to Mexico and back. “She should be okay because it’s part of DACA as long as it is not expiring,” a supervisor at Mesa wrote in an email reviewed by The Points Guy.
George Mason gets $1.1 million Koch gift for research on immigration, labor
CTPost: The money, a five-year grant from the Charles Koch Foundation, will underwrite work at the Center for the Study of Social Change, Institutions and Policy at George Mason, a public university in Northern Virginia…George Mason, which earlier this month announced a $50 million gift to its law school, has recently sought to address concerns about philanthropy at the institution, and whether some funding came with constraints on academic freedom.
Rio Grande Valley Landowners Plan To Fight Border Wall Expansion
NPR: More than 570 landowners in two counties, Hidalgo and Starr, have received right-of-entry letters from the government asking to survey their land for possible border wall construction.
LITIGATION/CASELAW/RULES/MEMOS
Justices uphold broad interpretation of immigration detention provision
SCOTUSblog: In Nielsen v. Preap, four justices joined Justice Samuel Alito yesterday to adopt an expansive interpretation of a mandatory-immigration-detention statute.
Supreme Court Grants Cert in Identity Fraud/Immigration Case
ImmProf: The issues presented in the case: (1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9…; and (2) if IRCA bars the states from using all such information for any purpose, whether Congress has the constitutional power to so broadly pre-empt the states from exercising their traditional police powers to prosecute state law crimes.
Expansion/Clarification on “direct victim” in U visa cases
EDNY: USCIS may be correct that, in the majority of situations, a non-targeted individual who is not present at the crime scene does not suffer direct and proximate harm as a result of the crime. But the regulation does not create a requirement of physical presence to be met in every case. Rather, it envisions a case-by-case analysis to determine whether, in this case, for this crime, the harm suffered by the applicant is a direct and proximate harm of the qualifying criminal activity.
Federal Court Upholds Wage Rates for Migrant Farmworkers
ImmProf: A federal court late Monday denied a request by growers to throw out wage rates for temporary foreign workers that are set by the U.S. Department of Labor (DOL) to protect American farmworkers.
Law school’s Immigration Clinic files suit in support of activist
TheU: According to the lawsuit, U.S. Immigration and Customs Enforcement detained Rojas on Feb. 27 when he appeared for a routine immigration appointment. His abrupt detention came at the heels of the Sundance Film Festival premiere of a documentary film, “The Infiltrators,” which features Rojas’s activism and criticism of ICE detention policies.
BIA Reopens Proceedings Sua Sponte for Longtime TPS Holder to Adjust Status
Unpublished BIA decision reopens proceedings sua sponte for respondent who was granted TPS in 1999 and became the beneficiary of an approved visa petition in 2017. Special thanks to IRAC. (Matter of Romero, 5/15/18) AILA Doc. No. 19032296
BIA Holds Utah Lewdness Offense Not Sexual Abuse of a Minor
Unpublished BIA decision holds that lewdness involving a child under Utah Code Ann. 76-9-702.5 is not sexual abuse of a minor because it does not require an intent to arouse or gratify the sexual desire of any person. Special thanks to IRAC. (Matter of Nieves, 5/3/18) AILA Doc. No. 19031830
BIA Vacates Finding that LPR Status Was Abandoned
Unpublished BIA decision vacates finding that pro se respondent abandoned his LPR status because he did not understand the significance of his admissions when he conceded the charge. Special thanks to IRAC. (Matter of Wol Wol, 5/7/18) AILA Doc. No. 19031831
Unpublished BIA decision reopens proceedings sua sponte in light of Tenth Circuit decision holding that Matter of Briones, 24 I&N Dec. 355 (BIA 2007), doesn’t retroactively apply to applicants who relied on contrary circuit law. Special thanks to IRAC. (Matter of Perea, 5/14/2018) AILA Doc. No. 19032295
The court upheld the BIA’s decision denying the petitioner’s motion to reopen and declining to equitably toll the 90-day filing deadline, finding that even if the petitioner had received ineffective assistance of counsel, he failed to exercise due diligence. (Tay-Chan v. Barr, 3/13/19) AILA Doc. No. 19031971
CA2 Says Conspiracy to Commit Money Laundering Is an Aggravated Felony
The court denied the petition for review, holding that conspiracy to commit money laundering pursuant to 18 USC §1956(h) constitutes an aggravated felony under INA §101(a)(43)(D). (Barikyan v. Barr, 3/4/19) AILA Doc. No. 19031972
CA3 Finds Constructive Physical Presence Doctrine Cannot Transmit Citizenship
Affirming the district court, the court held that even if the petitioner’s father was a U.S. citizen, he did not transmit citizenship under a constructive physical presence theory to his Czechoslovakian-born son pursuant to the Immigration and Nationality Act of 1952. (Madar v. USCIS, 3/7/19) AILA Doc. No. 19031973
CA5 Finds BIA’s Retroactive Application of Matter of Diaz-LizarragaViolates Due Process
The court granted the petition for review, finding that the BIA erred in applying the definition of crimes involving moral turpitude (CIMTs) announced in 2016 in Matter of Diaz-Lizarraga to the petitioner’s 2007 conviction for attempted theft. (Monteon-Camargo v. Barr, 3/14/19) AILA Doc. No. 19031974
Where the petitioner was notified six weeks prior to his final removal hearing that he needed to pay his attorney or find new counsel, the court upheld the denial of his request for a continuance on the day of his removal hearing to find a new attorney. (Mendoza-Garcia v. Barr, 3/13/19) AILA Doc. No. 19031975
The court affirmed the denial of the motion to reopen petitioner’s in absentia removal order, concluding that the BIA did not abuse its discretion in determining that the petitioner failed to overcome the presumption of delivery of the Notice to Appear (NTA). (Santos-Santos v. Barr, 2/28/19) AILA Doc. No. 19032036
The court found that petitioner had failed to establish that he more likely than not would be tortured if removed to Guinea due to his sexual orientation and father’s past political affiliation, and thus upheld the denial of Convention Against Torture (CAT) relief. (Barry v. Barr, 2/22/19) AILA Doc. No. 19032037
CA8 Says Petitioner’s Convictions in Missouri for Passing a Bad Check Are CIMTs
Applying the modified categorical approach, the court denied the petition for review, concluding that the petitioner’s four Missouri convictions for passing a bad check qualified as crimes involving moral turpitude (CIMTs). (Dolic v. Barr, 2/20/19) AILA Doc. No. 19032038
The court denied the petition for review, finding that the subsequent vacatur for rehabilitative reasons of the petitioner’s Iowa criminal conviction did not change the fact that the petitioner had a conviction for immigration purposes under INA §101(a)(48)(A). (Zazueta v. Barr, 2/22/19) AILA Doc. No. 19032039
The court upheld the BIA, finding that because the record was inconclusive as to whether the petitioner’s conviction for attempted criminal impersonation in Nebraska was a crime involving moral turpitude, the petitioner was not eligible for cancellation of removal. (Pereida v. Barr, 3/1/19) AILA Doc. No. 19032040
EOIR Swears in 31 New Immigration Judges
EOIR announced the investiture of 31 new immigration judges. Then-acting Attorney General Matthew Whitaker appointed the judges to their new positions. Notice includes biographical information. AILA Doc. No. 19032233
Policy for Public Use of Electronic Devices in EOIR Space
EOIR: Attorneys or representatives of record and attorneys from the Department of Homeland Security representing the government in proceedings before EOIR will be permitted to use electronic devices in EOIR courtrooms for the limited purpose of conducting immediately relevant court and business related activities (e.g. scheduling). Electronic devices must be turned off in the courtroom when not in use for authorized purposes, and must be sent to silent/vibrate mode when being used for authorized purposes in the courtroom. Again, these devices may not be used to make audio or video recordings, or capture still images/photographs of any kind, in any EOIR space, to include the courtrooms.
Varick Updates (see MCH schedule attached)
Beginning this Monday, March 18, immigration judges Conroy and Kolbe will begin hearing cases detained cases at the Varick Street Immigration Court. IJ Conroy’s and IJ Kolbe’s dockets at 26 Federal Plaza will be transferred to other judges. Additional judges will be assigned to Varick Street to handle non-detained cases in early spring. An announcement on these assignments will be made in the coming weeks.
RESOURCES
- Sweeping reforms are needed for ‘broken’ immigration system, ABA report finds
- GAO Releases Report on Student and Exchange Visitor Program
- FAQs on Timely Adjudication of EAD Applications for Asylees and Rosario v. USCIS
- Bite-Sized Ethics: Asylum and Adult Mental Impairment
- Practice Pointer: Border Searches of Electronic Devices – Legal and Ethical Implications and Solutions
- Bite-Sized Ethics: Too Close for Comfort? Friending Your Clients on Social Media
- Practice Pointer: When Is a Photocopy of an Original Signature Acceptable?
- Practice Pointer: Expert Opinion Testimony – Yes, It’s Evidence USCIS Should Consider!
- Urban Institute has released “Part of Us: A Data-Driven Look at Children of Immigrants” (March 2019)
EVENTS
- 3/26-27/19CLINIC: Immigration Legal Services for Immigrants Experiencing Domestic Violence and Sexual Assault
- 3/27/19An Asylum Victory: Grace v. Whitaker
- 3/28/19The Rise Of Legal Status Restrictions In American Social Welfare Policy
- 3/28/19 Land of Song: Voicing Immigration; Carnegie Hall’s Migrations
- 3/28/19CIS Ombudsman’s Office Teleconference on EAD Processing Delays
- 3/28/19Training For Lawyers – NSC Pro Se Clinic
- 3/29/192019 Dash Conference Program: Human Rights and Today’s Vulnerable Migrants
- 3/29/19Keeping Up with the Nguyens: When Poor Immigrants Return to the Homeland
- 4/9/19 The Unequal Path of United States Immigration Laws: Navigating Systemic Barriers Faced by Women, Children, and the LGBTQ Community
- 4/11/19 2019 National Day of Action
- 4/11/19Heating up History: An Exploration of Spice, Hot Sauce, and Immigrant Foods
- 6/17/192019 AILA/GMS Annual Global Immigration Forum
- 8/4/19 Legal, Cultural, & Historical Approach to Understanding the Complex and Controversial Issue Dominating Our National Dialogue
ImmProf
Monday, March 25, 2019
- Immigrant of the Day: Tacko Fall (Senegal), college student and basketball player
- Immigration Article of the Day: Silence and the Second Wall by Ming Hsu Chen and Zachary New
Sunday, March 24, 2019
- The Battle Over DACA Continues: DACA Flight Attendant Placed in Detention, Released
- Law School Immigration Clinics file suit in support of activist
- The Restless Books Prize for New Immigrant Writing
- Immigration Article of the Day: Detained Without Due Process: When Does it End? by Elizabeth Knowles
Saturday, March 23, 2019
- George Mason receives $1.1 million from the Koch Foundation for research on immigration, labor market
- Urban Institute: “Part of Us: A Data-Driven Look at Children of Immigrants” (March 2019)
- Call for Papers: AILA Law Journal Fall 2019 Edition
- Immigration Article of the Day: Detainee Transfers and Immigration Judges: ICE Forum-Shopping Tactics in Removal Proceedings by Roger Grantham, Jr.
Friday, March 22, 2019
- Supreme Court Grants Cert in Identity Fraud/Immigration Case
- Immigration Detention in California
- Immigration Article of the Day: Kari Hong, 10 Reasons Why Congress Should Defund ICE’s Deportation Force
- Normative Theory of Immigration Working Group
- Newly Arriving Families Not Main Reason for Immigration Court’s Growing Backlog
- Watch On-Line Today: Reporting on Migration from Obama to Trump
- Maria Blanco: Borders and Wallls Art Exhibition
- Third Edition of Understanding Immigration Law Available in June 2019
- White nationalism, born in the USA, is now a global terror threat
- More on Nielsen v. Preap
Thursday, March 21, 2019
Wednesday, March 20, 2019
- ABA: Immigration Courts “at the breaking point”
- George W. Bush: Immigration is a “Blessing and a Strength”
Tuesday, March 19, 2019
- Nielsen v. Preap
- Federal Court Upholds Wage Rates for Migrant Farmworkers
- H.R. 6: The Dream and Promise Act of 2019
Monday, March 18, 2019
- Refugees, Immigrants Among Massacred in New Zealand
- After Shutdown Loss, Trump Doubles Down on Immigration in His New Budget
- Protection and Reintegration: Mexico Reforms Migration Agenda in an Increasingly Complex Era
- Concerns rise over U.S. plan to close all overseas immigration offices
- Justices add constitutional question to citizenship case
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I draw special attention to Elizabeth’s Item # 2 “Immigration Courts Getting Lost in Translation.” It’s yet another chapter in the sad saga of how Due Process and best practices are being “dissed” in today’s mismanaged Immigration Court System.
PWS
03-25-19