"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Tag: NY Legal Assistance Group
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
THE GIBSON REPORT — 07-19-21 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group
ALERTS
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
DACA: We are still waiting for more information on how USCIS will address the new decision freezing initial DACA applications (more details below), but it sounds like biometrics for pending applications have been canceled.
Telephonic & Video Hearings at Varick Immigration Court: See list of IJ preferences at the end of today’s briefing.
EOIR Portal: There is now a “View All” button that allows representatives to view a list of their cases in the EOIR portal. Also, the forms for entering appearances have been relocated to a tab at the top titled “Appearances.”
NYT: The judge, Andrew S. Hanen of the United States District Court in Houston, said President Barack Obama exceeded his authority when he created the program, Deferred Action for Childhood Arrivals, by executive order in 2012. But the judge wrote that current program recipients would not be immediately affected, and that the federal government should not “take any immigration, deportation or criminal action” against them that it “would not otherwise take.”
Reuters: Garland in a four-page opinion said Sessions’ 2018 ruling in Matter of Castro-Tum, which has been rejected by three federal appeals courts, improperly parted from decades of practice by concluding that no federal law or regulation authorized so-called “administrative closure.”
CGRS: On July 14, on stipulation of the parties, the Board of Immigration Appeals finally granted asylum to Ms. A.B., the Salvadoran woman at the center of the Trump administration’s assault on asylum for domestic violence survivors.
Appropriations Committee: The bill additionally includes further responsible and effective investments in state and local justice, including:… $50 million for legal representation of immigrant children and families
AP: On immigration alone, the party will need solid support from vulnerable swing-district Democrats and moderates, whom Republicans are certain to accuse of favoring amnesty and open borders in next year’s elections for congressional control.
Law360: President Joe Biden’s nominee to lead U.S. Immigration and Customs Enforcement told lawmakers on Thursday that he won’t end collaboration between the agency and local law enforcement officials, despite having done so as sheriff in Texas’ most populous county.
NYT: About 2,500 Afghan interpreters, drivers and others who worked with American forces will be sent to Fort Lee, Va., south of Richmond, to complete their processing for formal entry into the United States, the officials said.
WaPo: The government’s tally of individual people stopped at the border, as opposed to total apprehensions, shows 455,000 have been taken into custody so far this fiscal year, compared with nearly 490,000 at this time in 2019.
WaPo: Homeland Security Secretary Alejandro Mayorkas on Tuesday warned citizens of Cuba and Haiti against trying to flee to the United States amid unrest in those nations, saying they would be repatriated or referred to other countries for resettlement.
WaPo: The exodus has picked up pace this month, with net outflows of residents regularly exceeding 1,000 a day, according to government figures compiled by activist investor David Webb, even as the pandemic continues to disrupt travel.
Intercept: Under council rules, bills with supermajority support are guaranteed a public hearing within 60 days. No hearing is yet scheduled, but activists say they’re working to get something on the calendar.
Vice: One in five surveyed individuals reported getting electric shocks from the ICE-mandated shackles, according to a new report by Freedom for Immigrants, the Immigrant Defense Project, and the Benjamin N. Cardozo School of Law. The finding is “alarming and worrisome,” according to Layla Razavi, Deputy Executive Director of Freedom For Immigrants.
The Attorney General stated that while the rulemaking proceeds and except when a court of appeals has held otherwise, IJs and the BIA should apply the standard for administrative closure set out in Avetisyan and W-Y-U-. Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021) AILA Doc. No. 21071534
The court upheld the BIA’s denial of the petitioner’s withholding of removal claim, finding that the IJ sua sponte considered the social groups now identified by petitioner, and that the IJ’s decision to deny withholding was supported by substantial evidence. (Quintanilla v. Garland, 7/9/21) AILA Doc. No. 21071432
Lexisnexis: Valarezo-Tirado v. A.G. “We have previously granted a petition for review in which the alleged basis for the BIA’s denial of relief was that “the evidence is insufficient” and “the arguments made by the [government] on appeal . . . are persua[sive]” because we could not “perform meaningful review of [such an] order.” Here, we have even less to work with.
The court held that the BIA and IJ erred in concluding that the petitioner had failed to demonstrate that she was persecuted in Honduras on account of her membership in her proposed particular social group, namely her nuclear family. (Perez Vasquez v. Garland, 7/9/21) AILA Doc. No. 21071434
The court found that the IJ’s incredibly high denial rate for asylum applications, along with her noncompliance with Matter of R-K-K-, presented a substantial likelihood that petitioner would be entitled to relief upon full consideration by a merits panel. (Singh v. Garland, 7/12/21) AILA Doc. No. 21071435
The court held that substantial evidence supported the BIA’s conclusion that the petitioner’s experience in Ukraine did not rise to the level of persecution, and that she had failed to show that the new Ukrainian government would persecute her if she returned. (Chuchman v. Garland, 7/12/21) AILA Doc. No. 21071436
The court upheld the BIA’s affirmance of the IJ’s denial of asylum, finding that the IJ had articulated specific, cogent reasons for concluding that the petitioner’s testimony was not credible, and that those reasons were supported by substantial evidence. (Coto-Albarenga v. Garland, 7/12/21) AILA Doc. No. 21071437
Granting in part the petition for review, the court held that the IJ erred by failing to credit evidence showing that proof of the petitioner’s alienage was tainted because it was obtained from his juvenile court records in violation of California privacy laws. (B.R. v. Garland, 7/12/21) AILA Doc. No. 21071439
The court held that petitioner’s forgery conviction under section 470a of the California Penal Code categorically constituted an aggravated felony offense “relating to forgery” under INA §101(a)(43)(R), thus rendering him ineligible for voluntary departure. (Escobar Santos v. Garland, 7/9/21) AILA Doc. No. 21071438
Law360: The Ninth Circuit doubled back on a previous order that reactivated a policy requiring green card applicants to prove they had health insurance within 30 days of arriving in the U.S., vacating its earlier decision as moot Friday.
A district court found that DHS violated the APA with the creation of DACA and its continued operation, stating that the DACA memo and the DACA program that created it are hereby vacated and remanded to DHS for further consideration. (Texas v. United States, 7/16/21) AILA Doc. No. 21071636
A district court granted final approval of a settlement agreement in Saravia v. Barr, which applies to a class of unaccompanied minors, who were detained by HHS or ORR, and have a removability warrant based in whole or in part on allegations of gang affiliation. AILA Doc. No. 21071539
Law360: A U.S. citizen and a green card holder separately sued U.S. Citizenship and Immigration Services, accusing the agency of unlawfully delaying their foreign spouses’ green card applications for over 17 months.
AIC: The American Immigration Council filed a Freedom of Information Act lawsuit against DHS and its two primary immigration enforcement agencies requesting information about the obscure network of databases, information systems, and data sharing methods that are largely shielded from public view.
DHS announced an 18-month extension and re-designation of Somalia for TPS, effective from 8/18/21 through 3/17/23. A Federal Register notice explaining the procedures necessary to re-register or submit an initial registration application and apply for an EAD will be published soon. AILA Doc. No. 21071935
EOIR: Attorney General Merrick B. Garland appointed Megan R. Jackler, Justin S. Dinsdale, Alexander H. Lee, Loi L. McCleskey, Edwin E. Pieters, Artie R. Pobjecky, Jodie A. Schwab, Kenneth S. Sogabe, Lydia G. Tamez, and Romaine L. White.
Varick IJ Motion for Remote Accommodation Preferences
Judge Auh (for NYV cases): No motion required. Parties may appear via Open Voice.
Judge Burnham: No motion required. Parties may appear via Open Voice.
Judge Conroy: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Drucker: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Haq: No motion required for UAC docket. Parties may appear via WebEx. To the extent Judge Haq covers any other judge’s docket, he will follow that judge’s practice.
Judge Henderson: No motion required. Parties may appear via WebEx or Open Voice.
Judge Hoover: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Kolbe: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice or other technical means, such as WebEx, as appropriate.
Judge Ling: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via WebEx.
Judge Mulligan: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via WebEx.
Judge Mungoven: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Norkin: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Prieto: No motion required. Parties may appear via Open Voice.
Judge Reid: No motion required. Parties may appear via Open Voice.
Judge Sagerman (for NYV cases): No motion required. Parties may appear via Open Voice.
With courts reopening, please be aware that mask and courtroom policies may vary by judge/court. Judges have voted to require masks at 26 Federal Plaza, but this is not always the case at the other NY courts.
NY non-detained does have WebEx capabilities, but use is up to the discretion of the judge and be aware that bandwidth may be low.
Just a quick reminder that the NY Immigration Court home page has the wrong links to the standing orders, but you can find the correct links on the operational status page.
For courts that reopened last week, don’t forget that email filing will no longer be allowed as of September 4, 2021.
The attorney entrance to 26 Federal Plaza remains closed. Allow sufficient time to enter by the main security line.
Despite the stated requirement for a certificate of good conduct for PD with OPLA NYC, it sounds like this is most relevant in cases where termination is being requested and there have not been biometrics taken.
NY no longer allows remote notarization: New York’s State of Emergency expired on June 24, 2021. The Executive Order authorizing remote notarization is no longer active. Notary publics can no longer perform notary services remotely.
Guardian: The news comes amid an effort by the Biden administration to boost the use of the monitors as an alternative to putting people in brick-and mortar prisons as they await the outcome of their immigration cases.
WaPo: While social media and word-of-mouth play a role in channeling some migrants toward certain crossing points, smuggling organizations are taking advantage of uneven enforcement policies to convert sections of the U.S. border into designated entry lanes for specific nationalities and demographic groups.
WaPo: In May 2017, Border Patrol agents in Yuma, Ariz., began implementing a program known as the Criminal Consequence Initiative, which allowed for the prosecution of first-time border crossers, including parents who entered the United States with their children and were separated from them.
AP: Immigrant advocates say they have reached a settlement with the U.S. government so they can keep operating a free hotline that lets detained immigrants report concerns about custody conditions.
NYT: As their populations swell nearly to prepandemic levels, U.S. immigration detention centers are reporting major surges in coronavirus infections among detainees.
The court held that the BIA erred in reversing the IJ’s grant of petitioner’s adjustment of status application, finding that it was required to consider in an individualized manner the hardship he might suffer if he were required to return to El Salvador. (Perez-Trujillo v. Garland, 6/28/21) AILA Doc. No. 21070734
The court concluded that the BIA’s interpretation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) to require a noncitizen pursuing a late-filed appeal to make a merits-based showing at the notice stage is unreasonable. (Brathwaite v. Garland, 7/1/21) AILA Doc. No. 21070933
The court held that petitioner was ineligible for asylum based upon his conviction for unlawful wounding in Virginia, and found that the BIA did not err in denying his claims for withholding of removal or Convention Against Torture (CAT) protection. (Moreno-Osorio v. Garland, 6/23/21) AILA Doc. No. 21070736
The court held it had jurisdiction to review the agency’s determination that events that would befall the petitioner’s U.S.-citizen children if he were removed would not amount to “exceptional and extremely unusual hardship” as Congress intended the phrase. (Guerrero Trejo v. Garland, 7/2/21) AILA Doc. No. 21070938
Where the IJ ordered the petitioner removed due to his conviction for online solicitation of a minor in Texas, the court held that the BIA did not err in determining that his conviction was a removable offense under INA §237(a)(2)(E)(i) for a crime of child abuse. (Adeeko v. Garland, 7/1/21) AILA Doc. No. 21070934
Law360: The Sixth Circuit has given a Honduran mother and her son another chance to seek asylum in the U.S., saying the Board of Immigration Appeals must take another look at her petition in light of changes in policy under the new administration.
The court found that petitioner forfeited any objection to the deficiency in his Notice to Appear (NTA) by not timely raising it in the removal proceeding, and that he had not shown cause for forfeiture nor prejudice resulting from the defect in the NTA. (Mejia-Padilla v. Garland, 6/29/21) AILA Doc. No. 21070832
Where petitioner received a procedurally defective Notice to Appear (NTA) for his removal proceedings and made a timely objection, the court held that BIA erred in finding he was not entitled to relief unless he could demonstrate prejudice from the NTA. (Avila de la Rosa v. Garland, 6/24/21) AILA Doc. No. 21070738
The court held that the BIA erred by applying the modified categorical approach to determine that the petitioner’s two Illinois convictions for burglary were removable offenses under federal law, finding that the Illinois burglary statute is not divisible. (Parzych v. Garland, 6/28/21) AILA Doc. No. 21070830
Upholding the denial of withholding of removal, the court found that petitioner had failed to establish membership in a particular social group, and that BIA did not err in determining he could reasonably relocate in Guatemala to avoid a vigilante group. (Bautista-Bautista v. Garland, 7/6/21) AILA Doc. No. 21070940
The court held that petitioner’s Notice to Appear (NTA)—which lacked the time and date of his removal proceedings—did not terminate his period of physical presence in the United States, and thus BIA erred in finding him ineligible for voluntary departure. (Posos-Sanchez v. Garland, 7/7/21) AILA Doc. No. 21071231
The court ordered rehearing en banc and vacated its prior decision in Tomczyk v. Garland, which held that the act of reentering illegally under INA §241(a)(5) requires some form of misconduct by a noncitizen rather than merely the status of inadmissibility. (Tomczyk v. Garland, 7/6/21) AILA Doc. No. 21071230
The court held that the circumstance-specific approach applies to the 30-gram limit of INA §237(a)(2)(B)(i)’s personal-use exception, and that the circumstances of the case established that the amount of marijuana in the petitioner’s possession exceeded 30 grams. (Bogle v. Garland, 6/23/21) AILA Doc. No. 21070834
The court held that the IJ had failed to evaluate the factors weighing in favor of granting voluntary departure to the petitioner, and thus granted in part the petition for review and remanded to the BIA. (Zamorano v. Garland, 6/25/21) AILA Doc. No. 21070833
The court affirmed the district court’s order requiring DHS to apply the 1997 Flores Settlement Agreement to certain minors detained in hotels for more than a few days pending their expulsion from the United States under the CDC’s Title 42 order. (Flores v. Garland, 6/30/21) AILA Doc. No. 21070632
Law360: U.S. Citizenship and Immigration Services has reached a tentative deal with three individuals whose applications for immigration benefits were rejected because they left fields empty, a settlement that could affect thousands of individuals.
Law360: The Biden administration bucked asylum-seekers’ request that it retrieve waitlists of migrants who weren’t immediately allowed to enter the U.S., telling a California federal court that the request goes beyond their claims against the policy of “metering.”
Law360: A group of Texas sheriffs and a law enforcement nonprofit asked a federal judge for a sweeping block on current immigration policy, requesting a five-part injunction that would increase immigration detention and force authorities to arrest more migrants.
The district court released a proposed settlement agreement between ICE and detained immigrants at three detention centers in Florida, in which ICE agreed to implement certain COVID-19 vaccination guidelines and protocol, among other things. (Gayle, et al. v. Meade, et al., 6/28/21) AILA Doc. No. 21070831
Freedom for Immigrants (FFI) reached a settlement with ICE, under which ICE agreed to provide uninterrupted access to FFI’s National Immigration Detention Hotline for at least a five-year period and to pay FFI $100,970 in attorneys’ fees. (Freedom for Immigrants v. DHS, 7/1/21) AILA Doc. No. 19121634
DHS notice of Temporary Protected Status extension and redesignation of Yemen for 18 months from 9/4/21 through 3/3/23. (86 FR 36295, 7/9/21) AILA Doc. No. 21070932
ICE issued a directive stating that it should not detain, arrest, or take into custody for an administrative violation individuals known to be pregnant, postpartum, or nursing, unless release is prohibited by law or exceptional circumstances. Guidance effective 7/1/21. AILA Doc. No. 21070930
AILA’s DOS Liaison Committee provides an alert concerning member reports received from posts in Europe and confirmed in official guidance from DOS that NIEs issued by DOS in the last 12 months have been automatically extended for 12 months.
AP: The children were interviewed by immigrant advocates from March to June, and their accounts were filed late Monday with a federal court in Los Angeles that oversees a longstanding settlement governing custody conditions for children who cross the border alone.
WaPo: Many of the nearly 17,306 Venezuelans who have crossed the southern border illegally since January had been living for years in other South American countries, part of an exodus of millions since President Nicolás Maduro took power in 2013.
Reuters: DOJ’s Executive Office for Immigration Review (EOIR) on Friday withdrew its opposition to the National Association of Immigration Judges’ motion for reconsideration of the November ruling, which said the judges were management employees who cannot unionize under federal law.
Reuters: At the current pace, the total border arrests for the fiscal year, which ends on Sept. 30, would be the highest since 2000, when nearly 1.7 million migrants were apprehended by U.S. authorities.
NYT: The Biden administration is forcing out the chief of the United States Border Patrol, Rodney S. Scott, who took over the agency during the final year of the Trump administration, a Department of Homeland Security official said on Wednesday.
Politico: The plan is to use the Special Immigrant Visa category to process the interpreters once they’re moved to a third country, likely to happen in August.
Law360: New Jersey is on track to join California and become the first East Coast state to ban U.S. Immigration and Customs Enforcement detention facilities following a vote Thursday.
Law360: The U.S. Supreme Court on Monday agreed to assess an Eleventh Circuit decision holding that courts lack authority to review “non-discretionary” determinations by the Board of Immigration Appeals related to findings of inadmissibility.
Law360: The U.S. Supreme Court undid two lower court rulings that blocked a Trump-era asylum policy Monday, deeming an injunction on the Migrant Protection Protocols moot three weeks after President Joe Biden formally ended the program.
The BIA sustained the appeal and remanded to allow the IJ to evaluate if the respondent qualifies for the “simple possession” exception to §245(h)(2)(B) under the circumstance-specific approach. Matter of Moradel, 28 I&N Dec. 310 (BIA 2021) AILA Doc. No. 21062335
Law360: The First Circuit stood by its decision to wipe a lower court ruling that had blocked federal immigration authorities from making arrests in and around Massachusetts courthouses, ruling Thursday that the Biden administration’s decision to curb many such arrests does not render the case moot.
The court found that the BIA did not abuse its discretion in dismissing petitioner’s motion to reopen as untimely, finding that her motion did not contain any evidence that Jamaican officials would likely acquiesce to her torture if she were returned to Jamaica. (Darby v. Att’y Gen., 6/17/21) AILA Doc. No. 21062533
Law360: The Fifth Circuit on Thursday refused to reinstate the asylum status of a schizophrenic Pakistani man who called his brother and threatened to kill up to 50 people in Amarillo, Texas, rejecting his counsel’s arguments that his threat wasn’t serious because he’s mentally ill.
LexisNexis: Avila de la Rosa v. Garland “Cristian Avila de la Rosa received a procedurally defective Notice to Appear for his immigration removal proceedings, and (unlike many others) he made a timely objection to that Notice. The immigration judge, however, disregarded Avila’s objection, and the Board of Immigration Appeals thereafter insisted that Avila was not entitled to relief unless he could demonstrate prejudice.
LexisNexis: Zamorano v. Garland “Victor Luis Angeles Zamorano, a native and citizen of Mexico, seeks review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a decision of the immigration judge (IJ) that denied his application for voluntary departure. Because the IJ failed to evaluate the factors weighing in favor of granting Zamorano voluntary departure, we grant the petition and remand.
Law360: The Ninth Circuit ordered the immigration courts on Tuesday to reconsider a Ukrainian asylum-seeker’s request for protection, finding a series of errors with a judge’s ruling that the migrant wasn’t credible.
The court held that while a self-induced change in personal circumstances does not qualify for the changed country conditions exception, that principle does not apply when changed country circumstances, while personal to petitioner, are entirely outside her control. (Kaur v. Garland, 6/21/21) AILA Doc. No. 21062831
Law360: An immigrant advocacy group wants to know more about the U.S. Department of Homeland Security’s “obscure” network of databases and how immigration agencies store their enforcement data, but alleges that the agencies are dodging its records request in violation of the Freedom of Information Act.
DOJ issued guidance to all immigration court and BIA personnel with information regarding the adjudication of motions to reopen in Migrant Protection Protocols (MPP) cases. AILA Doc. No. 21062437
DHS announced that it will expand the pool of MPP-enrolled individuals who are eligible for processing into the United States. Beginning June 23, 2021, DHS will include MPP enrollees who had their cases terminated or were ordered removed in absentia. AILA Doc. No. 21062332
In response to member inquiries, AILA updated its practice alert to inform members that the new zip code for Essex Junction is correct, however, it appears that some courier services do not yet recognize the new zip code, which goes into effect on 6/25/21. AILA Doc. No. 21061642
USCIS announced that, as of June 2021, will allow attorneys and accredited representatives to use self-service kiosks in USCIS field offices to pay the fees for filing an appeal of a DHS officer decision to the BIA or EOIR immigration court motions. AILA Doc. No. 21062231
NPR: In a pair of decisions announced Wednesday, Attorney General Merrick Garland is vacating several controversial legal rulings issued by his predecessors — in effect, restoring the possibility of asylum protections for women fleeing from domestic violence in other countries, and families targeted by violent gangs.
AP: A pending federal court case in Texas is challenging whether the program’s creation was legal. If the challenge is successful, it could end protections, adding urgency to those pressing Congress for a more lasting solution.
Axios: The policy known as Title 42 has resulted in tens of thousands of migrant family members, including asylum seekers, being sent away — as well as thousands of kids then separating from their families to cross into the United States alone.
Reuters: As the U.S. military completes its withdrawal from Afghanistan in the coming weeks, the Biden administration says it is adding staff to hurry up the visa process for Afghans who worked for the U.S. government and want to flee to avoid Taliban reprisals.
CityLimits: As they continue on the campaign trail, contenders of both parties who remain in the race speak openly about citizens’ concerns, such as crime, police reform, affordable housing, education, health, jobs and the Big Apple’s recovery from the COVID-19 pandemic. Latino voters, however, still feel that they have not heard concrete proposals regarding immigrants.
Intercept: Internal ICE records and emails, as well as a deposition by an ICE officer in a court case, show the agency referring to an advocacy group as a “known adversary” and closely surveilling the immigration and civil rights activists’ activities, both online and in person.
NYT: Health and consumer protection agencies have repeatedly warned that several of these treatments, as well as vitamin infusions and expensive injections of “peptide therapies” sold at alternative wellness clinics for more than $1,000, are not supported by reliable scientific evidence.
AIC: Although not every proposed rule put on the agenda will end up being finalized, the agenda signals an administration’s priorities and its goals for pursuing changes to our immigration system through executive action.
DOJ vacated Matter of A-B- and Matter of A-B-II and stated that immigration judges and the BIA should no longer follow these decisions when adjudicating pending or future cases. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) AILA Doc. No. 21061639
DOJ vacated Matter of L-E-A- II in its entirely and immigration judges and the BIA should no longer follow Matter of L-E-A- II when adjudicating pending and future cases. Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021)AILA Doc. No. 21061640
AAG: Please review any pending cases that may be affected by the Attorney General’s vacatur of L-E-A-II, A-B-I, and A-B-II and take appropriate steps in light of that development, including seeking remands in appropriate cases to allow the Board to reconsider asylum claims based on this change in the law.
The court certified to New York State Court of Appeals the question of whether an intent to “appropriate” property requires an intent to deprive the owner of property permanently or under circumstances where their property rights are substantially eroded. (Ferreiras Veloz v. Garland, 6/7/21) AILA Doc. No. 21061635
Law360: A split Third Circuit panel on Thursday refused to halt deportation proceedings for a Jamaican woman who pled guilty to defrauding the elderly in a lottery scam, ruling in a precedential decision that she didn’t prove she was likely to face retribution from the scam’s ringleader if sent back to her native country.
The court held that although the defendant, a former military officer, refused to shoot civilians during the Salvadorian Civil War, the fact that he “assisted” and “participated in the commission of” extrajudicial killings permitted his denaturalization. (United States v. Vasquez, 6/11/21) AILA Doc. No. 21061737
The court concluded that 8 CFR §212.7(e)(4)(iii), together with 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii), gives IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers. (Garcia-DeLeon v. Garland, 6/4/21) AILA Doc. No. 21061634
The court found that while the Memphis Immigration Court violated procedural rules in transferring the petitioner’s hearing to the Louisville Immigration Court, that violation was a procedural question relating to venue, not jurisdiction to hear the case. (Tobias-Chaves v. Garland, 6/8/21) AILA Doc. No. 21061636
The court granted the petition for review and remanded the case to the BIA in light of the U.S. Supreme Court’s recent decision in Niz-Chavez v. Garland. (Lorenzo Lopez v. Garland, 6/8/21) AILA Doc. No. 21061643
The court held that the BIA erred by reviewing the IJ’s decision de novo rather than for clear error, and found that the record established that the petitioner had met her burden to show it was more likely than not she would be tortured if removed to Mexico. (Soto-Soto v. Garland, 6/11/21) AILA Doc. No. 21061644
Law360: A split Tenth Circuit panel on Tuesday reversed a Utah federal judge’s order finding that American Samoans are birthright U.S. citizens, holding that the issue belongs in the hands of Congress, not the courts.
Law360: In a decision that established several court precedents, the Eleventh Circuit has revived a Sri Lankan man’s bid for asylum, ruling that both an immigration judge and the Board of Immigration Appeals failed to properly reconsider his asylum application after allowing him to stay in the United States.
Law360: The D.C. Circuit ruled Friday that it lacks jurisdiction to revive asylum-seekers’ challenge to how border officers carry out a policy that requires migrants to seek protections in other countries they pass en route to the U.S.
AILA: DHS filed a motion for partial summary judgment in district court on all the plaintiffs’ claims regarding the 30-day timeline repeal rule, which was published on June 22, 2020.
Law360: The Biden administration has asked a Maryland federal judge to keep intact a Trump-era asylum work rule that gives the U.S. Department of Homeland Security more time to process work permits, saying the increased flow of asylum-seekers justifies the change.
Law360: Three Mexican nationals have asked a Colorado federal court to declare that U.S. Citizenship and Immigration Services unlawfully denied their green card applications by finding them inadmissible under a 10-year bar on reentering the United States up to 20 years after they left the country.
USCIS provided guidance in the Policy Manual on employment authorization and deferred action for principal petitioners for U nonimmigrant status and qualifying family members with pending, bona fide petitioners. Comments and feedback is due by July 14, 2021. AILA Doc. No. 21061433
DHS and DOS issued a joint statement on the second phase of the Central American Minors (CAM) program’s reopening. Eligibility now includes legal guardians and parents and U.S.-based parents or legal guardians with pending asylum application or pending U visa petition filed before 5/15/21. AILA Doc. No. 21061631
Thanks Elizabeth!As previously noted, I remain skeptical of Biden Administration plans to “reform” asylum law without bringing in the progressive human rights experts who can handle the job!
Most needed “reforms” — like bringing in progressive judges, replacing the BIA, bringing in progressive managers and executives, slashing the largely self-created EOIR backlog, working with NGOs to provide universal representation to asylum seekers and other vulnerable individuals, eliminating unnecessary detention, issuing positive precedents to guide IJs and Asylum Officers, bringing on more Asylum Officers and offering them better training (see, e.g., VIISTA @ Villanova), restoring Administrative Closing, implementing e-filing at EOIR, expanding the Central American Minors Program and other refugee programs in Central America, and many others are “hiding in plain sight.”
The “blueprints” are already about there — in bulk! All that’s missing is the dynamic new progressive leadership to implement them and insure compliance.
Also, as I’ve pointed out before, no Administration in history has had the benefit of so much empirical data, practical scholarship, and “ready for prime time” workable solutions for such well-documented and glaring problems. The asylum and EOIR “fixes” are both highly doable and can produce immediate positive results with more to follow!
But, not necessarily the way the Biden Administration is going about it, with far too many of those needed to turn “rhetoric into reality” still on sidelines in the private sector. In the meantime, folks who have already proved beyond a reasonable doubt that they can’t fix the system remain in key positions.
For Pete’s sake, several of my Georgetown Law students rattled off some of these solutions in class yesterday, and asked me why nobody was working on them. I told them I couldn’t figure out why the Biden Administration was so “slow on the uptake” with so many resources and experts out here in the private sector!
One of my most obvious ideas — hire my three colleagues, Georgetown Professors Phil Schrag, Andy Schoenholtz, and Temple Associate Dean Jaya Ramji-Nogales who recently wrote “instant immigration classic” The End of Asylum and earlier wrote the classic “bad government” expose Refugee Roulette — on a six month consulting contract to come in and fix EOIR and the Asylum Office.
It’s not so much regulatory reform that’s needed (although to be sure improvements can be made), but rather bringing in progressive leadership and better judges in key positions at DHS, DOJ, and EOIR to insure that due process is maximized, best practices are instituted, and recalcitrant personnel still committed to the Trump/Miller White Nationalist agenda are placed in other jobs where they can’t overtly damage our justice system.
Not “rocket science!” 🚀 But, it’s not going to be solved by a “regulatory agenda” either!
EOIR plans to resume non-detained hearings on July 6, 2021 at all remaining immigration courts. Attorneys have reported seeing non-detained cases advanced or continued with less than 30 days’ notice before the individual hearing, so check your EOIR portal.
Reception window: weekdays 8:30am – 12:00pm. In-person, hard-copy service of documents will only be accepted at the window for detained cases pending at the Varick Street Immigration Court.
eService: For detained and non-detained cases pending before the Varick Street Immigration Court, you must use the “Varick Street NYC” location. For cases pending before the Immigration Courts at 26 Federal Plaza and 290 Broadway, you must use the “New York City” location. Beginning July 6, 2021, documents submitted with the wrong location designation will be rejected.
TOP NEWS
Judge Robert A. Katzmann (1954-2021) Second Circuit Court of Appeals PHOTO: US Courts.com
NYT: “Almost single-handedly he convinced the organized bar to provide free quality representation for thousands of needy immigrants,” said Jed S. Rakoff, a senior U.S. District Court Judge. “No judge ever took a broader view of the role of a judge in promoting justice in our society, or was more successful in turning those views into practical accomplishment.”
Vox: While details of the plan are short, [Biden] has asked the Justice Department to restart its access to justice work, which was on hiatus during the Trump administration, and convened a roundtable of civil legal aid organizations to advise him. But the Biden administration need not look far for potential solutions: The New York Immigrant Family Unity Project, a first-of-its-kind program that provides publicly funded lawyers to every detained or incarcerated immigrant in the state, offers a helpful model.
Bloomberg: The Justice Department and Department of Homeland Security plan to propose new criteria for asylum-seekers as part of Biden’s broader goal to retool the nation’s immigration system. The Department of Homeland Security will draft ways to strengthen protections for undocumented individuals brought to the U.S. illegally as children, under the program known as Deferred Action for Childhood Arrivals (DACA). See also Aaron Reichlin-Melnick’s Twitter thread summarizing the agenda.
Reuters: A new U.S. immigration policy announced on Monday will expand access to work permits and deportation relief to some immigrants who are crime victims while their visa cases are pending.
WaPo: Though President Biden quickly signed several executive orders to roll back some of President Donald Trump’s most draconian policies — including one that sent asylum seekers back to Mexico to await their court hearings — a number of other restrictive measures and rulings that directly affect domestic violence survivors remain in place.
NBC: Among the judges’ concerns, as described to NBC News: There aren’t enough of them, they need more support staff, and they’ve felt political pressure from their bosses at the Justice Department.
AP: VOICE will be replaced by The Victims Engagement and Services Line, which will combine longstanding existing services, such as methods for people to report abuse and mistreatment in immigration detention centers and a notification system for lawyers and others with a vested interest in immigration cases.
Reuters: An effort by U.S. President Joe Biden to reunite migrant families separated by the previous administration is moving slowly, with only seven children reunited with parents by a task force launched in February, according to a U.S. Department of Homeland Security (DHS) report released on Tuesday. Another 29 families are set to be reunited in the coming weeks, the report said.
NYT: There was a slight increase in the number of border crossings, encounters and apprehensions overall during the same time period, a sign that the record surge of migrants trying to get into the country this spring could be starting to stabilize.
WaPo: As of May 31, nearly 9,000 children were kept at unlicensed sites, compared with 7,200 at licensed shelters, court filings by the U.S. government said. While the unlicensed facilities were running at near capacity in May, the licensed facilities were only about half full, according to a report filed by the agency tasked with the children’s care.
WaPo: U.S. Customs and Border Protection apprehension numbers for May released recently show the share of families — about 20 percent — being expelled under Title 42 continued to decline. Although the overall number of families reaching the Southwest border declined as well, the data shows that eight out of 10 families that Border Patrol encountered were released into the country and allowed to pursue immigration cases.
ABC: Her trip to meet with Guatemalan and Mexican leaders is part of a two-track approach to the issue, senior administration officials have said, of “stemming the flow” of migration in the near term and establishing a “strategic partnership” with Mexico and Northern Triangle countries “to enhance prosperity, combat corruption and strengthen the rule of law” in the longer term.
ImmProf: It’s one of those wonky SCOTUS plurality opinions. Justice Kagan announces the judgement of the court and gets three justices (Sotomayor, Kennedy, and Gorsuch) to sign onto her opinion, which focuses on the statutory phrase “against the person of another.” Justice Thomas concurs, agreeing in the judgment that Borden’s conviction doesn’t qualify as a violent felony, though he focuses on different statutory language: “use of physical force.”
Law360: The Fifth Circuit declined to review a Salvadoran man’s appeal for humanitarian deportation relief Wednesday, finding that immigration judges had rightfully denied his claims after he failed to show he was a member of a persecuted group.
LexisNexis: Arnoldo Antonio Vasquez, a former Salvadorian military officer, was a naturalized American citizen. Based on his role in extrajudicial killings and a subsequent cover-up occurring during armed conflict in El Salvador, the government sought to revoke his citizenship, that is, to denaturalize him.
The court held that the Honduran petitioner did not face past persecution based on her membership in a particular social group (PSG) consisting of her family; rather, the court found she was targeted because she owned land that once belonged to her father. (Padilla-Franco v. Garland, 6/2/21) AILA Doc. No. 21060736
Applying the “reason to believe” standard under INA §212(a)(2)(C), the court held that substantial evidence supported the BIA’s conclusion that there was probable cause to believe that petitioner was involved in illicit drug trafficking and was thus inadmissible. (Rojas v. Garland, 5/27/21) AILA Doc. No. 21060735
The court held that the government is not required to prove that a returning lawful permanent resident (LPR) meets an exception under INA §101(a)(13)(C) before it can parole the returning LPR into the United States for prosecution under INA §212(d)(5). (Vazquez Romero v. Garland, 5/28/21) AILA Doc. No. 21060737
Denying the petition for review, the court held that the Salvadoran petitioner was ineligible for asylum, because the gang that targeted her family had done so only as a means to the end of obtaining funds, not because of any animus against her family. (Sanchez-Castro v. Att’y Gen., 6/1/21) AILA Doc. No. 21060738
The BIA ruled that a mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged cannot establish changed circumstances under INA §208(a)(2)(D). Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021) AILA Doc. No. 21060899
Law360: The First Circuit should stand by its decision to wipe a lower court ruling that blocked federal immigration authorities from making arrests in and around Massachusetts courthouses, despite the Biden administration’s order curbing many such arrests, the federal government argued Thursday.
Law360: A lawful permanent resident of the U.S. sued the Department of Homeland Security in Maryland federal court Wednesday, claiming an unreasonable delay in processing his wife’s spousal visa application, which he says has not been acted on since it was filed in January 2020.
USCIS issued three policy updates in the Policy Manual to clarify the expedited processing, improve RFE and NOID guidance, and increase the validity period for initial and renewal EADs for certain pending adjustment of status applications. AILA Doc. No. 21060934
USCIS updated policy guidance in its Policy Manual regarding the criteria used to determine whether a case warrants expedited treatment. AILA Doc. No. 21060936
USCIS: USCIS is updating the USCIS Policy Manual to implement a new process, referred to as Bona Fide Determination, which will give victims of crime in the United States access to employment authorization sooner, providing them with stability and better equipping them to cooperate with and assist law enforcement investigations and prosecutions.
USCIS: USCIS has made historical versions of the USCIS Policy Manual available to the public. These historical versions will reflect the pertinent policy in effect on a particular date and are being provided for research and reference purposes only. Users can find the historical versions under the “History” tab within the Policy Manual chapters. However, this tab will only reflect historical changes moving forward. For historical versions before June 11, you can visit the Internet Archive.
ICE provided interim guidance on motions to reopen in light of SCOTUS’s decision in Niz-Chavez v. Garland, stating that some noncitizens may now be eligible for cancellation of removal. Until 11/16/21, ICE attorneys will presumptively exercise prosecutorial discretion for these individuals. AILA Doc. No. 21061030
ICE provided guidance on submitting a prosecutorial discretion request to OPLA including a listing of relevant email addresses that can be used when submitting a request to OPLA field locations. AILA Doc. No. 21061430
EOIR issued a memo that provides EOIR policies regarding the effect of DHS’s updated enforcement priorities and initiatives. Memo is effective as of 6/11/21. AILA Doc. No. 21061133
EOIR: As part of EOIR’s ongoing efforts to improve operations and review existing policy memoranda, the following Policy Memorandum (PM) is rescinded: 1.PM 21-10, Fees.
I note that Judge Robert A. Katzmann spoke at several of our Immigration Judge Conferences and also attended a Georgetown Law Judicial seminar on inconsistency in asylum adjudication that I participated in as an Immigration Judge. He was instrumental in creating both the Immigrant Justice Corps and the NYC representation program for migrants.
Notably, Liz Gibson, of “The Gibson Report,” one of my former Georgetown Law students was also selected by Judge Katzmann and other experts for the super-competitive Immigrant Justice Corps! And we can see what a difference Liz is making every day!
Those of us committed to due process and fundamental fairness mourn Judge Katzmann’s passing. His enlightened, humane, and compassionate leadership will be missed.
Lots of important information for practitioners here. It illustrates that while ICE and USCIS are moving forward with some modest, long overdue due process and “best practices” reforms, EOIR under Garland continues to lag behind.
This week’s disclosures about the deep problems at the Trump DOJ, which have not been effectively addressed, show that under Garland the DOJ isn’t inclined to fix even the most obvious defects at Justice until they are exposed by outside groups and the public pressure grows. At a time when the DOJ needs bold, proactive progressive leadership, Garland’s “reactive” style of management and lack of aggressive progressive leadership continues to erode confidence in our justice system.
As illustrated by last week’s NBC Nightly News report on dysfunction, polarization, and lack of due process and fundamental fairness at EOIR, the ongoing disaster in our Immigration Courtsactually dwarfs all of the other problems at the DOJ. And, it certainly adversely affects more human lives and American communities.
Due process, human rights, and racial justice advocates and experts should not trust Garland and his team to fix EOIR before it’s too late. In the first place, he currently has nobody on his “team” with the Immigration Court experience and the progressive expertise to get the job done!
So it’s going to take more aggressive litigation, more demands to Congress for Article I, more op-eds, more front page articles and news reports, more calls and letters to the White House, and more “creative disruption” to force Garland’s hand on EOIR reform.
Additionally, rather remarkably, and contravening the Biden Administration’s pledge of honoring diversity, the DOJ has done nothing on its own to recruit or attract a diverse group of expert progressive judges. Indeed, Garland actively undermined the effort with an outrageous “17-judge giveaway” to the disgraced Billy Barr. This week’s revelations showed just how ridiculous was Garland’s inappropriate “deference” to Barr-selected, non-progressive, non-diverse judges!
Therefore, it’s absolutely critical that the rest of us keep beating the drum and encouraging the “best and brightest” progressive immigration experts to apply for judicial and executive positions at EOIR. In particular, the immigration judiciary lacks representation by talented Latina and Latino judges with experience representing asylum applicants and other migrants.
They are out there, for sure! But EOIR’s aggressively anti-Hispanic, often misogynist culture, the anti-Hispanic “jurisprudence” churned out by Sessions, Barr, and the BIA, and the demeaning and “dumbing down” of the Immigration Judge jobs to be nothing more than glorified “deportation clerks” has effectively discouraged the folks we need on the bench from applying. And, posting for short periods on “USA JOBS” is not a serious effort at recruiting from the outside or creating a more representative pool of applicants.
NAIJ is doing some of the “diversity outreach” that that should be DOJ’s job. But, they need help! Another reason why Garland’s failure to restore NAIJ as the representative of Immigration Judges is highly problematic! These things should be “no brainless” under a Dem Administration. Instead, at Garland’s DOJ, it’s like pulling teeth!
A number of minority attorneys have told me that they felt unwelcome at the “Trump EOIR” or thought that they couldn’t function independently and effectively in a culture that obviously demeaned and dehumanized people of color.
We can’t force positive, progressive change in the toxic culture at EOIR without getting “agents of change” and judicial role models from currently underrepresented communities on the inside, where they belong. Also, those who actually have represented individuals in Immigration Court have both organizational skills beyond those of many government bureaucrats and practical problem solving ability that simply isn’t promoted or recognized within the inefficient “top-down” EOIR bureaucracy.
So, members of the NDPA, get those EOIR applications in there! Garland is tone deaf to the necessity and the opportunity for a progressive judiciary at EOIR that he squanders every day with his lackadaisical non-leadership. So, as is often the case with Dem Administrations, you’re going to have to take the initiative, break down the the doors of bias and incompetence at EOIR, and create the progressive judiciary of the future with or without Garland’s support!
EOIR is going to have trouble continuing to keep the “best and brightest” progressives out of the Immigration Judiciary. Don’t wait for change to come to you — not going to happen under Garland! Be an agent of aggressive, progressive change! Take the due process/racial justice revolution to the halls of justice @ Justice!
Changes to USCIS Mask Policy: Fully vaccinated staff and visitors are not required to wear masks. However, some government buildings may still require masks for all visitors, including 26 Federal Plaza.
SCOTUSblog: The court ruled in Sanchez v. Mayorkas that adjustment of status is reserved for those who were inspected at the border and admitted to the United States by an immigration officer, thus disqualifying the majority of those granted Temporary Protected Status.
BuzzFeed: The guidance, written by chief ICE attorney John Trasviña, a President Biden appointee, was sent to prosecutors on May 27 and represents a shift in how the agency pursues deportation orders in immigration court by emphasizing the discretion prosecutors have in court. While it does not require prosecutors to toss cases, it could lead to more immigrants having the ability to push for delays or dismissal of their deportation cases.
CNN: Shortly after President Joe Biden took office, the Department of Homeland Security suspended new enrollments to the program formally known as Migrant Protection Protocols. The department subsequently kicked off the process of gradually allowing asylum seekers previously subject to the program into the US. Between February 19 and May 25, around 11,200 migrants were processed into the US, according to Mayorkas’ memo Tuesday.
Vox: [R]esearch shows that the threat of detention and deportation in the US doesn’t dissuade migrants from making the journey to the southern border, especially if they are victims of violence and may be seeking to escape the “devil they know” in their home countries.
BuzzFeed: Ahead of a planned visit by Vice President Kamala Harris, the Biden administration wants Mexico to send back more immigrants turned around by the US, take back additional families expelled by border agents, and do more to prevent Mexican airports from being used as pit stops for migration routes, according to government documents obtained by BuzzFeed News.
Law360: Advocacy groups on Thursday released records acquired through a Freedom of Information Act lawsuit that showed failures in oversight by U.S. Immigration and Customs Enforcement of its medical personnel at a Georgia detention center, which is at the center of allegations of medical abuses and forced gynecological procedures.
LATimes: In recent weeks, U.S. border officials have taken an unprecedented step, quietly deploying a new app, CBP One, which relies on controversial facial recognition, geolocation and cloud technology to collect, process and store sensitive information on asylum seekers before they enter the United States, according to three privacy-impact assessments conducted by the Homeland Security Department and experts who reviewed them for The Times. See also US Border Officers Are Collecting DNA From Asylum-Seekers Even Though They Don’t Have Criminal Records.
NYT: Gov. Greg Abbott of Texas has instructed state officials to end contracts with the Biden administration for shelters in the state that hold migrant children and teenagers who have been arriving alone, in record numbers, to the southwest border.
The Supreme Court issued a unanimous decision, holding that a TPS recipient who entered the United States unlawfully is not eligible under §1255 for LPR status merely by dint of his TPS. (Sanchez et ux. v. Mayorkas, 6/7/21) AILA Doc. No. 21060799
BIA: The mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged and that does not significantly increase the risk of future harm is insufficient to establish “changed circumstances” to excuse an untimely asylum application within the meaning of section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D) (2018).
The court held that the BIA did not err when it found that the petitioner, who had a 12-year-old son and a five-year-old daughter, had not met his burden to show that his removal would result in exceptional and extremely unusual hardship to his family. (Tacuri-Tacuri v. Garland, 5/24/21)
The court held that the government’s evidence of petitioner’s fugitive status was insufficiently probative to justify discretionary dismissal of his petition, but found that BIA did not err in denying petitioner’s withholding of removal application. (Galeas Figueroa v. Att’y Gen., 5/19/21)
The court held that the Equal Access to Justice Act (EAJA) does not apply to a habeas proceeding seeking release from civil detention, and thus affirmed the district court’s order denying the petitioner attorney’s fees under the Act. (Obando-Segura v. Garland, 5/28/21) AILA Doc. No. 21060734
The court held that the petitioner’s conviction for conspiracy to commit money laundering plainly constituted an aggravated felony under INA §101(a)(43)(D), and that the remainder of the petitioner’s claims were either meritless or unexhausted. (Maniar v. Garland, 5/20/21) AILA Doc. No. 21060434
Where the government had ordered petitioner removed after he threatened to commit an act of terrorism, the court held that the Attorney General had interpreted INA §208(b)(2)(A)(iv) correctly, and thus that the government had lawfully terminated his asylum status. (Mirza v. Garland, 5/12/21) AILA Doc. No. 21060432
The court held that the petitioner had failed to show that the IJ or the BIA had violated a statutorily imposed evidentiary requirement in finding that the plea agreement form proved the existence of a forgery conviction by clear and convincing evidence. (Nguyen v. Garland, 5/12/21) AILA Doc. No. 21060430
LexisNexis: Garcia-DeLeon v. Garland “We conclude that 8 C.F.R. § 212.7(e)(4)(iii), in conjunction with 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), gives IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers.
Upholding the BIA’s denial of deferral of removal under the Convention Against Torture (CAT), the court held that the record did not compel a finding that it was more likely than not that the petitioner would suffer future torture if she returned to Jamaica. (Dawson v. Garland, 5/26/21) AILA Doc. No. 21060732
The court held that where it has not been proven that a custody order was entered in error, a nunc pro tunc order cannot retroactively establish a naturalized parent’s sole legal custody for purposes of derivative citizenship under former INA §321(a). (Padilla Carino v. Garland, 5/18/21) AILA Doc. No. 21060731
The court held that exceptional circumstances warranted reopening of in absentia removal orders entered against a mother and her minor child due to the mother’s failure to appear, where the mother suffered from memory problems and was illiterate. (Hernandez-Galand v. Garland, 5/12/21) AILA Doc. No. 21060438
The Ninth Circuit on Wednesday held that immigration judges can reopen the cases of immigrants who have been removed from the U.S. or who voluntarily left, reversing a Board of Immigration Appeals decision that held that the “departure bar” in immigration law blocked those reopenings.
Law360: The Ninth Circuit has agreed to reconsider en banc the denial of a Bangladeshi citizen’s asylum application based on alleged politically motivated threats against his family following a dissent from the panel decision citing evidentiary failures in the initial immigration court finding.
Law360: A group of House Democrats asked the U.S. Department of Justice to withdraw a Trump administration petition that led the Federal Labor Relations Authority to rule immigration judges are managers who cannot unionize, saying the ruling broadly threatens federal employees’ union rights.
Law360: The U.S. Department of Homeland Security asked a Maryland federal court to preserve Trump-era regulations restricting asylum-seeker work permits, saying the official who created the policies had the legal authority to do so despite several courts calling that authority into question.
Two New Jersey counties urged the Third Circuit on Thursday to strike down New Jersey Attorney General Gurbir S. Grewal’s order that county and local law enforcement officers must restrict information they share with immigration authorities, arguing that it obstructs federal law.
ICE issued interim guidance to all OPLA attorneys to guide them in appropriately executing interim civil immigration enforcement and removal priorities and exercising prosecutorial discretion. AILA Doc. No. 21060499
DHS announced that after review of the Migrant Protection Protocols (MPP) program, the Secretary of Homeland Security made a determination that MPP be terminated. This announcement does not impact this phased entry strategy into the United States of certain individuals enrolled in MPP. AILA Doc. No. 21060141
USCIS announced a pilot program for accepting credit card payments using Form G-1450, Authorization for Credit Card Transactions, for U nonimmigrants filing Form I-485. The pilot program began on May 3 and is limited to the Nebraska Service Center. AILA Doc. No. 21060200
Item #3 makes an essential point that experts have long recognized and that undermines the assumptions on which many of the failed Trump and Biden immigration policies are based: U.S. enforcement policies have little or no effect on forced migrants’ decisions to leave their homes.
Indeed, as immigration experts have told the Administration, to little apparent avail, “forced migration” is exactly what it says it is: migration resulting from forces in home countries that are largely beyond the immediate control of either the migrants or the U.S. Government.
That doesn’t mean we shouldn’t understand and constructively address the root causes of human migration. Of course we should!
But, such systemic changes will take time and will have only marginal effects, if any, on current migration patterns. And, harsh, cruel enforcement and illegal border closures will continue to waste resources while squandering any remaining moral leadership authority we have on migration issues following four years of unrelenting illegal and immoral behavior by the Trump regime!
Vox: [R]esearch shows that the threat of detention and deportation in the US doesn’t dissuade migrants from making the journey to the southern border, especially if they are victims of violence and may be seeking to escape the “devil they know” in their home countries.
I just watched a TV news report in which law enforcement officials and reporters hypothesized the higher walls had caused smugglers to use more dangerous methods such as maritime entries, that, in turn, kill more migrants. Is that how we measure “success?” And, even killing a few more migrants won’t have a material effect on departures or overall illegal entries.
Why not encourage individuals to apply for refuge from abroad or at legal ports of entry where they will be treated fairly and humanely by officials and judges actually qualified to administer asylum and protection laws? Why not structure our legal immigration system around the “market realities” of human migration and “push, pull factors” rather than continuously swimming against the tides of migration? Why not put experts who understand the realities of human migration in charge of our policies and courts, rather than politicos who look only for the expedient, while all too often eschewing the intelligent?
EOIR plans to resume non-detained hearings on July 6 at the following immigration courts: Dallas, El Paso, Ft. Snelling, Harlingen, Houston, Houston – S. Gessner Road, Houston – Greenspoint Park Drive, Kansas City, Memphis, New York – Broadway, New York – Federal Plaza, New York – Varick, Portland, San Antonio, and San Juan. Hearings in non-detained cases that are scheduled at the aforementioned courts are postponed through July 3. Noncitizens (or representatives who have entered an appearance with the court) who have not received a notice of reset hearing by June 22 should expect scheduled hearings to proceed. As of July 6, 2021, all immigration courts will be holding limited hearings, applying relevant Federal best practices related to communicable disease.
For cases scheduled from July 6 through July 30, parties (or their representatives who have entered an appearance with the court in a case) who have not received notice of a reset hearing by June 22 should plan to attend their hearing as scheduled. All parties, including those with cases scheduled after July 30, should continue to rely on official notices from the immigration court as the best source for information regarding their hearings
Please note that the option to file by email at the above-listed courts will end on Sept. 4, 2021.
NYT: Most of them are from Central America, fleeing gang violence and natural disasters. But the past few months have also brought a much different wave of migration that the Biden administration was not prepared to address: pandemic refugees. They are people arriving in ever greater numbers from far-flung countries where the coronavirus has caused unimaginable levels of illness and death and decimated economies and livelihoods.
Politico: President Joe Biden on Friday shot down a Trump proclamation that blocked potential immigrants deemed to be a “financial burden” on the nation’s health care system from coming to the United States, saying it didn’t align with U.S. interests.
Politico: Education Secretary Miguel Cardona on Tuesday finalized a new regulation that allows colleges to distribute tens of billions in federal pandemic relief grants to all students, regardless of their immigration status or whether they qualify for federal student aid.
WaPo: President Joe Biden met Friday with six immigrants who benefited from an Obama-era policy that protected those brought to the U.S. illegally as children. The president is trying to turn attention toward overhauling the nation’s immigration laws, but it’s an issue he has made scant progress on in the first months of his presidency.
Law360: U.S. Sen. Dianne Feinstein, D-Calif., urged U.S. Attorney General Merrick Garland to overturn his predecessors’ decisions that restricted asylum eligibility for victims of domestic and gang violence, saying those decisions disregarded refugee protections established 40 years ago.
ProPublica: In newly disclosed records, Trump officials cited conspiracies about Antifa to justify interrogating immigration lawyers with a special terrorism unit. The documents also show that more lawyers were targeted than previously known.
WaPo: Immigration arrests and detentions along the U.S.-Mexico border rose slightly in April to 178,622, the highest one-month total in two decades, according to U.S. Customs and Border Protection data published Tuesday, but a decline in the number of teens and children arriving without parents eased pressure on the Biden administration.
Politico: The Department of Health and Human Services has diverted more than $2 billion meant for other health initiatives toward covering the cost of caring for unaccompanied immigrant children, as the Biden administration grapples with a record influx of migrants on the southern border.
WaPo: The fate of interpreters after the troop withdrawal is one of the looming uncertainties surrounding the withdrawal, including a possible resurgence of terrorist threats and a reversal of fragile gains for women if chaos, whether from competing Kabul-based warlords or the Taliban, follows the end of America’s military engagement.
NYT: The findings suggest that their depressed vaccination rate reflects in large measure misinformation about cost and access, as well as concerns about employment and immigration issues, according to the latest edition of the Kaiser Family Foundation Covid-19 Vaccine Monitor.
Salon: Nearly all the judges on the Justice Department list have backgrounds as prosecutors or as counselors at Immigration and Customs Enforcement (ICE), while nearly none have any experience defending migrants.
TRAC: MPP cases assigned to the Brownsville, Texas hearing location continued to show the highest proportion of individuals allowed to enter the U.S.: 45 percent. However, MPP cases from Laredo, Texas which had been scheduled to start its processing over a month later made up a lot of lost ground by the end of April. Only 3 percent of its cases had been transferred into the U.S. at the end of March to await their Immigration Court hearings.
PM 21-19 (PDF) Cancellation of Policy Memoranda 19-02 (Guidelines Regarding New Regulations Governing Asylum and Protection Claims) and 19-03 (Guidelines Regarding the Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States)
PM 21-20 (PDF) Cancellation of Policy Memorandum 19-12 (Guidance Regarding New Regulations Governing Asylum and Protection Claims)
PM 21-21 (PDF) Cancellation of Policy Memorandum 20-04 (Guidance Regarding New Regulations Governing Procedures for Asylum and Withholding of Removal and Credible Fear and Reasonable Fear Reviews)
PM 21-22 (PDF) Cancellation of Policy Memorandum 21-09 (Guidelines Regarding New Regulations Providing for the Implementation of Asylum Cooperative Agreements)
USCIS: U.S. Citizenship and Immigration Services (USCIS) announced today that applicants, petitioners, requestors and beneficiaries may now call the USCIS Contact Center (800-375-5283) to reschedule their biometric services appointments scheduled at a USCIS Application Support Center.
The court held that 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the disposition of cases. (Arcos Sanchez v. Att’y Gen., 5/5/21) AILA Doc. No. 21051432
Denying the petition for review, the court held that an IJ is not deprived of jurisdiction under 8 CFR §1003.14 over removal proceedings commenced by a Notice of Referral to an IJ that lacks time and place information. (Mejia Romero v. Att’y Gen., 5/5/21) AILA Doc. No. 21051433
The court held that petitioner’s 2007 detention and beating by the Sri Lankan army did not constitute past persecution, and that extortion attempts by the Eelam People’s Democratic Party (EPDP) of Sri Lanka were not motivated by an imputed political opinion. (Thayalan v. Att’y Gen., 5/10/21) AILA Doc. No. 21051438
The court held that the petitioner’s 2000 conviction for second-degree robbery in New Jersey constituted an aggravated felony theft offense under INA §101(a)(43)(G), and thus found that the petitioner was ineligible for asylum and withholding of removal. (K.A. v. Att’y Gen., 5/4/21) AILA Doc. No. 21051435
The court held that petitioner’s grant of Temporary Protected Status (TPS) did not remove the need for him to show that he was admitted in order to be eligible for cancellation of removal, and that his grant of TPS was not an admission for cancellation purposes. (Artola v. Garland, 5/5/21) AILA Doc. No. 21051439
Law360: U.S. residents who are not granted legal permanent residency before they turn 18 can still get citizenship through their naturalized parents, a split Ninth Circuit ruled Thursday in a published en banc opinion that reexamined court precedent.
The court held that, for purposes of removability for crimes involving moral turpitude (CIMT), the phrase “the date of admission” in INA §237(a)(2)(A)(i)(I) is ambiguous, and the BIA’s interpretation of the phrase in Matter of Alyazji was permissible. (Route v. Garland, 5/6/21) AILA Doc. No. 21051440
The court upheld the BIA and IJ’s conclusion that the petitioner’s application for asylum and related relief had been abandoned under 8 CFR §1003.47(c) based on her failure to submit biometrics or establish good cause for her failure to do so. (Gonzalez-Veliz v. Garland, 5/4/21) AILA Doc. No. 21051437
Law360: An El Salvadoran woman who can’t read and whose family mixed up the month and day of her immigration court hearing can seek asylum again, after the Ninth Circuit ruled that her exceptional circumstances warranted a second shot.
Where petitioner argued that an IJ had failed to inform him he could apply for preconclusion voluntary departure, the court found it lacked jurisdiction to consider his petition, because the BIA had ruled that preconclusion voluntary departure was not warranted. (Blanc v. Att’y Gen., 5/11/21) AILA Doc. No. 21051436
Law360: Conservation groups backed by an anti-immigration think tank asked the Ninth Circuit Tuesday to revive their claims that certain U.S. Department of Homeland Security immigration programs must undergo environmental review, arguing a review exemption leads to higher immigration numbers, which then drives ecological degradation.
Verge: While that ban never came to pass, the ability for people with H-4 visas to work is still under threat from a lawsuit against the federal government. The suit, called Save Jobs USA v. US Department of Homeland Security, was brought by tech workers, who argue that H-4 holders are unfair competition for Americans looking for jobs.
ImmProf: The question now arises whether clients with fake-date NTAs can utilize Pereira and now Niz-Chavez to defeat the “stop-time” effect for cancellation of removal, where such fake NTAs existed, even where there is a subsequent notice of hearing with a “real date” from EOIR. The short answer is “Yes”.
DHS released a statement noting that it is “working to streamline a system for identifying and lawfully processing particularly vulnerable individuals who warrant humanitarian exceptions” under the CDC Order issued under its Title 42 public health authority. AILA Doc. No. 21051330
The CIS Ombudsman’s Office issued a reminder that individuals who are eligible to renew their DACA and employment authorization may submit their renewal request between 150 days and 120 days before the expiration on their current Form I-797, Notice of Approval, and on the EAD. AILA Doc. No. 21051035
DHS OIG found that from 1/1/16 through 6/30/19, 83 CBP employees violated CBP policies and guidance by posting, or commenting on, offensive content on various social media platforms. DHS OIG, however, found no evidence that senior CBP leaders were aware of more than a few of the cases, and determined that CBP and Border Patrol headquarters officials took no action to prevent further misconduct, except when directed to do so by DHS. DHS OIG found no evidence that senior CBP headquarters or field leaders were aware of offensive content posted to a private Facebook group until reported by the media in July 2019. AILA Doc. No. 21051441
Two items of particular interest:First the article from Igor Derysh in Solon ripping Garland’s inexcusable “Miller Lite” hiring practices at EOIR. I am quoted, among others.
What’s the purpose of winning an election if this guy remains in charge of EOIR? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
The absolute stupidity and betrayal of awarding the Administration’s precious first 17 Federal Judicial positions to lesser qualified, non-progressive individuals hired under tainted, exclusionary, biased, restrictionist practices established by Sessions and Barr under Miller’s negative leadership should outrage all progressives and members of the NDPA. Progressives must demand that the Biden Administration get some due-process oriented, progressive competence installed at the DOJ to straighten out EOIR — a job that to date has proved to be beyond Garland’s ability!
They might also replace Garland’s incompetent “immigration PR team” at DOJ which continues to feed us BS and recycled Trump Administration propaganda that anybody with any familiarity with the Immigration Courts could tell you is pure, unadulterated BS! How insulting!
The millions of folks, including lawyers, caught up in EOIR’s web of restrictionist malicious incompetence deserve better than the insultingly tone-deaf Garland has delivered. Much better!
Progressive reform at EOIR is possible, and it isn’t a profound or long term project. Garland obviously isn’t up to the job. But, there are lots of progressive legal stars out here who can get the job done!
This also illustrates the continuing problem of Dem Administrations appointing AGs who are not experts in immigration and due process and who therefore fail to prioritize progressive immigration, human rights, and due process reforms. Far from being an “afterthought” or “low priority” these are the keys to equal justice and racial justice in America and probably the essential reforms on which the future of our entire democracy depends!
It also illustrates my point that in the future, nobody should become Attorney General, Secretary of DHS, an Article III Federal Judge, or an Immigration Judge unless they have represented individuals in Immigration Court — the critically important “retail level” of our justice system where the “rubber meets the road” of American justice. Right now, the “car is running on four flats” while Garland proves unable to change the tires!
We can’t afford any more of Garland’s “Amateur Night at the Bijou” approach to immigration, human rights, due process, personnel, and racial justice in America!
America needs to end “Amateur Night” at Garland’s EOIR and bring in qualified progressive human rights, immigration, due process leaders to fix the deadly mess before more lives are lost and more taxpayer funds wasted supporting and promoting “malicious incompetence!” PHOTO: Thomas Hawk Creative Commons Amateur Night
Second, the article about the grotesquely illegal abuse of the immigration bureaucracy by the Trump DHS to target and harass lawyers defending the due process rights and humanity of migrants shows just how deeply the cancer of the Trump kakistocracy penetrated into the broken immigration bureaucracy. Just another example of how completely broken, corrupt, and dysfunctional that bureaucracy has become.
It also demonstrates the treacherous stupidity of Garland continuing to tolerate problematic Trump/Miller “holdovers” and actually appointing “same old, same old” non-progressives recruited under Barr, Miller, and Trump to key “life or death Federal Judgeships.”
Additionally, it raises the question of how on earth will Garland’s DOJ effectively and credibly investigate racial justice issues in local policing and elections while Garland is running a White Nationalist, racist, misogynist, grotesquely unfair, regressive, “worst practices court system”at EOIR. Racial justice and competency reform needs to start “at home” — with Garland’s “wholly owned court system” that bears little or no resemblance to a “court of justice!”
Progressives who played a key role in electing Biden and Harris, on the basis of promises to return due process and progressive expertise to the Immigration Courts, and effectively getting Garland his job, need to make their opposition to Garland’s indolent, inexcusable, mis-handling of EOIR known to the Biden Administration and Dem leaders on the Hill! It’s time for progressives and due process advocates to stop letting yourselves be abused by those you have put in power!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Unless previously specified on the court status list, hearings in non-detained courts are postponed through, and including, June 11, 2021. (It is unclear when the next announcement will be. EOIR announced 6/11 on Wed. 4/28, 5/14 on Mon. 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
NYT: Should bipartisan talks stall, the Senate majority leader is exploring trying to use budget reconciliation to legalize millions of undocumented immigrants.
NYT Editorial Board: If the goal was to empty the United States of all those asylum seekers, Mr. Trump clearly failed, as evidenced by the huge backlog he left Mr. Biden. But the ease with which he imposed his will on the immigration courts revealed a central structural flaw in the system: They are not actual courts, at least not in the sense that Americans are used to thinking of courts — as neutral arbiters of law, honoring due process and meting out impartial justice.
The Hill: The first 17 hires to the court system responsible for determining whether migrants get to remain in the country is filled with former prosecutors and counselors for Immigration and Customs Enforcement (ICE) as well as a few picks with little immigration experience. See also The Director Of The Nation’s Immigration Courts Has Stepped Down.
WaPo: ICE deported 2,962 immigrants in April, according to the agency. It is the first time the monthly figure has dipped below 3,000, records show. The April total is a 20 percent decline from March, when ICE deported 3,716.
InTheseTimes: Gang databases have drawn criticism from national civil rights groups including Human Rights Watch and Detention Watch Network, which co-signed an April 1 petition calling on the Department of Homeland Security to end its discriminatory “prioritization” practices.
Intercept: A new report sheds light on how, despite orders from the Biden administration to narrow its immigration enforcement, ICE is still casting a wide net.
Buzzfeed: The proposals that have been discussed include Mexico officials prioritizing repatriating adults turned back by US border officials under a controversial Trump-era policy, increasing apprehensions of immigrants moving through their country to an average of 1,000 per day, and taking in more Central American families turned around at the border, according to the documents.
AP: In its haste to provide new facilities, the Department of Health and Human Services awarded the largest contracts — worth more than $2 billion — to two companies and a nonprofit without a bidding process and has exempted providers from the staffing requirements that state-licensed child facilities must meet, according to HHS and federal spending records.
CBS: The Department of Homeland Security (DHS) has scrapped plans formed under President Trump to expand the collection of biometric data — including voice prints and DNA — from anyone applying to enter the United States and their sponsors, including children.
RollCall: Led by Rep. Ritchie Torres, D-N.Y., the lawmakers warned that continued funding of the U.S. Immigration and Customs Enforcement program, known as the 287(g) program, will undermine trust in law enforcement within immigrant communities, discouraging undocumented immigrants from calling the police for help or reporting crimes.
Vox: After months of indecision and blowback from within his own party, President Joe Biden has finally raised the cap on refugee admissions for 2021 to 62,500 — but he has made clear he doesn’t think the US will actually admit that many people.
More Immigration Best Solution To U.S. Economic Decline And Continued World Leadership
Forbes: In their publication Room to Grow, National Immigration Forum’s president and CEO, Ali Noorani and his colleague Danilo Zak argue that the U.S. should increase net immigration levels by at least 37 percent, or about 370,000 additional immigrants a year, to prevent a “demographic deficit” stemming from low population growth.
AP: San Diego would be the first southern border county in the United States to provide legal representation for those in federal immigration custody who are facing removal proceedings, although more than 40 other places nationwide have similar programs.
Buzzfeed: The United States immigration system has been gutted by the pandemic — between threats of mass government furloughs during COVID, the near-complete shutdown of consular offices abroad, and former president Donald Trump’s hard line against immigration, the Biden administration has inherited not only a crisis at the southern border, but also a virtual freeze on marriage-based visa applications that has left couples stranded.
Gotham Gazette: At a virtual forum on Thursday night, four of the leading Democratic candidates for mayor in the June primary weighed in on issues affecting New York City’s large immigrant population, including housing, education, employment, and participation in the political process.
Law360: The Second Circuit revived an asylum bid from a Guatemalan immigrant who witnessed gang violence and helped a law enforcement investigation, ruling that the Board of Immigration Appeals hadn’t properly considered whether he fell into the right social group to claim deportation relief.
Law360: A split Third Circuit ruled Wednesday that the Board of Immigration Appeals and immigration judges have the authority to administratively close deportation proceedings, handing a win to a Mexican man hoping to renew his Deferred Action for Childhood Arrivals status after being freed of criminal charges.
Law360: The Third Circuit on Wednesday shot down a native Guatemalan’s challenge to an immigration judge’s jurisdiction over his case on the grounds that a referral notice initiating his removal proceedings did not have the date and time of a hearing, saying regulations do not require such information in that document.
Law360: The Third Circuit on Tuesday said a more than two-decade-old robbery conviction in New Jersey constituted an aggravated felony under the Immigration and Nationality Act and thus barred a Nigerian man from avoiding deportation amid fears he would face mistreatment in the West African nation due to his bisexuality.
The court held that DOJ’s regulations empower IJs to consider a petitioner’s application for an inadmissibility waiver under INA §212(d)(3)(A)(ii), and that an IJ’s ability to grant such a waiver is consistent with the statutory and regulatory scheme. (Jimenez-Rodriguez v. Garland, 4/29/21) AILA Doc. No. 21050433
Where the petitioner had been pardoned by the state of Georgia for drug and firearm offenses after DHS had sought to remove him based on his convictions, the court held that he did not exhaust his argument that pardoned offenses do not qualify as convictions. (Tetteh v. Garland, 4/27/21) AILA Doc. No. 21050432
The court concluded that the petitioner had raised no arguments against the BIA’s dispositive determination that his asylum application was statutorily time-barred, and found that substantial evidence supported the BIA’s denial of withholding of removal. (Guzman-Garcia v. Garland, 5/3/21)
Law360: An Eighth Circuit panel on Wednesday denied a Salvadoran man’s petition to avoid deportation from the United States, ruling that a grant of temporary protected status is not considered an admission for canceling removal proceedings.
Law360: North Dakota police officers accused of violating a Mexican man’s constitutional rights acted within their authority when they detained him during a burglary investigation on suspicion of being illegally present in the U.S., the Eighth Circuit ruled Monday.
Law360: The State Department urged a D.C. federal court Friday to throw out a lawsuit over the slow processing of K-1 fiance visas, arguing that the case is moot after the department issued a “national interest” exemption to aid the applicants.
DHS issued a statement noting that Secretary Mayorkas has ratified a rule that removes the 30-day EAD processing requirement for asylum applicants. AILA Doc. No. 21050745
DHS withdrawal of a proposed rule published at 85 FR 74196 on 11/19/20, which would have eliminated employment authorization eligibility for individuals who have final orders of removal but are temporarily released from custody on an order of supervision. (86 FR 24751, 5/10/21) AILA Doc. No. 21050731
DHS withdrawal of the proposed rule on the use and collection of biometrics in the enforcement and administration of immigration laws, which was published at 85 FR 56338 on 9/11/20. (86 FR 24750, 5/10/21) AILA Doc. No. 21050730
Following the issuance of new guidance limiting ICE and CBP civil enforcement actions in or near courthouses, ICE updated its FAQs on sensitive locations and courthouse arrests. AILA Doc. No. 18013142
EOIR announced 17 new immigration judges, including one assistant chief immigration judge and six unit chief immigration judges. The notice provides the judges’ names, courts of appointment, and biographical information. AILA Doc. No. 21050630
EOIR provided a flyer with instructions for individuals who have come to the United States after waiting in Mexico under the Migrant Protection Protocols (MPP). The flyer provides information on the individuals’ responsibilities and phone numbers to reach the immigration court helpdesk. AILA Doc. No. 21051030
The CIS Ombudsman’s Office issued a reminder that individuals who are eligible to renew their DACA and employment authorization may submit their renewal request between 150 days and 120 days before the expiration on their current Form I-797, Notice of Approval, and on the EAD. AILA Doc. No. 21051035
President Biden issued a proclamation suspending the entry into the U.S., as nonimmigrants, of certain individuals who were physically present in India during the 14-day period preceding their entry or attempted entry. This proclamation is effective at 12:01 am (ET) on 5/4/21. (86 FR 24297, 5/6/21) AILA Doc. No. 21043038
Of particular interest, and an item I haven’t previously covered, is the article from Forbes recommending that we increase legal immigration levels by at least 37% to remain competitive in the world. But, it certainly echoes and confirms things I have said on this blog.
I have talked about the total stupidity of the Trump White Nationalist war on immigration. To a lesser extent, the Biden Administration is repeating the same mistakes by illegally keeping the Southern Border largely closed, to asylum seekers, while “slow walking” both refugee admissions and a restart of our legal immigration programs.
Many of the great folks we need to get our country back on track and build for future prosperity and success are qualified refugees — asylum seekers in this case — being wrongfully turned around without due process. They are right there, on our borders, coming to us, and we’re too dense and discombobulated to reestablish a legal system to screen and admit those qualified for legal admission.
A fair, properly generous, professionally run and led, and expert-staffed asylum system could harness this power rather than not only squandering the human lives involved but wasting time and money on detention, “deterrents,” “incentives” for other nations to violate human rights, and other misguided and wasteful enforcement gimmicks.
Doubt what I’m saying? You shouldn’t! The last three decades of actual experience bear me out. We have approximately 11 million undocumented individuals in the U.S. right now. The vast, vast majority, probably about 95%, present no threat and are actually productive, often essential, contributing members of our society.
There’s your 350,000 per year additional that we should have been legally admitting over the past three decades! Of course, it would have been better if we had screened, vetted, and processed them in a timely manner. But, that’s hard to do when 1) our legal immigraton system was designed to intentionally disregard and work against “market forces;” and 2) we’ve wasted incredible amounts of human and monetary capital on counterproductive and wasteful “enforcement gimmicks.”
That’s why it’s high time to reform our legal refugee, asylum and immigration systems to make them much more robust, realistic, and in furtherance of our true national interests, rather than a fruitless pursuit of White supremacist myths. Instead of wasting time and money on expensive, counterproductive, and divisive immigration enforcement gimmicks, immigration enforcement could be targeted at the real problems — smugglers and cartels (whose business opportunities would be diminished by a “real world” immigraton system), and identifying the relatively small number of individuals seeking admission who present an actual (rather than imagined and overhyped) threat to our nation’s safety and security. Jobs in a more rational, focused, humane, and professional immigration bureaucracy would also be attractive to a wider range of Americans seeking employment,
This is hardly a “pipe dream” unless you listen only to right wing media and Trump-type “magamoron” nativist myths. Indeed thoughtful experts and scholars across the ideological spectrum — from the Center for Migration Studies to the Cato Institute — recommend some variation of the robust, courageous, forward-looking approach to immigration I have described above. A bigger problem, as always, is getting politicians to do the right thing.
But, after four years of perhaps the biggest and most preventable failureto deal intelligently with immigration since the end of World War II, it’s high time we tried a better approach.
Description:
After a tumultuous four years in immigration law, the Biden administration promised to make immigration reforms a priority. The term started off with a series of executive orders reversing some policies, directing implementation of new ones, and asking agencies to pause and reassess. This panel will explore what has changed in the first 100 days of the administration and what still needs to be done with regard to family separation, enforcement, and due process as well as humanitarian, family, and business immigration law.
Moderator:
Elizabeth Gibson, New York Legal Assistance Group (NYLAG)
Speakers:
Denise Bell, Amnesty International
Kennji Kizuka, Human Rights First
Claire Razzolini, Gibney Anthony & Flaherty, LLP
Aaron Reichlin-Melnick, American Immigration Council
Charles Wheeler, Catholic Legal Immigration Network, Inc. (CLINIC)
Program Fee:
Free for Members | Free for Non-Lawyers | $15 for Non-Member Lawyers
Non-Lawyers please call Customer Service at 212-382-6663 to register.
Presumably, the panel will discuss the ongoing failure of the Biden Administration & “Team Garland” to address the continuing due process disaster, institutionalized racism, and misogyny at EOIR.
We have just seen on refugee numbers how channeled public outrage and organized pressure can quickly turn around misguided nativist policies. How can the advocacy community, legal community, academia, humanitarians, religious groups, civil rights organizations, ethnic communities, and other members of NDPA unite to force Judge Garland to make the long, long, long overdue progressive changes in our Immigration Courts and to reinstitute at least some semblances of fairness, due process, and independence into this totally dysfunctional system until Congress creates an Article I Court?
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Unless previously specified on the court status list, hearings in non-detained cases at courts are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on Mon. 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
NYT: After a backlash from Democrats and human rights activists, the White House abruptly reversed course on Friday on the number of refugees it will allow into the United States, a reflection of President Biden’s continuing struggle with immigration policy.
Politico: Top White House officials have grown increasingly frustrated with Health Secretary Xavier Becerra over his department’s sluggish effort to house thousands of unaccompanied minors, as the administration grapples with a record number of children crossing the southern border.
WaPo: The change is detailed in memos sent Monday to department heads at Immigration and Customs Enforcement and Customs and Border Protection, the nation’s chief enforcers of federal immigration laws, according to copies obtained by The Washington Post. It is part of an ongoing effort to reverse President Donald Trump’s hard-line policies and advance Biden’s efforts to build a more “humane” immigration system.
Hill: The groups are concerned that immigration authorities could be abusing the facial recognition technology to locate, arrest and even deport individuals using data that they did not consent to share.
NPR: If confirmed by the Senate, Santos, who is Latinx, would be the first permanent director of color for the federal government’s largest statistical agency, which is in charge of major surveys and the once-a-decade head count used for distributing political representation and funding around the United States.
Documented: Interviews with local advocates and city data indicate that homelessness is rising locally and citywide, as the most marginalized residents struggle to recover from the pandemic.
Reuters: U.S. Supreme Court justices on Monday appeared reluctant to let people who have been allowed to stay in the United States on humanitarian grounds apply to become permanent residents if they entered the country illegally.
Reuters: A Canadian appeals court on Thursday upheld a Canada-U.S. agreement to turn back asylum seekers, overturning a lower court ruling, siding with the federal government and setting up a possible Supreme Court showdown.
Unpublished BIA decision reopens and terminates proceedings sua sponte upon finding selling a precursor substance (pseudoephedrine) under Okla. Stat. 2-328 is not a controlled substance offense under Mellouli v. Lynch. Special thanks to IRAC. (Matter of Nguyen, 7/9/20) AILA Doc. No. 21041400
Unpublished BIA decision holds that criminal possession of a weapon in the second degree under N.Y.P.L. 265.03(3) is not a firearms offense because it applies to loaded antique firearms. Special thanks to IRAC. (Matter of Disla, 6/26/20) AILA Doc. No. 21041200
Unpublished BIA decision holds that a defendant’s failure to understand the immigration consequences of a guilty plea is a substantive and/or procedural defect that vitiates a conviction for immigration purposes. Special thanks to IRAC. (Matter of Jaimes, 7/24/20) AILA Doc. No. 21041900
Unpublished BIA decision grants interlocutory appeal and remands for further consideration of unopposed motion to change venue from Atlanta to Seattle. Special thanks to IRAC. (Matter of Miranda-Rodriguez, 7/28/20) AILA Doc. No. 21041901
Unpublished BIA decision holds intimidation of a witness under Mass. Gen. Laws ch. 268, §13B is not a CIMT because it can be committed recklessly. Special thanks to IRAC. (Matter of Mendoza-Lopez, 7/22/20) AILA Doc. No. 21041602
Unpublished BIA decision finds respondent is entitled to hearing on non-LPR cancellation despite lack of qualifying relative because IJ unduly delayed adjudicating application until respondent’s U.S. citizen child was over 21. Special thanks to IRAC. (Matter of Martinez-Perez, 7/22/20) AILA Doc. No. 21041601
Unpublished BIA decision orders further consideration of request for continuance pending adjudication of U visa petition where IJ failed to adequately consider factors under Matter of Sanchez Sosa. Special thanks to IRAC. (Matter of Delgado-Sarmiento, 7/21/20) AILA Doc. No. 21041600
The BIA ruled that an IJ may rely on material misrepresentation during an interview before USCIS to remove the conditional basis of permanent residence in assessing inadmissibility under INA §212(A)(6)(C)(i) for purposes of adjustment of status. Matter of Mensah, 28 I&N Dec. 288 (BIA 2021) AILA Doc. No. 21041434
Unpublished BIA decision rescinds in absentia order where respondent filed motion within 15 days and submitted affidavit disavowing receipt of hearing notice. Special thanks to IRAC. (Matter of Suilma-Andrade, 7/9/20) AILA Doc. No. 21041402
Unpublished BIA decision holds unlawful possession of a controlled substance (methamphetamine) under Colo. Rev. Stat. 18-18-403.5 not a controlled substance offense under reasoning of Arellano v. Barr, 784 F. App’x 609 (10th Cir. 2019). Special thanks to IRAC. (Matter of Holod, 7/9/20) AILA Doc. No. 21041401
Unpublished BIA decision holds that the respondent did not fail to appear for his hearing where he arrived 20 minutes late and the IJ was still on the bench. Special thanks to IRAC. (Matter of Flores-Lopez, 7/2/20) AILA Doc. No. 21041201
Law360: A split Fourth Circuit panel overturned part of the Board of Immigration Appeals’ precedential holding that former gang members may not be protected as a group from deportation, finding that the board inappropriately conflated criteria for relief under federal immigration law.
In a published order, the court denied a motion for attorneys’ fees pursuant to the Equal Access to Justice Act (EAJA), concluding that the government’s position was substantially justified and thus that the petitioner was not entitled to attorneys’ fees. (Meza-Vazquez v. Garland, 4/1/21) AILA Doc. No. 21041230
The court held that the BIA permissibly found that first-degree burglary of a dwelling under Oregon Revised Statutes §164.225 is a crime involving moral turpitude (CIMT), and thus that petitioner’s conviction made him ineligible for cancellation of removal. (Diaz-Flores v. Garland, 4/6/21) AILA Doc. No. 21041234
Granting the petition for review of the BIA’s decision reversing an IJ’s grant of asylum, the court held that evidence compelled the conclusion that petitioner had established a nexus between her mistreatment in Mexico and her feminist political opinion. (Rodriguez Tornes v. Garland, 4/5/21) AILA Doc. No. 21041233
Denying the petition for review, the court held that the BIA properly found that petitioners, a mother and her son, were not persecuted “on account of” their alleged membership in a particular social group (PSG) consisting of the son’s immediate family. (Orellana-Recinos v. Garland, 4/5/21) AILA Doc. No. 21041235
The court held that a Florida conviction for being a felon in possession of a firearm is categorically an aggravated felony under INA §101(a)(43)(E)(ii), and thus found the petitioner to be removable based on his conviction under the Florida statute. (Aspilaire v. Att’y Gen., 4/6/21) AILA Doc. No. 21041237
Granting the petition for review and remanding, the court held that the BIA erred in finding that the petitioner, a denaturalized noncitizen, was removable as an aggravated felon based on convictions entered while he was an American citizen. (Hylton v. Att’y Gen., 3/31/21) AILA Doc. No. 21041236
The court held that the IJ and the BIA failed to provide reasoned consideration of the petitioner’s evidence of his well-founded fear of future persecution based on a pattern or practice of persecution toward dissident journalists in Cuba. (Martinez v. Att’y Gen., 4/7/21) AILA Doc. No. 21041238
Oral Arguments Set for Case on Policy Silencing IJs
Knight: Status: Oral argument scheduled for May 4, 2021 at 2pm. On July 1, 2020, the Knight Institute filed a lawsuit challenging a policy of the Executive Office for Immigration Review that imposes an unconstitutional prior restraint on the speech of immigration judges.
President Biden issued a determination revising the allocations for refugee admissions for FY2021 and maintaining the refugee admissions ceiling at 15,000. The memo notes that a subsequent determination may be issued to increase admissions if the ceiling is reached before the end of the fiscal year. AILA Doc. No. 21041633
USCIS sent a letter to interagency partners stating that the 2019 Public Charge final rule is no longer in effect, and that DHS intends to partner with federal agencies, state and local governments, and nongovernmental stakeholders to ensure applicants and the public are aware of this change. AILA Doc. No. 21041632
On Facebook, DOS provided FAQs on the immigrant visa backlog, including on what DOS is doing to reduce the backlog, reapplication procedures for individuals who were refused an immigrant visa due to Presidential Proclamations 9645 and 9983, K visas, diversity visas, employment visas, and more. AILA Doc. No. 20071435
Law360: U.S. Sen. Cory Booker, D-N.J., reintroduced legislation on Thursday that would abolish contracts with private immigration detention centers and aim to improve conditions at facilities operated or overseen by the U.S. Department of Homeland Security.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”“The Maelstrom” Bjorklunden
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Unless previously specified on the court status list, hearings in non-detained cases at courts are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
NYT: The parents of 61 migrant children who were separated from their families at the U.S.-Mexico border by the Trump administration have been located since February, but lawyers still cannot find the parents of 445 children, according to a court filing on Wednesday.
NYT: Trump tried to end a 30-year program that shielded migrants, many fleeing conditions that U.S. foreign policy helped foster. What does America owe them?
WaPo: The agent recorded the interaction, which was widely shared on the Internet, seen by many as a glimpse into the desperation of unaccompanied children arriving at the U.S.-Mexico border.
NYT: The fund, which could provide payments to hundreds of thousands of people excluded from other pandemic relief, ignited a battle among state lawmakers before it was approved.
WaPo: It is unsurprising that the needs of women facing persecution were not considered in 1951. It is also not surprising — though it is disappointing — that Congress wrote this outdated framework into the Refugee Act of 1980.
The BIA ruled that an applicant may seek withholding of removal from a country even if that country is different from the country of removal originally designated in the reinstated removal order on which the withholding-only proceedings are based. Matter of A-S-M-, 28 I&N Dec. 282 (BIA 2021) AILA Doc. No. 21040936
The court upheld the BIA’s determination that the central reason for the Salvadoran petitioner’s claimed harm was his unwillingness to join the MS-13 gang—not his Christian faith or his faith-related activities. (Sánchez-Vásquez v. Garland, 4/7/21) AILA Doc. No. 21040938
The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen filed nearly 11 years after the denial of his cancellation of removal application, finding that he did not show that equitable tolling was warranted. (Quiroa-Motta v. Garland, 4/6/21) AILA Doc. No. 21040933
The court held that res judicata did not bar the government’s second charge of removability against the petitioner, because the second removability charge was based on a different statutory provision and was unavailable when the first charge was brought. (Cruz Rodriguez v. Garland, 4/1/21) AILA Doc. No. 21040939
Withdrawing its opinion filed on 7/10/20, the court held that the BIA did not abuse its discretion in holding that petitioner, who had been convicted three times of petty theft under California Penal Code §484(a), was removable pursuant to INA §237(a)(2)(A)(ii). (Silva v. Garland, 3/30/21) AILA Doc. No. 21040940
Law360: The Ninth Circuit on Thursday declined to reconsider its decision to halt the Trump administration’s policy restricting asylum for migrants who cross through another country on the way to the U.S., rejecting the government’s argument that the July opinion was riddled with errors.
Law360: A split Ninth Circuit on Thursday denied a bid by Republican attorneys general to revive the “public charge” rule, with U.S. Circuit Judge Lawrence VanDyke dissenting to say that the Biden administration ensured that the rule “was gone faster than toilet paper in a pandemic.”
Law360: The Eleventh Circuit revived a Cuban journalist’s bid for asylum, finding that the immigration courts overlooked and “plainly misstated” evidence that the asylum-seeker had a well-founded fear of future persecution if returned to Cuba.
Law360: The Eleventh Circuit will not overturn the conviction that stripped a man of his citizenship after he pled guilty to lying on a citizenship form question that asked whether he had ever committed a crime for which he had not been arrested.
Law360: A New Hampshire federal judge has denied U.S. Customs and Border Patrol’s dismissal bid in a suit accusing the agency of unlawfully detaining a man at a traffic checkpoint before he was charged for having hash oil, though the court let a border patrol agent out of the case.
Law360: An unauthorized immigrant who says U.S. Immigration and Customs Enforcement targeted him for his activism urged the Second Circuit to maintain jurisdiction over his deportation case, arguing that his claims of illegal retaliation should not be rendered moot because of the government’s repeated delays.
Law360: A class of immigrants challenging a national security program that they claim illegally delays Muslims’ immigration applications urged a Washington federal judge Monday to reject the government’s bid to exclude testimony from three witnesses, saying they are among the foremost experts on the topic offering opinions and not legal conclusions.
AILA and partners filed a complaint on behalf of a class of noncitizens who have been prevented from entering the U.S. due to an unlawful suspension of visa processing. (Kinsley, et al., v. Blinken, et al., 4/7/21) AILA Doc. No. 21040834
DOS announced that the travel of immigrants, fiancé(e) visa holders, certain exchange visitors, and pilots/aircrew traveling for training or aircraft pickup, delivery, or maintenance is in the national interest for purposes of approving exceptions under proclamations restricting travel due to COVID. AILA Doc. No. 20071733
CBP issued guidance to its Carrier Liaison Program on the current boarding policy for lawful permanent residents (LPRs) attempting to reenter the United States who may possess valid or expired documents, depending on the document in possession. The guidance is effective as of March 5, 2021. AILA Doc. No. 21040934
The traditional bureaucratic solution: When you lack the expertise, will, and courage to solve a problem, just aimlessly throw people and taxpayer’s money at it. Actually, somewhat resembles “Trump’s wall.” And likely to be just as effective!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Unless previously specified on the court status list, hearings in non-detained cases at courts are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
NPR: The plan the Biden administration is considering to speed up the process would take some asylum cases from the southern border out of the hands of the overloaded immigration courts under the Department of Justice. Instead, it would handle them under the purview of the Department of Homeland Security, where asylum officers already process tens of thousands of cases a year, two people familiar with the discussions who were not authorized to speak about administration plans told NPR exclusively.
WaPo: A new poll by The Associated Press-NORC Center for Public Affairs Research also shows that solving the problem of young people at the border is among Americans’ highest immigration priorities: 59% say providing safe treatment of unaccompanied children when they are apprehended should be a high priority, and 65% say the same about reuniting families separated at the border.
Intercept: LexisNexis signed a $16.8 million contract to sell information to U.S. Immigration and Customs Enforcement, according to documents shared with The Intercept. The deal is already drawing fire from critics and comes less than two years after the company downplayed its ties to ICE, claiming it was “not working with them to build data infrastructure to assist their efforts.”
Vox: President Joe Biden is reportedly not seeking to renew the ban, which expired Wednesday after Trump extended it in December, citing concerns that foreign workers could threaten employment opportunities for Americans who were laid off as a result of the Covid-19 pandemic.
BuzzFeed: United States Citizenship and Immigration Services officials are planning to remove references to immigrants as “aliens” in the agency’s policy manual more than a year after the term was inserted into the guidance during the Trump administration, according to government documents obtained by BuzzFeed News.
DocumentedNY: A measure currently planned for New York’s next budget would provide more than $2 billion in cash assistance for New Yorkers who have been ineligible for federal relief payments during the pandemic, including many farm workers, service employees, street vendors, and undocumented laborers who often earn cash wages in the informal economy. But state lawmakers and workers rights advocates say Governor Andrew Cuomo is pushing for a two-tiered system of access to the Excluded Worker Fund that would distribute benefits based on burdensome proof-of-employment requirements.
EOIR issued a policy memo (PM 21-18) implementing a revised case flow processing model for certain non-detained cases with representation in immigration courts. EOIR concurrently cancelled PM 21-05. The memo is effective April 2, 2021. AILA Doc. No. 21040237. See also EOIR Cancels Policy Memo 21-05 on Enhanced Case Flow Processing.
Following Matter of Lopez-Meza, the BIA ruled that the offense of aggravated unlicensed operation of a motor vehicle in the first degree in violation of §511(3)(a)(i) of the New York Vehicle and Traffic Law is categorically a CIMT. Matter of Vucetic, 28 I&N Dec. 276 (BIA 2021) AILA Doc. No. 21033133
BIA ruled that the “offense clause” of the federal conspiracy statute, 18 USC §371, is divisible and the underlying substantive crime – selling counterfeit currency in violation of 18 USC §473 in this instance – is an element of the offense. Matter of Al Sabsabi, 28 I&N Dec. 269 (BIA 2021) AILA Doc. No. 21032934
The court held that the BIA did not abuse its discretion in concluding that the petitioner had failed to rebut the presumption of delivery of the briefing schedule, transcript, and IJ’s written decision, finding that his counsel’s declarations were insufficient. (Njilefac v. Garland, 3/24/21) AILA Doc. No. 21033036
The court held that substantial evidence supported the BIA’s determination that the petitioner—a 22-year-old Christian woman who claimed she had been targeted by gangs in El Salvador—could relocate to another part of El Salvador if forced to return. (Guatemala-Pineda v. Garland, 3/26/21) AILA Doc. No. 21033038
The court held that the BIA and IJ erred in misunderstanding the petitioner’s proposed social group comprised of “El Salvadoran men with intellectual disabilities who exhibit erratic behavior” for purposes of asylum and withholding relief. (Acevedo Granados v. Garland, 3/24/21) AILA Doc. No. 21033039
Law360: New Jersey judges may not order a pre-trial detention for unauthorized immigrants who are charged with crimes in order to prevent federal authorities from deporting them, according to a ruling from the state’s highest court.
A California federal court sanctioned the U.S. Department of Homeland Security and the U.S. Customs and Border Protection, adopting a magistrate judge’s report calling out “negligent destruction” of evidence amid litigation that asylum-seekers were turned away at the Southern border.
USCIS confirmed that it will no longer reject Form I-589, Form I-612, or Form I-918 if an applicant leaves a blank space. USCIS stated that it has reverted to the form rejection criteria it applied before October 2019 regarding blank responses for all forms. AILA Doc. No. 21040135
DOS updates its announcement and FAQs on the phased resumption of visa services following the expiration of Presidential Proclamation 10052, which suspended the entry of certain nonimmigrant visa applicants into the United States. AILA Doc. No. 20071435
ICE announced that it has extended the flexibilities in rules related to Form I-9 compliance during the COVID-19 pandemic until May 31, 2021. The extension includes guidance for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. AILA Doc. No. 20032033
Better late than never! Liz & I were pretty busy this week!
OK, so here’s why Liz and I are “a team” for the NDPA!
Liz went first on our HNBA Panel on Wednesday night! She described the problems in Immigration Court as being “kinda too dry and highly technical for most people to get excited about.”
There it was, nice and soft, lingering just above the net, inviting my “monster spike!” 🏐 I let loose with my most colorful, down-to-earth, “tell it like it is in plain language” — no section numbers — broadside about the due process crisis in our “Clown Courts”🤡 and how it not only brings down our entire justice system, but also poses a real, existential threat to America’s Hispanic communities that they can only ignore at their peril! Death on your doorstep! ☠️⚰️ That shouldn’t be too dry or technical for the masses to understand!
Having an unqualified, highly-non diverse, restrictionist tilting, out of control judiciary “Dred Scottfying” 🤮 individuals of color, particularly Hispanic women and children, on a daily basis and getting away with it is no laughing matter!
Also, as I stated, if talented Hispanic lawyers want to stop being beaten up in Immigration Court and to finally gain “entree” into a now highly non-diverse, uneducated, often clueless Article III Judiciary that frequently diminishes their professional achievements while dehumanizing and abusing their clients, then “Houston, we’ve got a problem!”
Judge Merrick Garland, who controls all U.S. Immigration Court appointments, appears determined to follow in the footsteps of his Dem predecessors by:
failing to meaningfully reform the existing dysfunctional, non-diverse, non-expert Immigration Judiciary (nearly 600 stong, making it the largest “entry level opportunity” in “Federal Judging”) by getting rid of the “deadwood” and re-competing these “life or death” jobs with merit-based selection criteria that honor immigration and human rights expertise, require demonstrated commitment to due process above all else, recognize the crucial experience gained by representing humans in Immigration Court, and have a selection process involving acknowledged private sector immigration experts (not just Government bureaucrats, many of whom have neither represented an individual in Immigration Court nor heard an asylum case in a judicial capacity);
failing to actively, aggressively, and nationally publicize, hype, and recruit for these judicial jobs in under-represented communities of minority lawyers (basically, systematically excluded from the Immigration Judiciary in the past) using available minority legal “role models” to drum up interest and “sell” the jobs to those who haven’t applied in the past (perhaps because of EOIR’s recent reputation for hostility toward individuals of color and disdain for human rights and due process, as well as their reputation for sloppy judicial work product) — to state the obvious, simply posting bureaucratic descriptions on “USA Jobs” is a joke — designed to repeat the “insiders only” non-diverse, non-expert composition of the current Immigration Courts; and
intentionally ignoring (it ain’t rocket science) the incredible potential of an independent, diverse, highly qualified, “model” Immigration Judiciary as a transition to a long overdue Article I Immigration Court and a “stepping stone” for a more diverse, progressive, immigration-human rights-due process oriented (as actually applied in communities of color throughout America) Article III Judiciary, which is also reeling right now, largely as a result of its lack of diversity, skewed legal knowledge, and lack of sensitivity and commitment to equal justice for all in America.
Folks, Judge Garland and his team at DOJ have made it clear by their lack of constructive actions, ongoing failure to denounce and take action against the inferior work product coming out of the Immigration Courts (that actually puts the lives of minority individuals in jeopardy), unwillingness to meaningfully engage with the immigration and human rights community, and ridiculous failure to enlist experts from the NDPA on their “A-Team” to clean-up the unmitigated disaster at EOIR: This is not going to happen without a fight! A “knock-down, drag ‘em out fight!”
Immigration and human rights advocates are dealing with the daily bias, lousy judging, inane precedents, and health-threating conditions in the muck-hole known as “Immigration Court!” Meanwhile, buddies of neo-Nazi restrictionists Stephen MIller and Gene Hamilton are still drawing fat paychecks in senior positions at EOIR where they can continue to tramp on the legal rights of you and your clients and to further screw up the already totally dysfunctional Immigration Courts. Studies, bogus “Town Meetings,” focus groups, and a few cosmetic bureaucratic changes that don’t scratch the surface aren’t going to hack it! Never have, never will! Even I know that!
If that doesn’t make sense to you, then it’s time to take aggressive concerted action to stop Judge Garland from continuing to run American justice into the ground — over your bodies and your clients’ legal and human rights!
“Eyore In Distress” “If this isn’t YOUR vision of immigrants’ rights and equal justice in America, then YOU need to let Judge Garland know! Demand better! Demand due process! Demand expertise! Demand respect for human dignity! Demand an end to the DOJ’s decades-long mismanagement of, and improper interference with, the fair functioning of our Immigration Courts! Demand courts that “guarantee fairness and due process for all,” the original EOIR vision! Set poor Eyore free!”
🇺🇸⚖️🗽Due Process Forever! Put an end to deadly ☠️ “Clown Courts!”🤡 Demand “Equal Justice for All!” It’s a right, not an option!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, April 16, 2021. (It is unclear when the next announcement will be. EOIR announced 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
Pew: To better understand the existing U.S. immigration system, we analyzed the most recent data available on federal immigration programs. This includes admission categories for green card recipients and the types of temporary employment visas available to immigrant workers. We also examined temporary permissions granted to some immigrants to live and work in the country through the Deferred Action for Childhood Arrivals and Temporary Protected Status programs.
TRAC: As of the end of President Biden’s first full month in office, the number of individuals arrested by ICE and booked into civil immigrant detention fell sharply from 5,119 ICE book-in arrests during January 2021 to just 1,970 during February 2021. According to the latest ICE figures, this was a drop of 62 percent just in a single month.
NPR: The U.S. government had 4,276 unaccompanied migrant children in custody as of Sunday, according to a Department of Homeland Security document obtained by NPR. The children are spending an average of 117 hours in detention facilities, far longer than the 72 hours allowed by law.
NBC: Restrictions on what border agents can share with the media were passed down verbally, say officials. Some have released videos of the border surge anyway. See also How Border Patrol Manipulates Media.
CNN: Senate Majority Whip Dick Durbin said Sunday that he thinks he is “close” to securing the Republican votes needed to overcome a Senate filibuster to advance a key immigration measure that would provide a pathway to citizenship for undocumented immigrants who were brought to the United States as children.
USCIS: USCIS stopped applying the Public Charge Final Rule to all pending applications and petitions on March 9, 2021. USCIS removed content related to the vacated 2019 Public Charge Final Rule from the affected USCIS forms and has posted updated versions of affected forms. See also Withdrawal of USCIS Proposed Rule on Affidavit of Support Requirements.
Law360: The House on Thursday approved two major immigration proposals that would provide a path to lawful status and eventual citizenship for several million “Dreamers” brought to the country as children and farmworkers working without authorization in American agriculture.
The court vacated and remanded the BIA’s decision affirming the IJ’s adverse credibility determination, finding that alleged discrepancies between the petitioner’s interview account and his hearing account failed to support the adverse credibility finding. (Cuesta-Rojas v. Garland, 3/15/21) AILA Doc. No. 21031737
Where the petitioner cited two post-2006 events as evidence of changed country conditions, the court held that the BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious, and reversed the BIA’s denial of his motion to reopen. (Lucaj v. Wilkinson, 3/10/21) AILA Doc. No. 21031732
Law360: The First Circuit on Wednesday refused to disturb a Massachusetts federal court’s decision denying bail to several immigration detainees convicted of violent crimes, finding that it was reasonable to decide the detainees still belonged behind bars in the midst of the COVID-19 pandemic.
Where the Guatemalan petitioner’s Notice to Appear (NTA) was delivered in English, the court rejected her argument that the NTA violated her due process rights because it did not detail in her native language the consequences of failing to attend her proceeding. (Lopez v. Garland, 3/12/21) AILA Doc. No. 21031733
Law360: The Seventh Circuit on Monday squashed an attempt by 14 states led by Texas to revive the Trump administration’s public charge policy, which penalizes immigrants for using certain public benefits, after the Biden administration decided not to defend it.
The court held that the categorical approach does not require a petitioner seeking cancellation of removal to show that there is a realistic probability the state prosecutes people for the conduct that makes the state offense broader than the federal offense. (Gonzalez v. Wilkinson, 3/9/21) AILA Doc. No. 21031738
The court held that the BIA did not err in determining that the petitioner’s conviction for second-degree felony assault in Minnesota was a particularly serious crime barring statutory withholding of removal and Convention Against Torture (CAT) relief. (Jama v. Wilkinson, 3/11/21) AILA Doc. No. 21031739
The court remanded petitioner’s Convention Against Torture (CAT) claim to the BIA for reconsideration in light of the fact that the IJ took judicial notice of, and relied upon, DOS’s Country Report, yet the BIA’s decision did not take it into account. (Aguilar-Osorio v. Garland, 3/15/21) AILA Doc. No. 21031744
The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen after determining that the petitioner had failed to present evidence demonstrating that country conditions in Mexico had changed since his 2003 removal order. (Rodriguez v. Garland, 3/15/21) AILA Doc. No. 21031741
The court held that substantial evidence supported the BIA’s determination that the Salvadoran petitioner had failed to establish past harm rising to the level of persecution, and concluded that her proposed social groups were not cognizable. (Villegas Sanchez v. Garland, 3/11/21) AILA Doc. No. 21031740
The court held that Matter of G-G-S- was not arbitrary or capricious, and that BIA applied the correct legal standard in determining that petitioner’s convictions were for particularly serious crimes rendering him ineligible for withholding of removal. (Birhanu v. Wilkinson, 3/9/21) AILA Doc. No. 21031745
Law360: A federal judge on Thursday ordered U.S. Immigration and Customs Enforcement to facilitate vaccinations of immigrants detained at the agency’s Buffalo Service Processing Center in upstate New York.
Law360: Three nonprofit organizations have sued Arizona’s attorney general in federal court seeking the cancellation of an agreement requiring the state’s input in federal immigration policies, saying the Trump administration official who made the arrangement lacked the authority to do so.
ASISTA: Safe Horizon and ASISTA File Lawsuit Against USCIS and DHS, Seeking Information on Policy Change Making it More Difficult for Victims of Serious Crime to Obtain Relief Under the U-Visa Program.
On March 11, 2021, HHS ORR and ICE and CBP signed a Memorandum of Agreement (MOA) regarding consultation and information sharing in matters relating to unaccompanied children. The April 13, 2018, MOA among the agencies dealing with UAC matters has been terminated. AILA Doc. No. 21031235
Law360: U.S. Citizenship and Immigration Services will no longer rule out petitions for special status from mistreated youth based on state courts’ failure to assess whether they have ties to gangs, a policy change stemming from a class settlement last year.
EOIR issued a policy memo (PM 21-16) rescinding and cancelling PM 20-01, Case Processing at the Board of Immigration Appeals. Upon this rescission, the BIA returns to the case management system established by regulation that was effective on 9/25/02 to manage the Board’s caseload. AILA Doc. No. 21031748
Advance copy of USCIS and EOIR interim final rule further delaying until 12/31/21 the effective date of the final rule “Security Bars and Processing” (85 FR 84160) which had been scheduled to become effective on 3/22/21. Public comment is also sought on whether the rule should be revised or revoked. AILA Doc. No. 21031930
Advance copy of USCIS final rule extending the expiration date of the temporary final rule on interpreters at asylum interviews published at 85 FR 59655, which was originally scheduled to expire on 3/22/21, for 180 days. The final rule will be published in the Federal Register on 3/22/21. AILA Doc. No. 21031932
CBP issued a notification of the continuation of temporary travel restrictions limiting travel of individuals from Mexico into the United States at land ports of entry along the United States-Mexico border through 4/21/21 due to COVID-19. (86 FR 14813, 3/19/21) AILA Doc. No. 21031934
USCIS notice extending the designation of Syria for TPS for 18 months, from 3/31/21 through 9/30/22, and redesignating Syria for TPS for 18 months, effective 3/31/21 through 9/30/22. (86 FR 14946, 3/19/21) AILA Doc. No. 21012930
Check out item #7 under “Top News,” the story from the WashPost of Agnes Lee, the new Editor-in-Chief of the Georgetown Law Journal. In addition to being a brilliant and accomplished student, she happens to be an undocumented resident of the U.S. Congrats to Agnes, the Law Journal, and the entire Georgetown Law community!
⚖️Shout Out for Georgetown Law Students:
Of course, never missing an opportunity to “self-promote,” I heartily encourage current Georgetown Law students who wish to learn and engage in active dialogue about immigration, social justice, and racial justice in America today, as well as to pick up pointers on how to actually practice law, to register for my “compressed semester, 2-credit course Immigration Law & Policy” to be given this June (in person, and virtual options).
Thanks to the great group of students, it’s always a lively, engaged, and diverse group researching, presenting, and discussing perhaps the most important (and misunderstood) current topic for America’s and the word’s future — one on which, sad to say, the myths, false narratives and misinformation are rampant, spreading even as I write this.
While I provide an outstanding “practice oriented” text, the class topics, abundant study questions, a challenging but very “doable” final exam, along with the inevitable anecdotes and “war stories” from my nearly 50-year career, the students actually control the substance though their own research on current and historical events and sharing of personal experiences with the immigration system (everybody has some, whether they realize it or not). It’s also a chance to “network and bond” with a group of wonderful colleagues who can “be there for you” throughout your careers.
Indeed, I hope to put together a panel of “young superstars”🌟 of the New Due Process Army,🌟 including former students/and or court interns, who can share their career experiences on “why they chose to make a difference in human lives and how they have accomplished it.” Additionally, one of the best “up and coming” minds in the business, my friend Professor Cori Alonso Yoder, currently a Visiting Professor at Georgetown Law, has offered to meet with the class to share some of her knowledge and real life experiences with “Life-saving 101.” So, it should be a vibrant an exciting month. Don’t miss it!
Also, despite the seriousness of the topic, we always have some fun doing it!
Also, remember, NDPA superstar🌟 Liz Gibson, of “The Gibson Report,” is one of my former Georgetown Law students, a CALS Asylum Clinic veteran, a former Arlington Immigration Court intern, a former Judicial Law Clerk at the NY Immigration Court, and an alum of the prestigious Immigrant Justice Corps! In a relatively short time, Liz has used her skills, knowledge, and training to make a lifetime’s worth of “real life positive impact” on the lives and futures of our fellow humans!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, April 16, 2021 (It is unclear when the next announcement will be. EOIR announced 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28). There is no announced date for reopening NYC non-detained at this time.
SCOTUSblog: Just over two weeks after the Supreme Court announced that it would review the Trump administration’s “public charge” rule, which governs the admission of immigrants into the United States, the case (as well as two others presenting the same question) was dismissed on Tuesday, at the request of the Biden administration and the opponents who sued over the rule. See also States seek to take over defense of ‘public charge’ rule; A Supreme Court showdown over Trump’s legacy ends with a whimper.
Roll Call: He will lead a department that oversees the nation’s immigration courts, investigates civil rights violations at local law enforcement agencies or in voting laws, and scrutinizes business mergers in technology, health care and other industries.
Politico: The House is poised to vote on two immigration bills this week, both narrower pieces of legislation while Democrats weigh how ambitious to go with President Joe Biden’s comprehensive immigration plan. All of this is unfolding amid a growing debate about how to address the surging numbers of migrant children and families being detained at the U.S.-Mexico border.
NYT: More than 715 refugees from around the world who expected to start new lives in the United States have had their flights canceled in recent weeks because President Biden has postponed an overhaul of his predecessor’s sharp limits on new refugee admissions. Agencies that assist refugees poised to enter the country were notified by the State Department this week that all travel would be suspended until the president sets a new target for admissions this year.
WaPo: The number of immigrants taken into custody by ICE officers fell more than 60 percent in February compared with the last three months of the Trump administration, according to data reviewed by The Washington Post. Deportations fell by nearly the same amount, ICE statistics show.
WaPo: The coronavirus has been running rampant for months through Immigration and Customs Enforcement’s network of jails holding civil immigration detainees fighting deportation — but the agency has no vaccination program and, unlike the Bureau of Prisons, is relying on state and local health departments to procure vaccine doses. See also A border community, ICE at odds over release of detainees with covid.
NPR: The United States will offer temporary protected status to people from Myanmar who fear returning home, the Biden administration said Friday, as it tries to ratchet up pressure on military coup leaders in the Southeast Asian country, and provide protection to some of those criticizing it.
Law360: A bill introduced in the House on Monday would remove marijuana offenses and chronic alcohol abuse from the list of reasons to reject or mark down an application for U.S. citizenship.
CNN: Gelatt cautioned that we don’t yet know how the Internal Revenue Service will interpret the law with regard to the eligibility of undocumented people who have Social Security numbers. The IRS did not respond to a request for comment.
ImmProf: Sanchez v. Mayorkas (April 19): Whether an immigrant who enters the United States without proper authorization but receives “temporary protected status” can become a lawful permanent resident. United States v. Palomar-Santiago (April 27): Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on the misclassification of a prior conviction.
Advance copy of USCIS final rule removing from the Code of Federal Regulations the regulatory text that DHS promulgated in the August 2019 public charge rule and restoring the regulatory text to appear as it did prior to the issuance of the August 2019 rule. AILA Doc. No. 21031142
A district court granted a motion for preliminary injunction and enjoined nationwide implementation of EOIR’s 12/16/20 final rule that made drastic changes to the procedures and regulations governing immigration courts. (Centro Legal De La Raza, et al., v. EOIR, et al., 3/10/21) AILA Doc. No. 21031134
DOS announced DHS and DOS have initiated phase one of reinstituting the CAM program to reunite qualified Central American children with their parents who are lawfully present in the U.S. The first phase will process eligible applications that were closed when the program was terminated in 2017. AILA Doc. No. 21031035
DHS and HHS issued a joint statement announcing the termination of a 2018 agreement that “had a chilling effect on potential sponsors . . . from stepping up to sponsor an unaccompanied child placed in the care of HHS.” In its place, HHS and DHS have signed a new agreement. AILA Doc. No. 21031235
DHS Secretary Mayorkas designated Burma for TPS for 18 months. Individuals who can demonstrate continuous residence in the United States as of March 11, 2021, are eligible for TPS under Burma’s designation. A forthcoming Federal Register notice will detail eligibility criteria. AILA Doc. No. 21031241
USCIS notice designating Venezuela for Temporary Protected Status (TPS) for 18 months, effective 3/9/21 through 9/9/22. The notice also provides information about Deferred Enforced Departure (DED) and DED-related EADs for eligible Venezuelans. (86 FR 13574, 3/9/21) AILA Doc. No. 21030846
On March 4, 2021, the Supreme Court dismissed the petition for certiorari based on a joint stipulation to dismiss filed by the parties. (Wilkinson v. City and County of San Francisco, 3/4/21) AILA Doc. No. 17042533
Following Matter of Wu, the BIA ruled that conviction for assault by means of force likely to produce great bodily injury in violation of §245(a)(4) of the California Penal Code is categorically one for a CIMT. Matter of Aguilar-Mendez, 28 I&N Dec. 262 (BIA 2021) AILA Doc. No. 21031234
Law360: A U.S. citizen in Connecticut and her adult daughter in the United Kingdom can reunite stateside after a Second Circuit panel affirmed the younger woman’s eligibility for an immediate-relative visa on Tuesday, even though she turned 21 before her mother naturalized.
AILA has recently been made aware that USCIS will be reaching out to stakeholders in the coming days whose I-485 applications were rejected for failure to complete boxes 9.a. and 10 in Part 2 of the Form I-485 with instructions on how to refile their application with USCIS. AILA Doc. No. 21010510
Notably, Stephen Miller’s cruel, stupid, racist, and counterproductive “public charge” rules were finally put to bed by the Biden Administration after unnecessarily protracted rancorous litigation.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, April 16, 2021 (The timing of postponement notices has been inconsistent and it is unclear when the next announcement will be. EOIR announced 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28). There is no announced date for reopening NYC non-detained at this time.
WaPo: The Biden administration is preparing to convert its immigrant family detention centers in South Texas into Ellis Island-style rapid-processing hubs that will screen migrant parents and children with a goal of releasing them into the United States within 72 hours, according to Department of Homeland Security draft plans obtained by The Washington Post.
WaPo: The Biden administration on Monday declared an estimated 320,000 Venezuelan migrants in the United States eligible for temporary protected status, a category of legal residence that would open a path to U.S. citizenship for them under the immigration bill President Biden sent to Congress last week.
BuzzFeed: The new program, which establishes the ICE Case Review Process led by a senior reviewing officer based in Washington, DC, is part of President Joe Biden’s efforts to overhaul the agency and reform not only how it works but which immigrants are arrested and detained.
NBC: The allegations were detailed in 13 complaints the ACLU filed against Customs and Border Protection, or CBP, during the Trump administration. The lawyers said in a letter that so far they have no indication that any action has been taken either to punish the officers or to reform the agency to prevent abuse and respond to such allegations.
Politico: The issue of what to do with Biden’s comprehensive immigration plan has bedeviled Speaker Nancy Pelosi and her leadership team, particularly after a disappointing whip count came back this week showing they don’t yet have the votes to pass the bill on the floor, according to people familiar with the talks.
CMS: The undocumented population continued to decline in 2019, falling by 215,000 compared to 2018; this population has declined by 1.4 million, or 12 percent, since 2010.
Reuters: The administration filled two-thirds of the immigration courts’ 520 lifetime positions with judges who, as a whole, have disproportionately ordered deportation, according to a Reuters analysis of more than 800,000 immigration cases decided over the past 20 years.
The Supreme Court affirmed the Eighth Circuit decision, and found that under the INA, certain nonpermanent individuals seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime. (Pereida v. Wilkinson, 3/4/21) AILA Doc. No. 21030435
Law360: The U.S. Supreme Court dropped a trio of lawsuits concerning state and local cooperation with federal immigration authorities, winding down a yearslong battle during the Trump administration over so-called sanctuary cities.
The court held that determining whether a labor certification application (LCA) is approvable when filed requires a holistic inquiry, and found that the BIA had failed to keep its focus on that inquiry in the course of its evaluation of the petitioner’s LCA. (Oliveira v. Wilkinson, 2/22/21) AILA Doc. No. 21030336
Law360: The First Circuit denied a Rwandan woman’s habeas corpus petition on Wednesday, finding that a faulty jury instruction that had led to her criminal conviction would not have yielded a different outcome if corrected.
The court held that the petitioner’s negative view of gangs did not amount to a political opinion for asylum purposes, and that substantial evidence supported the BIA’s decision that he did not establish a likelihood of future torture in El Salvador. (Zelaya-Moreno v. Wilkinson, 2/26/21) AILA Doc. No. 21030834
The court found that the BIA correctly determined that the petitioner’s Pennsylvania conviction for strangulation was a particularly serious crime, and concluded that the agency’s adverse credibility finding was supported by substantial evidence. (Sunuwar v. Att’y Gen., 2/25/21) AILA Doc. No. 21030835
Where petitioner asserted that she and her husband had been subjected to death threats by a gang in Honduras, the court held that the BIA had improperly discounted her corroborating evidence, including affidavits, burial permits, and other documentation. (Arita-Deras v. Wilkinson, 3/4/21) AILA Doc. No. 21030837
The court upheld the BIA’s decision denying petitioner’s motion to reopen, finding she did not have a constitutionally protected interest in receiving a second try at a cancellation of removal proceeding because a grant of relief would be discretionary. (Baker White v. Wilkinson, 3/4/21) AILA Doc. No. 21030838
The court held that the petitioner’s conviction for importing, manufacturing, or dealing in firearms without a license was categorically an “illicit trafficking in firearms” aggravated felony under INA §101(a)(43)(C) that rendered him ineligible for asylum. (Chacon v. Wilkinson, 2/18/21) AILA Doc. No. 21030337
The court held that the BIA erred in finding that the petitioner did not qualify for an exception to the firm resettlement bar, and that the evidence compelled the conclusion that he had suffered past persecution in Somalia on account of a protected ground. (Aden v. Wilkinson, 3/4/21) AILA Doc. No. 21030844
Withdrawing its 8/13/20 opinion, the court granted the respondent’s unopposed motion to remand to the BIA for reconsideration of whether the petitioner’s California conviction for attempting to dissuade a witness constitutes a crime of moral turpitude. (Enriquez v. Wilkinson, 3/1/21) AILA Doc. No. 21030843
The court upheld the BIA’s finding that petitioner’s 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code §11350 qualified as a “controlled substance offense” rendering him removable under INA §237(a)(2)(B)(i). (Lazo v. Wilkinson, 2/26/21) AILA Doc. No. 21030842
The court held that an amendment to §18.5 of the California Penal Code (CPC), which retroactively reduces the maximum misdemeanor sentence to 364 days, cannot be applied retroactively for purposes of removability under INA §237(a)(2)(A)(i). (Velasquez-Rios v. Barr, 10/28/20, amended 2/24/21) AILA Doc. No. 20110236
Granting in part the petition for review, the court concluded that substantial evidence did not support the BIA’s determination that petitioner was not persecuted on account of her membership in her proposed social groups—her family and property owners. (Naranjo Garcia v. Wilkinson, 2/18/21) AILA Doc. No. 21030335
The BIA ruled that a conviction for conspiracy to commit visa fraud in violation of 18 USC §§371 and 1546(a) is a conviction for a crime involving moral turpitude under the modified categorical approach. Matter of Nemis, 28 I&N Dec. 250 (BIA 2021) AILA Doc. No. 21030839
The court held that because the plaintiff had been paroled into the United States within the meaning of the INA based on her Temporary Protected Status (TPS), she was an “arriving alien,” and ordered USCIS to reopen her adjustment application and adjudicate it. (Michel v. Mayorkas, 3/2/21) AILA Doc. No. 21030833
Law360: A New York federal judge says he would consider ordering U.S. Immigration and Customs Enforcement to release vulnerable individuals from its Batavia detention center if that is the only way they can get access to the COVID-19 vaccine.
Law360: The U.S. Department of Justice won’t agree to hold off on enforcing an overhaul of the immigration court appeals process that was crafted in the last months of the Trump administration, and the D.C. federal judge overseeing a challenge to the new rule can’t see why.
ICE announced the creation of the ICE Case Review process for individuals who believe their case does not align with ICE’s enforcement, detention, and removal priorities. AILA Doc. No. 21030590
