"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 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.
Reuters: The 9th Circuit, in an 8-3 decision, said the government has come to rely almost exclusively on detention centers operated by GEO Group and other companies. California, the largest U.S. state, does not have the authority to second-guess that decision, the court said.
NPR: In August alone, the Border Patrol recorded more than 50,000 apprehensions in the Del Rio sector, which includes Eagle Pass — tens of thousands more than in traditional migration corridors like the Rio Grande Valley and El Paso. The number of migrants arriving from Venezuela, Cuba and Nicaragua was nearly equal to the number from Mexico and northern Central America.
NYT: In an unusual step, Biden administration officials gave some reporters a background briefing on Monday before Customs and Border Protection’s routine monthly release of data. Officials noted that the number of removals over the past year — more than 1.3 million — was more than any previous year. See also How to understand the latest immigration numbers.
Buzzfeed: For months, Border Patrol and ICE have been releasing immigrants with documents incorrectly listing their future residences as addresses to nonprofits or churches. These immigrants and asylum-seekers, most of them from Venezuela, then show up to random buildings confused and unsure of what to do next.
NPR: A majority of Americans support a pathway to citizenship for certain groups of immigrants, including farmworkers, those deemed as essential workers and for immigrants brought to the U.S. as children. That’s according to an NPR/Ipsos poll conducted in 2021. And yet action in Washington has stalled.
Law360: The Border Patrol along the southwest U.S. border skipped assigning some noncitizens entering the country “alien registration numbers” used to create a profile of their immigration history, according to a report by a U.S. Department of Homeland Security watchdog.
LexisNexis: The BIA held that, in order to qualify for relief under Lujan-Armendariz, a state conviction must have resulted in a sentence of no more than one year of probation. … In sum, the BIA legally erred by holding that, because he received a sentence of three years of probation, Petitioner’s expungement did not qualify under Lujan-Armendariz.
AP: Prosecutors moved to drop the case against Newton District Judge Shelley Joseph after she agreed to refer herself to a state agency that investigates allegations of misconduct by members of the bench.
Law360: The University of Washington’s human rights center sued the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement in Seattle federal court for failing to provide documents that could shed light on reports that detained immigrants are enduring medical neglect, sexual assault, beatings and long periods without food.
Law360: Colorado’s Court of Appeals, which initially sided with a sheriff accused of detaining a man for four months after his daughter posted bond, has ruled that the sheriff’s refusal to release the man put him beyond the shield of immunity.
Law360: A D.C. federal judge tossed a proposed class action Friday by 95 visa holders who allege the U.S. Citizenship and Immigration Services’ lengthy processing times for work permit applications violate the Administrative Procedure Act, finding the agency has since issued decisions on each application and the claims are moot.
USCIS: he final rule removes certain regulatory text governing asylum applications, interviews, and eligibility for employment authorization based on a pending asylum application. Relevant regulatory text is restored to appear as it did before the effective dates of the vacated rules. The final rule is effective on Feb. 7, 2022.
USCIS: On Sept. 22, 2022, USCIS was notified of a settlement agreement between the U.S. Army and class members of the civil action captioned Calixto v. Department of the Army, Civ. A. No. 18-1551 (PLF) (D.D.C.). The Calixto settlement agreement affects USCIS’ military naturalization policies, and USCIS is reviewing policy changes based on the terms of this settlement agreement.
AP: The Biden administration said Wednesday that the U.S. Embassy in Cuba will begin processing full immigrant visas in early 2023, making it easier for Cubans to reunite with family members in the United States.
AILA: Advance copy: DHS notice extending the designation of Burma for TPS for 18 months, from 11/26/22 through 5/25/24, and redesignating Burma for TPS. The notice will be published in the Federal Register on 9/27/22.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
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
Elizabeth Gibson 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.
Bloomberg: Nearly half of US-asylum seekers returned to Mexico under the “remain-in-Mexico” program to await a US immigration court hearing said they’d been abused by local officials, according to a Human Rights First report released Thursday. See also Biden urges Mexico to take migrants under COVID expulsion order he promised to end.
TRAC: Immigration Court case completions have been rapidly increasing. During the first eleven months of FY 2022. Immigration Judges have closed over 375,000 cases — a historical record. If the pace continues, closures should top more than 400,000 by the end of the fiscal year. This is nearly three times as many case closures as last year. It is also roughly 50 percent higher than the previous high in FY 2019 during the Trump administration.
NYT: Mr. McGuire cited the city’s failure on Monday to offer beds to 60 migrants who arrived at the men’s intake facility on East 30th Street in Manhattan, where homeless men are assessed when they first enter the shelter system — the first major such lapse in over a decade.
Vice: Since the beginning of September, over 1,100 migrants have been arriving every day in El Paso, more than 90 percent of them from Venezuela, according to the city’s CBP authorities. The influx has completely overwhelmed the city’s immigration shelters, and since most have no U.S. sponsor—support to get a visa to stay lawfully in the U.S.—immigration authorities have to release nearly 500 migrants a day into the streets of El Paso. And about 1,000 stay there to sleep every night.
America: A majority of Americans—52 percent—now believe the nation is experiencing an “invasion” on the southern border, and 49 percent say that migrants are responsible for an uptick in U.S. drug overdoses because they are transporting fentanyl and other drugs.
BuzzFeed: The Tech Transparency Project found that human smugglers advertise their services on Facebook Marketplace and in local buy-sell groups, with third-party ads for bona fide businesses embedded within the posts that allow Facebook to make money every time a potential immigrant looks for smuggling services on the platform. Some of the listings even featured an ad for a scholarship run by Meta.
AILA: EOIR final rule on limited representation of pro se individuals, which permits practitioners to provide document assistance to pro se individuals by entering a limited appearance through new Forms EOIR-60 or EOIR-61. The rule is effective 11/14/22.
LexisNexis: In denying his petition for CAT relief, the agency acknowledged that Santiaguez is an indigenous gay man and LGBT activist and that there is widespread violence against members of the LGBT community throughout Mexico. Nonetheless, the agency concluded that Santiaguez failed to satisfy his burden for CAT relief because he did not establish a likelihood that Mexican authorities would either torture him directly or acquiesce to his torture by private actors. In reaching this conclusion, the agency erred in several respects.
Law360: The Second Circuit on Thursday revived a Mexico native’s bid to cancel his deportation on grounds that his children would experience extreme hardship without him, saying he should have been allowed live witness testimony to support his case.
Law360: The Third Circuit on Thursday in a precedential opinion resurrected a Dominican man’s request for asylum, finding that the lower courts interfered with his right to an attorney by denying a request to reschedule a hearing so that the lawyer he retained just 24 hours before would be better prepared.
LexisNexis: One of those circumstances requiring review by a three member panel is when the IJ’s decision “is not in conformity with the law or with applicable precedents.” 8 C.F.R. § 1003.1(e)(6)(iii). Petitioner’s appeal of the IJ’s decision therefore should have been adjudicated by a three member panel of the BIA. … In conclusion, we grant the petition for review so that the IJ may reconsider the police report in light of In re Arreguin de Rodriguez, 21 I. & N. Dec. 38 (B.I.A. 1995).
Law360: A split Sixth Circuit appellate panel has denied the asylum bid of a Salvadoran couple fleeing the gang MS-13, saying the U.S. Board of Immigration Appeals did not err when it found the couple had not shown the Salvadoran authorities were incapable of protecting them from the gang.
Law360: The Board of Immigration Appeals did not go through with an analysis that would have shown an Indian man was persecuted for his political affiliation, a split Ninth Circuit panel ruled Wednesday in reviving the man’s asylum bid.
Law360: The Ninth Circuit on Friday held that a Mexican man who was tortured and harassed in his home country should get another shot at avoiding deportation, ruling that the Board of Immigration Appeals erred in how it went about overturning an immigration judge’s decision in the man’s favor.
LexisNexis: The BIA failed to correctly apply the clearly erroneous standard. While the BIA indicated disagreement with the IJ’s findings, it did not explain why the IJ’s decision was illogical, implausible, or without support. … Clear error review requires the BIA to “explain how these alleged errors showed lack of logic, plausibility, or support in the record on the part of the IJ.”
Law360: The Eleventh Circuit on Tuesday denied a petition from a Honduran man seeking asylum over claims that narcotics traffickers targeted his family, saying the dispute with the traffickers stemmed from a private “vendetta,” making him ineligible for asylum to avoid persecution.
USCIS: This notice is intended to provide information for individuals who (1) may be an AOL PI Class Member; (2) had the “third-country transit rule” applied to their immigration case; (3) were ordered removed from the U.S. under an “expedited removal order”; and (4) currently reside in the United States.
EOIR: As part of EOIR’s “Access EOIR” initiative, the agency is seeking to revise its Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge, to include a section for unrepresented respondents to consent to have their case be considered for inclusion in the BIA Pro Bono Project.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
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
Merrick Garland ignores the existential threat from the avalanche of dangerous and defective decisions by his Trump holdover BIA. But, the rest of us see exactly what’s happening. PHOTO: Creative Commons
I count no fewer than seven Circuit rejections of wrong-headed BIA decisions in Elizabeth’s report this week. The legal incompetence of EOIR under Garland is astounding!
Disturbingly, several reversals involve outrageous denials of routine continuances. Garland runs a system where cases languish for years, sometimes decades, because of poor judicial decisions and inept docket management by EOIR. Yet, some IJ’s and the BIA are “programmed” to deny well-justified continuances in clear violation of Due Process. What a disgrace!
Garland has failed miserably to bring enough well-qualified judges and competent administrators into his dysfunctional Immigration Courts. Yet, he wanders around America giving clueless speeches about the wonders of the American justice system and the greatness of immigrants!
Meanwhile, a nationwide rebellion among practitioners is brewing against Garland’s latest round of mindless, due-process-denying “Aimless Docket Reshuffling.” It’s going to take more than a few cosmetic “regional stakeholder meetings” to get things back on track at EOIR. Everyone except Garland and his lieutenants knows that!
And, the continuing meltdown at EOIR helps “fuel” disgraceful stunts by nativist racists like DeSantis and Abbott.
Elizabeth Gibson 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.
NYT: Under a pandemic-driven public health rule, migrants have been turned away at the U.S. border 1.7 million times since Mr. Biden took office, a figure that includes some people who have attempted to cross multiple times. But the United States has allowed others to stay temporarily for a range of reasons, including because Mexico or their own countries will not take them back. Nearly 300,000 of those who have been allowed in — including many heads of families — have been outfitted with tracking devices so that Immigration and Customs Enforcement can keep tabs on their whereabouts while they await their day in court. See also ‘Tale of two borders’: Mexicans not seen at busy crossings.
WaPo: The oldest recipients were in their early 30s when DACA began and are in their early 40s today. At the same time, fewer people turning 16 can meet a requirement to have been in the United States continuously since June 2007.
Reuters: The agency found that since late last year, 57 unaccompanied migrant kids had been reported missing in Houston, the HHS official, and two additional sources familiar with the situation, said. Included in the count were nine kids who ran away from HHS shelters in the Houston area, the official said.
WaPo: The exodus from Venezuela has grown to the point that its refugee numbers are now close to those displaced by the conflict in Ukraine — but the European crisis has drawn disproportionately more financial support, according to an advocacy group. See also Ecuador begins regularization process for thousands of Venezuelan migrants.
CA: California would be the first U.S. state to ban solitary confinement in private civil detention centers used for immigrants who are under threat of deportation, under a bill that advanced Tuesday.
Law 360: Federal prosecutors accused a Texas contractor of misappropriating hundreds of thousands of dollars worth of funding from the U.S. Department of Health and Human Services that was intended to be used for housing unaccompanied migrant children.
Law 360: The Biden administration will focus on bringing over Afghans who have U.S. families in the next stage of its effort to relocate those fearing for their lives under the Taliban’s rule, a State Department spokesperson said Thursday.
Law 360: The American Samoa government told the U.S. Supreme Court Monday that imposing birthright citizenship on American Samoans would deprive them of the right to decide their status, going against American Samoa-born individuals who earlier appealed to the high court.
Law 360: The First Circuit was bound Wednesday to stand by an immigration appeals board decision that ordered a Guatemalan man removed from the country despite the hardship it would cause his children, saying the call was in line with the “hard-hearted” and “stringent statutory requirement.”
Law 360: The Board of Immigration Appeals was wrong when it refused to consider a psychological report explaining why an El Salvadoran teen seeking asylum had trouble remembering the details of sexual assaults that occurred when she was a child, a split First Circuit has ruled.
LexisNexis: [U]nder the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection…The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.
LexisNexis: This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause.
LexisNexis: [T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.”
Law 360: The Ninth Circuit revived a Sikh man’s second attempt at obtaining asylum in the United States, finding that the Board of Immigration Appeals should have considered new information he presented in his later bid about the dangers of living as a Sikh in India.
Law 360: A Ninth Circuit panel on Monday ruled that Arizona’s drug possession laws can support federal immigration removal orders despite banning a broader list of substances than the federal drug schedule because the Grand Canyon State requires juries to determine the specific drug type involved in each conviction.
Law 360: The U.S. Department of Health and Human Services’ Office of Refugee Resettlement must notify young detained migrants and their counsel when it decides against releasing them to their parents or relatives and provide reasons for withholding release, a California federal judge has ordered.
Law 360: U.S. Immigration and Custom Enforcement has agreed to pay $4.8 million to resolve a class action claiming the government routinely failed to consider safer options before transferring teens to adult detention facilities after they turned 18, according to a proposed settlement filed Thursday in D.C. federal court.
Law 360: Immigrants suing New York’s Suffolk County and its sheriff’s office over their practice of holding people past their release date by request of U.S. Immigration and Customs Enforcement have won over a federal judge, who recommended their proposed class be certified.
Law 360: Two California chapters of a national Muslim civil liberties group and 159 Iranian diversity visa applicants have sued the Biden administration in federal court, claiming they have been “skipped over” and “unreasonably delayed” in the processing of their applications “for no explicable reason.”
USCIS: U.S. Citizenship and Immigration Services (USCIS) today published a Federal Register notice for the extension and expansion of eligibility for Deferred Enforced Departure (DED) for Liberians and explaining how eligible Liberians may apply for Employment Authorization Documents (EADs).
USCIS: U.S. Citizenship and Immigration Services (USCIS) is resuming operations under the Cuban Family Reunification Parole (CFRP) program, beginning with pending CFRP program applications.
USCIS: U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to reorganize and expand on existing guidance related to special immigrant and nonimmigrant religious workers.
EOIR: The Executive Office for Immigration Review (EOIR) today announced it will open a new immigration court in Sterling, Virginia, on Oct. 3, 2022. The Sterling Immigration Court will include 19 immigration judges. It will be the second immigration court to open in the National Capital Region this calendar year.
CAIR: Peter Alfredson from CAIR Coalition’s Immigration Impact Lab is seeking examples of problems related to how IJs are using boilerplate addenda/statements of law in oral decisions. Please contact him at peter@caircoalition.org with any specific issues you’ve experienced with the addenda, including, but not limited to: IJs referring to the addenda but never actually providing them; addenda misrepresenting the law in a prejudicial way; and IJs using the addenda and engaging in little/no actual legal analysis in a particular case.
NIJC: If you have examples of prosecutorial discretion you are willing to share (anonymously to your client if you wish), please fill out this form: Amicus Stories. Also: if you are a nonprofit and would be interested in signing on as an amici, please fill out this form: Joining Amici. In particular, we are thinking of cases that fit into the following categories: Grants or Denials under the Mayorkas Memo of PD for the purpose of seeking some non-EOIR benefit, such as: Eligibility for U visa, Eligibility for adjustment of status, Eligibility for SIJS. Grants or Denials under the Mayorkas Memo of PD based on particular humanitarian or unique considerations: Military service (self or family), Undercover or confidential informant situation, Family separation. DACA / DREAMers, MPP, Old convictions / rehabilitation. Stories (even if they predate the Mayorkas Memo) involving: Circumstances where individuals who would have been subject to 236(c) were not placed in removal proceedings, and the person was able to pursue relief with USCIS because no proceedings were ever initiated. Circumstances where individuals who could have been subject to reinstatement of a prior removal order did not have that order reinstated and were able to do things like pursue a U or T visa before USCIS, without being detained or placed in removal proceedings.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
Lack of analysis, prejudged cases, overt anti-immigrant bias, and absence of “applied” immigration, human rights, and due process expertise is an endemic problem at EOIR. Using canned law (some of it flat out wrong or at least questionable) in “addenda” appears to be another “built to fail,” due process denying, haste make waste “gimmick.”
Lousy analysis and basic mistakes appear in Federal Court rebukes of EOIR highlighted here, on LexisNexis, on ImmigrationProfblog, and other resources on an almost daily basis. And, we by no means are able to catalogue all of the abject failures being cranked out by Garland’s EOIR — many of which would embarrass an L-1! Why not get 1) better judges, 2) a better BIA, and 3) better training?
Garland has been “nibbling around the edges,” at best. A few enlightened appointments of well-qualified “practical scholars” to newly created judgeships in a failed system of some 600 judges nationwide with a fatally flawed “Trump holdover” appellate body, the BIA, won’t cut it.
EOIR needs new, exceptionally well-qualified, dynamic, due process oriented expert leadership and a new BIA that will begin solving the problems rather than aggravating them and shuffling them on to the Circuits. Hopefully, the CAIR effort will lead to “dialing up the pressure” on Garland and his lieutenants to “get their collective heads out of the clouds and kick some tail at what (despite the efforts of Article III right wing hacks like Judge Aileen “Loose” Cannon to claim the title) remains “America’s worst court system” — where due process, fundamental fairness, legal scholarship, and best practices “go to die.” 🪦
I don’t dispute that America’s judicial system is failing from top to bottom. But, unlike theArticle IIIIs, where there are long-term structural issues with constitutional roots that make “quick fixes” impossible, EOIR is “wholly owned and operated” by the Executive.
Systemic institutional reforms like replacement or reassignment of unqualified judicial and administrative personnel could, and should, have been a top priority for the Biden Administration. But, instead the tone deaf “it’s only immigration not a real priority” approach by Garland has allowed life-threatening legal malfeasance at EOIR to fester, spread, and undermine confidence in the ability of our democracy to survive.
News flash for Garland:EOIR is where the “rubber meets the road” for American justice. You continue to ignore and downplay the need for bold decisive corrective action at your own peril —and our nation’s!
Elizabeth Gibson 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.
EOIR: In response to comments from the public, EOIR is once again making the Board and Immigration Court Practice Manuals available as downloadable PDF documents. [Also, the BIA Practice Manual now lists the BIA brief page limit at 50 pages.]
NPR: NPR’s A Martinez talks to Homeland Security Secretary Alejandro Mayorkas about the Deferred Action for Childhood Arrivals (DACA) program which is now in the federal government’s code of regulations.
AP: In 2021, when Venezuelans could still fly to Cancun or Mexico City as tourists, only 3,000 of them crossed the Darien Gap — a literal gap in the Pan-American Highway that stretches along 60 miles (97 kilometers) of mountains, rainforest and rivers. So far this year, there have been 45,000, according to Panama’s National Immigration Service.
CNN: Back in 2007, the number of migrants in this “other” category was negligible. But since then, it’s grown dramatically — 11,000% — with the sharpest increase in just the past two years.
AP: Announced Monday, the rule change from the New Mexico Supreme Court is scheduled to take effect Oct. 1. Several states already have provisions that disregard residency or immigration status in licensure decisions.
Buzzfeed: ORR is working on an updated policy, and advocates have heard that the agency was already transferring minors to other states if they need access to abortion services, Amiri said. But nothing official has been released.
Law360: The First Circuit has told the Board of Immigration Appeals to have another look at a Haitian man’s asylum request, saying the board did not adequately explain why his marijuana offenses made him ineligible for asylum.
Law360: The Third Circuit ruled that U.S. Department of Homeland Security couldn’t deport an Indian immigrant over a stalking conviction, saying the man was convicted under an overbroad Pennsylvania law that criminalized misconduct that doesn’t warrant deportation.
LexisNexis: During that hearing, the immigration judge neglected to advise Fernandez Sanchez about his eligibility for voluntary departure or inform him of his right to appeal. Then, in his written summary order, the immigration judge indicated that Fernandez Sanchez had waived his right to appeal—even though this was never discussed during the hearing…Ultimately, we agree with Fernandez Sanchez that there is a reasonable probability that, but for the denial of his appeal rights, he would not have been deported.
Law360: Afghan and Iraqi allies suing the federal government over delays with their green card applications told the D.C. Circuit that a lower court’s refusal to impose a deadline to address the delays endangers their lives given the deteriorating security conditions in their homelands.
Law360: A New York City blogger told a Manhattan federal judge Wednesday that he assisted two lawyers in creating fraudulent asylum applications to submit to U.S. immigration authorities, pleading guilty to a conspiracy count.
Law360: An investor of The GEO Group has lodged a derivative suit against higher-ups of the private prison operator, saying their disclosures about GEO’s financial prospects didn’t match internal financial concerns stemming from lawsuits alleging forced labor by immigrant detainees.
DHS: Homeland Security Secretary Alejandro N. Mayorkas today announced that the Department has issued a final rule that will preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children, deferring their removal and allowing them an opportunity to access a renewable, two-year work permit.
AILA: EOIR 60-day notice and request for comments on proposed revisions to Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents, and Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents.
AILA: DOJ 60-day notice and request for comments on proposed revisions to Form EOIR-44, Immigration Practitioner Complaint Form. Comments are due 10/24/22.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
As usual, this is a good rundown of some of the continuing problems that Garland’s EOIR is having in the Federal Courts, including a few items previously reported on Courtside.
Elizabeth Gibson 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.
USCIS: This extends certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors. The reproduced signature flexibility announced in March, 2020, will become permanent policy on July 25, 2022. But DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents.
TRAC: One out of every six new cases DHS initiates in Immigration Court are now being dismissed because CBP officials are not filing the actual “Notice to Appear” (NTA) with the Court. The latest case-by-case Court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information (FOIA) requests show a dramatic increase in these cases.
Buzzfeed: The US reached a settlement Thursday that establishes fingerprinting deadlines for parents and sponsors trying to get unaccompanied immigrant children out of government custody. Under the settlement, which expires in two years, the government has seven days to schedule fingerprinting appointments and 10 days to finish processing them.
CNN: The Biden administration is developing a new identification card for migrants to serve as a one-stop shop to access immigration files and, eventually, be accepted by the Transportation Security Administration for travel, according to two Homeland Security officials.
CBS: Officials in Arizona, Missouri, Texas and other GOP-controlled states have convinced federal judges, all but one of whom was appointed by former President Donald Trump, to block or set aside seven major immigration policies enacted or supported by Mr. Biden over the past year.
AP: Over the next 30 years, 143 million people are likely to be uprooted by rising seas, drought, searing temperatures and other climate catastrophes, according to the U.N.’s Intergovernmental Panel on Climate Change report published this year.
Reuters: Washington Mayor Muriel Bowser has requested the deployment of military troops to assist with migrants arriving on buses sent by the Texas and Arizona state governments, according to letters sent by her office to U.S. military and White House officials. See also Migrants Being Sent to NYC From Texas — to the Wrong Places, With No Help, Sources Say.
Documented: Advocates estimate that ICE moved dozens of individuals at the Orange County Jail in New York on Monday, and sent them to detention centers in Mississippi and elsewhere in New York, without prior notification to families or attorneys about the transfers.
Reuters: An estimated 6 million Venezuelans have fled economic collapse and insecurity in their home country in recent years, according to United Nations figures. Many have settled in other South American countries but some have traveled north.
BIA: The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § 922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2018), because § 922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense.
Law360: The Second Circuit ordered the Board of Immigration Appeals to revisit an indigenous Guatemalan mother and son’s bids for asylum and deportation relief, saying the agency failed to provide a sufficient premise for affirming an immigration judge’s denial of relief.
LexisNexis: An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the non-recused active judges in favor of en banc consideration.
Law360: Not knowing the law isn’t enough to excuse a Guatemalan union worker from missing the deadline to apply for asylum by three years, the Ninth Circuit said when it refused to overturn an immigration panel’s decision that the man’s circumstances weren’t “extraordinary.”
Law360: A panel of Ninth Circuit judges granted a petition to review an order rejecting a Mexican woman’s asylum bid Wednesday, saying in an unpublished opinion that the agency was wrong to determine that inconsistencies or omissions in her testimony undercut her credibility as a witness.
Law360: The D.C. Circuit has rejected requests from Afghan and Iraqi translators to alter a lower court’s order that granted the federal government an indefinite deadline extension to draft a plan for faster green card processing, ruling that reversing the order wasn’t necessary.
AILA: Advance Copy: DHS notice extending the designation of Syria for TPS for 18 months, from 10/1/22 through 3/31/24, and redesignating Syria for TPS for 18 months, effective 10/1/22 through 3/31/24. The notice will be published in the Federal Register on 8/1/22.
AILA: USCIS is experiencing delays in issuing receipts for Form I-589. For purposes of the asylum one-year filing deadline, affirmative asylum interview scheduling priorities, and EAD eligibility, the filing date will still be the date USCIS received the I-589 and not the date it was processed.
USCIS: USCIS is currently experiencing delays in issuing receipts for Form I-589, Application for Asylum and for Withholding of Removal. Due to these delays, you may not receive a receipt notice in a timely manner after you properly file your Form I-589.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
The foregoing sources also clearly illustrate that, with or without past persecution, such indigenous women would have a “reasonable fear” of persecution on account of their status under the generous standards for asylum adjudication articulated by the Supremes more than three decades ago in Cardoza-Fonseca and, shortly thereafter, reaffirmed and supposedly implementedby the BIA in Matter of Mogharrabi (a fear can be “objectively reasonable” even if persecution is significant unlikely to occur). Problem is: Both of these binding precedents favoring many, many more asylum grants are widely ignored by policy makers, USCIS, EOIR, and some Article III Courts — with no meaningful consequences!
Additionally, the respondents appear to have had grantable “racial persecution” claims based on indigenous ethnicity. The son, in addition to being a “derivative” on his mother’s application, also had an apparently grantable case based on disability.
In a functioning system, this case would have been quickly granted, the respondents would be integrating into and contributing to our nation with green cards, and they would be well on their way to U.S. citizenship. Indeed, there would be instructive BIA precedents that would prevent DHS from re-litigating what are essentially frivolous oppositions!
But, instead, after more than five years and proceedings at three levels of our justice system, the case remains unresolved. Because of egregious, unforced EOIR errors it is still “bouncing around” the 1.8+ millionEOIR backlog, following this remand from the Second Circuit.
Exceptionally poor BIA legal performance, enabling and supporting a debilitating “anti-immigrant/anti-asylum/racially derogatory culture of denial” at EOIR, has led to far, far too many improper asylum denials at the Immigration Judge level and to a dysfunctional system that just keeps on building backlog and producing grotesquely inconsistent, “Refugee Roulette” results! Go to TRAC Immigration and check out the shocking number of sitting IJs with absurd 90% or more “asylum denial rates.”
It also fuels the continuing GOP nativist blather that denies the truth about what is happening at our Southern Border. We are wrongfully denying legal protection and status to many, many qualified refugees — often without any process at all (let alone due process) and with a deeply flawed, biased, and fatally defective process for those who are able to “get into the system.” (Itself, an arbitrary and capricious decision made by lower level enforcement agents rather than experts in asylum adjudication).
The “unpublished” nature of this particular Second Circuit decision might lead one to conclude that the Article IIIs have lost interest in solving the problem, preferring to sweep it under the carpet as this pathetic attempt at a “below the radar screen” unpublished remand does. But, such timid “head in the sand” actions will not restore fairness and order to a system that now conspicuously lacks both! This dangerous, defective, unfair, and unprofessional abuse of our justice system needs to be “publicly called out!”
“The agency failed to evaluate any of the country conditions evidence relevant to Oliva-Oliva’s CAT claim.” So how is this acceptable professional performance by the BIA? And why is it being “swept under the carpet” by the Second Circuit rather than “trumpeted” as part of a demand that Garland fix his dysfunctional due-process-denying system, NOW?
Contrary to all the fictional “open borders nonsense” being pushed by the nativist right, the key to restoring order at the borders is generous, timely, efficient, professional granting of refuge to those who qualify, either by the Asylum Office or the Refugee Program. This, in turn, absolutely requires supervision, guidance, and review where necessary by an “different” EOIR functioning as a true “expert tribunal.”
That would finally tell us who belongs in the legal protection system and who doesn’t while screening and providing accurate profiles of both groups. The latter essential data is totally lacking under the absurdist, racially motivated, “rejection not protection” program of Trump, much of which has been retained by Biden or forced upon him by unqualified righty Federal Judges. But, we’ll never get there without meaningful, progressive, due-process focused EOIR reform!
There will be no justice at the Southern Border or in America as a whole without radical, long overdue, due process reforms at EOIR!
Julia Toepfer National Immigrant Justice Center (“NIJC”)
Since the 1990s, U.S. immigration policy has centered the goal of decreasing or “deterring” migration. These policies are designed with one goal in mind – punishing people for the act of migration with such cruelty that the harsh measures themselves will deter future migration.
Not only does this strategy not work, but it has deadly human consequences.
The devastating toll of deterrence programs came into full view with the recent tragedy in San Antonio, Texas, where 53 migrants died in the back of a tractor-trailer after attempting to enter the United States. Human rights experts, including NIJC, responded by emphasizing the urgent need to shift away from programs that block lawful pathways to entry or push people toward dangerous terrain.
Nonetheless, the U.S. government continues to double-down on policies and programs aimed at deterring migration. Some recent examples include continuing the Trump-era Remain in Mexico and Title 42 programs, and increasing the use of criminal prosecutions to punish migrants alleged to enter the country without authorization. Here are updates on each of these programs since we last reached out to you about them, along with ways you can demand that the U.S. government restores access to asylum and stops punishing people for migrating:
➡️ Recently, the Supreme Court ruled that the Biden administration could end the Remain in Mexico program, and it’s now time for the administration to follow through. Also known as the Migrant Protection Protocols (MPP), this program has forced more than 75,000 people to wait in dangerous conditions in Mexico while their claims are pending in U.S. immigration courts. This program defaced basic principles of due process and decades of U.S. commitment to protect people from harm and persecution. NIJC continues to represent dozens of asylum seekers who were subject to the program, including some who are still waiting in Mexico. Sign the petition calling on President Biden to end Remain in Mexico.
➡️ Border Patrol just released new data showing there have been 2,132,711 expulsions of people seeking safety at the U.S. border under Title 42, the vast majority of which happened under the Biden administration. The Trump administration implemented Title 42 under the guise of protecting public health during COVID-19, but the real goal was always to block Black, Brown, and Indigenous people from migrating to the United States. There have been nearly 10,000 documented cases of kidnappings, rape, torture, or other acts of violence against people who were expelled under Title 42. Yet, right now, some members of Congress are trying to pass legislation that continues this policy indefinitely. Tell your members of Congress to end Title 42 and oppose all efforts to continue it indefinitely.
➡️ The Biden administration is ramping up the use of criminal prosecutions to punish migrants arriving at the U.S. border, despite decades of evidence showing these prosecutions don’t work to deter migration and cause widespread harm. The increased use of such prosecutions flies in the face of the administration’s commitments to racial equity and to a more humane approach to migration policy. Criminal prosecutions do not stop people from crossing the border, but instead have caused widespread harm, separated countless families, and undermined asylum rights. Check out NIJC’s latest blog post explaining five ways that immigration prosecutions are deadly and ineffective.
NIJC knows, from years of representing immigrants and asylum seekers, that punitive border policies do not deter people from fleeing violence or seeking to reunite with their families.
Above all, immigration policies focused on deterrence inevitably and tragically cause countless deaths and untold human suffering. The U.S. must abandon a deterrence strategy, reopen ports of entry for asylum screenings, and embrace a humanitarian approach to immigration – it’s the only way to end systemic injustices, reduce mass incarceration, and protect fundamental human rights.
Thanks for joining us to get there.
-Julia Toepfer
National Immigrant Justice Center
***********************************
“Maximum deterrence programs” have little empirical support. Human migration, a phenomenon as old as humanity, is largely driven by powerful forces beyond whether a rich country has built walls, prisons, unfair legal systems, and other artificial barriers to “deter” migration. At best (or worst, depending on how one looks at it) these “gimmicks” and the predictable accompanying “rhetoric of hate, dehumanization, and rejection” nibble around the edges of migration patterns.
But, they are deeply rooted in the racial history of the U.S., and play a major role in the White Nationalist mythology that surrounds deterrence.
A smart nation might harness, take advantage of, and direct the flow of human migration. Ultimately, failed deterrence gimmicks will inflict cruelty and cause the death of some migrants. They also diminish the reputation and diminish the humanity of the “destination nation.”
But, they won’t stop folks from leaving intolerable situations to seek a better life elsewhere — no matter what the odds, risks, or hardships. And, they eat up money and resources that could actually be directed into building more realistic legal migration systems that would benefit both the migrants and the receiving countries.
Elizabeth Gibson 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.
USCIS: Starting Sept. 21, 2022, we will only accept the 07/15/22 edition. Until then, you can also use the 03/29/21 and 03/10/21 editions. You can find the edition date at the bottom of the page on the form and instructions.
Reuters: The justices on a 5-4 vote denied the Biden administration’s request to block a federal judge’s ruling that had prevented immigration officials from carrying out the enforcement guidelines while litigation over the legality of the policy continues. But the court said in a brief order that it would fast-track the Biden administration appeal and hear oral arguments in December.
AP: The National Association of Immigration Judges on Thursday asked the federal government to restore its union recognition after the Trump administration stripped its official status and the system’s chief judge resigned after two years on the job.
Guardian: In the last month alone, FFI has received more than 2,100 complaints nationwide. The most common abuse-related ones are anti-Black discriminatory actions, ranging from forced strip-searches and unprovoked pepper-spraying to prolonged solitary confinement and critical medical treatment negligence.
Politico: The data, harvested from apps on hundreds of millions of phones, allowed the Department of Homeland Security to obtain data on e points across North America, the documents show. Those data points may reference only a small portion of the information that CBP has obtained.
NYT: While migrants have long faced kidnappings and extortion in Mexican border cities, such incidents have been on the rise on the U.S. side, according to federal authorities. More than 5,046 people were arrested and charged with human smuggling last year, up from 2,762 in 2014.
VOA: Five years later, court documents show, more than 5,000 children were separated from their parents at the U.S.-Mexico border under a practice known as the zero tolerance policy for unauthorized border crossers. However, it was also used on migrants who presented themselves legally at ports of entry. Parents of 180 children have not yet been found by advocates working with families.
NPR: Former President Donald Trump’s administration spent years trying to add a census citizenship question as part of a secret strategy for altering the population numbers used to divide up seats in Congress and the Electoral College, internal documents released Wednesday by the House Oversight and Reform Committee confirm.
Law360: The U.S. Supreme Court on Thursday refused to reinstate President Joe Biden’s attempt to narrow immigration arrests and deportations to national security threats and other “priority” targets while his administration fights a court order that vacated the policy.
Law360: The Fifth Circuit has revived asylum claims from a woman who said she suffered a brutal home invasion by Angolan police over her political activities, rebuking an immigration judge for deeming her untruthful despite “largely consistent” testimony.
LexisNexis: Perez-Vasquez is correct that the BIA erred by failing to address key evidence…His case is REMANDED to the BIA for the limited purpose of considering—in light of the totality of the circumstances of his individual case—whether exceptional circumstances prevented his appearance at his removal hearing.
Law360: The Ninth Circuit ordered the Board of Immigration Appeals to reconsider a Guatemalan citizen’s bid for removal relief, saying that past torture, though relevant, was not required in determining whether he’d likely face future torture in Guatemala.
Law360: Immigration judges and the Board of Immigration don’t have the authority to reopen reinstated orders deporting immigrants and corresponding proceedings after a deported individual has reentered the country, even if those orders result in a “gross miscarriage of justice,” the Ninth Circuit held Monday.
Law360: A divided Ninth Circuit panel on Monday affirmed a district court’s order refusing to dismiss an indictment against a Mexican national charged with illegal reentry, finding that his drunk-driving and shoplifting convictions make it tough to show that he would have plausibly been granted voluntary departure relief.
Law360: An immigrant who crossed the U.S.-Mexico border in 2003 cannot challenge removal proceedings launched when he didn’t appear for a hearing, despite a defect in the notice he received, because a subsequent notice had complete information, the Eleventh Circuit has ruled in a split with the Ninth Circuit.
Law360: A divided D.C. Circuit panel on Friday ruled agencies cannot simply withdraw a new rule, even if it has not yet been published in the Federal Register, once that rule has been subject to public inspection.
Law360: Immigrants detained at the Baker County Detention Center in northern Florida filed a federal civil rights complaint Thursday asking for the immediate closure of the facility because of inhumane treatment and abuse.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
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.
USCIS: Starting Sept. 21, 2022, we will only accept the 07/15/22 edition. Until then, you can also use the 03/29/21 and 03/10/21 editions. You can find the edition date at the bottom of the page on the form and instructions.
Reuters: The justices on a 5-4 vote denied the Biden administration’s request to block a federal judge’s ruling that had prevented immigration officials from carrying out the enforcement guidelines while litigation over the legality of the policy continues. But the court said in a brief order that it would fast-track the Biden administration appeal and hear oral arguments in December.
AP: The National Association of Immigration Judges on Thursday asked the federal government to restore its union recognition after the Trump administration stripped its official status and the system’s chief judge resigned after two years on the job.
Guardian: In the last month alone, FFI has received more than 2,100 complaints nationwide. The most common abuse-related ones are anti-Black discriminatory actions, ranging from forced strip-searches and unprovoked pepper-spraying to prolonged solitary confinement and critical medical treatment negligence.
Politico: The data, harvested from apps on hundreds of millions of phones, allowed the Department of Homeland Security to obtain data on more than 336,000 location data points across North America, the documents show. Those data points may reference only a small portion of the information that CBP has obtained.
NYT: While migrants have long faced kidnappings and extortion in Mexican border cities, such incidents have been on the rise on the U.S. side, according to federal authorities. More than 5,046 people were arrested and charged with human smuggling last year, up from 2,762 in 2014.
VOA: Five years later, court documents show, more than 5,000 children were separated from their parents at the U.S.-Mexico border under a practice known as the zero tolerance policy for unauthorized border crossers. However, it was also used on migrants who presented themselves legally at ports of entry. Parents of 180 children have not yet been found by advocates working with families.
NPR: Former President Donald Trump’s administration spent years trying to add a census citizenship question as part of a secret strategy for altering the population numbers used to divide up seats in Congress and the Electoral College, internal documents released Wednesday by the House Oversight and Reform Committee confirm.
Law360: The U.S. Supreme Court on Thursday refused to reinstate President Joe Biden’s attempt to narrow immigration arrests and deportations to national security threats and other “priority” targets while his administration fights a court order that vacated the policy.
Law360: The Fifth Circuit has revived asylum claims from a woman who said she suffered a brutal home invasion by Angolan police over her political activities, rebuking an immigration judge for deeming her untruthful despite “largely consistent” testimony.
LexisNexis: Perez-Vasquez is correct that the BIA erred by failing to address key evidence…His case is REMANDED to the BIA for the limited purpose of considering—in light of the totality of the circumstances of his individual case—whether exceptional circumstances prevented his appearance at his removal hearing.
Law360: The Ninth Circuit ordered the Board of Immigration Appeals to reconsider a Guatemalan citizen’s bid for removal relief, saying that past torture, though relevant, was not required in determining whether he’d likely face future torture in Guatemala.
Law360: Immigration judges and the Board of Immigration don’t have the authority to reopen reinstated orders deporting immigrants and corresponding proceedings after a deported individual has reentered the country, even if those orders result in a “gross miscarriage of justice,” the Ninth Circuit held Monday.
Law360: A divided Ninth Circuit panel on Monday affirmed a district court’s order refusing to dismiss an indictment against a Mexican national charged with illegal reentry, finding that his drunk-driving and shoplifting convictions make it tough to show that he would have plausibly been granted voluntary departure relief.
Law360: An immigrant who crossed the U.S.-Mexico border in 2003 cannot challenge removal proceedings launched when he didn’t appear for a hearing, despite a defect in the notice he received, because a subsequent notice had complete information, the Eleventh Circuit has ruled in a split with the Ninth Circuit.
Law360: A divided D.C. Circuit panel on Friday ruled agencies cannot simply withdraw a new rule, even if it has not yet been published in the Federal Register, once that rule has been subject to public inspection.
Law360: Immigrants detained at the Baker County Detention Center in northern Florida filed a federal civil rights complaint Thursday asking for the immediate closure of the facility because of inhumane treatment and abuse.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
Failed “deterrence” gimmicks and righty Federal Judges who enable them by not standing up against anti-immigrant racism thinly disguised as security or health measures are a bad combination.
Elizabeth Gibson 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.
Reuters: The 10th U.S. Circuit Court of Appeals in a 2-1 decision said the law, which is part of a broader statute barring human smuggling, criminalizes “vast amounts of protected speech” such as urging family members to remain in the U.S. after their visas expire or informing non-citizens about available social services.
CBS: The head of U.S. Immigration and Customs Enforcement (ICE) has directed agents to take several steps to protect the parental rights of immigrant detainees with underage or incapacitated children, according to an agency memo published Thursday.
Roll Call: One House office said their USCIS-related casework in 2021 was more than triple what it was in 2020, while another reported receiving more than a dozen USCIS-related requests each day from constituents.
TRAC: The latest case-by-case records show that the Immigration Court backlog reached 1,821,440 at the end of June 2022. This is up 25 percent from the backlog just at the beginning of this fiscal year.
TRAC: The federal government is facing a flurry of lawsuits for failing to take action on a variety of immigration-related applications. In May 2022, the federal civil courts recorded 647 immigration-related lawsuits for writs of mandamus (a type of lawsuit that seeks to compel the government to take a lawful action) and other immigration actions, the vast majority of which were linked to procedural delays or decisions by the Department of Homeland Security.
NPR: It would do this by allowing more farmers — like dairy and pork producers — to hire temporary workers year-round. Currently, year-round employers cannot use that worker visa program, known as the H-2A temporary agricultural program used by seasonal employers. It would also satisfy some goals for labor rights advocates by providing a pathway to legalization for workers who show a dedicated history of farm work.
Reuters: The United States will simplify the application process for Afghan special immigrant visas with applicants only needing to file one form, according to a statement issued on Monday by the Department of Homeland Security (DHS).
Truth Out: While the Court unexpectedly decided to allow Biden to end the Trump-era Remain in Mexico policy, it is still unclear what the Supreme Court will decide regarding deportations. In the interim, the fate of immigrants attempting to migrate to the country will be in the hands of local Immigration and Customs Enforcement officers’ own determinations.
AP: A series of agreements the two countries hammered out as their leaders spoke called for several other concrete moves, including expanding the number of work visas the U.S. issues, creating a bilateral working group on labor migration pathways and worker protections and welcoming more refugees. Both also pledged to continue joint patrols for Mexico and Guatemala to hunt human smugglers along their shared border.
ReliefWeb: The amendments passed out of the House Appropriations Committee are particularly harmful because they make Title 42’s rescission contingent on termination of the COVID-19 emergency declaration, a decision with widespread public health and safety ramifications.
USCIS: To help demystify the naturalization process and share the life-changing impact of U.S. citizenship, USCIS selected eight community leaders across the United States to connect with aspiring citizens. Newly selected citizenship ambassadors will connect eligible populations with the USCIS mission by: Sharing their own experiences with the naturalization process;
Highlighting available information and resources; Emphasizing the advantages of U.S. citizenship; Addressing myths and misconceptions; and Providing inspiration for others pursuing citizenship.
Law360: Texas, Louisiana and 19 other Republican-led states have urged the U.S. Supreme Court to continue blocking the Biden administration from focusing removal efforts only on certain groups of migrants, arguing that not only they but the whole U.S. will suffer from the strategy’s alleged ill effects if it is allowed to go into effect.
Law360: The Fifth Circuit said a Guatemalan immigrant couldn’t use a faulty notice to appear in immigration court to contest a 17-year-old removal order, saying he wasn’t entitled to proper notice as he hadn’t given immigration officers his home address.
Law360: The full Ninth Circuit unanimously ruled that the government can prosecute an immigrant for reentering the U.S. after being ordered removed, upholding the validity of the initial deportation order despite defects in the government’s notice for the immigrant to appear in immigration court.
Law360: The Tenth Circuit struck down as unconstitutional a federal immigration law that made it a crime to encourage noncitizens to enter or live in the United States, saying the law violated free speech protections under the First Amendment.
CNN: A nurse at the privately run Stewart Detention Center in Lumpkin, Georgia, according to the complaint, took advantage of his position to coerce the women “into giving him access to private parts of their body without medical justification or need.”
WaPo: An immigrant detention center in Virginia’s Farmville community that saw more than 300 inmates infected by the coronavirus in 2020, one of whom died, will be limited to a quarter of its capacity under a federal court settlement.
ICE: It is the policy of ICE to ensure that the agency’s civil immigration enforcement activities do not unnecessarily disrupt or infringe upon the parental or guardianship rights of noncitizen parents or legal guardians of minor children or incapacitated adults, consistent with all legal obligations and applicable court orders.
USCIS: The U.S. Department of Homeland Security (DHS) has extended the time beneficiaries paroled into the United States under Uniting for Ukraine have to attest to their compliance with the medical screening for tuberculosis and additional vaccinations, if required.
AILA: The CIS Ombudsman’s Office provides a reminder that USCIS updated the special instructions on its Form I-130, Petition for Alien Relative page to help filers ensure that USCIS sends their form to the correct location after it is approved.
OIL: In addition to the foregoing reasons, OIL will consider remanding cases in order to facilitate exercises of prosecutorial discretion by DHS, or in other circumstances in which DHS believes that reopening of the case before the Board of Immigration Appeals is appropriate (e.g., cases in which a petitioner may have recently become eligible for adjustment of status or presents other equities such that DHS Immigration and Customs Enforcement would not oppose reopening by the Board).
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
The OIL Guidelines are welcome. Whether they will be uniformly and effectively applied remains to be seen.
The “real answer,” of course, is better judges and leadership at EOIR and elevation of quality and due process over expediency and the “haste makes waste, anti-immigrant” culture that still permeates far too much of EOIR.
Police reports are an ubiquitous feature of Immigration Court. The NIJC report on why they are “inherently unreliable” and how to contest them should be mandatory reading for all immigration litigators and Federal Judges who hear or review immigration cases.
Finally, on a positive note, the article about the Senate negotiations on agricultural workers reaffirms the inevitability of human migration, its benefit both to the U.S. and to migrants, and the pressing need for additional and more realistic legal avenues for legal immigration. Nolan Rappaport over at The Hill has pointed out on a number of occasions the other areas of potential compromise if the two parties could just get beyond “posturing.” See, e.g., https://wp.me/p8eeJm-7y4.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
See More from Elizabeth Gibson
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.
USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Chicago is no longer listed as High. NYC is now listed as High. Check CDC Level for Your Region.
DHS Announces Extension of Temporary Protected Status for Venezuela
DHS: The 18-month extension of TPS for Venezuela will be effective from September 10, 2022, through March 10, 2024. Only beneficiaries under Venezuela’s existing designation, and who were already residing in the United States as of March 8, 2021, are eligible to re-register for TPS under this extension.
WaPo: Texas Gov. Greg Abbott ordered state National Guard soldiers and law enforcement officers Thursday to apprehend and return migrants suspected of crossing illegally back to the U.S.-Mexico border, testing how far his state can go in trying to enforce immigration law — a federal responsibility.
LATimes: The new effort, called the Trusted Adult Relative Program, is being tested at a Border Patrol station in Texas, according to three sources who were not authorized to speak publicly. A Department of Homeland Security official, who spoke on the condition of anonymity, said a few dozen children have been reunified with family members since the program began in May. Agency officials said the program utilizes existing procedures to unify families in an efficient way.
Documented: ICE is moving New Jersey immigrants like Hercules Aleman – who face charges in criminal or family court – to out-of-state immigration detention facilities. But the agency is usually not notifying the group of immigration legal providers funded by the state to represent these detained immigrants.
CNN: The Biden administration asked the Supreme Court on Friday to stay a court order blocking the Department of Homeland Security from implementing immigration enforcement priorities — potentially setting up Justice Ketanji Brown Jackson’s first vote since joining the court.
Politico: The nine-month investigation, which culminated in a 511-page report by the department, found no evidence that agents used horse reins to strike people during an “unprecedented surge in migration” of about 15,000 Haitians near the international bridge. However, agents acted in unprofessional and dangerous ways, including an instance in which an agent “maneuvered his horse unsafely near a child,” investigators wrote.
TRAC: According to the latest data released by Immigration and Customs Enforcement (ICE), the agency held 23,156 immigrants in detention on July 5, 2022. Of these, 17,116 were arrested by Customs and Border Protection (CBP) while 6,040 were arrested by ICE agents. Detention numbers have increased slightly from about 20,000 in early 2022 to now hovering around 24,000, but have not otherwise seen significant growth that would lead to the large numbers of immigrants that were detained prior to the pandemic when the detained population topped out at more than 60,000.
TRAC: The number of criminal referrals sent by the Border Patrol and other Customs and Border Protection (CBP) officers have recently begun to rise. Detailed case-by-case government records obtained by TRAC after successful litigation show that during April 2022, CBP referred 2,015 individuals for criminal prosecution to federal prosecutors. This is the first time referrals topped the 2,000 mark since the pandemic began slightly more than two years ago. Levels in April 2022 were up 31 percent from one year earlier when in April 2021 there were a total of 1,537 criminal referrals from CBP.
NYT: Extensive details of their years together were also left behind in grainy snapshots, police reports, immigration forms, nonprofit records, court transcripts and old emails. See also The Story of 2 Homeless Men and the Meaning of Friendship.
Law360: The Fifth Circuit refused to reinstate the Biden administration’s attempt to narrow the number of immigrants prioritized for removal, splitting sharply from the Sixth Circuit to find that the effort likely violated federal immigration law.
LexisNexis: [T]he agency failed to consider and explain the impact of evidence that the Salvadoran government’s efforts in the “war on the gangs” had not been successful, such that gang members operate with impunity and security forces commit extrajudicial killings of suspected gang members, both of which pose threats to Giron.
LexisNexis: Consistent with our own precedent and that of every other circuit to consider this issue, we hold that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus Bastide-Hernandez’s removal was not “void ab initio,” as the district court determined.
Law360: The Ninth Circuit on Friday declined to review a Mexican man’s bid to vacate a deportation order, saying he should have applied for a green card before a law preventing inadmissible individuals from becoming lawful permanent residents took effect.
LexisNexis: The BIA affirmed based upon the IJ’s adverse credibility determination. We grant Barseghyan’s petition for review because three out of four inconsistencies relied upon by the BIA are not supported by the record.
LexisNexis: [W]e find that the respondent’s conviction for injury to a child in violation of Texas Penal Code § 22.04(a)(3), does not require “physical force” as defined in 18 U.S.C. § l6(a), and interpreted in Johnson and Stokeling. Thus, the respondent has not been convicted of a crime of violence aggravated felony and is not barred from establishing her eligibility for cancellation of removal.
Law360: Private contractors will no longer be used by U.S. Immigration and Customs Enforcement to make immigration arrests at California jails and prisons, as part of a settlement ICE reached with a detainee represented by the American Civil Liberties Union.
Law360: A 15-year U.S. Department of Homeland Security veteran and an agent who retired from the agency gave secret information to Chinese spies engaged in a harassment and repression campaign against U.S.-based critics of the Chinese government, the U.S. Department of Justice said Thursday.
AILA: The CIS Ombudsman’s Office provides a reminder that USCIS updated the special instructions on its Form I-130, Petition for Alien Relative page to help filers ensure that USCIS sends their form to the correct location after it is approved.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
Federal Courts at all levels continue to lose credibility because of their adherence to a biased far-right agenda that is bad for American democracy.
Let’s see, the BIA manufactures inconsistencies to reach a bogus “adverse credibility” ruling in an asylum case(9th Cir.). They also ignore clear evidence of the complicity/total ineptitude of the Salvadoran Government in a CAT case (2d Cir.).
Folks, these aren’t contract cases, property disputes, commercial squabbles, or minor misdemeanors. They are life or death matters — persecution and/or torture can result in extreme pain, suffering, permanent damage, and death.Serious matters require serious judging by qualified exert judges!
Meanwhile, a righty panel of poorly qualified 5th Circuitjudges drives over established law on Executive prosecutorial discretion to uphold Trump toady Judge Drew Tipton’s clearly wrong-headed attempt to wrest control of ICE enforcement away from the Biden Administration. This gross judicial malpractice is nothing short of a national disgrace that impugns the integrity of the entire Article III Judiciary.
There are still far too many examples of how Garland is contributing to the problem by failing to root out the deadwood (and worse) at EOIR. He should be bringing in new judicial talent committed to due process, scholarship, and best practices.
A “Better EOIR” would not only begin fixing many of the legal and practical problems plaguing our immigration, human rights, and racial justice systems in America, but also could “model” a better American judiciary for the future. It would be a training ground for future, better qualified, Article III judicial appointments: Folks who actually understand and respect delivering justice at the “retail level” and are committed to serving humanity, not kowtowing to party bosses or wooden, perverse, retrograde ideologies.
It is possible for good judges to solve problems rather than creating them or making them infinitely worse. But, you sure wouldn’t say that is happening with today’s out of touch, ivory tower, and poorly performing Federal Judiciary. A better EOIR could keep cases out of the Circuits, thereby eliminating the opportunity for right-wing ideologues to screw up immigration and human rights laws in their White nationalist restrictionist crusade!
This is a judiciary now dominated by far too many right wing judges who got their jobs by demonstrating a commitment to far righty ideology and furthering the GOP’s political agenda rather than by distinguished legal careers that exemplified courage and improving humanity by insuring fair and reasonable applications and interpretations of the law.
Elizabeth Gibson 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.
Politico: “We need to wait until the Supreme Court’s decision is actually communicated to the lower court, to the federal District Court and the Northern District of Texas, and, once that occurs, the District Court should lift its injunction that is preventing us from ending the program,” Mayorkas told ABC’s Martha Raddatz.
CNN: Four people have been arrested and charged after 53 migrants died in what one Homeland Security Investigations agent called the deadliest human smuggling incident in US history. The migrants were found in sweltering conditions inside a semitruck in San Antonio on Monday after an employee at a nearby building heard cries for help. See also Deadly Migrant Smuggling Case in Texas Raises Border Policy Concerns.
NYT: After declining for more than a decade, the number of Mexicans seeking to migrate to the United States is surging. Since 2020, a combination of growing violence across Mexico and a worsening economy has led to the first jump in Mexican migration in a decade.
TRAC: New data obtained by TRAC from U.S. Border Patrol (BP) reveals a detailed portrait of the enormous growth in children encountered by BP officers at the US-Mexico border over the past fifteen years. Since FY 2008 there has been a seventeen-fold rise in the numbers of BP apprehensions who are unaccompanied children. See also “No Place for A Child”: In cells built for adults, one-third are child migrants.
Law360: The White House is reviewing upcoming changes to the fees U.S. Citizenship and Immigration Services charges immigrants seeking citizenship and other immigration benefits, with an eye to releasing the proposal in September for public feedback.
Fox: Matthew O’Brien, who was appointed in 2020 as an immigration judge, is a former research director at the Federation for American Immigration Reform (FAIR), a group that calls for lower levels of immigration overall and stricter border policies.
WaPo: Armed with the genealogists’ data, Boustan and Abramitzky have methodically dismantled the myths that have grown up around past generations and revealed some surprising truths. On the whole, immigrants struggle, fail, succeed and assimilate at similar rates. And the ones who assimilate fastest and whose children improve their lot the most are often the ones who faced the most contempt upon arrival.
AP: California on Thursday became the first state to guarantee free health care for all low-income immigrants living in the country illegally, a move that will provide coverage for an additional 764,000 people at an eventual cost of about $2.7 billion a year.
SCOTUSblog: The government’s rescission of Migrant Protection Protocols did not violate Section 1225 of the Immigration and Nationality Act, and the then-Secretary of Homeland Security’s Oct. 29 memoranda constituted valid final agency action.
USCIS: TPS beneficiaries whom DHS has inspected and admitted into TPS under MTINA, subsequent to that inspection and admission, will have been “inspected and admitted” and are “present in the United States pursuant to a lawful admission,” including for purposes of adjustment of status under INA 245. This is true even if the TPS beneficiary was present without admission or parole when initially granted TPS.
BIA: An Immigration Judge may rely on impeachment evidence as part of a credibility determination where the evidence is probative and its admission is not fundamentally unfair, and the witness is given an opportunity to respond to that evidence during the proceedings.
Law360: The Second Circuit held on Tuesday that a dual national asylum-seeker can qualify as a refugee by showing persecution in just one of their countries of nationality, reversing a lower tribunal’s decision.
CA3: For the reasons that follow, we hold that we have jurisdiction to review Barradas-Jacome’s legal argument in the first instance because DHS’s expedited removal procedures do not allow aliens to challenge the legal basis for their removal. We also hold that Barradas-Jacome’s state conviction [for receiving stolen property] is an aggravated felony under the Immigration and Nationality Act(INA), 8 U.S.C. § 1101(a)(43)(G). So we will deny his petition for review.
LexisNexis: During the video conference hearing, Herrera-Alcala was in the Fifth Circuit (Louisiana) and the Immigration Judge was in the Fourth Circuit (Virginia). … Venue under § 1252(b)(2) depends on the location of the Immigration Judge. And the Immigration Judge was in Falls Church, Virginia, making venue proper in the Fourth Circuit.”
LexisNexis: We have recently concluded, however, that the BIA’s reading of Section 1229(a) in Matter of Pena-Mejia is “directly contrary to the Supreme Court’s interpretation of § 1229(a) in Niz-Chavez [v. Garland, 141 S. Ct. 1474 (2021),] which made clear that subsequent notices may not cure defects in an initial notice to appeal.” Rodriguez, 15 F.4th at 355. Thus, we conclude the NTA served on Tamayo-Lara failed to meet the notice requirements of Section 1229(a), and the BIA abused its discretion by failing to reopen Tamayo-Lara’s proceedings. We GRANT Tamayo-Lara’s petition, VACATE the BIA’s decision, and REMAND for further proceedings.”
LexisNexis: Whether these issues satisfy the standard to grant Rondon Antonio’s petition is a question that goes to the ultimate merits which we do not address at this juncture. But his claim is far from frivolous and, in light of his strong showing of irreparable harm, his arguments present a sufficient likelihood of success to weigh in favor of granting a stay pending an appeal on the merits.
Law360: The Ninth Circuit ruled that an ex-temporary protected status holder does not qualify for deportation relief available to long-term residents, saying his receipt of the protected status wasn’t an “admission” to the U.S. that allowed him to begin accruing residency.
Law360: The Ninth Circuit affirmed a Board of Immigration Appeals decision rejecting a Salvadoran man’s second request for deportation relief, saying he was granted a cancellation of a removal order that rendered him ineligible for a second grant under another law.
AILA: The parties reached a settlement to resolve plaintiffs’ motion to enforce, agreeing on standards for medical and physical care as well as legal and educational services the government must provide children held in emergency intake sites (EISs). (Flores, et al. v. Garland, et al., 6/22/22)
AP: Immigrant rights advocates decried the ruling and were looking ahead to a potential appeal…More than a dozen communities across the United States allow noncitizens to cast ballots in local elections, including 11 towns in Maryland and two in Vermont. In San Francisco, noncitizens can vote in school board races; New York City allowed the same for three decades, until its school board was disbanded in 2002. Meanwhile, Alabama, Colorado and Florida have in recent years adopted rules that would preempt any attempts to pass laws like the one in New York City. Arizona and North Dakota already had prohibitions on the books.
AILA: The White House announced the grant of DED and employment authorization through 6/30/24 for Liberian DED beneficiaries as of 6/30/22, and Liberian nationals who have been continuously present in the U.S. since 5/20/17. (87 FR 38871, 6/29/22)
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
Elizabeth Gibson 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.
The 6/10/22 order in Texas v. United States vacating the memo went into effect 6/24/22 and has not been stayed at this time. Regardless of the memo, it is important to continue arguing that prosecutorial discretion is a longstanding executive power and DHS retains the ability to join motions, stipulate to relief, etc. See Practice Alert: Judge Tipton Issues Decision Vacating Mayorkas Enforcement Priorities Memo.
USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Check CDC Level for Your Field Office.
Bustle: At a base level, the abortion restrictions detained women face are similar to the ones that low-income women face across the country because of the Hyde Amendment. For more than 40 years, the Hyde Amendment has prevented women on Medicaid from using federally funded insurance to pay for abortions, except in cases of rape, incest, or danger to the mother’s life. The same type of language exists in appropriations bills and healthcare regulations for all facets of the federal government, including the Immigration and Customs Enforcement agency.
AP: The Border Patrol paroled more than 207,000 migrants who crossed from Mexico from August through May, including 51,132 in May, a 28% increase from April, according to court records. In the previous seven months, it paroled only 11 migrants.
Guardian: At least 71,000 Ukrainians have entered the US since March, with Joe Biden’s pledge to welcome 100,000 people fleeing the Russian invasion on track to be met over the summer.
Bloomberg: The amendment, which faces a long path to the finish line in the appropriations process, would allow DHS to recapture family and employment-based visas that went unused due to bureaucratic snags, processing delays, and other disruptions since 1992.
AIC: Data analyzed by the Cato Institute shows that since Fiscal Year 2008, USCIS denied about 8% of employer-sponsored immigrants while the average denial rate by consular officers was 63%.
Law360: The Biden administration announced plans to issue a final Deferred Action for Childhood Arrivals rule by August and continue its efforts to undo multiple Trump-era regulations. Here are the main immigration highlights from the administration’s regulatory agenda for spring 2022.
WaPo: Critics of the measure say it perpetuates a false scarcity problem at a time when Virginia has a budget surplus, and it demands that lawmakers sacrifice one needy group of students for another.
Forbes: In a new book describing her years during the Trump administration, former Education Secretary Betsy DeVos revealed a plan by Stephen Miller to identify children at school for deportation under the pretext of checking for gang members.
Law360: The Biden administration has agreed to impose new living and sanitary standards on temporary emergency facilities housing hundreds of migrant children to resolve advocates’ claims that it was holding minors in unsafe and unsanitary conditions.
The Advocate: Immigration judges in Louisiana have denied asylum claims at a higher rate than almost any other courts in the nation over the past five years, according to federal data. However, a new federal rule might downsize their role in asylum proceedings.
CNN: The justices are considering whether the Biden administration can terminate a Trump-era border policy known as “Remain in Mexico.” Lower courts have so far blocked Biden from ending the policy.
SCOTUS: The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022).
BIA: A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.
Law360: A Dominican man got a new chance to fight his deportation on Tuesday when the Third Circuit ruled that his felony conviction under Pennsylvania’s fleeing and eluding law didn’t necessarily amount to a crime of moral turpitude.
LexisNexis: For years, Petitioner Javier Garza-Flores did not believe he had a valid claim to U.S. citizenship. But now he thinks that he does. And he has presented documentary evidence sufficient to demonstrate, at a minimum, a genuine issue of material fact concerning his claim of U.S. citizenship. That is enough to warrant a factual proceeding before a federal district court to determine his citizenship.
CA7: The Board’s main quibble was with the relevance of that evidence to an Ethiopian citizen, which it assumed Menghistab to be. But that assumption was not warranted on the record that was before the Board. Denying the motion to reopen without a full hearing addressing Menghistab’s citizenship and its materiality to his risk of torture was therefore an abuse of discretion.
Law360: The Ninth Circuit on Friday granted a Salvadoran’s request to have the Board of Immigration Appeals review claims that he would be tortured if sent back to the Central American country, saying the board originally failed to consider all possible risk sources.
Law360: U.S. Customs and Border Protection and Davis Wright Tremaine LLP have settled a Freedom of Information Act suit the firm filed over reports the agency decided Canadian cannabis workers weren’t eligible to enter the U.S., which led to an overturned internal document contradicting officials.
Law360: A Boston federal jury has found a construction company and its owner liable for retaliating against an employee by reporting him to immigration authorities after his on-the-job injury triggered a workplace investigation, awarding $650,000 in damages.
USCIS: A noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period
CBS: While the suspension of ICE’s arrest prioritization scheme is unlikely to place the country’s estimated 11 million unauthorized immigrants in immediate danger of being arrested, the absence of national standards could lead to inconsistent enforcement actions across the U.S., including arrests of immigrants whom agents were previously instructed not to detain, legal experts said.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
According to a new book from former Trump Education Secretary Betsy DeVos:
“Over the din of patrons slurping lattes and crunching salads, Miller’s men described a plan to put U.S. Immigration and Customs Enforcement (ICE) agents into schools under the pretext of identifying MS-13 gang members. The plan was, when agents checked students’ citizenship status for the alleged purpose of identifying gang ties, they could identify undocumented students and deport them. Not only was the prospect of this chilling, but it was also patently illegal. Nate and Ebony turned them down cold. But that didn’t stop Stephen Miller from subsequently calling me to get my thoughts on the idea.
For years, the BIA has had standard practice of giving short shrift to potentially valid claims for protection under the Convention Against Torture (“CAT”). Without meaningful analysis they simply cite John Ashcroft’s infamous “no CAT precedent” in Matter of J-F-F-,23 I&N Dec. 912 (A.G. 2006), requiring that “each link in the chain of torture be proved to be probable.”
Since there is almost always some allegedly “weak link in the chain” that’s an “easy handle” for denial.Also, The IJ and the BIA can “lengthen the chain” or ignore the evidence as necessary to “get to no.” In the process, compelling evidence of likelihood of torture from qualified expert witnesses is either ignored or minimized — again, without much analysis. That’s how the “denial factory” in Falls Church can keep churning out CAT rejections even to countries where torture is rampant and either furthered or willfully ignored by the repressive governments.
At least in the 9th Circuit, the BIA will now have to go “back to the drawing board” for denying CAT and returningindividuals to countries where torture with government participation or acquiescence is likely. The 9th Circuit case rejecting the BIA’s “formula for denial” is Velasquez-Samayoa v. Garland. Here’s a link in addition to the one provided by Elizabeth.https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-cat-velasquez-samayoa-v-garland
Louisiana has long been one of a number of EOIR “courts” — these are actually “prison courts” — where “asylum cases go to die.” The deadly combination of bad Immigration Judges, lack of skilled immigration attorneys able to take these cases pro bono, coercive use of detention in out of the way places in substandard conditions, a “denial oriented” BIA stacked by the Trump DOJ and not “unstacked by Garland,” and an indolent, often virulently anti-asylum 5th Circuit add up to potential death sentences for individuals who could gain protection under a system where due process and fundamental fairness were respected and followed.
As the report in The Advocate referenced by Elizabeth shows, Garland has failed to reform and improve this blot on American justice. And, there is little chance that assigning the cases to USCIS Asylum Office in the first instance under new regulations in this intentionally toxic environment is going to promote justice or efficiency.
One might view the wide discrepancy between “positive credible fear findings” and asylum grants in Immigration Court as a sign of a sick and dying EOIR, not lack of merit for the claims. With less detention, more representation, better Immigration Judges, and a new BIA of true asylum experts willing to grant protection rather than “engineer rejection,” I’ll bet that many, perhaps a majority, of the outcomes would be more favorable to applicants.
As noted by Mitch Gonzalez of the SPLC in the article, “dehumanization,” “de-personification,” and “Dred Scottification,” along with cruelty are the objects of what’s going on at EOIR in Louisiana. The “fit” with the Trump/Miller White Nationalist anti-immigrant program is obvious. What’s less obvious is why Garland and the Biden Administration haven’t intervened to make the necessary changes to restore EOIR in Louisiana and elsewhere to at least some semblance of a fair and impartial “court system.”
Elizabeth Gibson 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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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.
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.
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)
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
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.
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.
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.
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.
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.
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.
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!
Elizabeth Gibson 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.
CNN: The Supreme Court on Monday ruled that the federal government can continue to detain certain immigrants in removal proceedings without giving them a bond hearing after six months, in case where the Biden administration has prevailed over the immigration activists who opposed the government in the case.
CNN: A federal judge in Texas vacated guidelines set by the Biden administration over who is to be prioritized for immigration enforcement, according to a Friday ruling.
Vox: Justice Clarence Thomas’s majority opinion in Egbert v. Boule, moreover, has implications that stretch far beyond the border. Egbert guts a seminal Supreme Court precedent, Bivens v. Six Unknown Named Agents (1971), which established that federal law enforcement officers who violate the Constitution may be individually sued — and potentially be required to compensate their victims for their illegal actions.
NYT: The agreement, called the Los Angeles Declaration on Migration and Protection, commits the United States to taking 20,000 refugees from Latin America during the next two years, a threefold increase, according to White House officials. Mr. Biden also pledged to increase the number of seasonal worker visas from Central America and Haiti by 11,500.
NYT: The Biden administration expelled nearly 4,000 Haitians on 36 deportation flights in May — a significant increase over the previous three months — after renegotiating agreements with the island nation, which has been crippled by gang violence and an expanding humanitarian crisis.
Intercept_: Immigration and Customs Enforcement searched a massive database of personal information provided by LexisNexis over 1.2 million times in just a seven-month period in 2021, according to documents reviewed by The Intercept. Critics say the staggering search volume confirms fears that the data broker is enabling the mass surveillance and deportation of immigrants.
WaPo: Weeks into the Trump administration’s family-separation policy, immigration officials fired off emails saying something was awry. The children were being reunited too quickly with their parents, an official wrote on a Friday night in late May 2018.
USA Today: Immigrants detained in civil cases face “monumental barriers in finding and communicating with attorneys,” which renders their right to legal representation “essentially meaningless,” according to the report released Thursday.
Law360: U.S. Immigration and Customs Enforcement will take into account whether noncitizens have served in the U.S. military when making decisions about whether to try to deport them, the agency announced Tuesday.
CNN: Without intervention, as many as 200,000 children in the United States risk “aging out” of their parents’ immigration status and face having to enter the immigration system as adults themselves, the companies wrote to Homeland Security Secretary Alejandro Mayorkas.
NPR: In its statement, the Mexican migration agency did not specify what kind of documents were issued but most of the migrants showed papers that gave them a period of one month or more to leave the country or begin regularization procedures in Mexico. Most want to use the documents to reach the U.S. border.
AP: Before that change, Venezuelans had flown to Mexico City or Cancun as tourists and then made their way comfortably to the border. Many made it from home to the U.S. border in as little as four days.
Reuters: The United States on Wednesday moved to lift some Trump-era restrictions on remittances and travel to Cuba even as it fended off criticism for blocking the Communist-run island and long-time foe from attending a regional summit this week.
Law360: The U.S. Supreme Court on Monday ruled that immigrants do not have a right to bond hearings when the government can show they are a flight risk, and that district courts lack the authority to order the government to provide such hearings on a class-wide basis.
Law360: Border agents can’t be sued in federal court for damages over alleged constitutional violations, the U.S. Supreme Court ruled Wednesday, citing concerns that broadening the legal liability of agents could negatively impact national security.
Law360: The Ninth Circuit denied a Honduran man’s bid to stay in the U.S., finding that his conviction in California for possessing a forged social security card with a counterfeit government seal is grounds for deportation as a crime involving moral turpitude.
LexisNexis[The BIA] applied a “presumption” that Petitioner’s conviction was a particularly serious crime and required him to “rebut” this presumption…The BIA committed an error of law, and abused its discretion, in failing to apply the correct legal standards in assessing whether Petitioner’s offense was a “particularly serious crime.”
LexisNexis: The particular social group of “Honduran women” was not at issue in Jaco, however, and the Fifth Circuit’s comment related to this group was incidental to the disposition of the case. Therefore, the Fifth Circuit’s comment regarding “Honduran women” as a particular social group is dicta and is not binding on this Court’s decision.
Law360: A Texas federal judge on Friday threw out the Biden administration’s policy for prioritizing immigration enforcement, saying the guidance ran counter to a legal requirement to detain certain categories of immigrants.
Law360: U.S. Immigration and Customs Enforcement couldn’t shake off claims that it targeted its critics for removal, as a Washington federal judge ruled on Thursday that the Biden administration’s curbs on immigration enforcement operations didn’t moot the retaliation suit.
Law360: A Washington federal judge tossed a negligence claim against the federal government from a father and son seeking $6 million after being forcibly separated at the southern border, saying the pair did not allege the government owed a duty of care.
Law360: The Biden administration is facing yet another lawsuit over its immigration policies at the Southern border, this time from the state of Indiana, alleging that the administration is unlawfully granting parole to migrants and burdening state taxpayers as a result.
Law360: A group of asylum-seekers have hit U.S. Citizenship and Immigration Services with a proposed class action, saying its policies and practices unlawfully prevent them and other asylum applicants from obtaining work authorization pending decisions on their asylum claims.
Law360: The Fourth Circuit has revived a challenge by federal immigration judges to a Trump-era policy barring them from speaking up about the immigration courts, after a labor official formally dissolved their union.
Law360: The National Association of Immigration Judges asked the D.C. Circuit in a petition late Wednesday to overturn the Federal Labor Relations Authority’s 2020 decision that immigration judges cannot unionize, arguing that the FLRA’s order violated its members’ due process rights and protected liberty interest in joining a labor union.
AILA: USCIS updated policy guidance to incorporate changes from the Special Immigrant Juvenile (SIJ) Final Rule, including updated citations, new definitions, and clarifications. The updates apply to SIJ petitions and AOS applications filed or pending on or after 4/7/22.
AILA: CBP announced that users of the CPB One mobile application will be able to select a Spanish-language version of the features that allow them to file applications for or receive electronic versions of I-94s. More information about Form I-94 is available.
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 11, 2022, saying it is “not currently necessary.”
AILA: From May 4, 2022, to June 2, 2022, USCIS issued certain I-765 receipt notices with incorrect information. Corrected notices with language confirming the 540-day automatic extension should reach affected applicants by the third week of June.
AILA: DOS announced that the U.S. Embassy Havana will schedule all immediate relative immigrant visa appointments to include spouses and children under 21 of U.S. citizens (IR/CR-1 and IR/CR-2), with interviews beginning in July 2022. More information in notice.
AILA: ICE announced a policy directive to consider U.S. military service when making discretionary determinations with regard to civil immigration enforcement actions against noncitizens.
Law360: The U.S. State Department said it is seeking project ideas from nonprofits and other institutions on how to strengthen its refugee resettlement program in areas such as housing, community engagement and program participation.
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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
It would be hard to imagine an action more out of line with the “LAD” than ramping up deportations of Black migrants to the dangerous, chaotic, failed state of Haiti. As the article from the NYT highlighted by Elizabeth above says:
The situation in Haiti has worsened over the past year. The International Organization for Migration, the largest nongovernmental aid group there, said that there were more than 200 kidnappings in May. Poverty is everywhere, and nearly half the country does not have adequate access to affordable and healthy food, according to the United Nations.
. . . .
In September, the Biden administration gave the organization $13.1 million intended to help Haitians getting off expulsion flights, providing cash and other assistance to help them to reintegrate. Many had been living in other countries in South America for years before making the journey to the United States.
The situation in Haiti has worsened over the past year. The International Organization for Migration, the largest nongovernmental aid group there, said that there were more than 200 kidnappings in May. Poverty is everywhere, and nearly half the country does not have adequate access to affordable and healthy food, according to the United Nations.
. . . .
The systemic issues that drive migration out of Haiti are expected to come up during the Summit of the Americas in Los Angeles this week. Haiti’s interim prime minister, Ariel Henry, is in attendance.
President Biden ran for office promising to bring compassion to U.S. immigration policies, particularly those involving asylum. But rolling out new policies amid a sharp increase in migration and during a pandemic has proved difficult. Some Trump-era policies remain in place.
So, why is the Administration squanderingmoney, resources, and, incredibly, the goodwill of folks who actually voted for Biden/Harris to “ramp up” deportations and exclusions of migrants of color, many of them asylum applicants subject to a biased and unfair system, when we could actually use their skills in our economy, as this quote from an article by Dany Bahar at Brookings points out:
At the same time, 2021 resulted in the highest number of migrants entering or attempting to enter through the southern border to the United States. There is no reason to think this won’t continue in 2022. These migrants, mostly from the Northern Triangle countries (Guatemala, Honduras, and El Salvador), are desperate to join the U.S. labor force, as they flee poor economic conditions—particularly after the economic slowdown caused by the global COVID-19 pandemic—as well as violence and instability in general. In response to this flow, the Biden-Harris administration has focused on significantly
increasing investment toward Central America, including Mexico, while at the same time telling immigrants in Guatemala “
The irony is clear; if there was any time in the modern history of the United States to promote a flexibilization of its migration policies, it is now. It is the most efficient and easiest way to offer a smart solution to the unprecedented tightness in U.S. labor markets. It is a no-brainer for several reasons.
It might be a “no brainer,” as Dany says, but it appears to be “above the pay grade” of Biden’s inept immigration policy team. They seem to be mostly “Stephen Miller fellow travelers.” Why?
I suppose the only “silver lining” is that I can always count on inept policy officials in the Biden Administration to prove my points about what a horrible job they are doing for immigrants, for racial justice, for Due Process of law, for America, and for humanity!
Elizabeth Gibson 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.
CBP: U.S. Customs and Border Protection (CBP) announced today it has completed the expansion of biometric facial comparison technology at all international airports across the United States to further secure and streamline international travel. This innovation effort is a critical milestone for the biometric Entry/Exit program and complements biometric boarding, which is currently at select departure locations.
Law360: An advocacy group and a trio of formerly detained migrants asked the U.S. Department of Homeland Security’s civil rights office on Thursday to investigate “system-wide abuses and deficiencies” in mental health care provided to those in U.S. Immigration and Customs Enforcement custody.
Guardian: The largest number of migrants in the caravan come from Venezuela, Cuba and Nicaragua – three countries whose authoritarian rulers Joe Biden has conspicuously refused to invite to the summit. But there are also Haitians, Salvadorans, Hondurans, Guatemalans and even citizens of India, Bangladesh, and several African countries.
NPR: We wanted to know more about what’s going on here, so we called Kate Melloy Goettel. She is the legal director of litigation at the American Immigration Council.
Reuters: The Biden administration is in talks with Spain and Canada about taking more Western Hemisphere refugees for resettlement, people familiar with the matter said on Wednesday, signaling possible commitments that could be announced at next week’s Summit of the Americas.
Reuters: More than a year into U.S. President Joe Biden’s sweeping effort to tackle the “root causes” of migration with aid to Central America, projects likely worth millions of dollars have been canceled or put on hold due to corruption and governance concerns, U.S. officials and others tracking the issue said. See also Harris’ tough task addressing migration to the southern border not getting any easier one year later.
NPR: People seeking asylum are still crossing and at least one shelter for them in Arizona is seeing record numbers. Seventy miles to the north of Nogales, the Casa Alitas Welcome Center in Tucson is taking in 375 people in a day, just a few days after the judge kept the closures in place at official southern ports of entry. See also How Asylum Seekers Cross the Border.
NYT: While countries like Germany and Canada have streamlined programs for asylum seekers and refugees — offering housing, food, work authorization and a monthly stipend to asylum seekers — the United States has strengthened enforcement at the border, while processing times for asylum applications have increased from weeks to months to years.
Law360: Recent guidance instructing U.S. Immigration and Customs Enforcement to drop nonpriority cases has brought welcome relief to some migrants, but the new policy seems unlikely to put a significant dent in immigration court backlogs.
Law360: U.S. consulates deny a majority of employer-sponsored visas for individuals hoping to obtain green cards, pointing to a lack of trust by the U.S. Department of State in its counterparts at Homeland Security and Labor, according to libertarian think tank The Cato Institute.
IDP: New York’s legislation follows the example of 15 other states that provide a remedy when notification is not given, which will help prevent unlawful deportation based on unfair and unknowing pleas.
CNN: It’s not clear how many migrants have been loaned phones as part of the program. ICE hasn’t released that data in its regular public updates about the program, and the agency didn’t respond to CNN’s questions about it. But lawyers and advocates who work with migrants told CNN the government-issued phones — which can only be used with the SmartLINK app and can’t make calls or access the internet — are becoming increasingly common.
Justia: The Fifth Circuit denied Petitioner’s petition, citing the efforts of the Haitian government following the attacks against Petitioner. Based on the government’s response, Petitioner could not show that the Haitian government was unable or unwilling to protect him.
LexisNexis: Because Yahm offered nontestimonial evidence of country conditions in Cameroon, the BIA erred by not considering it in the context of his CAT claim and instead treating Yahm’s lack of credibility as dispositive.
Law360: A Ninth Circuit panel on Friday upheld three class certifications in an action brought by immigrant detainees who said they were forced to work against their will and without adequate pay while in private U.S. Immigration and Customs Enforcement-contracted detention facilities.
Law360: A D.C. federal judge tossed the Southern Poverty Law Center’s claim that confinement conditions at Immigration and Customs Enforcement facilities impeded its clients’ access to attorneys, saying the issue arose from immigration removal proceedings the district court could not hear.
NIJC: The National Immigrant Justice Center (NIJC) and three people previously detained at different U.S. immigrant detention centers filed a federal civil rights complaint today demanding a system-wide investigation into Immigration and Customs Enforcement (ICE) failures to provide adequate mental health care for people in its custody and its abusive use of solitary confinement. Included with the complaint are declarations from three physicians with extensive experience working with individuals in ICE custody and documenting their conditions.
Law360: The federal government’s immigration powers don’t supersede a state’s power to enforce wage laws, the American Civil Liberties Union said when asking the Ninth Circuit to affirm that a private prison owes immigrant detainees $23.2 million in back pay.
NIPNLG: J.O.P. class counsel encourages practitioners to reach out promptly if you represent a J.O.P. class member who: (1) is facing an upcoming asylum merits hearing in immigration court; (2) has a pending BIA appeal of an asylum merits denial in immigration court; or (3) has a pending petition for review of an EOIR asylum merits denial in a U.S. court of appeals. Please contact Wendy Wylegala (wwylegala@supportkind.org) and Michelle Mendez (michelle@nipnlg.org) if you have a client in one of these situations.
AILA: CBP issued a memo that clarifies previous guidance implementing the CDC Order to ensure that it is consistent with Huisha Huisha v. Mayorkas decision, which found that the government may expel family units but only to places where they are “not likely to be persecuted or tortured.” See also CBP Clarifies Guidance Regarding Expulsion of Family Units Under Title 42.
AILA: USCIS updated its public charge resources webpage. The updates clarify that relatively few noncitizens are both subject to the public charge ground of inadmissibility and eligible for public benefits under the 1999 Interim Field Guidance. An updated question-and-answer section is also available.
AILA: Per USCIS, those seeking parole into the United States to attend a funeral or provide emergency assistance to a family member affected by the shooting at Robb Elementary School in Uvalde, Texas, can request urgent humanitarian or significant public benefit parole by filing Form I-131.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
A key quote from the NPR report (Liz’s “Item 6” under “news”):
Shelter staff says what’s being left out of the bitter partisan immigration battles in Congress is the fact that so many people are fleeing dangerous situations right now, as violence and global instability has risen, especially in Latin America during the pandemic.
So, as more and more legitimate claims for protection arise abroad (completely contrary to nativist myths and also some of the Biden Administration’s blather), the U.S. continues to defy its own laws and international agreements, while using poor interpretations of law and “holdover” adjudicators to artificially “force down” asylum grants to dishonestly low levels. Meanwhile, refugee programs, which, if properly robust and competently administered, could alleviate both the need for journeys to the U.S. border and the danger that can involve, continue to languish — as if nobody in the Biden Administration has ever read the Refugee Act of 1980!
At the same time, there are jobs in our economy that asylum seekers could fill that would help everyone. Talk about dumb policies driven by fear, hate, and resentment!
“Gimmicks,” mindless “deterrents,” and false “silver bullet solutions” don’t cut it! They just waste money, deprive our nation of credibility, destroy lives, and increase human suffering.
No surprise:The Round Table, NAIJ, AILA, CGRS, HRF, HRW, ACLU, and many other experts have been “spot on” in their assessment of what it will take to restore order to the border, due process and fundamental fairness to the Immigration Courts (and also the failing Article III Federal Courts), and rational self-interest to immigration, human rights, and civil rights policies.
The GOP nativists and the Biden Administration — not so much.
Elizabeth Gibson 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.
Hill: DACA was put in place as a temporary stopgap in 2012, giving the right to work and study, and deferral from potential deportation, to undocumented immigrants who arrived in the country as minors before 2007… Only a quarter of 2022 undocumented graduates would be eligible for DACA, making it the first graduating class since the policy’s been in place to have a majority of post-DACA undocumented graduates.
Law360: The U.S. Senate on Thursday voted down a resolution under the Congressional Review Act that could have overturned President Joe Biden’s policy vesting asylum officers with greater power over asylum. See also Biden prepares asylum overhaul at border, but court challenges loom.
WGBH: In a letter sent Thursday to the Office of the Inspector General, the delegation wrote they’re concerned over a report that only 15.5% of asylum applicants reviewed by the Boston asylum office between 2015 to 2020 were approved, which is roughly half of the national average of 28%. This is the second-lowest in the nation after the New York asylum office.
The City: With only days left in the legislative session, Albany lawmakers are pushing to put regulations for a largely unregulated immigration bail bond industry, notorious for literally shackling clients with crippling debt and bulky ankle monitors.
AIC: While the data is a small sample size, it paints a clear picture of why detention is so harmful, counter-productive, and arbitrary. For example, 52% were complaints about quality of life/living conditions. The next top complaints were about medical issues. The third category were about abuse & assault (legal access issues came in fourth).
Law360: A coalition of immigration and technology advocacy groups urged Amazon on Tuesday not to provide web hosting services for the U.S. Department of Homeland Security’s biometric information database, citing concerns about the project’s implications for civil liberties and privacy rights.
Harvard Business Review: Ran Abramitzky, a professor at Stanford University, and Leah Boustan, a professor at Princeton, looked at decades of data to understand the real impact that immigrants and their descendants have on America today. Their findings dispel several modern-day myths and suggest that not just political but also corporate leaders need to push for more rational rhetoric and policies.
WBEZ: These challenges are not isolated to the walls of Sullivan. With a record 100 million people displaced around the world, including 3 million Afghans, and the war in Ukraine adding to that tally every day, the Rogers Park school stands as an example of the kinds of challenges and transformations unfolding in schools and communities across the globe.
Law360: The Fifth Circuit is poised to consider the legality of a deportation relief program for immigrants brought to the U.S. as children. As oral arguments come up, Law360 takes a look at what’s happened thus far and what could happen in and outside the courts.
Law360: A Third Circuit panel ruled 2-1 in a precedential decision Thursday that a Dominican man convicted of endangering the welfare of a child could be deported because that crime qualifies as child abuse.
Courtside: Judge Ellen Liebowitz’s compact, cogent, powerful opinion is a terrific “mini-primer” on how PSG and “one central reason” nexus cases properly should be decided.
ACLU: Nine months after the fall of Kabul to the Taliban, USCIS’s abandonment of the humanitarian parole process of Afghans has left the plaintiffs stranded and in danger. After months of waiting, they have received either denials or no responses to their applications. One plaintiff applied for six family members, but tragically lost three of them while awaiting decisions on their applications for humanitarian parole.
Law360: The Biden administration asked a D.C. federal court on Tuesday to undo an order to speedily process green card applications for thousands of Afghan and Iraqi translators, saying the plan is no longer feasible due to chaos abroad and bureaucratic dysfunction at home.
AIC: The case before Mexico’s Supreme Court involved three indigenous Mexican citizens. Immigration officials detained the three siblings due to their appearance and limited proficiency in Spanish. They were held for eight days where the 18-year-old brother was tortured until he signed a document indicating he was from Guatemala, even though he could not read Spanish.
Chugh: As a result of a lawsuit, the United States Citizenship and Immigration Services (USCIS) intends to no longer force certain adjustment of status applicants to leave the United States during their period of inadmissibility. Additionally, USCIS will not reject adjustment of status applications if an applicant was in the United States during the period of inadmissibility without a waiver. The new policy interpretation is still being finalized by the Department of Homeland Security and new USCIS guidance is expected soon.
Law360: A coalition of immigration and technology advocacy groups urged Amazon on Tuesday not to provide web hosting services for the U.S. Department of Homeland Security’s biometric information database, citing concerns about the project’s implications for civil liberties and privacy rights.
USCIS: U.S. Citizenship and Immigration Services reminds the public that we offer immigration services that may help people affected by unforeseen circumstances, including the shooting in Uvalde, Texas.
AILA: Following the USCIS temporary final rule increasing the automatic extension period for EADs, USCIS created the EAD Automatic Extension Calculator to assist employers and employees with determining the EAD expiration date for eligible employees.
AILA: DHS notice stating that the Secretary directed the Homeland Security Advisory Council to establish a subcommittee which will provide findings and recommendations on how DHS can improve its customer experience and service delivery.
AIC: Thirteen people waiting to become U.S. citizens filed a lawsuit challenging U.S. Citizenship and Immigration Services’ unreasonable delays and failure to process U.S. naturalization applications filed in 2020.
LexisNexis: Here are links to two May 21, 2022 CBP Title 42 guidance documents stemming from the Huisha Huisha v. Mayorkas (27 F.4th 718, CADC 2022) litigation. They went into effect at 12:01 a.m. (EDT) on May 23, 2022.
Huisha-Huisha Screening Monitoring: This form is intended to facilitate fact-gathering by advocates who encounter families improperly subject to Title 42 on or after May 23, 2022, due to CBP’s failure to conduct adequate screening to determine whether they fear persecution or torture, as required by Huisha-Huisha v. Mayorkas, 27 F.4th 718 (D.C. Cir. 2022).
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
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
Professor Leah Pratt Boustan Economist Princeton University PHOTO: Princeton Website
LEAH BOUSTAN: I think that we’re seeing some of the same anti-immigrant rhetoric today than we’ve seen in the past US history. So we were interested in comparing immigrants that are coming to the U.S. today from all around the world to what we think of as the Ellis Island generation a century ago that faced a lot of anti-immigrant sentiment at the time. But now when we look back with hindsight on that generation, we have a very different view, a nostalgic view that sees those immigrants as contributing to society, building the economy. So we wanted to know are the immigrants that the U.S. is welcoming today on the same path and on the same trajectory as the past?
Honestly, what we find here really surprised both of us because we’ve heard all of the worries and concerns that people all across the aisle, I think, are expressing about immigrants today. That they come from poor countries. That it takes them a while to move up the ladder. So we were really surprised to see this really commonality between the Ellis Island generation and immigrants today. We end up seeing in the data that immigrants from Europe 100 years ago, and immigrants from Asia and Latin America today look like they’re on such a similar trajectory. Despite so many differences between the past and present, we see really a common immigrant story.
Check out the article from Harvard Business Review highlighted by Elizabeth above!
