"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
THE GIBSON REPORT — 08-31-31 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
COVID-19
Note: Policies are rapidly changing, so please verify the latest information on the relevant government websites and with colleagues on listservs as best you can.
New
Opening dates for some non-detained courts: Hearings in non-detained cases at courts without an announced date are postponed through, and including, September 18, 2020. [Note: Despite the standing order about practices upon reopening for Federal Plaza, an opening date has not been announced for NYC non-detained at this time.]
Wrong Link for Standing Order: The Federal Plaza Immigration Court’s website has the wrong link to a 5/1/2020 standing order. The correct link can be found on the general EOIR operational status page.
ERO Check-Ins: NYC check-ins are still telephonic and people have been getting details regarding how to contact the assigned duty officer by emailing nyceroattorneyinquiries@ice.dhs.gov. Don’t forget about ERO when doing telephonic hearings once the courts reopen.
WaPo: “However, averting this furlough comes at a severe operational cost that will increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs,” said Edlow, who runs USCIS on a day-to-day basis as President Trump has not appointed or nominated a director.
AILA: “The proposal gives the Director of the Executive Office for Immigration Review (EOIR) extraordinary adjudicatory power over appeals, authorizing him to reverse, singlehandedly, BIA decisions at the request of immigration judges.”
The City: Applicants say that state Department of Motor Vehicles appointments remain scarce, while IDNYC offices shuttered in March and have not yet reopened.
On 8/21/20, Senators Durbin (D-IL), Whitehouse (D-RI), and Hirono (D-HI) led all Senate Judiciary Committee Democrats in sending a request to the GAO to investigate the politicization of the immigration courts and EOIR’s mismanagement of the immigration courts during the COVID-19 pandemic. AILA Doc. No. 20082504
NBC: Earlier this month, ICE removed 30 Vietnamese Americans, including some refugees thought to be protected under a 2008 agreement between the U.S. and Vietnam.
WSJ: They found out only minutes before the ceremony that President Trump would attend, and they didn’t know it would be aired during the Republican convention that night.
LITIGATION/CASELAW/RULES/MEMOS
Immigration Review Podcast: This is a fantastic podcast that summarizes new precedential immigration case law.
USCIS: This travel does not satisfy the “inspected and admitted or paroled” eligibility requirement for obtaining adjustment of status to lawful permanent residence.
NLJ: “These procedures plainly violate Congress’s requirements,” U.S. Senior District Judge Richard Leon said of the training border patrol agents receive to conduct credible fear assessments for asylum-seekers.
The AILA New Jersey Chapter filed a complaint in district court seeking to enjoin the Newark Immigration Court from forcing immigration attorneys to appear for in-person proceedings during the COVID-19 pandemic. (AILA New Jersey Chapter v. EOIR, 7/31/20) AILA Doc. No. 20080301
Granting the petition for review, the court held that the BIA had failed to satisfactorily justify its conclusion that the losses suffered by the victims of the petitioner’s insurance fraud offense had exceeded $10,000. (Rampersaud v. Barr, 8/19/20) AILA Doc. No. 20082833
The court held that the petitioner’s convictions for felony possession of narcotics with intent to sell in violation of Connecticut General Statutes §21a-277(a)(1) qualified as crimes involving moral turpitude (CIMTs). (Mota v. Barr, 8/17/20) AILA Doc. No. 20082830
Reversing DOS’s revocation of the plaintiff’s passport, the court held that the plaintiff did not fraudulently obtain his passport where he used the name and birthdate listed on his certificate of naturalization in his passport application. (Alzokari v. Pompeo, 8/26/20) AILA Doc. No. 20082732
The court concluded that there was not a categorical match between the petitioner’s statute of conviction, involuntary deviate sexual intercourse in Pennsylvania, and the corresponding generic federal crime, sexual abuse of a minor under INA §101(a)(43)(A). (Cabeda v. Att’y Gen., 8/18/20) AILA Doc. No. 20082836
Public Citizen, on behalf of immigrant advocacy groups Ayuda, Northwest Immigrant Rights Project, and CASA de Maryland, filed a lawsuit in the U.S. District Court in D.C. alleging that USCIS’s new fee rule is unlawful. (Northwest Immigrant Rights Project, et al. v. USCIS, et al., 8/21/20) AILA Doc. No. 20082505
On 8/21/20, the U.S. District Court for the Southern District of Ohio (Eastern Division) entered a Consent Order and Final Statement in the class action lawsuit challenging delays in issuance of EADs by USCIS following approval of Form I-765 applications. (Subramanya v. USCIS, 8/21/20) AILA Doc. No. 20080438
On 7/1/20, the Knight Institute filed a complaint on behalf of NAIJ challenging EOIR policies that impose a prior restraint on the speech of immigration judges. On 8/6/20, the court held that it lacked jurisdiction over NAIJ’s claims and accordingly denied the motion for a preliminary injunction. AILA Doc. No. 20070204
The district court vacated the Minimum Service Requirements in DOD’s N-426 policy, which required noncitizens in the military to meet certain durational and type of service requirements before obtaining a Form N-426, Certification of Honorable Service. (Samma, et al., v. DOD, et al., 8/25/20) AILA Doc. No. 20082733
USCIS provided guidance on how it will implement DHS Acting Secretary’s 7/28/20 DACA memo. Among other things, USCIS will reject all initial DACA requests from individuals who have never received DACA and will limit grants of deferred action and employment authorization to no more than one year. AILA Doc. No. 20082431
DOS announced that posts will resume K visa application processing as local conditions and resources allow. Consular officers may revalidate the I-129 petition in four-month increments. For most cases impacted by suspension of visa services, it will not be necessary to file a new I-129 petition. AILA Doc. No. 20083130
DOD OIG found that use of DOD title 10 personnel to support DHS’s southern border security operations was authorized by federal laws and consistent with DOD policies, and that DOD personnel supporting DHS and use of DOD funds for troop support complied with applicable federal laws and DOD policies. AILA Doc. No. 20082435
