COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including,January 1, 2020. NYC non-detained remains closed for hearings.
TOP NEWS
Judge Orders Government to Fully Reinstate DACA Program
NYT: Up to 300,000 additional undocumented immigrants could be allowed to apply for protection from deportation under a new court ruling. President Trump had sought to cancel the program.
Biden picks California Attorney General Xavier Becerra to be Secretary of Health and Human Services
ImmProf: As Attorney General, Becerra has filed 100 challenges to Trump administration policies, including many immigration and immigrant-related ones such as the rescission of the Deferred Action for Childhood Arrivals, efforts to defund sanctuary cities, addition of a U.S. citizenship question to Census 2020, and more. Just last week Becerra won a challenge to President Trump’s public charge rule in the Ninth Circuit.
A Trump Immigration Policy Is Leaving Families Hungry
NYT: The “public charge” rule was supposed to ensure that green cards go only to self-sufficient immigrants, but in the pandemic, it is driving up hunger and leaving Joe Biden with a quandary.
Biden’s policies on immigration
WaPo: President-elect Joe Biden has pledged to make the United States a welcoming place for
immigrants, but his plans to dismantle the Trump administration’s barriers to immigration
could leave him in a quandary, especially as a new migration surge could be looming.
Undocumented Immigrants Are Half as Likely to Be Arrested for Violent Crimes as U.S.-Born Citizens
Scientific American: Some of the most solid evidence to date shows that President Trump’s cornerstone immigration policy was built on a wholly false premise.
LITIGATION/CASELAW/RULES/MEMOS
EOIR Issues Memo Consolidating and Updating Policy Regarding the Processing of Asylum Applications
EOIR issued a policy memo (PM 21-06) consolidating and replacing OPPM 00-01, Asylum Request Processing, and OPPM 13-02, The Asylum Clock. The memo concerns the processing of affirmative and defensive asylum applications, the asylum and EAD clocks, docketing and scheduling, BIA appeals, and more. AILA Doc. No. 20120702
EOIR Issues Guidance on “Enhanced Case Flow Processing” in Removal Proceedings
EOIR issued guidance on the implementation of an enhanced case flow processing model for non-status, non-detained cases with representation in removal proceedings. Memo is effective 12/1/20. AILA Doc. No. 20120130
BIA Rules on Ineffective Assistance of Counsel
BIA ruled that counsel accepting responsibility of error does not discharge the disciplinary authority complaint obligation, and respondents seeking reopening based on ineffective counsel must show probability they would’ve prevailed otherwise. Matter of Melgar, 28 I&N Dec. 169 (BIA 2020) AILA Doc. No. 20120442
Full 4th Circ. To Revisit Nationwide Public Charge Block
Law360: The full Fourth Circuit will revisit a lower court order blocking the Trump administration’s immigration wealth test, months after a split panel allowed the federal government to enforce the so-called public charge rule while immigrants challenge it in court.
CA1 Finds Petitioner Abandoned LPR Status After Living and Working in Canada for Six Years
The court denied the petition for review, finding that the petitioner, a Lebanese citizen who was admitted to the United States as a lawful permanent resident (LPR) in 1991, had abandoned his LPR status after living and working in Canada for six years. (Mahmoud v. Barr, 11/30/20) AILA Doc. No. 20120708
Upholding the BIA’s denial of asylum, the court held that the Haitian petitioner had failed to establish a nexus between his 2017 attack and a protected ground, where he had provided no credible evidence that the attack was motivated by his political activity. (Celicourt v. Barr, 11/17/20) AILA Doc. No. 20113034
Gothamist: In a ruling issued Monday, the U.S. Court of Appeals for the Second Circuit affirmed a lower court’s dismissal of Erie County Clerk Michael Kearns’s 2019 lawsuit seeking to block the state’s Green Light law.
CA4 Finds BIA Abused Its Discretion in Denying Asylum to Former Colombian Police Officer
The court held that the BIA erred in deciding that the petitioner, a retired Colombian police officer, had not shown past persecution because threats by the Revolutionary Armed Forces of Colombia (FARC) were written, and because he was never physically approached. (Bedoya v. Barr, 11/25/20) AILA Doc. No. 20120133
CA6 Upholds Matter of Castro-Tum and Says IJs Lack General Authority to Administratively Close Cases
The court found that the Attorney General correctly interpreted 8 CFR §§1003.10 and 1003.1(d) in Matter of Castro-Tum in holding that IJs do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. (Hernandez-Serrano v. Barr, 11/24/20) AILA Doc. No. 20120134
The court dismissed in part the petitioner’s appeal of the denial of his cancellation of removal application, finding he had failed to exhaust his administrative remedies because he did not ask the BIA to address the subject of criminal violence in Mexico. (Barrados-Zarate v. Barr, 11/24/20) AILA Doc. No. 20120145
Where petitioner sought Convention Against Torture (CAT) relief and argued that the Somali government would acquiesce in his torture, the court held that the record did not show that the Somali government had willfully turned a blind eye to Al-Shabaab’s activities. (Moallin v. Barr, 11/23/20) AILA Doc. No. 20120146
CA9 Upholds Limited Preliminary Injunctions of DHS Public Charge Rule
CA9 upheld preliminary injunctions issued against DHS’s public charge rule by district courts in California and Washington. In its order, however, the panel majority vacated the Washington court’s entry of a nationwide injunction. (City and County of San Francisco, et. al. v. USCIS 12/2/20) AILA Doc. No. 20120235
CA9 Declines to Rehear Vega-Anguiano v. Barr En Banc
The court issued an order amending its prior opinion and denying the rehearing en banc of Vega-Anguiano v. Barr, in which the court found a reinstatement order improper where the petitioner had shown a “gross miscarriage of justice.” (Vega-Anguiano v. Barr, 11/19/19, amended 11/24/20) AILA Doc. No. 20120147
CA9 Finds BIA Erred in Giving Reduced Weight to Testimony of Specialist in Gang Activity
The court held that, despite its direction to reconsider the testimony of a specialist in gang activity in Central America and its effect on petitioner’s Convention Against Torture (CAT) claim, the BIA erred on remand by according reduced weight to his testimony. (Castillo v. Barr, 11/18/20) AILA Doc. No. 20113035
Granting the petition for review and remanding, the court held that the BIA erred by treating the petitioners’ failure to show prejudice caused by alleged ineffective assistance of counsel as a basis for denying their motion to reopen removal proceedings. (Sanchez Rosales v. Barr, 11/18/20) AILA Doc. No. 20113036
The court concluded that the plain language of INA §241(a)(5) bars the reopening of a reinstated removal order where a noncitizen has illegally reentered the United States following his or her initial removal, and thus denied the petition for review. (Alfaro-Garcia v. Att’y Gen., 11/30/20) AILA Doc. No. 20120709
District Court Orders DHS to Fully Restore DACA Program
District court orders DHS to accept first-time requests for DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to 9/5/17 and that one-year deferred action and EADs must be extended to two years. (Batalla Vidal, et al., v. Wolf, et al., 12/4/20) AILA Doc. No. 20120701
Advance copy of USCIS notice that DHS is automatically extending the validity of TPS-related documentation for beneficiaries under TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through 10/4/21. The notice will be published in the Federal Register on 12/9/20. AILA Doc. No. 20120710
USCIS Issues Memo on Expanding Interviews to Refugee/Asylee Relative Petitions
USCIS issued a policy memo stating that it will require most petitioners to appear for an interview in connection with Form I-730. USCIS will implement the expansion of in-person petitioner interviews in phases and will provide advance public notice before each phase is implemented. AILA Doc. No. 20113041
DHS Issues Supplemental Policy Guidance on the Migrant Protection Protocols
DHS issued supplemental policy guidance on MPP, including on access to information about MPP, appeals, family units, mixed-nationality family units, UACs, known physical and mental health issues, use of restraints, interagency collaboration, and ongoing changes. AILA Doc. No. 20120712
CBP announced that the pilot programs it began in January 2020 to assess collection of DNA samples from certain individuals in CBP custody have provided the information it needs to implement nationwide collection. Per CBP, the collection program will reach full operation by December 31, 2020. AILA Doc. No. 20120433
RESOURCES
- Pangea Legal Services v. DHS Litigation Update and FAQ
- CLINIC: Summary of DACA Litigation and Policy Developments
- AILA Practice Alert: District Court Orders Full Reinstatement of DACA
- AILA Practice Alert: New Scheduling Orders in Removal Proceedings
- AILA: Practice Pointer: Navigating the USCIS Contact Center
- Ethical Considerations Related to Affirmatively Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident
- USCIS Provides Data on Extension of Stay Requests During the COVID-19 Pandemic
- Client Flyer: Understanding the Liberian Refugee Immigration Fairness Program
- Bite-Sized Ethics: Withdrawing When a Client Goes MIA
- CBP Releases Enforcement Statistics for FY2021
- ILRC: Guidance and Reflections on Providing Remote Legal Services to Immigrant Survivors of Domestic Violence
- ILRC: Eligibility for Relief: Cancellation of Removal for Permanent Residents, INA § 240A(a)
- ILRC: Local Policy Interventions for Protecting Immigrants
- ILRC: Public Charge Timeline
- MPI: Mexican Immigrants in the United States
- Health is Justice Litigation Hub
EVENTS
- 12/8/20 Litigating Your Way Out of Delay
- 12/8/20 Update from the U.S. Consulate in Ciudad Juarez
- 12/9/20 Public Charge in Consular Processing
- 12/9/20 EOIR to Host Information Session on Enhanced Case Flow Processing Before the Immigration Courts
- 12/10/20 “The Nuts and Bolts of BIA Appeals” Webinar
- 12/15/20 Caserounds: Your Questions on Survivor-based Petitions
- 12/15/20 Crimes Involving Moral Turpitude
- 12/16/20 EOIR to Host an Information Session on the Implementation of Webex in the Immigration Courts
- 12/16/20 LPRs and Public Charge
- 12/16/20 Program Strategies for Removal Defense Practice
- 12/18/20 International Migrants Day
- 12/18/20 Late-Breaking Changes to Immigration Court Practice
- 1/7/21 Trauma-Informed Lawyering: Strategies and Best Practices
- 1/12/21-2/26/21 Comprehensive Overview of Immigration Law
- 1/21/21 Immigration in 2021: Anticipating Changes under a New Administration
- 2/4/21 Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas
- 2/5/21 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2021
- 2/5/21 Addressing Domestic Violence 2021: Remote Family and Immigration Law Practice During Pandemic or Disaster
- 2/9/21 What Every Lawyer Should Know About U.S. Immigration Law
- 4/21/21 Working with Domestic Violence Immigrant Survivors: The Intersection of Basic Family Law, Immigration, Benefits, and Housing Issues in California 2021
ImmProf
Monday, December 7, 2020
- Biden picks California Attorney General Xavier Becerra to be Secretary of Health and Human Services
- Fourth Circuit to Rehear En Banc Public Charge Rule Case
Sunday, December 6, 2020
- Raising the bar to US citizenship with a new test
- A Trump Immigration Policy Is Leaving Families Hungry
Saturday, December 5, 2020
- From NAFTA to USMCA, where do Mexican Farm Workers Stand?
- The US has “dirty immigration lawyers”; The UK has “specialist immigration law firms”
- Citizenship, Immigration, and Equality at TEDxMileHigh VISION
- Court Orders Trump Administrataion to Accept New DACA Applications
Friday, December 4, 2020
- Immigrant of the Day: Angelina Friedman (nee Sciales)
- Biden’s Immigration Plan- The First 100 Days
- Trump’s expansion of expedited removal needs President Biden’s attention
- Houston Police Chief: Alejandro Mayorkas is good choice by Biden to head Homeland Security
- How Sen. Mike Lee proposes to end ‘discrimination’ in U.S. immigration system
Thursday, December 3, 2020
- Implications of Trump’s Resistance to Post-Election Transition on Immigration Measures
- African Asylum Seekers Were Tortured, and Forced to Sign Their Own Deportation Documents, Garnering Little Media Attention
- Biden’s Attorney General Should Overrule Bad Immigration Decisions and Demote BIA Members
- Covid-19 Vaccine Accessibility for the Undocumented Community
- The First 100 Days: Are Biden’s Plans Enough?
- Contemporary immigration policy: the rise of child anxiety and its harmful effect on children’s development
- 3D Virtual Tour of NYC Chinatown
- The challenges Biden will face on immigration reform
- Federal Judge Nixes New Rules Restricting H-1B Visas
- Immigration Article of the Day: The Authority of International Refugee Law by Evan J. Criddle and Evan Fox-Decent
Wednesday, December 2, 2020
- Balkinization Symposium on Adam Cox and Cristina Rodriguez, The President and Immigration Law (Oxford University Press, 2020)
- Millions of Undocumented Immigrants Are Essential to America’s Recovery, New Report Shows
- Mexican Immigrants in the United States
- Federal Court Affirms New York’s Green Light Law Allowing Undocumented Immigrants To Seek Driver’s Licenses
- Our Immigration Policy Has Done Terrible Damage to Kids
- DREAMer Fund Event: Black migration to the U.S. and Black immigrant advocates
- Immigration Article of the Day: Climate Change, Race, and Migration by Carmen G. Gonzalez
Tuesday, December 1, 2020
- Giving Tuesday
- How to Support the U.S. Immigrant Rights Movement
- How Far Has the US Come Since the Three Fifths Compromise?
- Todo Por Mi Familia – a nationwide effort to connect families who were forcibly separated to mental health treatment
- COVID-19 As A Double-Edged Sword For Noncitizen Latinos – The Disproportionate Health Effects and the Economic Hardships the Pandemic Has Presented for Latinos
- Case preview: When can U.S. companies be sued for alleged violations of international human rights?
- Immigration: Visa applications open under UK’s post-Brexit system
- Law360 Immigration Group Of The Year: Mintz
- Spotlighting Immigrant-Owned Businesses
- Immigration Article of the Day: The Return of Typhoid Mary? Immigrant Workers in Nursing Homes by Shefali Milczarek-Desal and Tara Sklar
Monday, November 30, 2020
*********************
Undoubtedly, the “malicious incompetents” in the regime’s immigration kakistocracy will intentionally leave a mess behind. I also recognize that construction is more difficult than destruction.
But, I don’t subscribe to the “mission impossible” tenor of the Post article above in Elizabeth’s report. Sure, the issues related to immigration are challenging. But, if Biden puts experts from the NDPA in charge they are very solvable, in months and years, not decades!
And, even if there were an immigration “surge” on the horizon, it hardly presents the “dire threat” to America’s security and prosperity that both parties have claimed it to be in the past. The “fiction of the great surge” overwhelming our nation has driven immigration policy of both parties for far too long with disastrous consequences!
In an article I recently posted, my friend and Round Table colleague retired U.S. Immigration Judge Paul Grussendorf, who also has been an Asylum Officer and worked with the UNHCR, cogently debunks the oft repeated myth of “surge theory:”
In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)
Indeed, immigration is likely to be a key part of our economic, jobs, and societal recovery. To make that happen, however, we need to end the “Amateur Night at the Bijou” approach that has been take by Administrations over the past two decades, bring in the pros and experts from the NDPA, and empower them to solve problems in conjunction with the private sector, NGOs, industry, labor, and international groups. Figuring out how to create mutually beneficial opportunities from the reality of human migration, rather than treating it as a “threat” that can be eliminated unilaterally (it isn’t, and it can’t) is the way to future success.
It’s not “rocket science.” But it will require cleaning out the immigration kakistocracy at EOIR, DOJ, DHS, DOS, and across Government and replacing it with qualified, professional, experts from the NDPA and letting them solve the problems!
Due Process Forever!
PWS
12-08-20