"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.
ProPublica: A federal judge ruled Tuesday that migrants couldn’t be barred from asylum under a regulation that came out while they were waiting at the U.S.-Mexico border. The administration appears to be dragging its feet in complying.
USCIS issued policy guidance on the application of Matter of Stockwell, clarifying when USCIS may adjust the status of an individual whose Conditional Permanent Resident (CPR) status has been terminated. An immigration judge does not need to affirm the termination of CPR status before the individual can file a new adjustment of status application. This guidance applies to adjustment of status applications filed with USCIS on or after 11/21/19. Comments are due by 12/5/19. AILA Doc. No. 19112190
Intercept: A jury found Scott Warren not guilty in the government’s second attempt to lock him up for providing humanitarian aid on the border in Arizona.
AP: The lawsuit filed by the American Civil Liberties Union recounts the experiences of the freelance photographers and seeks to test the limits of U.S. officials’ broad authority to question anyone, including journalists, entering the country.
ImmProf: The Supreme Court has agreed to take up United States v. Sineneng-Smith this term, a case that concerns a little-used provision of immigration law that forbids “encourag[ing] or induc[ing] an alien to … reside in the United States” when the encourager knows that person has no legal status.
Pursuant to 8 C.F.R. §1003.1(h)(1)(i), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me, I invite the parties and interested amici to submit briefs that address whether an alien who has been convicted of a criminal offense necessarily has been convicted of an aggravated felony for purposes of 8 U.S.C. §1227(a)(2)(A)(iii), where all of the elements of the underlying statute of conviction, and thus all of the means of committing the offense, correspond either to an aggravated felony theft offense, as defined in 8 U.S.C. §1101(a)(43)(G), or to an aggravated felony fraud offense, as defined in 8 U.S.C. §1101(a)(43)(M)(i).
DHS published a copy in the Federal Register of the Agreement Between the Government of the United States of America and the Government of the Republic of Guatemala on Cooperation Regarding the Examination of Protection Claims, which was signed on 7/26/19. (84 FR 64095, 11/20/19)
EOIR issued PM 20-04, with guidelines regarding new regulations providing for the implementation of the Asylum Cooperative Agreements. Guidance is effective as of 11/19/19 and applies to individuals who arrive at U.S. ports of entry, or enter, or attempt to enter on or after 11/19/19. AILA Doc. No. 19112036
EOIR issued PM 20-03 memorializing EOIR’s policy regarding child advocates appointed by the Secretary of Health and Human Services under the TVPRA of 2008, stating that this authority only exists for “child trafficking victims and other vulnerable unaccompanied alien children,” not for all UACs. AILA Doc. No. 19112035
USCIS updated the USCIS Policy Manual regarding the Special Immigrant Juvenile classification to incorporate recent clarifications made in three adopted AAO decisions. Clarifications are effective immediately and apply to cases pending on or filed on or after 11/19/19. Comments are due by 12/3/19. AILA Doc. No. 19111932
EOIR final rule exempting the “OCAHO Case Management System” system of records from certain provisions of the Privacy Act. The rule is effective 12/23/19. (84 FR 64198, 11/21/19) AILA Doc. No. 19112130
So many ways to screw migrants out of their rights and lives. So many unethical government officials doing it. So many Article III Judges looking the other way.
USCIS has issued a new fee waiver form eliminating the means-tested benefits section. Any submission postmarked on or after December 2 must use the new form. The new form instructions include detailed documentation instructions, requiring tax transcripts or proof that tax transcripts are unavailable for most scenarios. For information on obtaining federal income tax transcripts without a fee, see www.irs.gov/individuals/get-transcript. You may also use IRS Form 4506-T to request income tax transcripts, or Form 1099 Certain Government Payments from the IRS.
Two CrimImm Decisions from the AG
THOMAS and THOMPSON, 27 I&N Dec. 674 (A.G 2019):(1) The tests set forth in Matter of Cota-Vargas, Matter of Song, and Matter of Estrada will no longer govern the effect of state-court orders that modify, clarify, or otherwise alter a criminal alien’s sentence. (2) Such state-court orders will be given effect for immigration purposes only if based on a procedural or substantive defect in the underlying criminal proceeding; these orders will have no effect for immigration purposes if based on reasons unrelated to the merits of the underlying criminal proceeding, such as rehabilitation or the avoidance of immigration consequences.
CASTILLO-PEREZ, 27 I&N Dec. 664 (A.G. 2019): Evidence of two or more convictions for driving under the influence during the relevant period establishes a presumption that an alien lacks good moral character under INA § 101(f), 8 U.S.C. § 1101(f)…Because only aliens who possessed good moral character for a 10-year period are eligible for cancellation of removal under section 240A(b) of the INA, 8 U.S.C. § 1229b(b), such evidence also presumptively establishes that the alien’s application for that discretionary relief should be denied.
TRAC reports that IJ caseloads have grown substantially under the Trump administration. By 9/30/19, 1,023,767 “active” cases were pending compared to 542,411 at the start of the administration. At some locations, immigrants now wait an average of four years before their hearing is scheduled. AILA Doc. No. 19102532
CNN: For more than a decade, ICE has been taking a small number of immigrant teens it deems to be dangerous far from their families and detaining them for months at a time…The places these youth are held don’t appear on ICE’s online map of detention centers. The agency doesn’t make its reports about the conditions of the facilities available like it does for others. And family members can’t find their loved ones using the federal government’s official detainee locator since it only provides information on adults.
AP: At least 13 states have refused to share the driver’s license data, 17 are still deciding what to do, and 17 haven’t yet received a request, according to the AP survey. Three states didn’t respond to multiple AP queries…Two of the biggest states, California and New York, haven’t received requests yet. See also Lawsuit over voting rights in Rensselaer County in hands of judge.
NOLA: As the number of immigrants held behind bars nationwide has grown under President Donald Trump, ICE has turned to Louisiana sheriffs and private prison operators. Louisiana is now the No. 2 jailer of immigration detainees, behind Texas.
Guardian: A federal judge in San Diego ordered the Trump administration in the summer of 2018 to reunite families and stop separating most parents and children. But the court order does not apply to non-parents, and the administration keeps separating people like Alexa – aunts, grandparents or older siblings who commonly step in as guardians without formal paperwork – from the children they’re traveling with, without any procedure to reunite them. (The government also continues splitting up some children from their parents, citing reasons such as the parents’ criminal history.)
Bloomberg: Nineteen children died during attempted crossings in the first nine months of 2019, by drowning, dehydration or illness, according to the UN’s “Missing Migrants” research project. That’s up from four reported through September 2018 and by far the most since the project began gathering data in 2014, when two died that entire year. Women are dying in greater numbers, too—44 in the year through September, versus 14 last year.
Quartz: The number of arrests of CBP officers and Border Patrol agents, according to the report, had been on a half-decade decline before leaping 11% between fiscal years 2017 and 2018. (Arrests of officers and agents increased annually starting in 2007 and hit a high of 348 in 2012 before going down again.)
Buzzfeed: “The requested video is no longer available,” said a supervisory detention and deportation officer in an Aug. 28, 2018, email. “The footage is held in memory up to around 90 days. They attempted to locate and was negative.”
Reuters: The move follows a deal Mexico struck with the United States in June, vowing to significantly curb U.S.-bound migration in exchange for averting U.S. tariffs on Mexican exports…Most of the deportees were from India’s northern Punjab state, an Indian official said. Police will run checks if any of them had criminal history, another official said.
The Immigration Judge terminated removal proceedings after finding that DHS inappropriately subjected respondents to the MPP program since they were not arriving aliens. In the Matter of , 9/17/19 AILA Doc. No. 19102440
Bloomberg: President Donald Trump’s administration asked the U.S. Supreme Court to throw out a California immigrant-sanctuary law that restricts local police from helping federal authorities round up and deport people who are in the country illegally. In an appeal filed this week, the administration said the 2017 measure undermines federal immigration enforcement efforts.
The AG vacated two decisions as they were based on earlier precedents that were overruled and remanded for the Board to assess the state-court alteration in light of the Pickering test. Matter of Thomas and Matter of Thompson, 27 I&N Dec. 674 (A.G. 2019) AILA Doc. No. 19102801
The AG affirmed the BIA’s order vacating the IJ’s decision to grant cancellation of removal, holding that two or more DUI convictions during the relevant period establish a presumption of lack of good moral character during that time. Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019) AILA Doc. No. 19102800
AILA members have reported a nationwide EOIR glitch that has caused some clients’ asylum clocks to stop in error. If a client should have already reached the 150 days and is ready to file for an EAD, attorneys should call the local court directly to manually resolve this issue. AILA Doc. No. 16112144
Unpublished BIA decision holds that IJ erred in denying continuance to await adjudication of U visa application solely because it was not a form of relief that could be granted by the court. Special thanks to IRAC. (Matter of De La Cruz, 3/25/19) AILA Doc. No. 19102102
Unpublished BIA decision holds that IJ should have considered respondent’s testimony that bag contained only marijuana residue before finding that he was ineligible for waiver under INA 212(h). Special thanks to IRAC. (Matter of Zavala, 4/1/19) AILA Doc. No. 19102305
Unpublished BIA decision finds that respondent did not necessarily engage in polygamy by marrying second wife before being officially divorced from first wife. Special thanks to IRAC. (Matter of Cisse, 4/1/19) AILA Doc. No. 19102306
Unpublished BIA decision holds that findings made by West Virginia trial judge in requiring respondent to register as a sex offender do not qualify as “elements” that can be considered under the categorical approach. Special thanks to IRAC. (Matter of Leguia Chuquichaico, 3/29/19) AILA Doc. No. 19102404
Unpublished BIA decision holds that assault against cohabitant under Cal. Penal Code 273.5(a) is not a CIMT. Special thanks to IRAC. (Matter of Ramirez-Cortez, 3/19/19) AILA Doc. No. 19102101
Unpublished BIA decision reopens and terminates proceedings following vacatur of one of respondent’s two convictions for possession of 20 grams or less of marijuana, leaving the remaining conviction subject to the personal use exception. Special thanks to IRAC. (Matter of Herrera, 3/27/19) AILA Doc. No. 19102103
The court issued an order denying the rehearing en banc of Dai v. Sessions, in which the court held that, in the absence of an explicit adverse credibility determination by the IJ or the BIA, the court must accept as true the testimony of an asylum applicant. (Dai v. Barr, 10/22/19) AILA Doc. No. 19102435
The court upheld the BIA’s conclusions that the assault petitioner suffered was based on a personal disagreement rather than on account of his political opinion, and that the threat of future harm made to him was not due to his imputed political opinion. (Escobar-Hernandez v. Barr, 10/18/19) AILA Doc. No. 19102436
A district court issued a memo stating that the government’s delays in the processing and adjudication of the SIV applications and members of the class are unreasonable and ordered that the government submit a plan for promptly processing and adjudicating the applications of current class members. AILA Doc. No. 19102230
USCIS issued policy guidance to address requirements for “residence” in statutory provisions related to citizenship, and to rescind previous guidance regarding children of U.S. government employees and members of U.S. armed forces outside the United States. This policy is effective 10/29/19. AILA Doc. No. 19082800
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Thanks, Elizabeth, for your dedication to the “New Due Process Army.”
NBC: “Returns under the IFR policy have not started,” ICE spokeswoman Paige Hughes said, referring to the “interim final rule” the Trump administration announced this summer. Instead, immigration attorneys say, immigrants who have been ordered deported under the new policy are languishing in detention inside the U.S. because they have no right to stay but also have not been put on flights back to their home country.
LA Times: As the numbers rise, Mexico, in many cases, has opted for a controversial solution: Ship as many asylum seekers as possible more than 1,000 miles back here in the apparent hope that they will opt to return to Central America — even if that implies endangering or forgoing prospective political asylum claims in U.S. immigration courts. Mexican officials, sensitive to criticism that they are facilitating Trump’s hard-line deportation agenda, have been tight-lipped about the shadowy busing program, under which thousands of asylum seekers have been returned here since August.
Newsweek: Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, said Wednesday that ending birthright citizenship does not need a Constitutional amendment.
Forbes: Since 2017, Trump administration policies have focused on restricting the entry of immigrants and foreign nationals, including scientists and engineers. “Denial rates for new H-1B petitions have increased significantly, rising from 6% in FY 2015 to 32% in the first quarter of FY 2019,” according to a National Foundation for American Policy analysis.
AP: The Justice Department will publish an amended regulation Monday that would mandate DNA collection for almost all migrants who cross between official entry points and are held even temporarily, according to the official.
A GAO report says that DHS’s backlog of unfulfilled FOIA requests almost doubled between 2012–18, but DHS has no plan to address its backlog of more than 50,000 requests. DHS also continues to have a duplicative process for FOIA requests for certain immigration files, which slows processing times. AILA Doc. No. 19101804
WaPo: A sudden increase in the number of Mexican families and asylum seekers trying to cross into the United States has raised fears of a new border crisis, frustrating Department of Homeland Security officials who are unable to deter Mexican nationals with the same restrictive immigration policies designed to keep Central Americans out of the country.
CNN: Flights for refugees who have been approved to come to the United States continue to be canceled, in some cases for the second time, CNN has learned.
SCOTUSblog: For USA Today, Richard Wolf reports that Department of Homeland Security v. Thuraissigiam, in which the court will decide whether limitations on review of expedited deportation orders are constitutional, “is one of several challenging the Trump administration’s efforts to crack down on migrants seeking asylum after crossing the Mexican border.” Kimberly Robinson reports at Bloomberg Law that in another immigration case, Nasrallah v. Barr, the justices will resolve a split between the lower courts “over whether courts can review factual findings underlying a government refusal to halt the deportation of immigrants convicted of a crime but who argue that they will face persecution or even torture if sent back to their home countries.”
The United Nations High Commissioner of Refugees submitted an amicus brief telling the Ninth Circuit that the Trump administration’s asylum interim final rule issued on 7/16/19, “is at variance with two international law protections.” (East Bay Sanctuary Covenant, et al. v. Barr, et al.) AILA Doc. No. 19071800
The court issued an order granting class certification in a nationwide class action filed by the American Immigration Council and partners challenging systemic violations of the FOIA by DHS, USCIS, and ICE. (Nightingale et al. v. USCIS et al., 10/15/19) AILA Doc. No. 19062003
SILive: They are among five transgender women from Staten Island who have filed a lawsuit against United States Citizenship and Immigration Services (USCIS) and officials from the Department of Homeland Security (DHS), alleging they have been waiting for an interview on their asylum case for almost three years – something that should happen 45 days after filing an affirmative asylum application, according to USCIS policies.
DOJ announced that that in FY2019, its U.S. Attorneys’ Offices prosecuted the highest number of immigration-related offenses since record-keeping began more than 25 years ago—25,426 individuals with felony Illegal Reentry, 80,866 with misdemeanor Improper Entry, and 4,297 with Alien Smuggling. AILA Doc. No. 19101801
USCIS issued three AAO adopted decisions clarifying SIJ classification. USCIS now requires evidence of a court’s intervention to provide relief beyond a statement that the juvenile is court-dependent. The decisions go into effect October 15, 2019, and will apply to pending and future petitions. AILA Doc. No. 19101593
USCIS designated the AAO decision in Matter of E-A-L-O- as an adopted decision, noting that whether a state court order establishes eligibility for SIJ classification is a question within USCIS’s sole jurisdiction. Matter of E-A-L-O, Adopted Decision 2019-04 (AAO October 11, 2019) AILA Doc. No. 19101592
USCIS designated the AAO decision in Matter of D-Y-S-C- as an adopted decision, noting that SIJ classification may only be granted upon USCIS’s consent to juveniles who meet all other eligibility criteria. Matter of D-Y-S-C, Adopted Decision 2019-02 (AAO October 11, 2019) AILA Doc. No. 19101591
USCIS designated the AAO decision in Matter of A-O-C- as an adopted decision, noting that juveniles seeking SIJ classification must have been subject to a dependency or custody order issued by a “juvenile court.” Matter of A-O-C, Adopted Decision 2019-03 (AAO October 11, 2019) AILA Doc. No. 19101590
Applying Matter of Valenzuela Gallardo retroactively, BIA dismissed respondent’s appeal finding that the crime of dissuading a witness in violation of §136.1(b)(1) of the CA Penal Code is categorically an aggravated felony offense. Matter of Cordero-Garcia, 27 I&N Dec. 652 (BIA 2019) AILA Doc. No. 19101806
Unpublished BIA decision finds ineffective assistance clear and obvious where the attorney mistakenly sent the respondent’s medical examination to USCIS rather than the immigration court. Special thanks to IRAC. (Matter of Corena-Vela, 3/18/19) AILA Doc. No. 19101606
Unpublished BIA decision reopens proceedings sua sponte for respondent to apply for adjustment of status based on an approved visa petition in light of grant of TPS, entry under grant of advance parole, and country conditions in Haiti. Special thanks to IRAC. (Matter of Dorilus, 3/14/19) AILA Doc. No. 19101605
Unpublished BIA decision remands for further consideration of acquired citizenship claim in light of evidence submitted on appeal and despite concession of alienage before IJ. Special thanks to IRAC. (Matter of Hinojosa-Trejo, 3/11/19) AILA Doc. No. 19101510
Unpublished BIA decision remands for further consideration of MTR where IJ issued form order citing Matter of Bermudez-Cota, 27 I&N 441 (BIA 2018), but provided no explanation for what proposition the case was being used. Special thanks to IRAC. (Matter of Gomes, 3/8/19) AILA Doc. No. 19101509
Unpublished BIA decision finds respondent established a wave-through admission under Matter of Quilantan in light of corroborating testimony from witness who saw immigration officers check his paperwork. Special thanks to IRAC. (Matter of Valdez Palacio, 3/19/19) AILA Doc. No. 19101607
Unpublished BIA decision holds possession of more than 50 pounds of marijuana under Texas Health & Safety Code 481.121 is not an aggravated felony because it doesn’t require distribution and is punishable as a misdemeanor under federal law. Special thanks to IRAC. (Matter of Joseph, 3/7/19) AILA Doc. No. 19101508
The court vacated and remanded in light of Matter of L-E-A-, after finding that the BIA’s reliance on the factual findings of the IJ were likely impacted by the incorrect legal posture through which the IJ viewed the case. (Pena Oseguera v. Barr, 8/23/19, amended 10/15/19) AILA Doc. No. 19082907
The court dismissed the petition for review for lack of jurisdiction to the extent that the BIA had declined to reopen the proceedings sua sponte, and upheld the BIA’s denial of the petitioner’s motion to reconsider and reopen the BIA’s decision of 2003. (Malukas v. Barr, 10/15/19) AILA Doc. No. 19101736
The court held that a conviction for delivery of cocaine under Washington law categorically qualifies as an aggravated felony under INA §101(a)(43), and thus that petitioner was barred from establishing the good moral character necessary for naturalization. (Bourtzakis v. Att’y Gen., 10/9/19) AILA Doc. No. 19101738
Presidential executive order issued 10/14/19 imposing sanctions on those determined to have contributed to instability in Syria, including, among other things, suspending the immigrant and nonimmigrant entry into the United States of such persons. (84 FR 55851, 10/17/19) AILA Doc. No. 19101701
President Trump issued an executive order on 10/9/19 on agency guidance documents, which among other things requires that an agency post all its guidance documents in a single database on its website. (84 FR 55235, 10/15/19) AILA Doc. No. 19101505
DHS final rule amending the REAL ID regulation to clarify that the 10/1/20 REAL ID deadline applies to all non-compliant cards, including state-issued driver’s licenses and identification cards marked to indicate that they may not be used for official federal purposes. (84 FR 55017, 10/15/19) AILA Doc. No. 19101500
EOIR announced the investiture of 27 new immigration judges appointed by Attorney General William Barr. Notice includes the judges’ biographical information. AILA Doc. No. 19101401
10/21/19 HRF asylum training: 6-8 p.m. New York CLE credit available. RSVP for the New York training to Lamisse Abdel Rahman at AbdelRahmanL@humanrightsfirst.orgby October 18th
AP: The rule gives the director of the Executive Office for Immigration Review the ability to issue appellate decisions in cases that haven’t been decided within an allotted timeframe. It also cements the administration’s decision to create an office of policy for the immigration courts in 2017.
AILA has confirmed that as of August 7, 2019, USCIS has stopped accepting and adjudicating deferred action applications for non-military applicants. AILA seeks examples of those impacted by this change. Please complete the survey included with this alert to submit your example. AILA Doc. No. 19082334
EOIR announced it will be opening a new immigration court on Broadway in New York City on September 9, 2019. Notice includes the new court’s location, contact information, and hours of operation. AILA Doc. No. 19082202
Joint DHS and HHS final rule amending the regulations relating to the apprehension, processing, care, custody, and release of noncitizen minors. The promulgation of this rule is intended to terminate the Flores Settlement Agreement. The rule is effective 10/22/19. (84 FR 44392, 8/23/19). AILA Doc. No. 19082200 See also Changes for a landmark agreement mean immigrant children face harsher treatment in U.S.
Miami Herald: U.S. Citizenship and Immigration Services (USCIS) issued a policy alert on Monday stating that the agency is enhancing its adjudicators’ discretion to grant or deny work permits to foreign nationals paroled in the U.S.
SF Chronicle: The Trump administration has promoted six judges to the immigration appeals court that sets binding policy for deportation cases — all of whom have high rates of denying immigrants’ asylum claims. The six come from courts that have higher asylum-denial rates than the national average, including two from a court that has drawn complaints of unfair proceedings from immigration attorneys and advocates. A third has a long history of denying asylum to domestic violence victims, something the Justice Department has also sought to do. See also EOIR Announces Selection of Four New Assistant Chief Immigration Judges.
WNYC: Last Monday, attorney Adam Dong said he was accompanying Zhang as he gave his deposition at the office of the defense counsel near Albany. The arrest happened when they broke for lunch.
ICE announced that since mid-July 2019, U.S. and Guatemala have implemented an expeditious removal process for Guatemalan citizens. In FY2019 to date, ICE has removed 49,000 Guatemalans compared to 50,000 in FY2018, and more than 1,500 members of family units, a 50 percent increase from last year. AILA Doc. No. 19082605
LA Times: Freedom for Immigrants, which runs visitation programs in detention centers across the country, responded Thursday with a cease-and-desist letter charging that the termination is a violation of free speech and amounts to retaliation by the government in an attempt to silence one of its prominent critics. Six actors from “Orange Is the New Black” and more than 100 organizations signed a letter to acting ICE Director Matthew Albence demanding that the line be restored.
Daily Beast: Davis, a Harvard Law graduate and immigration hawk, is poised to play an important part in helping guide some of Trump’s most consequential policy moves, particularly on executive orders that are screened and closely examined by the counsel’s office. On Wednesday, the president again claimed that his administration was “seriously” looking at ending birthright citizenship, a potential executive order that would likely fall under Davis’s portfolio.
Buzzfeed: An email sent from the Justice Department to all immigration court employees this week included a link to an article posted on a white nationalist website that “directly attacks sitting immigration judges with racial and ethnically tinged slurs,” according to a letter sent by an immigration judges union and obtained by BuzzFeed News.
Reveal: The discovery of Assistant Chief Immigration Judge Daniel Daugherty’s email to judges illustrates the inner workings of one of the nation’s busiest immigration courts, days after the Department of Justice filed a petition to disband the immigration judges union.
VICE: Since President Trump took office, ICE has arrested at least 20 undocumented activists. As that figure continues to rise, advocates across the country increasingly worry they’re being targeted because of their activism — not their immigration status.
AIC: Much of this decline stems from delays in the processing of student visas. New and onerous screening procedures introduced by the Trump administration are responsible for a great deal of the added time it now takes to process a visa application.
NBC: Started almost two decades ago with a stated mission to “provide information to Chinese communities to help immigrants assimilate into American society,” The Epoch Times now wields one of the biggest social media followings of any news outlet. By the numbers, there is no bigger advocate of President Donald Trump on Facebook than The Epoch Times.
Take Care: The Solicitor General recently filed a petition for certiorari asking the Supreme Court to review a constitutional challenge to the so-called expedited removal system.
SCOTUSblog: Argument Oct 16, 2019: (1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents.
Politico: Immigration advocates filed a sweeping, first-of-its kind class action lawsuit in federal court against the Trump administration on Monday, claiming official policies and lack of oversight related to the border and immigration crisis have led to major lapses in medical and mental health care in nearly 160 detention facilities across the country.
On 8/23/19, DHS and HHS published a joint final rule to amend regulations related to the apprehension, processing, care, custody, and release of undocumented juveniles in the Federal Register. The rule is effective 10/22/19.AILA Doc. No. 19062495
DocumentedNY: Nine states filed an amicus brief on Friday in support of the Green Light Bill, which allows undocumented people to get driver’s licenses in New York. The bill has been challenged by Erie County Clerk Michael Kearns in the federal Western District of New York, arguing in a July lawsuit that Green Light NY would force him to violate federal immigration law.
Unpublished BIA decision reopens proceedings sua sponte for respondent to apply for adjustment of status in light of grant of TPS and recent reentry pursuant to grant of advance parole. Special thanks to IRAC. (Matter of Sylvestre, 12/10/18) AILA Doc. No. 19082301
Unpublished BIA decision reopens proceedings sua sponte to allow respondent to apply for adjustment of status in light of grant of TPS and recent entry pursuant to grant of advance parole. Special thanks to IRAC. (Matter of Senord, 11/29/18) AILA Doc. No. 19082001
Unpublished BIA decision holds that respondent is not inadmissible based on a conviction for which he was previously granted a waiver under former INA 212(c). Special thanks to IRAC. (Matter of Morel-Uceta, 12/14/18) AILA Doc. No. 19082302
The BIA issued a decision clarifying the “substantial and probative evidence” standard of proof necessary to bar the approval of a visa petition based on marriage fraud under INA §204(c). Matter of Singh, 27 I&N Dec. 598 (BIA 2019) AILA Doc. No. 19082317
Unpublished BIA decision upholds discretionary grant of adjustment application for respondent with three DUIs in light of more than 20 years’ residence, consistent employment, and passage of time since most recent offense. Special thanks to IRAC. (Matter of Velasquez Chavez, 12/10/18) AILA Doc. No. 19082300
Unpublished BIA decision reopens and terminates proceedings sua sponte upon finding aggravated criminal sexual abuse under 720 Ill. Comp. Stat. Ann. 5/12-16(d) not sexual abuse of a minor under Esquivel-Quintana v. Sessions. Special thanks to IRAC. (Matter of Dave, 11/29/18) AILA Doc. No. 19082000
Unpublished BIA decision rescinds in absentia order because DHS did not file NTA prior to originally scheduled hearing and respondent thus had no obligation to inform court of change of address. Special thanks to IRAC. (Matter of Abarca, 12/6/18) AILA Doc. No. 19082209
Unpublished BIA decision holds that taking or driving a motor vehicle without the consent of the owner under Minn. Stat. 609.52, subd. 2(a)(17) is not an aggravated felony theft offense. Special thanks to IRAC. (Matter of B-A-D-, 12/6/18) AILA Doc. No. 19082208
Unpublished BIA decision grants interlocutory appeal and orders change of venue from Atlanta to New York in light of location of respondent’s residence, witnesses, and attorney. Special thanks to IRAC. (Matter of S-G-P-M-, 12/3/18) AILA Doc. No. 19082207
EOIR released a policy memo on ex parte communications, and the limited circumstances in which they may be permissible. The memo also notes that allegations of misconduct raised against EOIR adjudicators by a stakeholder does not constitute an improper ex parte communication.
CNN: Monday’s opinion does not bar all family-based claims, but unless an immediate family has “greater societal import,” it is “unlikely” to qualify for asylum, according to the Justice Department.
DHS notice expanding the categories of persons designated eligible for expedited removal. The notice, including the new designation, is effective on 7/23/19. Comments may be submitted on or before 9/23/19. (84 FR 35409, 7/23/19) AILA Doc. No. 19072200. See also CLINIC’s Expansion of Expedited Removal FAQs.
Vox: On Friday afternoon, the US and Guatemala signed an agreement that will direct Central American migrants who pass through Guatemala hoping to seek asylum in the United States to first apply for protection in Guatemala instead. Those who travel to the US without applying for asylum in Guatemala could be removed by US border officials to that country.
USCIS instructed asylum officers to consider whether it would have been “possible” for asylum seekers to relocate within their countries to avoid persecution rather than flee to the United States, even though the appropriate legal standard is whether such relocation would have been “reasonable.” AILA Doc. No. 19072603
TRAC found that very few asylum seekers forced to remain in Mexico under the Migration Protection Protocols (MPP) have been able to secure representation for their immigration court proceedings. Of the total of 1,155 MPP cases decided, only 14 (just 1.2 percent) were represented. AILA Doc. No. 19072990
CBS: The bill’s supporters pushed to suspend the rules of House and pass the bill before lawmakers left for their August recess. The maneuver, usually reserved for non-controversial bills, required the support of two-thirds of the House, meaning at least 55 Republicans would have needed to break ranks and vote for the measure. The move failed after only 37 Republican lawmakers joined the 230 Democrats voting in favor.
NY Daily News: The General Services Administration, which manages federal buildings, confirmed six new immigration courtrooms are under construction at 290 Broadway. The building is also home to offices for the Environmental Protection Agency and the Internal Revenue Service.
Slate: Ted Lieu: Sofi is not a criminal or a national security threat to the United States as a 3-year-old, correct? Hastings: I don’t know the background in this case, sir.
NBC: An 18-year-old U.S. citizen who was held as an undocumented immigrant for more than three weeks in conditions he called “inhumane” says U.S. officials never apologized for wrongfully detaining him.
TimesUnion: This time last year, Albany County jail held hundreds of immigrants detained after crossing the southern U.S. border, joining a handful picked up locally.
The Attorney General found that the BIA improperly recognized the respondent’s father’s immediate family as a particular social group. Decision notes that all cases inconsistent with this opinion are abrogated. Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) AILA Doc. No. 19072902
U.S. District Judge Jon Tigar issued an order enjoining the government from implementing the 7/16/19 DHS and DOJ joint interim final rule on asylum, pending final judgment or further order of the Court. (East Bay Sanctuary Covenant, et al. v. Barr, et al., 7/24/19) AILA Doc. No. 19071800
In an oral ruling, the district court judge denied the plaintiffs’ motion for a temporary restraining order enjoining the implementation of the interim final rule issued by the Trump administration on 7/16/19. (CAIR Coalition, et al. v. Trump, et al., 7/24/19) AILA Doc. No. 19071802
WaPo: A split Supreme Court said Friday night that the Trump administration could proceed with its plan to use $2.5 billion in Pentagon funds to build part of the president’s wall project along the southern border.
The court granted in part the petition for review, finding that substantial evidence did not support the BIA’s decision to deny the Nepali petitioner’s asylum application, because the government did not rebut the presumption of a well-founded fear of persecution. (Dahal v. Barr, 7/18/19) AILA Doc. No. 19072302
The court granted the petition for review, concluding that Virginia’s statute prohibiting participation in criminal gang activity does not categorically qualify as a crime involving moral turpitude (CIMT) for purposes of INA §237(a)(2)(A)(i). (Rodriguez Cabrera v. Barr, 7/19/19) AILA Doc. No. 19072303
The court held that the IJ did not violate petitioner’s due process rights by failing to adhere to the procedural safeguards that were put in place after his competency hearing, finding that there was no variance that would amount to due process violations. (Pierre-Paul v. Barr, 7/18/19) AILA Doc. No. 19072304
Where the Mexican petitioner claimed she feared persecution as the mother of a cartel member’s child, the court held there was nothing in the record that required BIA to conclude that she had experienced past persecution or reasonably feared future persecution. (N.Y.C.C. v. Barr, 7/19/19) AILA Doc. No. 19072305
The en banc court held that, in the context of eligibility for cancellation of removal, a petitioner’s state law conviction does not bar relief where the record is ambiguous as to whether the conviction constitutes a disqualifying predicate offense. (Marinelarena v. Barr, 7/18/19) AILA Doc. No. 19072307
The court held that the BIA erred in finding that the petitioner had failed to show prejudice from his prior attorney’s ineffective assistance with respect to deferral of removal under the Convention Against Torture (CAT) and relief under former INA §212(c). (Flores v. Barr, 7/18/19) AILA Doc. No. 19072306
The BIA dismissed the appeal, finding that immigration judges (IJs) have the authority to deny applications for temporary protected status (TPS) in the exercise of discretion. Matter of D-A-C- 27 I&N Dec. 575 (BIA 2019) AILA Doc. No. 19072663
Hill: The 9th Circuit Court of Appeals on Monday ruled against the Trump administration’s policy allowing for the indefinite detention of certain asylum-seekers, saying a lower court ruling temporarily blocking it can remain in place. See also DHS Interim Guidance on Parole.
DHS notice expanding the categories of persons designated eligible for expedited removal. The notice, including the new designation, is effective on 7/23/19. Comments may be submitted on or before 9/23/19. (84 FR 35409, 7/23/19) AILA Doc. No. 19072200
Guardian: In a complaint filed in Los Angeles federal court on Tuesday against Customs and Border Protection (CBP) and the FBI, the American Civil Liberties Union (ACLU) alleges that the US government surveilled three not-for-profit organizers, who were included in a secret US database of more than 50 activists and journalists that was leaked earlier this year.
WBUR reports on a federal court case that will center on whether ICE has the right to deport immigrants for past crimes despite a state pardon. AILA Board member Heather Prendergast said Connecticut is not the only state where a board grants pardons, and in other states, ICE honors them. AILA Doc. No. 19072363
James Keegan of Cicero, Illinois, was sentenced to 10 years in federal prison for operating a fraudulent immigration service business that defrauded hundreds of undocumented immigrants. Keegan ran the scheme during a nine-month period in 2017, and falsely claimed that he was a former DHS attorney. AILA Doc. No. 19072662
EOIR released statistics on the number of initial receipts of complaints against immigration judges from FY2009 through the third quarter of FY2019. AILA Doc. No. 18102935
EOIR has released statistics on initial receipts, initial case completions, and initial case completion decisions for family units in select courts—Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York City, and San Francisco—for the period of 9/24/18 to 7/19/19. AILA Doc. No. 19062134
EOIR released statistics on credible fear review and reasonable fear review decisions, from FY2008 through the second quarter of FY2019, as of 3/31/19. AILA Doc. No. 18052340
Reuters obtained guidance given to immigration judges (IJs) on docketing of family unit cases that directs them to schedule the initial hearing in family unit cases within 30 days. AILA Doc. No. 19072660
Reuters obtained the Memorandum of Understanding (MOU) Regarding the Implementation of New Performance Measures for Immigration Judges (IJs) between EOIR and the NAIJ, which includes FAQs on IJ case quotas and defines a status docket, among other things. AILA Doc. No. 19072661
Pacific Standard: Each year, the federal government deports thousands of prisoners who enter the Institutional Hearing Program, but it won’t reveal critical information about its operations.
WaPo: The Trump administration is planning to update the test, and a new version is slated to debut before the end of President Trump’s first term, officials said Friday. A pilot test should be available this fall. USCIS officials are offering few details about the changes to the test, which was last revised in 2008.
Politico: During a key meeting of security officials on refugee admissions last week, a U.S. Citizenship and Immigration Services representative who is closely aligned with White House immigration adviser Stephen Miller suggested setting a cap at zero, the people said. Homeland Security Department officials at the meeting later floated making the level anywhere from 3,000 to 10,000, according to one of the people.
Reuters: Mexico said on Sunday it averted the so-called “safe third country” negotiations with the United States it desperately wanted to avoid after U.S. Secretary of State Mike Pompeo praised Mexican efforts in reducing U.S.-bound migrant flows.
Axios: By the numbers: As recently as 2005, all bail bonds issued by judges to immigrants were less than $2,000, according to TRAC’s data. Last fiscal year, just 5% of bonds were less than $2,000, and 40% were $10,000 or more.
Buzzfeed: The email to staffers, sent Wednesday by USCIS deputy Mark Koumans and obtained by BuzzFeed News, asked employees to volunteer for administrative work in ICE field offices across the country, including processing files that are part of a program forcing immigrants seeking asylum to remain in Mexico as their cases are adjudicated, and supporting public document requests.
Univision: With an ankle monitor that ICE gave him, Honduran immigrant Manuel Gámez was able to be present when his daughter Heydi was disconnected from life support at a hospital in New York. See also Migrant mental health crisis spirals in ICE detention facilities.
AIC: This expansion is particularly concerning given the long and horrifying track record of human rights abuses, staff mistreatment, and inadequate medical care in these facilities in recent years.
TRAC: Despite the administration’s rhetoric of deporting “criminals” from this country, the latest data from the Immigration Courts through June 2019 shows only 2.8 percent of recent Department of Homeland Security (DHS) filings based deportability claims on any alleged criminal activity. This is way down from the emphasis on deporting criminals that prevailed a decade ago. See Figure 1.
Politico: The new active-duty troops will arrive “in the next several weeks” and will provide “aerial surveillance, operational, logistical, and administrative support” to Customs and Border Patrol, Pentagon spokesperson Maj. Chris Mitchell said in a statement. ICE raids across major US cities fall short of expectations but fear remains
AIC: As a result, approvals to study in the United States have plummeted for Iranian students. The State Department has issued a mere 413 student visas to Iranians so far in Fiscal Year (FY) 2019. Only 1,433 were issued in all of FY 2018. By way of comparison, 2,650 were approved in FY 2016.
CAIR: The lawsuit was filed in the United States District Court for the District of Columbia on behalf of CAIR Coalition and Refugee and Immigrant Center for Education and Legal Services (RAICES).
Monday, July 22—2:00 pm (eastern)—CAIR v. Trump (D.D.C.)– hearing on plaintiffs’ motion for a temporary restraining order.
Wednesday, July 24 – 9:30am (pacific) – East Bay Sanctuary Covenant v. Barr (N.D. Cal) – hearing on plaintiffs’ motion for a temporary restraining order.
SCOTUSblog: The battle over the Trump administration’s efforts to build a wall along the U.S.-Mexico border came to the Supreme Court today, as the federal government asked the justices to block a lower-court order that barred the government from using $2.5 billion in Pentagon funds for construction of the wall.
This document summarizes the July 16, 2019, House Subcommittee on Immigration and Citizenship hearing on “Policy Changes and Processing Delays at U.S. Citizenship and Immigration Services” AILA Doc. No. 19071912
The American Immigration Council released key DOJ guidance that may help you if your clients are facing removal from the United States. These materials—publicly available for the first time—address motions before the Board of Immigration Appeals (BIA), including stays of removal. AILA Doc. No. 19053030
EOIR issued guidelines that established its policy and procedures for adjudicating asylum claims in the context of migrants who enter or attempt to enter the U.S. across the southern land border after failing to apply for protection while in a third country. This guidance is effective 7/16/19. AILA Doc. No. 19071530
WaPo: The Trump administration is threatening to impose hundreds of thousands of dollars in civil penalties on immigrants who disobey deportation orders by seeking refuge in churches or elsewhere in the United States, federal officials said.
EOIR released statistics on the percentage of individuals making credible fear claims that are granted asylum. During the second quarter of FY2019 (through 3/31/19), IJs granted asylum to only 13 out of 100 credible fear claimants. AILA Doc. No. 19070532
WaPo: U.S. Customs and Border Protection was aware of the inflammatory Facebook page where alleged Border Patrol agents posted racist, sexist and violent images — and the agency has investigated posts from the group on at least one occasion, an official said. See also CBP Releases Statement on Private Facebook Group Activity.
Daily News: Santiago, who crossed into the United States in 2004, and was hit with an order of deportation after missing a San Antonio court appearance, was busted by federal immigration agents outside Queens Family Court. She was moved to Louisiana last week as her deportation appeared imminent, but lawyers with the New York Legal Assistance Group fought successfully to keep her in the U.S.
NPR: The Justice Department statement came in a court filing released Wednesday. Assistant Attorney General Jody Hunt said, “We at the Department of Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow us to include the citizenship question on the census.”
HRW: Human Rights Watch found that the program, named the “Migrant Protection Protocols” (MPP) by the US government but known colloquially as “Remain in Mexico,” has thus far had serious rights consequences for returned asylum seekers. We found that the returns program is expelling asylum seekers to ill-prepared, dangerous Mexican border cities where they face high if not insurmountable barriers to receiving due process on their asylum claims.
WaPo: A cache of records shared with The Washington Post reveals that agents are scanning millions of Americans’ faces without their knowledge or consent. [Note from Green Light NY: Most importantly, our legislation strictly prohibits disclosure of applicant photos by the DMV without lawful court order, judicial warrant, or subpoena. This means, for example, that if there is an active criminal investigation of an individual, their records could be disclosed to law enforcement… but ICE could not simply conduct a mass search of our DMV photos.]
AIC: The Trump administration’s indiscriminate, aggressive enforcement approach has created new categories of individuals who are more vulnerable to U.S. Immigration and Customs Enforcement encounters, arrest, and potential deportation.
A district court issued an order in Padilla, ordering the government to give certain detained asylum seekers a bond hearing within seven days of their request and requires
the government to justify continued detention in each case. AILA Doc. No. 19070333
FR: This final rule sets forth the Department’s longstanding position that the regulations providing for an affirmance without opinion (AWO), a single-member opinion, or a three-member panel opinion are not intended to create any substantive right to a particular manner of review or decision. The final rule also clarifies that the BIA is presumed to have considered all of the parties’ relevant issues and claims of error on appeal regardless of the type of the BIA’s decision, and that the parties are obligated to raise issues and exhaust claims of error before the BIA.
The U.S. Supreme Court upheld the doctrine of Auer deference, under which courts should defer to an agency’s reasonable reading of its own genuinely ambiguous regulations, but limited Auer’s scope in varied and critical ways. (Kisor v. Wilkie, 6/26/19) AILA Doc. No. 19070230
The administration published a rule which would authorize the attorney general (AG) “to singlehandedly designate Board of Immigration Appeals decisions as precedent—and do so literally overnight, bypassing the necessary legal procedures and without any checks and balances.” AILA Doc. No. 19070236
IRAP: The lawsuit challenges new rules imposed by the Trump Administration that make it far more difficult for asylum seekers to pass their “credible fear interviews.” The interviews, which are conducted by asylum officials to determine whether an asylum seeker has a credible fear of persecution if returned to their home country, represent a life or death scenario for many of those who enter the U.S. in order to reach safety.
A federal judge blocked ICE from making civil immigration arrests inside Massachusetts courthouses, preventing ICE “from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouse.” AILA Doc. No. 19070531
The court found that the evidence demonstrated a reasonable probability that, had the lawful permanent resident (LPR) appellant known the true and certain extent of the immigration consequences of his guilty plea, he would have refused it. (United States v. Carrillo Murillo, 6/24/19) AILA Doc. No. 19070234
The court held that, when viewed as an inclusive whole, the government was substantially justified in denying Convention Against Torture protection to petitioners, and the petitioners were ineligible for an Equal Access to Justice Act (EAJA) award. (W.M.V.C. v. Barr, 6/7/19, amended 6/28/19) AILA Doc. No. 19061800
DHS OIG issued an alert after finding dangerous overcrowding at four of the five Border Patrol facilities visited and prolonged detention at all five facilities visited in the Rio Grande Valley. Among other things, the report notes that over 1,500 detainees had been held for more than 10 days. AILA Doc. No. 19070502
ICE announced that 37 Cambodian nationals were repatriated in accordance with their final removal orders. ICE noted that removals to Cambodia increased 279 percent from FY2017 to FY2018 and that there are approximately 1,900 Cambodian nationals in the United States with final orders of removal. AILA Doc. No. 19070500
DOS announced that Interim President Juan Guaido extended the validity of Venezuelan passports for an additional five years past their printed date of expiration and the U.S. recognized this extension for visa issuance and other consular purposes. AILA Doc. No. 19070330
EOIR final rule to amend the regulations regarding the administrative review procedures of the BIA. The rule is effective 9/3/19. (84 FR 31463, 7/2/19) AILA Doc. No. 19070192
HHS (Department of Health and Human Services) notice of intent to issue up to $300,800,000 of funding for up to 1,300 temporary shelter beds to keep unaccompanied children in custody at Carrizo Springs, Texas. (84 FR 31323, 7/1/19) AILA Doc. No. 19070193
USCIS announced it will automatically extend parole, and employment authorization if applicable, for certain residents of the Commonwealth of the Northern Mariana Islands (CNMI) due to the Northern Mariana Islands Long-Term Legal Residents Relief Act. AILA Doc. No. 19070194
ABA: Statistics compiled by the ABA Journal suggest that as misdemeanor unlawful entry prosecutions rose between 2017 and 2018 in the five federal districts along the southwest border, federal prosecutions for nonmarijuana drug offenses dropped. That’s while apprehensions of people crossing between official ports of entry reached a 17-year low in fiscal 2017, and U.S. Customs and Border Protection drug seizure statistics were largely up, suggesting no lack of referrals.
NYT: “People don’t flee their homes because they want to,” President Nayib Bukele said. “They flee their homes because they feel they have to… It is our fault.”
DocumentedNY: The New York City Area of Responsibility had the third largest increase of ICE arrests in jails and prisons in the nation between 2016 and 2018. In the Buffalo Area of Responsibility, the at-large arrest rate grew about 123 percent, the second highest jump in the country after Philadelphia.
WaPo: With days to prepare, a top state official said he expects a fivefold increase in the number of migrants who will be sent to Juarez as a result of the expansion of the Trump administration’s Migrant Protection Protocols.
WaPo: The strategy, which will apply only to applications for permanent residency — also known as green cards — or U.S. citizenship, probably will be a welcome respite to immigrant communities in cities such as St. Paul, Minn., where some applicants wait up to two years to become citizens. Immigrants in other places could see the process lengthen.
The Conversation: As current anti-immigrant policies diminish the supply of migrant workers (both documented and undocumented), farmers are not able to find the labor they need. So, in states such as Arizona, Idaho and Washington that grow labor-intensive crops like onions, apples and tomatoes, prison systems have responded by leasing convicts to growers desperate for workers.
NYT: Men, women, and children from central Africa — mostly from the Democratic Republic of Congo and Angola — are showing up at the United States’ southwest border after embarking on a dangerous, monthslong journey. Their arrival at the border and at two cities more than 2,100 miles apart — San Antonio and Portland, Maine — has surprised and puzzled immigration authorities and overwhelmed local officials and nonprofit groups.
TIME: Fort Sill, an 150-year-old installation once used as an internment camp for Japanese-Americans during World War II, has been selected to detain 1,400 children until they can be given to an adult relative, according to the U.S. Department of Health and Human Services.
Daily Beast: Former Virginia attorney general Ken Cuccinelli’s long-rumored role as a top coordinator of the Department of Homeland Security immigration policy finally has an official title. According to an email sent to staff at U.S. Citizenship and Immigration Services on Monday, the longtime border hawk has been named acting director of the agency, whose 19,000 employees orchestrate the country’s immigration and naturalization system. See also High Turnover Roils Trump’s Immigration-Policy Ranks and GOP mutters, gently, as Trump sidesteps Senate for top aides.
USCIS provided notice to the class in R.F.M., et al., v. Nielsen, et al. The class involves Special Immigrant Juveniles with applications based on a New York Family Court Special Findings Order issued between their 18th and 21st birthdays. Notice includes next steps. AILA Doc. No. 19061400. See also Legal Aid’s R.F.M. v. Nielsen website.
IDP: has put out a legal alert on the BIA’s new decision in Matter of Navarro Guadarrama, 27 I&N Dec. 560 (BIA 2019), and why it should not affect the Second Circuit precedent set by Harbin and Hylton. Included are some arguments that could be used to rebut DHS should they try to argue otherwise (please let us know if they do raise this decision and what IJs are deciding).
Fed Defenders: On May 30, 2019, the Second Circuit withdrew the per curiam opinion in Thompson v. Barr, #17-3494, that was issued on May 13. The opinion found that NY assault in the second degree (NYPL § 120.05(1)) is an aggravated felony crime of violence for immigration purposes under the force clause of 18 USC § 16(a).
RollingStone: In the days before he allegedly struck a 23-year-old undocumented Guatemalan man with a government-issued Ford F-150, Border Patrol agent Matthew Bowen sent a text to a fellow agent. In the exchange, which federal prosecutors now claim offers “insight into his view of the aliens he apprehends,” Bowen railed against unauthorized migrants who’d thrown rocks at a colleague as “mindless murdering savages” and “disgusting subhuman shit unworthy of being kindling for a fire.”
Chase: So in summary, Andrade Jaso is inconsistent with all of the AG’s precedent decisions under this administration, and with binding regulations. And yet, a three Board Member panel had no reservations (there wasn’t any dissent) in issuing this decision. Why? Because it prevents the only group of people who actually want to be in proceedings from having the chance to apply for legal status.
AP: federal appeals court in Washington ruled Friday against a Trump administration policy it described as a “blanket ban” preventing immigrant teens in government custody from getting abortions, and it kept in place an order blocking the policy.
NPR: The courts have yet to issue their final word on whether the Trump administration can add a citizenship question to the 2020 census. But starting Thursday, the Census Bureau is asking about a quarter-million households in the U.S. to fill out questionnaires that include the question, “Is this person a citizen of the United States?”
USCIS: As part of USCIS’ implementation of this memorandum, USCIS officers will now be required to remind individuals at their adjustment of status interviews of their sponsors’ responsibilities under existing law and regulations. Our officers must remind applicants and sponsors that the Affidavit of Support is a legal and enforceable contract between the sponsor and the federal government. The sponsor must be willing and able to financially support the intending immigrant as outlined by law and regulations (see INA 213A and 8 CFR 213a). If the sponsored immigrant receives any federal means-tested public benefits, the sponsor will be expected to reimburse the benefits-granting agency for every dollar of benefits received by the immigrant.
CLINIC: The memo, titled “Updated Procedures for Asylum Applications Filed by Unaccompanied Alien Children” and signed by Asylum Division Chief John Lafferty, reverses a 2013 policy, often referred to as the “Kim memo.” Under the Kim memo, USCIS took jurisdiction over asylum applications filed by applicants who had previously been determined by Immigration and Customs Enforcement or Customs and Border Protection to be “unaccompanied alien children” (UC).
The U.S. and Mexican governments proclaimed their commitment to address the increase in migrants moving from Central America, including the deployment of the Mexican National Guard to the southern border and the expansion of Migrant Protection Protocols across the entire southern border. AILA Doc. No. 19061197
ImmProf: While bold immigration proposals continue to be in the news, a lesser noticed regulatory planning document provides info on the timeline and implementation details of known policies. An analysis of the regulatory agenda shows that the administration plans to spend the next year implementing the public charge rule that denies green cards and visas to those who take public benefits and reforming employment visa programs to eliminate work authorization for H1-B spouses.
EOIR SHAKEUP: Chief Immigration Judge, Deputy Director, General Counsel Ousted!
Courtside: Evidently, Chief Immigration Judge MaryBeth T. Keller, General Counsel Jean King, and Deputy Director Katherine H. Reilly all “got the boot” late this week. They are career civil servants. Keller and King were “holdovers” from the prior Administration, while Reilly was appointed to her recent position by former Attorney General Jeff Sessions. Piecing together bits from anonymous sources, it’s likely that the three clashed with EOIR Director James McHenry and Department of Justice (“DOJ”) politicos over some of the more extreme aspects of the Administration’s “master plan.” See also American Bar Association Says Immigration Courts Are ‘On The Brink Of Collapse’.
Reuters obtained a memo with updated procedures for asylum applications filed by unaccompanied alien children (UACs), modifying 5/28/13 guidance. This guidance is effective 30 calendar days after 5/31/19 and applies to any USCIS decision issued on or after the effective date. AILA Doc. No. 19060771
WaPo: The Trump administration’s new immigration enforcement chief said Tuesday that he is preparing to increase arrests and deportations of migrant families living illegally in the U.S. interior, promising the kind of more aggressive approach the White House has been seeking. See also Border Patrol searches have increased on Greyhound, other buses far from border.
WaPo: On the same day the White House heralded veterans on the 75th anniversary of D-Day, a federal watchdog said the government had violated its own rules on deporting former service members — and immigration authorities have no idea how many they have removed.
Salon: The State Department announced this week a major change to the Diversity Immigrant Visa Program, which Trump has repeatedly maligned. The first new rule requires applicants to already have a passport at the time of application. The second mandates that any typographical error on the application results in immediate, unappealable disqualification.
Sunlight Foundation: In answer to our first question— who initiated the removal? — the records turned over under FOIA show that USCIS’ training materials, which had been public for years, were in fact removed at the explicit direction of the Asylum Division’s top official. Even as that official, John Lafferty, acknowledged that the materials were of significant public interest, correspondence shows he rebuffed his own staff’s suggestion to archive them.
NBC: The deaths of three ICE detainees since April, along with the release of several internal and watchdog reports documenting dismal conditions at ICE detention centers, have prompted an outcry from advocates who say the Trump administration is pushing growing numbers of immigrants into a detention system ill-equipped to care for them. See also HHS to house thousands of unaccompanied minor migrants on military bases and at Texas facility.
NYT: A growing number of asylum seekers have found that the journey to the Continent is safer and cheaper than paying smugglers to get them through Mexico.
IOM and UNHCR: The number of Venezuelans leaving their country has reached four million, IOM, the International Organization for Migration, and UNHCR, the UN Refugee Agency, announced today. Globally, Venezuelans are one of the single largest population groups displaced from their country.
QNS: The legislation [would] ensure that conditions for immigrants in New York State county jails comply with legal detention standards. In addition, the law will also limit the expansion of detention facilities in the state unless approved by the legislature.
Politico: A fast-track asylum regulation is currently under review at the White House budget office, according to a related regulatory website.
The regulation — titled “Asylum Eligibility and Procedural Modifications” — would be implemented as an interim final rule, which means it would take effect upon publication in the Federal Register.
WaPo: But it is unlikely that the Senate will consider the bill: McConnell and other Senate Republican leaders made no mention of the bill at their weekly news conference Tuesday afternoon.
From the listservs: If you get calls from family trying to locate someone who was just detained, keep in mind that if they were detained crossing the border then there is a high probability that they are not with ICE, but with the U.S. Marshal Service with pending illegal entry charges. This became much more common over the past year with Zero Tolerance and its implementation through Operation Streamline. So they won’t appear on the ICE Locator. Unfortunately, they will often not appear on BOP’s website either because USMS detainees that are in contract facilities don’t show on the website. One trick is to check on PACER (www.pacer.gov worth getting an account), which will confirm if have a pending criminal 1325 or 1326 case, and will also have their defense atty name.
In a one-sentence order, the U.S. Supreme Court denied the Trump administration’s motion to expedite consideration of the petition for a writ of certiorari. (DHS, et al. v. Casa de Maryland, et al., 6/3/19) AILA Doc. No. 18030734
LexisNexis: “The BIA reversed [an IJ in] Salt Lake City in a detained withholding / CAT case (client is in Tacoma, WA in withholding only proceedings) on the grounds that my client had suffered past persecution at the hands of local [Mexican] police on account of his imputed nationality as a U.S. citizen.”
Gothamist: The civil rights lawsuit, which was filed this week in federal District Court by Legal Services NYC, raises serious questions about the DOE’s commitment to serving a significant demographic in the New York City public school system, that of non-native English-speaking parents.
The GAO responded to a letter sent by 82 members of the House, accepting their request to work within the scope of its authority to review several issues regarding the current backlog of immigration cases managed by USCIS. AILA Doc. No. 19060334
AILA issued a practice alert on EOIR’s policy memo, No Dark Courtrooms, effective Wednesday, 5/1/19. This memo formalizes EOIR’s policy of “no dark courtrooms” and directs “OCIJ managers to ensure…that all blocks of available immigration court time are being utilized for scheduling cases.” AILA Doc. No. 19052970
On 5/31/19, the DOS updated its immigrant and nonimmigrant visa application forms to request additional information, including social media identifiers, from most U.S. visa applicants worldwide. AILA Doc. No. 19060671
DHS OIG issued a report after it conducted inspections of four detention facilities and found violations of ICE’s National Detention Standards, including “immediate risks or egregious violations of detention standards in Adelanto, VA, and Essex County, NJ….” AILA Doc. No. 19060601
USCIS Updates Fee Payment System Used in New York Field Offices
USCIS: U.S. Citizenship and Immigration Services (USCIS) has expanded the fee payment system used in field offices across the country, including the New York, Brooklyn, Long Island, and Queens offices. The improvements, implemented in New York in April, will fully replace the older system on Friday, June 7. Note that after that date, applicants will no longer be able to pay by money order or a cashier’s check at the New York, Brooklyn, Long Island, and Queens offices.
RESOURCES
· Mexican Tarjetas de Visitante por Razones Humanitarias and Firm Resettlement: A Practice Advisory for Advocates (attached)
· Practice Advisory on the SIJS litigation for applicants between the ages of 18-21 (attached)
Buzzfeed: The Trump administration is considering a proposal that would bar asylum for those who transit through a third country, a potential major escalation in the administration’s attempts to deter asylum-seekers, according to sources close to the administration.
WaPo: The White House plans to begin levying the import penalties on June 10 and ratchet the penalties higher if the migrant flow isn’t halted. Trump said he would remove the tariffs only if all illegal migration across the border ceased, though other White House officials said they would be looking only for Mexico to take major action. See also White House Releases Statement from President Trump Regarding Emergency Measures to Address the Border Crisis.
BIA: An Immigration Judge has the authority to dismiss removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7) (2018) upon a finding that it is an abuse of the asylum process to file a meritless asylum application with the U.S. Citizenship and Immigration Services for the sole purpose of seeking cancellation of removal in the Immigration Court.
Vermont Service Center (VSC) no longer entertains requests for supervisory review
VSC: Generally speaking, the Vermont Service Center (VSC) no longer entertains requests for supervisory review of requests for evidence (RFEs), via this email hotline or any other method. If your client disagrees with the RFE or believes that the requested evidence has already been submitted, they may wish to indicate this in their response to the RFE. They may also wish to resubmit the requested evidence. Any information submitted will be reviewed by the adjudicating officer.
U.S. News: President Donald Trump on Thursday signed a memorandum that will direct federal agencies to enforce a longstanding rule requiring the sponsors of legal immigrants to reimburse the government for any public benefits the immigrant uses, such as Medicaid and food stamps.
AIC: Immigration and Customs Enforcement officials regularly place detained immigrants into prolonged solitary confinement, despite findings that such confinement is a form of torture.
NYT: Visa applicants to the United States are required to submit any information about social media accounts they have used in the past five years under a State Department policy that started on Friday.
NYT: Files on those drives showed that he wrote a study in 2015 concluding that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats.
Politico: The Trump administration plans to launch a new panel to offer “fresh thinking” on international human rights and “natural law,” a move some activists fear is aimed at narrowing protections for women and members of the LGBT community.
USA Today: The Transportation Security Administration is preparing to send up to 400 workers to the southern border to assist with the rising number of Central American migrants, but officials say the move shouldn’t affect air travel as the summer travel season gets underway.
WaPo: The Department of Homeland Security personnel will work as “advisers” to Guatemala’s national police and migration authorities, and they will aim to disrupt and interdict human smuggling operations, the officials said, speaking on the condition of anonymity to describe a plan that has not been made public. U.S. authorities hope that the effort will cut off popular routes to the United States and deter migrants from beginning their journeys north through Mexico.
Gothamist: Hundreds of immigrants detained at the southern border have been transferred to jails in the New York City area in the last few weeks, as the Trump administration takes unprecedented steps to manage a growing number of migrants seeking entry to the United States.
NYT: The Trump administration’s crackdown on unauthorized immigration has resulted in the prosecution of tens of thousands of people entering the country illegally. But new data suggests that the government has not prioritized the prosecution of employers, whose jobs represent the biggest lure for those crossing the southern border to reach the United States.
ImmProf: The Trump Administration is seeking Supreme Court review of a Fourth Circuit decision rejecting the administration’s attempt to rescind DACA. Here is the cert petition. In addition, the Supreme Court has granted cert in Hernandez v. Mesa, which asks whether the family of a Mexican teen killed by a U.S. Border Patrol agent in a cross-border shooting can sue the officer for damages (case page at this link).
The AG invites amici on whether judicial alteration of a criminal conviction or sentence should be taken into consideration in determining the immigration consequences of the conviction. Comments due by 7/12/19. Matter of Thomas and Matter of Thompson, 27 I&N Dec. 556 (A.G. 2019) AILA Doc. No. 19052900
NorthJersey: The daughter of a man who died while in immigration custody filed a wrongful death lawsuit Thursday against Hudson County and its jail, where he was held before he died of internal bleeding at a local hospital.
An Immigration Judge has the authority to dismiss removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7) (2018) upon a finding that it is an abuse of the asylum process to file a meritless asylum application with the U.S. Citizenship and Immigration Services for the sole purpose of seeking cancellation of removal in the Immigration Court.
Unpublished BIA decision vacates denial of continuance where IJ did not make preliminary determination whether respondent was prima facie eligible for U visa. Special thanks to IRAC. (Matter of Gomez-Alfaro, 7/31/18) AILA Doc. No. 19052995
Unpublished BIA decision holds that an administratively entered judgment of guilt due to the respondent’s failure to appear in court does not qualify as a conviction for immigration purposes. Special thanks to IRAC. (Matter of Davies, 7/30/18) AILA Doc. No. 19052895
In an unpublished BIA decision, the BIA affirmed the Immigration Judge’s decision to terminate removal proceedings, finding that the crime of fraud under $5,000, in violation of section 380(1)(b) of the Criminal Code of Canada is not a CIMT. Courtesy of Richard Hanus. AILA Doc. No. 19052834
Unpublished BIA decision reopens and terminates proceedings sua sponte in light of holding in United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), that assault under Wash. Rev. Stat. 9A.36.021 is not a crime of violence. Special thanks to IRAC. (Matter of Ibrahim, 8/7/18) AILA Doc. No. 19052896
Unpublished BIA decision holds that making false statement to firearms dealer under 18 USC §924(a)(1)(A) is a not a firearms offense because it applies to dealers who falsify their own records. Special thanks to IRAC. (Matter of Lopez, 8/17/18) AILA Doc. No. 19053135
Unpublished BIA decision holds that online solicitation of a minor under Tex. Penal Code 33.021 is not aggravated felony sexual abuse of a minor or attempted sexual abuse of a minor because it does not require a victim under 16 years of age. Special thanks to IRAC. (Matter of Adeeko, 8/14/18) AILA Doc. No. 19053132
BIA: Vacates order rescinding LPR status because respondent was not given opportunity to cross-examine ex-spouse or USCIS officer who took her statement
The court found that the petitioner, a citizen of Ireland who had entered the United States as a child and had overstayed his visa, was not entitled to a presumption of prejudice, and that he could not make a particularized showing of prejudice. (O’Riordan v. Barr, 5/22/19) AILA Doc. No. 19052831
The court vacated the district court’s dismissal of the plaintiffs’ complaint alleging that the defendants’ failure to engage in discharge planning for the plaintiffs’ serious medical needs prior to release violated their substantive due process rights. (Charles v. Orange County, 5/24/19) AILA Doc. No. 19053130
The court held that the BIA had disregarded and distorted significant portions of the record when it found that the petitioner had failed to establish that the Salvadoran government was unwilling or unable to protect her from persecution. (Orellana v. Barr, 5/23/19) AILA Doc. No. 19052832
The court held that substantial evidence supported the BIA’s determination that petitioner, who had been a police officer in Honduras, had failed to show a nexus between the alleged persecution he suffered and his membership in a particular social group. (Martinez Manzanares v. Barr, 5/24/19) AILA Doc. No. 19052833
The court held that DHS’s failure to include the time and date of the petitioner’s hearing in the Notice to Appear (NTA) was a failure to follow a claim-processing rule, not a jurisdictional flaw, and that petitioner did not timely object to DHS’s misstep. (Ortiz-Santiago v. Barr, 5/20/19) AILA Doc. No. 19052803
The court held that a Notice to Appear (NTA) that is defective under Pereira v. Sessions cannot be cured by a subsequent Notice of Hearing, and therefore does not terminate the residence period required for cancellation of removal. (Lorenzo Lopez v. Barr, 5/22/19) AILA Doc. No. 19052872
The court held that petitioner had failed to show that his 1997 parole constituted an “admission in any status,” and thus found he had not obtained the requisite seven years of continuous residency in the United States to be eligible for cancellation of removal. (Alanniz v. Barr, 5/20/19) AILA Doc. No. 19052871
The district court held that USCIS’s policy of declining to naturalize Military Accessions Vital to the National Interest (MAVNI) applicants until the Defense Department and the Army had determined they were suitable for service violated the Administrative Procedure Act. (Nio v. DHS, 5/22/19) AILA Doc. No. 19052839
CBP announced the creation of a new Border Patrol Processing Coordinator position designed to perform administrative tasks related to the intake and processing of individuals apprehended by Border Patrol agents and brought back to stations. AILA Doc. No. 19052837
USCIS will close its international offices, starting with Ciudad Juarez, Mexico and Manila in the Philippines. All offices, including the main district offices for the separate regions, are scheduled to close by March 10, 2020. Watch this page as AILA tracks which offices are closed. AILA Doc. No. 19053131
ICIJ: ICE’s own directives say that isolating detainees — who under federal law aren’t considered prisoners and aren’t held for punitive reasons — is “a serious step that requires careful consideration of alternatives.” An investigation by The Intercept and the International Consortium of Investigative Journalists has found that ICE uses isolation as a go-to tool, rather than a last resort, to manage and punish even the most vulnerable detainees for weeks and months at a time.
AILA: The White House issued a memo directing relevant agencies to update/issue procedures, guidance, and regulations, as needed, to strictly enforce existing income-deeming and reimbursement laws when sponsored immigrants seek certain means-tested public benefits, such as SNAP, Medicaid, and TANF. See also One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018.
TRAC: The hiring pace for new judges continues to be insufficient to keep up with the Immigration Court’s workload. As a result, the court’s backlog continues to climb. While 47 new judges were hired during the first six months of FY 2019, others retired or left the bench. Thus, hiring resulted in a net gain of only 29 additional judges. As of the end of March, EOIR reports judge ranks had only climbed to a total of 424. And this total includes an unspecified number serving in administrative roles. See also Presiding Under Pressure and Judge Denise Slavin on the Immigration Courts, the National Association of Immigration Judges, Article I, and the Leadership at EOIR.
WaPo: President Trump plans to install Ken Cuccinelli II as the new director of U.S. Citizenship and Immigration Services, placing the conservative activist and former Virginia attorney general at the head of the agency that runs the country’s legal immigration system, administration officials said Friday. L. Francis Cissna, the agency’s current director, has told his staff that he will leave his post June 1. The move extends the purge of senior leadership at the Department of Homeland Security, replacing Cissna, a Senate-confirmed agency head with deep expertise on immigration law, with Cuccinelli, a conservative firebrand disliked by senior GOP figures, including Senate Majority Leader Mitch McConnell (R-Ky.).
WNYC: An undocumented immigrant from Brooklyn was deported to his home country in the Caribbean on Wednesday without advance notice, despite serious cardiovascular issues that led him to fall ill on the flight and could soon lead to death without adequate care, according to his attorneys and a cardiologist who reviewed his case.
AP: A 16-year-old Guatemala migrant who died Monday in U.S. custody had been held by immigration authorities for six days — twice as long as federal law generally permits — then transferred him to another holding facility even after he was diagnosed with the flu.
Buzzfeed: “I don’t know how we’re going to be able to afford to stay in Juárez for that long,” a father of three said. “It’s dangerous here for migrants.”
AP: President Andrés Manuel López Obrador has insisted that his main strategy to deal with migration is to improve conditions in migrants’ countries of origin so they don’t feel compelled to leave. However, detentions and deportations in Mexico are up 150% so far this year. Mexico’s efforts did not appear to immediately appease President Donald Trump, who unleashed a broadside on Twitter on Tuesday. Trump wrote that he was “very disappointed that Mexico is doing virtually nothing to stop illegal immigrants from coming to our Southern Border” and added that “Mexico is wrong and I will soon be giving a response!”
Buzzfeed: As of Monday, ICE was holding 52,398 migrants, of which 998 are family units, an agency official told BuzzFeed News. The number represents a significant population spike from just two weeks ago when ICE was holding more than 49,000 migrants.
CNN: Allen and McPherson say they documented their concerns numerous times in reports filed with the Department of Homeland Security during the Obama administration, and felt like the people in power were listening. But they say two things prompted them to speak more publicly about the matter after Trump took office: the spike in family separations at the border and moves to increase family detention rather than scale it back.
Econ Times: The Trump administration has begun the process to ban work permits for spouses of H-1B visa holders, a move that would affect the families of thousands of Indian hi-tech workers in the US.
NorthJersey: New rules will require that court personnel ask federal immigration agents to present a warrant before they arrest anyone in courthouses on civil immigration offenses.
NYT: James Derek Mize, left, and his husband, Jonathan Gregg, are both American citizens. Under a State Department policy, their daughter, who was born abroad, did not qualify for citizenship.
Buzzfeed: The claim, which is typically a precursor to a lawsuit, is for personal injury and wrongful death and accuses the federal government of battery, negligence, and reckless conduct in the Border Patrol shooting of Claudia Patricia Gómez González, an indigenous Mayan woman.
AIC: The deaths show that before giving huge new sums to increase detention capability, the agency must face significant oversight and accountability towards the deplorable conditions it holds migrants in.
Pursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien who was served with a notice to appear that did not specify the time and place of the initial removal hearing failed to provide an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
Neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
USCIS announced that individuals can file certain Form I-539, Application to Extend/Change Nonimmigrant Status, online in certain circumstances. AILA Doc. No. 19052241
DHS final rule adjusting fees for the Student and Exchange Visitor Program (SEVP). The rule is effective 6/24/19. (84 FR 23930, 5/23/19) AILA Doc. No. 19052300
USCIS correction to the notice published at 84 FR 20647 on 5/10/19 on continuation of documentation for beneficiaries of Temporary Protected Status from Nepal and Honduras. The notice corrects the CIS Number, the DHS Docket Number, and the RIN. (84 FR 23578, 5/22/19) AILA Doc. No. 19052231
USCIS: As a first step, certain visitors for business, visitors for pleasure, and vocational students can now apply online to extend their stay in the United States. Additional classifications are coming soon.
There are several dead links after a DOS website redesign. But the reports are still available. It’s also worth checking out the EOIR country conditions research index.
NPR: The plan would prioritize merit-based immigration, limiting the number of people who could get green cards by seeking asylum or based on family ties. But it would keep immigration levels static, neither increasing or decreasing the number of people allowed to legally enter the U.S. each year.
NYT: Last year, fewer immigrants applied for [U] visas — the first annual decline since 2007 — in what law enforcement officials and lawyers called a sign that immigrants were growing wary of helping the police and prosecutors.
WaPo: An attempt by President Trump’s senior adviser Stephen Miller to engineer a new shake-up at the Department of Homeland Security was blocked this week by Kevin McAleenan, the department’s acting secretary, who said he might leave his post unless the situation improved and he was given more control over his agency, administration officials said. See also Before Trump’s purge at DHS, top officials challenged plan for mass family arrests.
WaPo: “E-Verify is going to be possibly a part of it,” Trump replied. “The one problem is E-Verify is so tough that in some cases, like farmers, they’re not — they’re not equipped for E-Verify. I mean, I’d say that’s against Republicans. A lot of the Republicans say you go through an E-Verify.”
On May 13, 2019, the National Association of Immigration Judges (NAIJ) responded to EOIR’s Myths vs. Fact memo issued on May 8, 2019. Their response outlines key assertions made in the EOIR memo that “mischaracterize or misrepresent the facts.” AILA Doc. No. 19051334
In March of 2019, the Social Security Administration (SSA) began mailing notifications to employers identified as having at least one name and Social Security Number (SSN) combination submitted on wage and tax statement (Form W-2) that do not match its records. AILA Doc. No. 19051500
NBC: A government review of how journalists, attorneys, immigration advocates, and activists were monitored and tracked by U.S. border agencies confirms the Mexican government had a major role in the controversial tracking program.
CNN: DHS ran the DNA pilot program to help identify and prosecute individuals posing as families in an effort to target human smuggling. The Rapid DNA testing, as it’s known, involves a cheek swab and can, on average, provide results in about 90 minutes.
Coixes of NYC: Only weeks before the city will announce how its $92 billion budget for fiscal year 2020 will be allocated, pro-immigrant groups are clamoring for more resources for vital programs that support vulnerable communities.
Newsday: A new bill that has picked up key support in the State Legislature would make it a misdemeanor for an employer to report the “suspected citizenship or immigration status” of an employee to federal authorities.
Tuscon: The statements were made in a text message sent by Agent Matthew Bowen, 39, who is accused of knocking down a Guatemalan man with his Border Patrol vehicle on Dec. 3, 2017, and then lying in a report about the incident, according to documents filed in U.S. District Court in Tucson.
LA Times: He knew Trump planned to get tough on immigration — building a wall and deporting drug dealers, rapists and killers. He never imagined anyone would consider his sweet stay-at-home wife a “bad hombre.”
Nola: Mexico’s statistics institute estimated this month that the U.S.-born population in this country has reached 799,000 – a roughly fourfold increase since 1990. And that is probably an undercount. The U.S. Embassy in Mexico City estimates the real number at 1.5 million or more.
Quartz: More than 544,000 immigrants became US citizens in the first three quarters of fiscal year 2018, overall a 15% increase from the same period a year ago, according to the latest data from the US Department of Homeland Security. The largest year-to-year increase occurred in the first quarter of 2018, however there was a slight decrease in the third quarter. See also Immigrant soldiers now denied US citizenship at higher rate than civilians.
The government filed a memo in support of its motion to dismiss, along with declarations from Cynthia Crosby, Deputy Chief Clerk for the BIA, and Joseph Schaaf, the Supervisory Attorney Advisor who manages EOIR’s FOIA Unit. (NYLAG v. BIA, 5/3/19) AILA Doc. No. 18102232
ACLU: The American Civil Liberties Union of Texas and the ACLU Border Rights Center filed an administrative complaint concerning the mistreatment of migrants detained at Rio Grande Valley Border Patrol facilities.
The court denied the petition for review, finding that the petitioner’s conviction for conspiracy in the second degree to commit a felony—namely, murder in the second degree—under New York law constitutes an aggravated felony. (Santana-Felix v. Barr, 5/9/19) AILA Doc. No. 19051638
The court affirmed the BIA’s order denying the petitioners’ applications for asylum and withholding of removal, finding that the BIA did not err by refusing to consider the petitioners’ reformulated particular social group (PSG) on appeal. (Cantarero-Lagos, et al., v. Barr, 5/6/19) AILA Doc. No. 19051637
The court dismissed the petition for review, holding that, under the plain language of 8 USC §1231(a)(5), it lacked jurisdiction to review the petitioner’s underlying 2005 removal order in the context of his reinstatement proceedings. (Villa v. Barr, 5/9/19) AILA Doc. No. 19051642
ICE announced that 50 people are in law enforcement custody after a federal grand jury returned a 206-count indictment criminally charging 96 people for their alleged roles in a large-scale marriage fraud scheme. AILA Doc. No. 19051432
DHS OIG issued a report on CLAIMS3, its electronic system of record, and found that USCIS has not implemented an effective process to track adjudicative decisions and ensure data integrity, noting that USCIS cannot reliably track decisions back to the officer responsible for those decisions. AILA Doc. No. 15051671
AILA updated its practice alert with a summary of engagement with the NBC on this issue. In early May 2019, the NBC confirmed that their Interim Case Management System (ICMS) Team will review the issue and take action to address it if necessary. AILA Doc. No. 18102905
DHS notice of the re-establishment of a matching program between USCIS and the New York Department of Labor to verify the immigration status of non-U.S. citizens who apply for federal unemployment benefits. Comments are due 6/17/19. (84 FR 22510, 5/17/19) AILA Doc. No. 19051771
Albany, NY Jurisdiction Change Details
USCIS: Applicant cases from the zip codes in the following counties will be permanently realigned from the New York City, NY Field Office to the Albany, NY Field Office: Ulster, Dutchess, Sullivan, Orange, and Putnam. This permanent change will go into effect on Monday, May 27, 2019 and will apply to all immigration benefit types adjudicated in the field office, including naturalization applications and adjustment of status (green card) applications and petitions. The Albany, NY Field Office is located at 1086 Troy-Schenectady Road in Latham, N.Y.
Newark, NJ Temporary Caseload Shift
USCIS: A portion of application cases filed by applicants from Kings and Richmond counties, which are usually adjudicated at the Brooklyn, NY Field Office, will be temporarily realigned to the Newark, NJ Field Office. This temporary change will occur in June 2019. The caseload shift to Newark, NJ applies ONLY to naturalization applications (Form N-400 – Application for Naturalization). Applicants will complete their naturalization interview and civics test at the Newark, NJ Field Office on 970 Broad Street in Newark.
Immigration Court Closures
EOIR: The immigration judge conference will be taking place on June 19th and 20th this year. Hearings on those dates will be rescheduled.
Lawfare: On May 7, the Ninth Circuit stayed an injunction against the Trump administration’s “Remain in Mexico” policy. That policy, officially called the Migrant Protection Protocols (MPP), requires the return of certain migrants to Mexico pending a full immigration court hearing.
Marshall Project: Last year, voluntary departure applications reached a seven-year high of 29,818 applications. In the Atlanta court, which hears cases of Irwin detainees like Zamarrón, the applications grew nearly seven times from 2016 to 2018.
Gothamist: Under a local law, the police and jails will already cooperate with ICE if they’ve detained someone convicted of any these 170 violent crimes. De Blasio said it’s appropriate to add seven more to that list because of state legislation since the 2014 law went into effect.
The Hill: Immigration and Customs Enforcement (ICE) on Monday announced a new program that would allow local law enforcement officers to start arresting and temporarily detaining immigrants on behalf of the agency, even if established local policies prevent them from doing so.
WaPo: The Trump administration has sent new guidelines to asylum officers, directing them to take a more skeptical and confrontational approach during interviews with migrants seeking refuge in the United States. It is the latest measure aimed at tightening the nation’s legal “loopholes” that Homeland Security officials blame for a spike in border crossings.
NYT: Thousands of legal residents and citizens, including 55,000 children who are in the country legally, could be displaced under a proposed rule intended to prevent undocumented immigrants from receiving federal housing assistance, according to the Department of Housing and Urban Development.
NYT: The acting defense secretary, Patrick Shanahan, notified Congress on Friday that he intended to shift $1.5 billion that had been designated for the war in Afghanistan and other projects to help pay for work on President Trump’s border wall. See also Shanahan says military won’t leave until border is secure.
AP: Though similar efforts have failed to garner anywhere near the support necessary, Trump hopefully invited a dozen Republican senators to the White House to preview the plan, which was spearheaded by senior adviser and presidential son-in-law Jared Kushner. See also White House may include mandatory E-Verify in immigration proposal.
WaPo: The five-page document, released this month, attempts to debunk 18 claims about immigration to the United States. In some cases, it seems more as though EOIR officials are misusing the fact-checking format to make a point about issues that no one is mischaracterizing. See also HRF Notice of Rejection of EOIR Factsheet (attached).
The Hill: The Trump administration has been contemptuous of refugees and asylum seekers from its earliest days. In recent weeks, as White House adviser Stephen Miller has reportedly exerted greater influence in the White House, we have witnessed a dismantling of protections our country has held dear for decades.
WaPo: Overcrowding at Border Patrol stations in South Texas has become so acute in recent days that U.S. authorities have taken the rare step of using aircraft to relocate migrants to other areas of the border simply to begin processing them, according to three Homeland Security officials. See also Inside Texas’ New Migrant Tent Facility.
ProPublica: How prepared is the Trump administration for an influx of unaccompanied minors at the border? A new complaint shows shelters in New Jersey were already failing to respond when kids got hurt or sick.
Marie Claire: A year ago this month, a 20-year-old Guatemalan woman seeking opportunity in the U.S. was shot dead by a Border Patrol agent in Texas. A video of the killing went viral on Facebook and spurred a media outcry, yet neither the agent’s name nor why he opened fire has ever been made public. In the first of our series on women and migration, we ask, will her family ever get justice?
AIC: The policy could radically changed how the agency determines when a foreign student or exchange visitor is “unlawfully present” in the United States.
NYT: As the Trump administration moves on multiple fronts to shut down illegal border crossings, it has also stepped up punitive measures targeting private citizens who provide compassionate help to migrants — “good Samaritan” aid that is often intended to save lives along a border that runs through hundreds of miles of remote terrain that can be brutally unforgiving.
WaPo: More than 80 Democratic members of Congress have asked the Government Accountability Office to conduct an investigation into the “record-breaking” backlog of immigration cases pending under the Trump administration.
NYC: When NYC Care launches in the Bronx on August 1, residents will be able to use their NYC Care Card to receive their own doctor, get preventative screenings and tests, and connect to a 24/7 service to help make appointments. An estimated 300,000 New Yorkers are currently ineligible for health insurance, including people who can’t afford insurance and undocumented immigrants, and will be able to enroll in NYC Care.
WaPo: At DHS, Morgan is viewed as a capable and hard-charging law enforcement official, but he was widely resented during his Border Patrol tenure by the agency’s senior officials and union chief Brandon Judd.
LA Times: The class-action lawsuit, which represents broad categories of people who have been or will be subjected to detainers, alleges the databases that agents consult are so badly flawed by incomplete and inaccurate information that ICE officers should not be allowed to rely on them as the sole basis for keeping someone in custody.
Post Acosta BIA Decision (attached)
Listservs: The government argued that, because the client’s convictions were on appeal pursuant to a late filed notice of appeal – that per Acosta we needed to rebut the finality presumption by providing evidence that the client’s appeal related to the merits or a ‘substantive defect’ in the proceedings. We provided an affidavit from the criminal appeal attorney stating that she “expected to challenge the client’s case on the merits”. At the BIA, we argued that a NY late-filed notice of appeal is essentially a direct appeal because under NY Criminal Procedure – it becomes a direct appeal once it is granted. We also argued that even if it wasn’t a direct appeal, we had rebutted the presumption of finality with our affidavit from the criminal appeal attorney. The BIA punted on the first issue and decided that the presumption of finality had been rebutted sufficiently in this case.
AP: A federal appeals court has ruled that California’s legalization of marijuana doesn’t protect immigrants from deportation if they were convicted of pot crimes before voters approved the new law in 2016.
Intercept: In a 17-page order, U.S. District Judge Carlos Murguia of the District of Kansas wrote that the federal government failed to meet the high burden of proof required to strip citizenship. “The overriding issue with plaintiff’s case is a lack of reliable, clear, unequivocal, and convincing evidence about what happened during defendant’s immigration-related interviews and what information was material to the interviewers,” Murguia wrote.
President Trump issued a proclamation extending the suspension and limitation from Proclamation 9822 for an additional 90 days, which would begin running if the injunction against the interim final rule at 83 FR 55934 were to be lifted. (84 FR 21229, 5/13/19) AILA Doc. No. 19051300
USCIS notice that DHS will not terminate TPS for Honduras or Nepal pending final disposition of the appeal in Ramos v. Nielsen. The notice further announces that DHS is extending the validity of TPS-related documentation for Nepalese TPS beneficiaries through 3/24/20. (84 FR 20647, 5/10/19) AILA Doc. No. 19051033
DHS final rule exempting portions of the “DHS/ICE–007 Criminal History and Immigration Verification (CHIVe)” System of Records from one or more provisions of the Privacy Act. The final rule is effective 5/9/19. (84 FR 20240, 5/9/19) AILA Doc. No. 19051034
Department of Housing and Urban Development (HUD) proposed rule which would require the verification of the eligible immigration status of all recipients of assistance under HUD’s public housing programs who are under the age of 62. Comments are due 7/9/19. (84 FR 20589, 5/10/19) AILA Doc. No. 19051030
USCIS issued PA-2019-03, updating policy guidance in the USCIS Policy Manual regarding services USCIS provides to the public, including general administration of certain immigration benefits, online tools, and up-to-date information. Guidance is effective immediately and comments are due by 5/24/19. AILA Doc. No. 19051031
EOIR 60-day notice and request for comments on proposed revisions to Form EOIR-26, Notice of Appeal From a Decision of an Immigration Judge. Comments are due 7/8/19. (84 FR 19960, 5/7/19) AILA Doc. No. 19050730
DOS final rule modifying the non-statutory requirement for consular officers to refer §212(d)(3)(A)(i) waiver requests to the Department of State for consideration based on an applicant’s request by limiting the requirement to certain specified circumstances. Effective 5/6/19. (84 FR 19712, 5/6/19) AILA Doc. No. 19050601
USCIS 60-day notice and request for comments on proposed revisions to Form N-648, Medical Certification for Disability Exceptions. Comments are due 6/25/19. (84 FR 17870, 4/26/19) AILA Doc. No. 19050632
There is plenty of stuff about our evil, immoral, scofflaw Administration in this edition of Elizabeth’s report that ought to make us sick to our collective stomachs.
I strongly recommend that you read my choice for “Article of the Week” — “Trump Administration makes a mockery of our asylum system” in The Hill, written by my friends Anna Gallagher and Victoria Nielson of CLINIC. Here’s an excerpt:
For an administration that claims to believe in the rule of law, it has shown little interest in following domestic and international asylum law. If Border Patrol agents are willing to slam the door on asylum seekers, where asylum officers would not, the administration may win political points with its base. In the end, the United States loses, as our executive branch simply stops following laws it doesn’t like. As the number of displaced persons around the world rises to its highest levels since World War II, if the United States finds ways to sidestep its obligations under international law, other countries will do the same. With each new affront to our moral obligations as a nation, the “lamp beside the golden door” held high by the Statue of Liberty fades towards darkness.
Anna Gallagher is the executive director of the Catholic Legal Immigration Network, Inc.
Victoria Neilson is managing attorney in CLINIC’s Defending Vulnerable Populations Program.
NPR: In the memo, Trump said he is giving Attorney General William Barr and acting Homeland Security Secretary Kevin McAleenan 90 days to propose new regulations to speed up the processing of asylum claims, charge application fees for those seeking asylum, and to bar work authorization for certain applicants. See also Asylum seekers leave everything behind. There’s no way they can pay Trump’s fee.
WaPo: The request includes $3.3 billion for humanitarian assistance and $1.1 billion for border operations, and it represents a dramatic escalation of the administration’s efforts to address the situation at the border.
Wa Examiner: The Department of Homeland Security is racing to implement a plan that would give federal law enforcement on the border the authority to conduct interviews with asylum seekers who fear returning to their home countries, according to two sources with firsthand knowledge of the plan.
Vox: Asylum officers have raised concerns with their union. Vox spoke with several of them in their capacity as union members, in meetings facilitated and attended by the head of the union representing immigration officers in US Citizenship and Immigration Services, about how the new procedures have changed their jobs.
NBC: On the same day the Trump administration said it would reunite thousands of migrant families it had separated at the border with the help of a “central database,” an official was admitting privately the government only had enough information to reconnect 60 parents with their kids, according to emails obtained by NBC News. See also Homeland Security Used A Private Intelligence Firm To Monitor Family Separation Protests.
CBS: Caliburn is the parent company of Comprehensive Health Services, which operates Homestead and three other shelters for unaccompanied migrant children in Texas. Prior to joining the Trump administration in January 2017, Kelly had been on the board of advisors of DC Capital Partners, an investment firm that now owns Caliburn.
CNN: For months, President Donald Trump’s son-in-law and senior adviser has been chipping away at a plan to overhaul the country’s immigration system, seizing an issue that’s otherwise belonged at the White House to senior adviser and immigration hardliner Stephen Miller.
ICE announced the reallocating resources to investigate the use of fraudulent documents to “create fake families seeking to exploit U.S. immigration laws.” During April 2019, HSI conducted about 100 family unit interviews and have found evidence of fraud in “more than a quarter of cases.” AILA Doc. No. 19050232
WSJ: The Trump administration is moving ahead to allow an additional 30,000 seasonal workers to return to the U.S. this summer, a higher-than-expected number that reflects internal tensions in the White House’s approach to legal immigration.
WaPo: President Trump on Sunday named a former Obama administration official who has embraced some of Mr. Trump’s hard-line positions on border security as the head of Immigration and Customs Enforcement, part of a broad effort to force federal agencies into a more aggressive crackdown on migrants.
WaPo: The sharp dichotomy between the president’s rhetoric and the tone of his aides reflects how they are waging a battle on separate fronts — one political and the other operational — as the administration struggles to deal with a mounting humanitarian crisis at the U.S. border with Mexico.
WaPo: Migration from Mexico has dropped 90 percent over the past 20 years; this year, for the first time ever, Guatemala and Honduras are on pace to surpass it as the leading sources of illegal immigration to the United States.
WaPo: Just 47 percent of key department slots are filled with confirmed appointees, according to the Political Appointee Tracker published by The Washington Post and the Partnership for Public Service. Only Interior is worse, at 41 percent, among Cabinet-level agencies.
Buffalo News: Twelve states, along with the District of Columbia and Puerto Rico, permit undocumented immigrants to get licenses. They do so, however, in vastly different ways, from two-tiered systems in some cases to making it be only used for driving and not, for instance, as identification to get into federal buildings.
ACLU: The information we uncovered through our lawsuit shows that CBP and ICE are asserting near-unfettered authority to search and seize travelers’ devices at the border, for purposes far afield from the enforcement of immigration and customs laws.
LITIGATION/CASELAW/RULES/MEMOS
No More Filing Window at OPLA-NYC
DHS: Please be advised that the Office of the Principal Legal Advisor New York City (OPLA-NYC) will permanently close the reception window at 26 Federal Plaza effective Monday, June 3, 2019. Starting on that date, OPLA-NYC will no longer accept in-person filings at 26 Federal Plaza. OPLA-NYC will continue to receive documents 24/7 through ICE eService (visit: eserviceregistration.ice.gov)… Although OPLA-NYC will continue to accept service of filings by mail, we will only provide proof of service via ICE eService.
Natz Interview Locations
USCIS: Starting June 1, 2019, Brooklyn and Staten Island residents will be interviewed (only natz cases) at the USCIS Field Office in Newark. Newark Office will be working on Saturdays as well. This is the way USCIS deals with the current backlog.
Booker: The bill would directly combat Attorney General Barr’s efforts to indefinitely detain immigrants by, 1) mandating that all detained immigrants have access to a bond hearing before an immigration judge, and 2) shifting the burden to the government to prove that asylum seekers and other immigrants should be detained because they pose a risk to the community or a flight risk.
Unpublished Decision: Theft of Services not a CIMT (attached)
BDS: affirming Judge Farber’s grant of our motion to terminate because our LPR client’s recent petit larceny conviction is on direct appeal (following a successful late-filed notice of appeal) and his theft of services conviction is not a CIMT.
The BIA held that if a NTA does not specify time/place of initial removal hearing, the subsequent service of a notice with that information “perfects” the deficient NTA and triggers the stop-time rule. Matter of Mendoza-Hernandez and Matter of Capula-Cortes, 27 I&N Dec. 520 (BIA 2019) AILA Doc. No. 19050230
Unpublished BIA decision terminated removal proceedings after finding respondent’s conviction of grand larceny in the second degree under NY law was not an aggravated felony and thus she was not removable under INA §237(a)(2)(A)(iii). Courtesy of Michael Goldman. (Matter of Reyes, 4/24/19) AILA Doc. No. 19050302
Unpublished BIA decision holds that the improper handling of a firearm in a motor vehicle under Ohio Rev. Code 2923.16(E)(1) is not a firearms offense because state has prosecuted under similar statutes for possessing antique firearms. Special thanks to IRAC. (Matter of Edwards, 6/20/18) AILA Doc. No. 19050395
Unpublished BIA decision holds that vehicular manslaughter with gross negligence under Calif. Penal Code 192(c)(1) is not a CIMT because it does not require a sufficiently culpable mental state. Special thanks to IRAC. (Matter of Pourmand, 6/18/18) AILA Doc. No. 19050295
Unpublished BIA decision grants interlocutory appeal of denial of motion to change venue to immigration court close to his attorney where respondent had conceded removability and submitted application for cancellation of removal. Special thanks to IRAC. (Matter of Linares Flores, 6/15/18) AILA Doc. No. 19050195
Unpublished BIA decision holds that Va. Code Ann. 46.2-894 is not a CIMT because it does not require drivers to leave the scene of the accident or realize that the accident resulted in injury or property damage. Special thanks to IRAC. (Matter of Sifuentes-Reyna, 6/15/18) AILA Doc. No. 19050196
The court upheld the BIA’s denial of petitioner’s motion to reopen his 2012 removal order, finding that the petitioner failed to show sufficient prejudice resulting from the alleged ineffective assistance of counsel upon which he based his motion to reopen. (Franco-Ardon v. Barr, 4/26/19) AILA Doc. No. 19042900
The court found that the BIA erred in applying the definition of crimes involving moral turpitude (CIMTs) announced in 2016 in Matter of Diaz-Lizarraga to the petitioner’s 2007 conviction for attempted theft. (Monteon-Camargo v. Barr, 3/14/19, amended 4/26/19) AILA Doc. No. 19031974
The court held that the BIA’s decision not to certify a claim is committed to agency discretion and, in this case, was not subject to judicial review. (Idrees v. Barr, 12/13/18, amended 4/30/19) AILA Doc. No. 19011471
The judge granted two classes to be certified in this case challenging Office of Refugee Resettlement policies that the class has argued makes it too difficult for children to get out of detention and back with their families or in a home with a sponsor. (J.E.C.M. v. Lloyd, 4/26/19) AILA Doc. No. 18121803
DOJ notice and request for comments on proposed revisions to Form EOIR-42A and Form EOIR-42B. Comments are due 5/28/19. (84 FR 17891, 4/26/19) AILA Doc. No. 19042936
USCIS updated its Refugee, Asylum, and International Operations (RAIO) Directorate Officer Training course on credible fear of persecution and torture determinations, to explain how to determine whether an individual subject to expedited removal or an arriving stowaway has a credible fear. AILA Doc. No. 19050602
Elizabeth’s second and third items show how the Trump Administration is compromising the fairness of the credible fear and asylum systems within DHS by skewing the law and procedures against asylum seekers. This is despite both the intent behind the UN Convention and Protocol Relating to the Status of Refugees that asylum seekers be “given the benefit of the doubt” and the Supreme Court’s decision in INS v. Cardoza-Fonseca holding that the term “well founded fear” must be given a generous interpretation so that even those whose chances of persecution are as low as 10% could qualify for asylum.
Gothamist: A federal appeals court has found Immigration and Customs Enforcement (ICE) may have violated immigrant activist Ravi Ragbir’s First Amendment rights when it tried to deport him last year.
CNN: A Massachusetts judge and a former court officer are accused of helping a twice-deported undocumented defendant elude immigration authorities by slipping out a rear courthouse door…They face counts of conspiracy to obstruct justice, obstruction of justice, obstruction of a federal proceeding, aiding and abetting, according to an indictment in US District Court in Boston. MacGregor was also charged with one count of perjury.
CNN: The individuals have been returned under the Migrant Protection Protocols policy, informally known as Remain in Mexico, that requires some asylum seekers to wait in Mexico until their immigration hearing.
Politico: The Homeland Security Department is weighing a plan to bypass immigration courts and remove undocumented immigrants who cannot prove they’ve been present continuously in the U.S. for two years or more.
NYT: Another idea, drafted in a memo from Mr. McAleenan in his new capacity as the acting homeland security secretary, would ask the Department of Justice’s Executive Office for Immigration Review to dedicate most or all of its resources toward processing the cases of detained immigrants — temporarily pausing the court proceedings of anyone who has already been released into the country. The memo has not yet been sent, according to the official who disclosed it
WaPo: Trump on Monday issued a presidential memo that declared visa overstay rates “unacceptably high” and calling them a “widespread problem.” … But some analysts say targeting these countries would have little impact on the total number of undocumented immigrants in the United States. Using the percentage of overstays as a measure also disproportionately targets African nations — 13 of the 20 countries are in Africa — while avoiding political conflicts with larger and more powerful countries, such as China and India.
WaPo: Numerous immigration attorneys said the system for reclaiming the funds is mystifying and nearly impossible to navigate without a lawyer or English-language proficiency, and some who pay the bonds are unlikely to see the money again.
Daily Beast: A longtime legal resident of the United States may have been deported to the wrong country for a crime he didn’t commit—all due to what a foreign court has determined could be a case of mistaken identity.
TXMonthly: The pace of MPP hearings in El Paso is expected to increase this week. Migrant advocates warn that the legal system isn’t prepared for what is coming.
AIC: HUD’s new proposed regulation would make it so that any family currently receiving a public housing benefit or subsidy, including Section 8 vouchers, would automatically be ineligible for any housing benefit if even one member of their family living in the house is undocumented. Under the new system, every family member’s immigration status would be screened through the Department of Homeland Security’s Systematic Alien Verification for Entitlements (SAVE) system if they are under the age of 62 and currently live in subsidized housing.
Miami Herald: Under this bill, local law enforcement would be required to honor federal law enforcement’s request for an “immigration detainer,” meaning a request that another law enforcement agency detain a person based on probable cause to believe that the person is a “removable alien” under federal immigration law. The bill would essentially make the “request” a requirement.
HCN: Since its creation in 1989, journalists, members of Congress, government agencies and researchers have seen Syracuse University’s Transactional Records Access Clearinghouse (TRAC) as a vital tool for watchdogging the federal government…But in early April, the organization hit a wall: Its requests for information about asylum and immigration cases weren’t getting through.
AP: U.S. border authorities say they’ve started to increase the biometric data they take from children 13 years old and younger, including fingerprints, despite privacy concerns and government policy intended to restrict what can be collected from migrant youths.
Guardian: The main frames of two large tents popped up last week. They are expected to hold up to 500 migrants amid a level of chaos at the border that has unfolded under the Trump administration’s immigration policies. See also Pentagon set to expand military role along southern border.
Asylum seekers released without CFIs
From the Listservs: Attorneys in Arizona and Texas indicate that many asylum seekers are being released without having had CFIs.
The court held that the appellant stated a cognizable constitutional claim, and that although Congress intended to strip all courts of jurisdiction over his claim, the Suspension Clause requires that he can bring his challenge through the writ of habeas corpus. (Ragbir v. Homan, 4/25/19) AILA Doc. No. 19042607
The court held that the petitioner’s conviction for first-degree assault in Connecticut was an aggravated felony, and that the invalidation of 18 USC §16(b) in Sessions v. Dimaya did not necessitate a remand to the BIA for consideration of this issue. (Banegas Gomez v. Barr, 4/23/19) AILA Doc. No. 19042600.
ALSO: “And lastly, we see no basis for reading Pereira—which dealt only with the “stop time” rule, see 138 S. Ct. at 2110, which is not relevant to this case—to divest an Immigration Court of jurisdiction whenever an NTA lacks information regarding a hearing’s time and date. We thus join several of our sister circuits in allowing proceedings such as these to proceed.”
In a settlement agreement with NWIRP, DOJ agreed to issue a new rule clarifying that attorneys are not required to file a notice of appearance with EOIR when providing consultations and legal advice to unrepresented respondents in removal proceedings. (NWIRP v. Sessions, 4/17/19) AILA Doc. No. 17051834
A district court judge issued a preliminary injunction finding that the plaintiffs are likely to succeed on the merits of their APA claims and equal protection claim and enjoining the Trump administration from terminating TPS for Haiti, effective immediately. (Saget v. Trump, 4/11/19) AILA Doc. No. 19041530
The court denied the petition for review, holding that INA §309, which treats adopted and biological children differently for automatic derivative citizenship purposes, is rationally related to advancing legitimate government interests. (Cabrera v. Att’y Gen., 4/19/19) AILA Doc. No. 19042571
The court vacated the BIA’s order denying the motion to reopen and remanded, holding that the BIA abused its discretion when it failed to meaningfully consider evidence and arguments presented by the Christian Indonesian petitioner and to explain its conclusions. (Liem v. Att’y Gen., 4/19/19) AILA Doc. No. 19042570
The court held it lacked jurisdiction under INA §242(a)(2)(D)’s savings provision to consider petitioner’s collateral attack on her reinstated in absentia removal order, because a petition for review of the underlying removal order was not filed within 30 days. (Luna-Garcia v. Barr, 4/22/19) AILA Doc. No. 19042601
The court found that the record compelled a finding that the torture and persecution the petitioner had suffered in the past and feared in the future were and would be because of his membership in the particular social group of his wife’s family. (Gonzalez Ruano v. Barr, 4/24/19) AILA Doc. No. 19042604
The court reversed the district court’s order granting the habeas petition, finding that the district court erred when it concluded that pre-removal order detention under INA §236(a) is limited to “the period reasonably necessary to receive a removal decision.” (Ali v. Brott, 4/16/19) AILA Doc. No. 19042572
The court upheld California laws AB 450, which requires employers to alert employees prior to federal immigration inspections, and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities. (United States v. State of California, 4/18/19) AILA Doc. No. 19042273
The court held that because the district court did not have the benefit of the Supreme Court’s decision in Goodyear Tire & Rubber Co. v. Haeger when it issued an award of attorneys’ fees, it failed to apply the appropriate legal framework in the case. (Lu v. United States, 4/17/19) AILA Doc. No. 19042501
The court concluded that petitioner’s conviction for third-degree robbery under Oregon Revised Statutes §164.395 was a categorical theft offense, and thus found that the petitioner was removable for an aggravated felony theft offense under INA §101(a)(43)(G). (Lopez-Aguilar v. Barr, 4/23/19) AILA Doc. No. 19042602
In an unpublished decision, the court rejected the petitioner’s claim that the Atlanta Immigration Court (AIC) had denied her equal protection rights. The dissent noted that the petitioner’s statistics regarding the AIC merited further inquiry by the BIA. (Diaz-Rivas v. Att’y Gen., 4/18/19) AILA Doc. No. 19042436
USCIS issued guidance to clarify that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization even where that conduct would not be a state law offense. Effective 4/19/19. Comment period ends 5/2/19. AILA Doc. No. 19041930
Lawsuit challenging the legality of USCIS’s “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” memo as contrary to the statutory unlawful presence provisions, and violative of the APA and the Due Process Clause. (Guilford College v. Neilsen, 10/23/18)
The White House issued a memo on combating high nonimmigrant visa overstay rates. Among other things, the Secretary of State, in consultation with the AG and Secretary of Homeland Security, shall provide recommendations of actions to take to reduce nonimmigrant overstay rates from certain countries. AILA Doc. No. 19042297
USCIS announced that beginning 5/1/19, certain Israeli nationals who are lawfully present in the United States will be able to request a change of status to the E-2 treaty investor classification. AILA Doc. No. 19042272
The White House issued a memo on combating high nonimmigrant visa overstay rates. Among other things, the Secretary of State, in consultation with the AG and Secretary of Homeland Security, shall provide recommendations of actions to take to reduce nonimmigrant overstay rates from certain countries. AILA Doc. No. 19042297
NPR: In a written decision that overturns a 2005 policy, Barr directed immigration judges not to release migrants on bail once their cases have been approved for expedited removal proceedings — a status granted only after an applicant successfully establishes “a credible fear of persecution or torture” in the home country. See also Border Patrol Holds Hundreds of Migrants in Growing Tent City Away From Prying Eyes.
NYT: A federal appeals court said Friday that the Trump administration could temporarily continue to force migrants seeking asylum in the United States to wait in Mexico while their cases are decided.
Reuters: Former Attorney General Jeff Sessions and his successors have been unusually active in this practice compared to their predecessors, a Reuters analysis of Justice Department data shows. The data describe an unprecedented effort by the Justice Department to quietly advance policy goals and transform immigration law from the top down.
Politico: Some of the countries with the highest rates of overstaying temporary visas are in Africa. Chad, Burkina Faso, Djibouti, Eritrea, Liberia, Somalia, and South Sudan have among the highest overstay rates for short-term tourist and business visas, although they send relatively small numbers of travelers to the U.S. each year.
Gothamist: On Wednesday, a new judge, Monte Horton, was presiding over one new courtroom at Varick Street for quick procedural hearings known as a master calendar session. At the empty table where a DHS lawyer normally sits, to question each immigrant, there was just a big, white cardboard box for immigration lawyers to submit copies of documents filed with the court. But the video feed to Federal Plaza was broken. (Equipment failures have been a problem in court hearings by video.) After a delay, the DHS attorney appeared by telephone.
NPR: The New York State Office of Court Administration issued new rules Wednesday curtailing the ability of federal immigration officials to arrest immigrants in state courthouses without warrants.
QZ: US Citizenship and Immigration Services (USCIS), the federal agency in charge of processing visa and citizenship applications, has been rejecting immigrants who work for the marijuana industry or have admitted to using the drug in states where it’s legal, immigration lawyers and advocates say.
CityLab: On Wednesday, the U.S. Department of Housing and Urban Development (HUD) proposed a new rule that seeks to vet all members of families applying for subsidized or public housing, even those who have declared themselves ineligible in the application.
TRAC: A person’s odds of being arrested and deported vary greatly depending upon where he or she lives. The odds of SC deportations and ICE community arrests showed up to a ten-fold difference among the states. Living in a sanctuary jurisdiction often reduced these odds.
WaPo: After several weeks of waiting for the transit permits, Africans launched a protest outside the immigration office, yelling that Mexican officials were racist. Mexican television broadcast images of the migrants apparently scuffling with security guards in front of the building.
CNN: Earlier this week, videos posted online purported to show migrants being held by a militia known as the United Constitutional Patriots before being turned over to US Border Patrol.
AIC: U.S. Citizenship and Immigration Services’ international field offices provide critical services to Americans living abroad, as well as refugees and other immigrants. But in a supposed effort to cut costs, the Trump administration plans to close all 23 offices that span 21 countries by the end of 2019.
Guardian: Nicole García Aguilar was freed from the Cibola County detention facility in New Mexico on Wednesday night, a week after lawyers filed a habeas corpus writ challenging her unjustified and prolonged detention by Immigration and Customs Enforcement (Ice).
Politico: Last year, we spent 10 days traversing thousands of miles across the state of Puebla, Mexico, and in later months across New York’s five boroughs in a door-to-door search for stories like Jorge’s. We wanted to put names and faces to the story of deportation—a story that is so often told only through statistics.
The Attorney General found that if an individual is transferred from expedited removal to full removal proceedings after establishing credible fear, he is ineligible for bond and must be detained, unless he is granted parole. Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) AILA Doc. No. 19041699
Law360: A legal services nonprofit has agreed to pause a lawsuit challenging a government rule that punishes attorneys who offer limited representation to foreign citizens without formally appearing before the immigration court while the U.S. Department of Justice revises its regulation on attorney representation.
NY DCWP: DCWP has filed a lawsuit in New York County Supreme Court against Angel G. Buitron, Buitron Offices & Associates, Susana T. Abarca, and the Law Office of Susana Abarca, PLLC for allegedly using a multi-part scheme to deceive immigrant consumers. DCWP is seeking a court order to permanently stop the illegal business practices and to prevent Buitron from acting as an immigration assistance service provider. DCWP is also seeking that they return money to consumers, create a consumer restitution fund for other victims, surrender any profits, and pay civil penalties for violations of the City’s Consumer Protection Law.
SCOTUSblog: The U.S. Supreme Court will puzzle over this classic, yet novel, statutory question of “mens rea,” or criminal intent, when it hears argument on April 23 in Rehaif v. United States.
A district court judge issued a preliminary injunction finding that the plaintiffs are likely to succeed on the merits of their APA claims and equal protection claim and enjoining the Trump administration from terminating TPS for Haiti, effective immediately. (Saget v. Trump, 4/11/19) AILA Doc. No. 19041530
A federal district court judge issued an order requiring USCIS to adjudicate Special Immigrant Juvenile petitions for people between the ages of 18 and 21 issued special findings orders by the New York Family Court. (R.F.M. v. Nielsen, 4/8/19) AILA Doc. No. 19041635
A settlement was reached in S.A. v. Trump, the lawsuit challenging the Trump administration’s termination of the Central American Minors (CAM) Parole program, that may allow approximately 2,700 children living in Central America to safely reunite with their parents in the U.S. AILA Doc. No. 18121937
The BIA terminated proceedings and dismissed the government’s appeal after finding that under the plain language of INA §101(a)(43)(H), kidnapping in violation of 18 U.S.C. § 1201(a) (2012) is not an aggravated felony. Matter of A. Vasquez, 27 I&N Dec. 503 (BIA 2019) AILA Doc. No. 19041535
The court affirmed the district court’s dismissal of a lawsuit challenging the constitutionality of ICE’s detainee transfer practices, finding that there is no substantive due process right to family unity in the context of immigration detention pending removal. (Reyna v. Hott, 4/16/19) AILA Doc. No. 19041802
The court granted the petition for review and remanded, finding that the BIA committed several legal errors when it concluded that the petitioner’s conviction for assault with a deadly weapon in New Jersey was a crime involving moral turpitude (CIMT). (Garcia-Martinez v. Barr, 4/16/19) AILA Doc. No. 19041934
The Ninth Circuit issued an order temporarily staying the district court’s preliminary injunction order pending resolution of the emergency stay motion, which allowed the Remain in Mexico policy to continue. (Innovation Law Lab v. Nielsen, 4/12/19) AILA Doc. No. 19021561
EOIR issued an updated Uniform Docketing System Manual covering the case processing system that governs the management of all cases in the immigration court. Operational procedures are amended or created through OPPM issued by the Chief Immigration Judge. AILA Doc. No. 19041570
DOS notice of the designation of the Islamic Revolutionary Guard Corps (and all aliases) as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act. (84 FR 15278, 4/15/19) AILA Doc. No. 19041571
USCIS announced the issuance of additional guidance regarding the adjudication of spousal petitions involving minors, following up on guidance issued in February 2019, including instructions to officers to conduct an additional interview for certain I-30 spousal petitions involving a minor. AILA Doc. No. 19041533
The Homeland Security Advisory Council’s CBP Families and Children Custody Panel released a report that provides findings and recommendations on the best practices from federal, state, and local organizations regarding care for families and children in CBP custody. AILA Doc. No. 19041730
CBP announced that beginning in May 2019, I-94 numbers will be alphanumeric. Prior to May 2019, I-94 numbers were 11 digits long and only contained numbers. This change is due to the depletion of numeric-only I-94 numbers and to create a long-term solution for the creation of new numbers. AILA Doc. No. 19041531
USCIS issued policy guidance in the USCIS Policy Manual to clarify that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization even where that conduct would not be an offense under state law. AILA Doc. No. 19041930
AILA received reports from members of multiple-beneficiary petitions approved by the Vermont Service Center (VSC) that are missing the name of the first beneficiary (alphabetically, by surname) from the I-797B approval notice. AILA reached out to the VSC Premium Processing Unit. AILA Doc. No. 19041799
