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.
CONTENTS (jump to section)
- ◦NEWS
- ◦LITIGATION & AGENCY UPDATES
- ◦RESOURCES
- ◦EVENTS
PRACTICE UPDATES
EOIR Issues Guidance on Pre-hearing Conferences in Immigration Proceedings
AILA: EOIR issued a memo on pre-hearing conferences, stating that, “immigration judges should therefore actively and routinely encourage parties to engage in pre-hearing communications, both for the efficiency of the court and for the efficacy of the pro bono representation.”
Juneteenth Interviews Cancelled
USCIS: USCIS offices were closed on June 18, 2021 in observance of the Juneteenth federal holiday. All in-person appointments, including interviews and oath ceremonies (administrative and judicial), will automatically be rescheduled.
Updated OPLA Chicago Joint Motion to Reopen Cover Sheet (attached)
AILA: OPLA Chicago will not prioritize review of joint motion to reopen requests, unless there is an urgent reason for review identified on the JMTR Coversheet. The 30-day timeframe for review of PD requests for cases with active immigration proceedings does not apply to requests for joint motions to reopen.
NEWS
A Decade After DACA, the Rise of a New Generation of Undocumented Students
NYT: For the first time, a majority of the undocumented immigrants graduating from high schools across the United States have none of the protections offered over the past 10 years under an Obama-era program that shielded most of the so-called Dreamers from deportation and offered them access to jobs and help with college tuition… During the decade since DACA took effect in June 2012, some 800,000 young people have registered. But a long-term political solution never materialized. See also As DACA immigrant program turns 10, legal challenges persist; Republican donors to GOP leaders: Bipartisan immigration reform would ease inflation; Stories from Immigrants Who Have Grown up in the Decade of DACA.
U.S. Supreme Court spurns Republican bid to defend Trump immigration rule
Reuters: The unsigned one-sentence ruling “dismissed as improvidently granted” an appeal by 13 Republican state attorneys general led by Arizona’s Mark Brnovich seeking to defend the rule in court after Democratic President Joe Biden’s administration refused to do so and rescinded it. The rule widened the scope of immigrants deemed likely to become a “public charge” mainly dependent on the government for subsistence.
The U.S. marks World Refugee Day, even as it accepts fewer refugees
Philly Inq: The latest admissions figures are paltry, with 1,898 people admitted in May. That means the U.S. is on track to resettle only 18,962 refugees in fiscal 2022 — a fraction of the 125,000 ceiling set by President Joe Biden.
U.S. is rejecting over 90% of Afghans seeking to enter the country on humanitarian grounds
CBS: Since July 2021, USCIS has received over 46,000 applications from Afghans hoping to come to the U.S. through the parole process. But most parole applications from Afghans remain unresolved — and over 90% of fewer than 5,000 fully adjudicated requests have been denied, USCIS statistics shared with CBS News show. See also Biden administration eases terrorism-related restrictions for Afghan evacuees.
5,000 Asylum-Seekers Added to the Migrant Protection Protocols 2.0, Few Are Granted Asylum
TRAC: Cases in MPP are generally being completed within the 180-day time frame set by the administration, but the problem with low rates of access to attorneys and unusually low rates of asylum success that plagued the first implementation of MPP continue this year.
Immigrant Detention Numbers on Their Way Back Up After Pandemic Slump?
TRAC: After hovering around 20,000 for several months, Immigration and Customs Enforcement’s detained population reached 24,591 at the start of June. Most of the people in detention (76 percent or 18,796) were arrested by Customs and Border Protection (CBP). But immigrants arrested by ICE—a total of 5,795—were at the highest number since March 2021.
‘No Place for a Child’: 1 in 3 Migrants Held in Border Patrol Facilities Is a Minor
Politico: Since early 2017, one of every three people held in a Border Patrol facility was a minor, a far bigger share than has been reported before now, according to an analysis by The Marshall Project of previously unpublished official records. Out of almost 2 million people detained by the Border Patrol from February 2017 through June 2021, more than 650,000 were under 18, the analysis showed. More than 220,000 of those children, about one-third, were held for longer than 72 hours, the period established by federal court rulings and an anti-trafficking statute as a limit for border detention of children.
Border Patrol Brutalizing Haitian Migrants Is Now a Commemorative Coin
Vice: U.S. Customs and Border Protection says it is investigating, will take “appropriate action” if it finds CBP officers were involved in the making or distribution of the coins, and will send cease-and-desist letters to any sellers, a spokesperson told the Herald. See also I was a border patrol agent. The experience was horrifying.
New York’s historic Stonewall Monument holds U.S. naturalization ceremony
Reuters: A naturalization ceremony was held for 12 new citizens at the historic Stonewall Monument in New York on Friday, as the U.S. Citizenship and Immigration Services (USCIS) commemorated Pride Month.
LITIGATION & AGENCY UPDATES
Top Immigration Cases In 2022: Midyear Review
Law360: The federal courts handed down several important immigration rulings this year on issues ranging from border agents’ personal liability for constitutional violations to California’s authority to ban private immigration detention facilities. Here, Law360 takes a look at the most significant immigration decisions from the first half of 2022.
Matter of D-L-S-, 28 I&N Dec. 568 (BIA 2022)
BIA: A respondent who is subject to a deferred adjudication that satisfies the elements of sections 101(a)(48)(A)(i) and (ii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(48)(A)(i) and (ii) (2018), has been “convicted by a final judgment” within the meaning of the particularly serious crime bar under section 241(b)(3)(B)(ii) of the INA, 8 U.S.C. § 1231(b)(3)(B)(ii) (2018).
CA1 on Credibility: Reyes Pujols v. Garland
LexisNexis: [T]he BIA upheld an adverse credibility determination that the IJ reached in part based on an inconsistency in Reyes’s story that simply was not an inconsistency. Nor can we say that absent the adverse credibility finding, Reyes’s CAT claim would necessarily fail. We therefore must vacate the BIA’s ruling affirming the IJ’s denial of that claim.
5th Circ. Shoots Down Nonprofit Bid To Crack Open Title 42
Law360: The Fifth Circuit on Thursday rejected a legal service provider’s attempts to open up parts of the U.S.-Mexico border to asylum-seekers by narrowing an injunction order requiring the Biden administration to enforce COVID-19 border restrictions nationwide.
Split 6th Circ. Gives Honduran Asylum-Seekers Another Shot
Law360: A split Sixth Circuit panel told the Board of Immigration Appeals to take another look at whether a Honduran woman and her two children can stay in the U.S. as refugees after they claimed they suffered violence and intimidation by the brutal MS-13 gang.
CA7 on Categorical Approach: Aguirre-Zuñiga v. Garland
LexisNexis: Because there are optical and positional isomers of methamphetamine, and the Indiana legislature chose not to limit the Indiana Statute to optical isomers at the time of Aguirre-Zuniga’s conviction, “Indiana’s generic use of ‘isomer’ in relation to methamphetamine must be broader than optical isomers.” Section 35-48-4-1.1 was facially overbroad at the time of Aguirre-Zuniga’s conviction; thus, it does not qualify as an aggravated felony under the INA.
8th Circ. Tosses 4th Amendment Claim In Atty Shoving Suit
Law360: The Eighth Circuit has overturned a Missouri district court’s denial of qualified immunity to an Immigration and Customs Enforcement officer who allegedly pushed and injured an immigration attorney, saying the push did not qualify as a seizure violating the Fourth Amendment.
9th Circ. Denies Asylum Case Review Over Unreliable Identity
Law360: The Ninth Circuit shut down a Jamaican asylum seeker’s second quest to reopen his asylum proceedings, saying that his previous unreliable testimony justified rejecting his new claims of political strife and violence in Jamaica.
Deportation Law Doesn’t Block Free Speech, 9th Circ. Says
Law360: A divided Ninth Circuit on Tuesday upheld a Mexican man’s deportation from the United States, ruling that because he encouraged his son to enter the U.S. illegally, federal law prohibits him from overturning his pending removal.
Split 9th Circ. Revives Nicaraguan’s Asylum Bid
Law360: A split Ninth Circuit panel gave a Nicaraguan man a new chance at asylum on Monday, faulting an immigration judge and the Board of Immigration Appeals for finding the man hadn’t faced persecution despite suffering a beating and death threats for opposing the ruling government.
Ohio Says High Court Limits Don’t Apply To ICE Ops Case
Law360: Ohio has rebuked the Biden administration’s attempts to use a recent high court ruling to notch a Sixth Circuit victory in litigation challenging its immigration enforcement priorities, saying the justices’ new limits on courts’ injunctive immigration power warrants, at most, a remand.
Texas Justices Revive Family Detention Center Rule Challenge
Law360: The Texas Supreme Court on Friday revived a challenge to a state licensing rule for immigration detention centers that allegedly increased the risk of sexual assault against detained minors, overturning an appeals court’s finding that the challengers lacked standing to sue.
Unlawful Presence – Joint Status Report, Velasco de Gomez v. USCIS, May 25, 2022
LexisNexis: USCIS intends to modify its interpretation of 8 U.S.C. § 1189(a)(9)(B) to no longer require an applicant for adjustment to spend his or her period of inadmissibility outside of the United States and is in the process of finalizing a revised policy, including final approval by the Department of Homeland Security, and issuing new guidance to USCIS adjudicators. USCIS also affirms that it is not currently denying adjustment applications or requiring applicants to file waiver applications on the basis that an applicant returned to the United States within the period of inadmissibility under this section.
AILA: Advance copy of DHS and DOS notice exempting certain individuals who assisted the United States in Afghanistan from inadmissibility under INA §212(a)(3)(B).
AILA: Advance copy of DHS and DOS notice exempting individuals who provided insignificant or certain limited material support to a designated terrorist organization from inadmissibility under INA §212(a)(3)(B).
Advance Copy: DHS and DOS Notice on Exemption from Inadmissibility for Certain Afghan Civil Servants
AILA: Advance copy of DHS and DOS notice exempting certain individuals employed as civil servants in Afghanistan between 9/27/96 and 12/22/01, or after 8/15/21, from inadmissibility under INA §212(a)(3)(B).
CBP Launches Heat Mitigation Effort in Tucson, Arizona
AILA: CBP launched a heat mitigation effort in Tucson, whereby new Heat Stress Kits/Go-Bags will be distributed to 500 CBP agents. These are part of a feasibility study on heat stress awareness. Kits are meant to mitigate potential heat stress injuries and illnesses for agents and migrants alike.
EOIR Updates Part II of the Policy Manual
AILA: EOIR updated chapters 7.1 and 7.4 of the policy manual, and added chapter 7.6 to update procedures for credible fear screening and consideration of asylum, withholding of removal, and CAT protection claims by asylum officers.
CDC Lifts Requirement that International Air Travelers Have Negative COVID Test
AILA: The CDC issued an order rescinding a 17-month-old requirement that people arriving in the country by air test negative for COVID-19, effective at 12:01 am (ET) on Sunday, June 12, 2022, saying it is “not currently necessary.” (87 FR 36129, 6/15/22)
RESOURCES
- ACLU: ICE Detention Attorney Access Directory
- CLINIC: The New Asylum Rule on Credible Fear Screenings and Consideration of Asylum Claims by USCIS Officers FAQs for Immigration Practitioners
- CLINIC: Supreme Court Confirms Noncitizens in Withholding-Only Proceedings Have No Statutory Right to Bond Hearings
- CLINIC: Translation of Civics Questions and Answers for the Naturalization Test
- CRS: No Judicial Review of Fact Findings for Certain Discretionary Immigration Relief, Rules Supreme Court
- NIPNLG: Practice Alert: Judge Tipton Issues Decision Vacating Mayorkas Enforcement Priorities Memo (June 15, 2022)
EVENTS
NIJC EVENTS
GENERAL EVENTS
- 6/20/22 NIPNLG’s Removal Defense Course
- 6/20/22-7/29/22 NIPNLG’s Removal Defense Course
- 6/22/22 The CIS Ombudsman’s Webinar Series: USCIS’ Backlog Reduction Efforts
- 6/22/22 Introduction to Immigrant Visa Consular Processing
- 6/24/22 Problematic Trends at Local Asylum Offices
- 6/28/22 Hot Topics and Updates from the Annual Conference Open Forums
- 6/29/22 USCIS Asylum Program Quarterly Stakeholder Engagement
- 6/29/22 Videoconferencing Tips
- 6/29/22 Litigating Survivor-based Fee Waiver Denials
- 6/30/22 Uniting for Ukraine Overview and Online Filing Process of Form I-134 for Supporters and Beneficiaries
- 7/6/22-7/27/22 Webinar Series: Overview of Removal Proceedings and Orders of Removal
- 7/12/22 Making a Good Impression on the Reviewing Officers: Practical Tips from Former USCIS and DOS Officials
- 7/13/22 CGRS Using Universal Expert Declaration in Immigration Court
- 7/14/22 Death of a Petitioner or Beneficiary: Options for Surviving Relatives
- 7/21/22 National Engagement on Form I-730 Refugee/Asylee Follow-to-Join Processing
- 7/27/22 USCIS: An Overview of the T Visa, U Visa, and VAWA Self-Petition
- 7/28/22 VAWA in 2022: Breaking Barriers and Finding Solutions for Relief
- 8/5/22-8/12/22 NITA-NIPNLG “Advocacy in Immigration Matters” Training
- 8/10/22-8/11/22 2022 AILA Paralegals Virtual Conference
- 8/16/22 The Child Status Protection Act: Strategies for Keeping the Family Intact
- 8/23/22 Preparing Solid Affidavits of Support: “Show Me the Money!”
- 8/30/22 Naturalization During the Pandemic: “It Was the Best of Times, It Was the Worst of Times”
- 8/31/22 What to Do When You Get a Decision from the Ninth Circuit
- 9/8/22 Post-Conviction Relief: “If I Could Turn Back Time!”
- 9/15/22 Advanced Mandamus Trends
- 9/21/22 Breaking Down the Record in a Ninth Circuit Petition for Review
- 9/22/22 Maximizing Second Chances: Filing Appeals, Motions, and Practicing before the BIA
- 9/29/22 Consular Processing Roundup for Families and Survivors
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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
**********************
Doubt that the “LA Declaration on Migration” is DOA? Check out these items from Elizabeth’s report:
A Decade After DACA, the Rise of a New Generation of Undocumented Students
NYT: For the first time, a majority of the undocumented immigrants graduating from high schools across the United States have none of the protections offered over the past 10 years under an Obama-era program that shielded most of the so-called Dreamers from deportation and offered them access to jobs and help with college tuition… During the decade since DACA took effect in June 2012, some 800,000 young people have registered. But a long-term political solution never materialized. See also As DACA immigrant program turns 10, legal challenges persist; Republican donors to GOP leaders: Bipartisan immigration reform would ease inflation; Stories from Immigrants Who Have Grown up in the Decade of DACA.
The U.S. marks World Refugee Day, even as it accepts fewer refugees
Philly Inq: The latest admissions figures are paltry, with 1,898 people admitted in May. That means the U.S. is on track to resettle only 18,962 refugees in fiscal 2022 — a fraction of the 125,000 ceiling set by President Joe Biden.
U.S. is rejecting over 90% of Afghans seeking to enter the country on humanitarian grounds
CBS: Since July 2021, USCIS has received over 46,000 applications from Afghans hoping to come to the U.S. through the parole process. But most parole applications from Afghans remain unresolved — and over 90% of fewer than 5,000 fully adjudicated requests have been denied, USCIS statistics shared with CBS News show. See also Biden administration eases terrorism-related restrictions for Afghan evacuees.
5,000 Asylum-Seekers Added to the Migrant Protection Protocols 2.0, Few Are Granted Asylum
TRAC: Cases in MPP are generally being completed within the 180-day time frame set by the administration, but the problem with low rates of access to attorneys and unusually low rates of asylum success that plagued the first implementation of MPP continue this year.
Immigrant Detention Numbers on Their Way Back Up After Pandemic Slump?
TRAC: After hovering around 20,000 for several months, Immigration and Customs Enforcement’s detained population reached 24,591 at the start of June. Most of the people in detention (76 percent or 18,796) were arrested by Customs and Border Protection (CBP). But immigrants arrested by ICE—a total of 5,795—were at the highest number since March 2021.
‘No Place for a Child’: 1 in 3 Migrants Held in Border Patrol Facilities Is a Minor
Politico: Since early 2017, one of every three people held in a Border Patrol facility was a minor, a far bigger share than has been reported before now, according to an analysis by The Marshall Project of previously unpublished official records. Out of almost 2 million people detained by the Border Patrol from February 2017 through June 2021, more than 650,000 were under 18, the analysis showed. More than 220,000 of those children, about one-third, were held for longer than 72 hours, the period established by federal court rulings and an anti-trafficking statute as a limit for border detention of children.
Border Patrol Brutalizing Haitian Migrants Is Now a Commemorative Coin
Vice: U.S. Customs and Border Protection says it is investigating, will take “appropriate action” if it finds CBP officers were involved in the making or distribution of the coins, and will send cease-and-desist letters to any sellers, a spokesperson told the Herald. See also I was a border patrol agent. The experience was horrifying.
Split 6th Circ. Gives Honduran Asylum-Seekers Another Shot
Law360: A split Sixth Circuit panel told the Board of Immigration Appeals to take another look at whether a Honduran woman and her two children can stay in the U.S. as refugees after they claimed they suffered violence and intimidation by the brutal MS-13 gang.
Incorrectly trying to send women and children back to Honduras? That’s an example of our commitment to “protecting the safety, dignity, human rights, and fundamental freedoms of all migrants, refugees, asylum seekers, and displaced and stateless persons regardless of their migratory status?” Duh — not even close!
Not much doubt that a competent Immigration Judge, expert in both asylum and real country conditions in Honduras (which has one of the world’s highest femicide rates), would have been able to grant this at the trial level. Instead, amateurish and biased attempts to incorrectly deny asylum to refugees continue to clutter our courts at all levels! No wonder EOIR can’t stop building “artificial backlog!”
I recently highlighted two other “case-related examples,” of the “yawning gap” between the humane promises of the LA Declaration and the lousy actual performance of EOIR on what should be easily grantable asylum cases! See, e.g.,
Outrageously, EOIR is still predominantly a rogue “any reason to deny” pseudo-court where the “culture” encourages judges to contrive results, misinterpret facts, and misapply the law to wrongfully “hold down the number of grants” to Brown and Black refugees who need and deserve protection under our law and international agreements. Indeed large portions of our domestic and international legal refugee and asylum systems remain illegally suspended or functionally inoperative!
🇺🇸 Due Process Forever!
PWS
06-22-22