THE GIBSON REPORT — 04-29-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
TOP UPDATES
Court Rules Immigrant Activist Ravi Ragbir’s First Amendment Rights May Have Been Violated
Gothamist: A federal appeals court has found Immigration and Customs Enforcement (ICE) may have violated immigrant activist Ravi Ragbir’s First Amendment rights when it tried to deport him last year.
Judge accused of helping an undocumented immigrant escape an ICE officer
CNN: A Massachusetts judge and a former court officer are accused of helping a twice-deported undocumented defendant elude immigration authorities by slipping out a rear courthouse door…They face counts of conspiracy to obstruct justice, obstruction of justice, obstruction of a federal proceeding, aiding and abetting, according to an indictment in US District Court in Boston. MacGregor was also charged with one count of perjury.
DHS: More than 1,600 migrants have been returned to Mexico
CNN: The individuals have been returned under the Migrant Protection Protocols policy, informally known as Remain in Mexico, that requires some asylum seekers to wait in Mexico until their immigration hearing.
DHS draft proposal would speed deportations
Politico: The Homeland Security Department is weighing a plan to bypass immigration courts and remove undocumented immigrants who cannot prove they’ve been present continuously in the U.S. for two years or more.
ICE Faces Migrant Detention Crunch as Border Chaos Spills Into Interior of the Country
NYT: Another idea, drafted in a memo from Mr. McAleenan in his new capacity as the acting homeland security secretary, would ask the Department of Justice’s Executive Office for Immigration Review to dedicate most or all of its resources toward processing the cases of detained immigrants — temporarily pausing the court proceedings of anyone who has already been released into the country. The memo has not yet been sent, according to the official who disclosed it
Nations targeted by U.S. for high rates of visa overstays account for small number of violators
WaPo: Trump on Monday issued a presidential memo that declared visa overstay rates “unacceptably high” and calling them a “widespread problem.” … But some analysts say targeting these countries would have little impact on the total number of undocumented immigrants in the United States. Using the percentage of overstays as a measure also disproportionately targets African nations — 13 of the 20 countries are in Africa — while avoiding political conflicts with larger and more powerful countries, such as China and India.
ICE is holding $204 million in bond money, and some immigrants might never get it back
WaPo: Numerous immigration attorneys said the system for reclaiming the funds is mystifying and nearly impossible to navigate without a lawyer or English-language proficiency, and some who pay the bonds are unlikely to see the money again.
Deported to the Wrong Country—For a Crime He May Not Have Committed
Daily Beast: A longtime legal resident of the United States may have been deported to the wrong country for a crime he didn’t commit—all due to what a foreign court has determined could be a case of mistaken identity.
Asylum seekers forced to stay in Mexico have been robbed, kidnapped, and beaten.
TXMonthly: The pace of MPP hearings in El Paso is expected to increase this week. Migrant advocates warn that the legal system isn’t prepared for what is coming.
AIC: HUD’s new proposed regulation would make it so that any family currently receiving a public housing benefit or subsidy, including Section 8 vouchers, would automatically be ineligible for any housing benefit if even one member of their family living in the house is undocumented. Under the new system, every family member’s immigration status would be screened through the Department of Homeland Security’s Systematic Alien Verification for Entitlements (SAVE) system if they are under the age of 62 and currently live in subsidized housing.
Polarized Florida Senate passes bill to ban ‘sanctuary cities’
Miami Herald: Under this bill, local law enforcement would be required to honor federal law enforcement’s request for an “immigration detainer,” meaning a request that another law enforcement agency detain a person based on probable cause to believe that the person is a “removable alien” under federal immigration law. The bill would essentially make the “request” a requirement.
Watchdogs hit a wall in accessing once-available immigration data
HCN: Since its creation in 1989, journalists, members of Congress, government agencies and researchers have seen Syracuse University’s Transactional Records Access Clearinghouse (TRAC) as a vital tool for watchdogging the federal government…But in early April, the organization hit a wall: Its requests for information about asylum and immigration cases weren’t getting through.
Border Patrol expands fingerprinting of migrant children
AP: U.S. border authorities say they’ve started to increase the biometric data they take from children 13 years old and younger, including fingerprints, despite privacy concerns and government policy intended to restrict what can be collected from migrant youths.
US builds migrant tent city in Texas as Trump likens treatment to ‘Disneyland’
Guardian: The main frames of two large tents popped up last week. They are expected to hold up to 500 migrants amid a level of chaos at the border that has unfolded under the Trump administration’s immigration policies. See also Pentagon set to expand military role along southern border.
Asylum seekers released without CFIs
From the Listservs: Attorneys in Arizona and Texas indicate that many asylum seekers are being released without having had CFIs.
LITIGATION/CASELAW/RULES/MEMOS
CA2 Says Outspoken Critic of ICE May Challenge Imminent Deportation Through Writ of Habeas Corpus
The court held that the appellant stated a cognizable constitutional claim, and that although Congress intended to strip all courts of jurisdiction over his claim, the Suspension Clause requires that he can bring his challenge through the writ of habeas corpus. (Ragbir v. Homan, 4/25/19) AILA Doc. No. 19042607
CA2 Upholds Asylum Denial to Petitioner Convicted of First-Degree Assault in Connecticut [And Rejects Pereira Claim]
The court held that the petitioner’s conviction for first-degree assault in Connecticut was an aggravated felony, and that the invalidation of 18 USC §16(b) in Sessions v. Dimaya did not necessitate a remand to the BIA for consideration of this issue. (Banegas Gomez v. Barr, 4/23/19) AILA Doc. No. 19042600.
ALSO: “And lastly, we see no basis for reading Pereira—which dealt only with the “stop time” rule, see 138 S. Ct. at 2110, which is not relevant to this case—to divest an Immigration Court of jurisdiction whenever an NTA lacks information regarding a hearing’s time and date. We thus join several of our sister circuits in allowing proceedings such as these to proceed.”
NWIRP Reaches Settlement with DOJ in EOIR Cease-and-Desist Letter Case
In a settlement agreement with NWIRP, DOJ agreed to issue a new rule clarifying that attorneys are not required to file a notice of appearance with EOIR when providing consultations and legal advice to unrepresented respondents in removal proceedings. (NWIRP v. Sessions, 4/17/19) AILA Doc. No. 17051834
District Court Judge Issues Preliminary Injunction Blocking Termination of TPS for Haiti
A district court judge issued a preliminary injunction finding that the plaintiffs are likely to succeed on the merits of their APA claims and equal protection claim and enjoining the Trump administration from terminating TPS for Haiti, effective immediately. (Saget v. Trump, 4/11/19) AILA Doc. No. 19041530
The court denied the petition for review, holding that INA §309, which treats adopted and biological children differently for automatic derivative citizenship purposes, is rationally related to advancing legitimate government interests. (Cabrera v. Att’y Gen., 4/19/19) AILA Doc. No. 19042571
The court vacated the BIA’s order denying the motion to reopen and remanded, holding that the BIA abused its discretion when it failed to meaningfully consider evidence and arguments presented by the Christian Indonesian petitioner and to explain its conclusions. (Liem v. Att’y Gen., 4/19/19) AILA Doc. No. 19042570
The court held it lacked jurisdiction under INA §242(a)(2)(D)’s savings provision to consider petitioner’s collateral attack on her reinstated in absentia removal order, because a petition for review of the underlying removal order was not filed within 30 days. (Luna-Garcia v. Barr, 4/22/19) AILA Doc. No. 19042601
The court found that the record compelled a finding that the torture and persecution the petitioner had suffered in the past and feared in the future were and would be because of his membership in the particular social group of his wife’s family. (Gonzalez Ruano v. Barr, 4/24/19) AILA Doc. No. 19042604
CA8 Says INA §236(a) Contains No Reasonableness Limitation on Pre-Removal Order Detention
The court reversed the district court’s order granting the habeas petition, finding that the district court erred when it concluded that pre-removal order detention under INA §236(a) is limited to “the period reasonably necessary to receive a removal decision.” (Ali v. Brott, 4/16/19) AILA Doc. No. 19042572
CA9 Upholds Most Provisions of California’s Sanctuary Laws
The court upheld California laws AB 450, which requires employers to alert employees prior to federal immigration inspections, and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities. (United States v. State of California, 4/18/19) AILA Doc. No. 19042273
The court held that because the district court did not have the benefit of the Supreme Court’s decision in Goodyear Tire & Rubber Co. v. Haeger when it issued an award of attorneys’ fees, it failed to apply the appropriate legal framework in the case. (Lu v. United States, 4/17/19) AILA Doc. No. 19042501
CA9 Says Third-Degree Robbery in Oregon Is an Aggravated Felony
The court concluded that petitioner’s conviction for third-degree robbery under Oregon Revised Statutes §164.395 was a categorical theft offense, and thus found that the petitioner was removable for an aggravated felony theft offense under INA §101(a)(43)(G). (Lopez-Aguilar v. Barr, 4/23/19) AILA Doc. No. 19042602
CA11 Upholds Asylum Denial to Salvadoran Who Received Gang Threats, over Dissent
In an unpublished decision, the court rejected the petitioner’s claim that the Atlanta Immigration Court (AIC) had denied her equal protection rights. The dissent noted that the petitioner’s statistics regarding the AIC merited further inquiry by the BIA. (Diaz-Rivas v. Att’y Gen., 4/18/19) AILA Doc. No. 19042436
USCIS issued guidance to clarify that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization even where that conduct would not be a state law offense. Effective 4/19/19. Comment period ends 5/2/19. AILA Doc. No. 19041930
Lawsuit Challenges Legality of USCIS Unlawful Presence Policy for Fs, Js, and Ms
Lawsuit challenging the legality of USCIS’s “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” memo as contrary to the statutory unlawful presence provisions, and violative of the APA and the Due Process Clause. (Guilford College v. Neilsen, 10/23/18)
White House Issues Memo on Combating High Nonimmigrant Overstay Rates
The White House issued a memo on combating high nonimmigrant visa overstay rates. Among other things, the Secretary of State, in consultation with the AG and Secretary of Homeland Security, shall provide recommendations of actions to take to reduce nonimmigrant overstay rates from certain countries. AILA Doc. No. 19042297
USCIS Announces Israeli Nationals Eligible for Treaty Investor Visas
USCIS announced that beginning 5/1/19, certain Israeli nationals who are lawfully present in the United States will be able to request a change of status to the E-2 treaty investor classification. AILA Doc. No. 19042272
White House Issues Memo on Combating High Nonimmigrant Overstay Rates
The White House issued a memo on combating high nonimmigrant visa overstay rates. Among other things, the Secretary of State, in consultation with the AG and Secretary of Homeland Security, shall provide recommendations of actions to take to reduce nonimmigrant overstay rates from certain countries. AILA Doc. No. 19042297
RESOURCES
· Practice Alert: Upcoming Elimination of Means-Tested Benefits as Basis for Fee Waiver Requests. See also Fee Waiver Community Alert.
· NYC DA Offices U-visa Contact List (attached)
· Practice Pointer: Completing Form I-589, Application for Asylum and Withholding of Removal
· Why Is Your Case Taking So Long? USCIS Processing Delays Have Now Hit Crisis Levels
· CRS Report on the Special Immigrant Visa Programs for Iraqis and Afghans
· Ethical Questions in Representing Clients with Administratively Closed Removal Cases
· Safeguarding the Integrity of Our Courts: The Impact of ICE Courthouse Operations in New York State
· Web of Violence: Crime, corruption and displacement in Honduras
· A Better Approach to “Unable or Unwilling” Analysis?
· Barred at the Border: Wait “Lists” Leave Asylum Seekers in Peril at Texas Ports of Entry
· Estimates from the Center for Migration Studies Show Overstays Have Not Substantially Increased
EVENTS
- 4/30/19 Options for Clients with a Prior Removal Order Picked Up by ICE
- 5/1/19 May Day NYC: Workers + Immigrants, We Rise Together
- 5/1/19 Resiliency Working Group New Museum Visit and Workshop: the somatic toll of engaging with the immigration legal system
- 5/2/19 Revisiting the Child Status Protection Act
- 5/2/19 Roadblocks to Refuge: The Latest Developments on Barriers to Asylum
- 5/2/19 NYCBA: The Assault on Due Process and the Need for an Independent Immigration Court
- 5/3/19 Asylum Under Attack – Restrictions on Asylum at the Border and Beyond
- 5/6/19 NYCBA: The Courtroom: Performance and Conversation
- 5/7/19 Best Practices for Interacting with the National Visa Center
- 5/8/19 Ethics For Public Interest Lawyers In These Demanding Times
- 5/13/19 ACS New York: “Twelve Patients: Life and Death at Bellevue Hospital” with Eric Manheimer
- 5/21/19 Admissibility, Revocation, and Public Health: “Risky” Business
- 5/30/19 Understanding Denaturalization and its Impact on Your Clients
- 6/2/19 Introduction to Immigration Law Practice: A Course for New Practitioners
- 6/17/19 2019 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, April 29, 2019
· Supreme Court oral argument discounts empirical studies predicting census undercount
Sunday, April 28, 2019
· The Closure of Detention Centers in California
· Welcome Professor Ming Hsu Chen to the ImmigrationProf Blog!
· “My Sick Idea”: President Trump on Sending Immigrants To Sanctuary Cities
· Immigrants Who Use Legal Marijuana May Be Denied U.S. Citizenship for “Lacking Good Moral Character”
· Sarah Rogerson Honored With M. Shanara Gilbert Award
Saturday, April 27, 2019
· U.S. Military on the Southern Border: What’s Their Proper Role?
· Measles Misinformation Gets an Immigration Twist
· ICE is holding $204 million in bond money, and some immigrants might never get it back
Friday, April 26, 2019
· Trump Administration Indicts Massachusetts Judge, Court Office on Helping Immigrant Avoid ICE
· Immigration Article of the Day: Global Migration Crisis by Amnon Rubinstein and Liav Orgad
Thursday, April 25, 2019
· Proposal to Expand Expedited Removal
· Inaugural Issue of AILA Law Journal
· Presidential Memorandum on Combating High Nonimmigrant Overstay Rates
· Slate: This Immigration Judge Has a Fix for Immigration Courts
Wednesday, April 24, 2019
· Civilian Policing of The Southern Border
· Nearly 100,000 Unauthorized Immigrants Graduate from High School Every Year
Wednesday, April 24, 2019
· A Life-Changing I-601A Waiver Experience
Tuesday, April 23, 2019
· Austrian Politician Resigns After Publishing Poem Comparing Migrants to Rats
· DACA Recipients Sue VMware Inc.
· The Paradox of Patriot Acts and Muslim Bans
· Naturalization and Overstay of Visas
· My 10 Steps to be Considered Human
· Oral Arguments Before High Court in Two Immigration-Related Cases
Monday, April 22, 2019
· Think or Swim: Community Activism
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Thanks, Elizabeth!
PWS
05-02-19