"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
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 non-detained courts: Hearings in non-detained cases at courts without an announced date are postponed through, and including, October 9, 2020. [Note: Despite the standing order about practices upon reopening, an opening date has not been announced for NYC non-detained at this time.]
DocumentedNY: In July 2020, judges in New York City’s immigration courts completed 273 cases combined, a fraction of the estimated 2,200 cases completed in July 2019. While the judges were slowing down, ICE filed over 100,000 new immigration cases nationwide during just the first two-and-a-half months of the current shutdown.
Guardian: Immigrants in a US Immigration and Customs Enforcement (Ice) detention center in Georgia are being subjected to horrific conditions and treatment, including “jarring medical neglect” and a high rate of hysterectomies among women, according to a whistleblower complaint filed by several legal advocacy groups on behalf of a nurse who works there.
Gothamist: The march calling for the abolition of ICE hadn’t gone more than a few blocks through Lower Manhattan on Thursday afternoon when NYPD officers ran into the crowd, tackling marchers to the ground, and taking them into custody.
Daily News: A security guard flashed her gun at Abolish ICE protesters who stormed inside a federal building in Lower Manhattan, video posted on social media shows.
ProPublica: Department of Homeland Security and Justice Department inspectors general are investigating allegations that ICE guards assaulted detainees in camera blind spots.
NPR: The Trump administration has undertaken more than 400 executive actions on immigration, according to the Migration Policy Institute. Those include tougher border and interior enforcement, restricting asylum, rolling back Deferred Action for Childhood Arrivals (DACA), slashing refugee visas, streamlining immigration courts and creating Remain in Mexico.
CNN: The nomination hearing comes as courts and the Government Accountability Office have raised concerns about the legitimacy of Wolf’s appointment to lead DHS. Over the objections of the department, the GAO stood by its August opinion that Wolf and his deputy Ken Cuccinelli were appointed as part of an “invalid order of succession.”
NPR: The 9th Circuit Appeals Court’s decision affects citizens from El Salvador, Haiti, Nicaragua and Sudan, many of whom have lived in the U.S. for decades, have U.S.-born children and have been considered essential workers during the coronavirus pandemic. At issue is the termination of temporary protected status, a form of humanitarian relief created by Congress and administered by the Department of Homeland Security.
TRAC: These included nearly a million filings by immigrants previously present in the court files TRAC received that had gone missing. The resulting public outcry caused the EOIR to restore most of these records but persistent problems remained: each month, new records continued to disappear.
USCIS: U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to update and clarify the procedures USCIS officers follow when termination of asylum status is considered in relation to adjudicating an asylum-based adjustment of status application.
Finding that the plaintiffs are unlikely to succeed on their challenge to Presidential Proclamation 10052, a district court judge in D.C. held that injunctive relief would not remedy plaintiffs’ claimed irreparable harms or be in the public interest. (Panda, et al. v. Wolf, et al., 9/16/20) AILA Doc. No. 20091804
The district court preliminarily enjoined the defendants from enforcing a subset of the new asylum employment authorization document (EAD) rules as applied to individual members of Casa de Maryland and Asylum Seeker Advocacy Project. (Casa de Maryland, Inc., et al. v. Wolf, et al., 9/11/20) AILA Doc. No. 20091507
Granting summary judgment in favor of the plaintiffs, a federal district court in New York concluded that President Trump’s July 2020 memo exceeded the authority of the president and constituted an ultra vires violation of the statutes. (State of New York, et al. v. Trump, et al., 9/10/20) AILA Doc. No. 20091400
Unpublished BIA decision holds that 2004 conviction for third degree grand larceny under N.Y.P.L. 155.35 is not a CIMT under Obeya v. Sessions, 884 F .3d 442 (2d Cir. 2018). Special thanks to IRAC. (Matter of Diaz Ortiz, 4/13/20) AILA Doc. No. 20091404
Unpublished BIA decision finds conviction vacated under Calif. Penal Code 1473.7(3) is no longer valid for immigration purposes. Special thanks to IRAC. (Matter of Antunez Delgado, 4/29/20) AILA Doc. No. 20091800
Unpublished BIA decision rejects DHS argument that the respondent’s conviction remained valid for immigration purposes because the state court order vacating conviction was drafted by his attorney. Special thanks to IRAC. (Matter of Fearon, 4/17/20) AILA Doc. No. 20091607
Unpublished BIA decision reopens proceedings sua sponte for respondent with TPS to adjust status in light of intervening decision in Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017). Special thanks to IRAC. (Matter of Castellanos, 4/14/20) AILA Doc. No. 20091505
Unpublished BIA decision holds that Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), does not apply retroactively to convictions for theft under Texas Penal Code 31.03. Special thanks to IRAC. (Matter of Ozougwu, 4/9/20) AILA Doc. No. 20091403
Unpublished BIA decision holds that burglary of building under Texas Pen. Code 30.02 is not a CIMT because the target offense is not an element and could include simple assault. Special thanks to IRAC. (Matter of De Leon Gonzalez, 4/15/20) AILA Doc. No. 20091506
Unpublished BIA decision equitably tolls the MTR deadline and terminates proceedings where respondent filed motion more than two years after Ninth Circuit decision holding that conviction did not qualify as an aggravated felony. Special thanks to IRAC. (Matter of Dang, 5/7/20) AILA Doc. No. 20091801
Unpublished BIA decision remands for further consideration of ineffective assistance claim in light of evidence submitted on appeal that the respondent’s complaint against his prior attorney was referred to a disciplinary committee. Special thanks to IRAC. (Matter of Nguyen, 4/22/20) AILA Doc. No. 20091608
The court held that although the district court correctly found that Youth Ministries for Peace and Justice had Article III standing to sue over USCIS’s denial of N-648 waivers, it did not fall within the zone of interests of the INA, the APA, or the Due Process Clause. (Moya v. DHS, 9/15/20) AILA Doc. No. 20091612
The court rejected Matter of Castro-Tum’s conclusion that administrative closure is not within an IJ’s authority to take “any action” appropriate and necessary for the disposition of cases pursuant to 8 CFR §1003.10(b). (Meza Morales v. Barr, 6/26/20, amended 9/3/20) AILA Doc. No. 20070207
Upholding the denial of deferral of removal under the Convention Against Torture (CAT), the court held that the BIA did not err in determining that the petitioner had failed to show he would more likely than not be tortured if removed to Bangladesh. (Ahmed v. Barr, 9/4/20) AILA Doc. No. 20091604
The court issued a panel decision vacating a district court’s preliminary injunction to terminate TPS designations of Sudan, Nicaragua, Haiti, and El Salvador. (Ramos v. Wolf, 9/14/20) AILA Doc. No. 20091405
The court reversed and vacated the U.S. District Court for the Central District of California’s injunction barring ICE from issuing detainers based solely on searches of electronic databases to make probable cause determinations of removability. (Gonzalez, et al. v. ICE, et al., 9/11/20) AILA Doc. No. 20091500
The court held that substantial evidence did not support the BIA’s conclusion that the government of El Salvador was willing and able to control the Mara-18 gang that attacked the petitioner and killed his son, and found that the gang continues to be a threat. (J.R. v. Barr, 9/11/20) AILA Doc. No. 20091605
The court held that the BIA erred by not reviewing the IJ’s factual findings for clear error, as required by 8 CFR §1003.1(d)(3)(i), when it reversed the IJ’s grant of deferral of removal under the Convention Against Torture (CAT). (Guerra v. Barr, 3/3/20, amended 9/11/20) AILA Doc. No. 20030632
USCIS announced updates to some design features of the USCIS online account creation process to make it easier for representatives to link certain paper-filed cases to newly-created online accounts; to identify which paper-filed forms are eligible for online linking; and more. AILA Doc. No. 20091809
On September 18, 2020, DHS updated its fact sheet on measures to limit non-essential travel across the U.S.-Canada and U.S.-Mexico borders and to limit the spread of the coronavirus. The measures have been extended until October 21, 2020. AILA Doc. No. 20032336
USCIS updated guidance in its Policy Manual regarding the residency requirements for children and spouses of service members or U.S. government employees stationed overseas to acquire citizenship under INA §320, as amended by the Citizenship for Children of Military Members and Civil Servants Act. AILA Doc. No. 20092130
