"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.
If you or any of the retired IJs wanted to follow-up on the phantom NTA issue, I just wanted to pass along a good source: CLINC webinar @1:07:08: https://cliniclegal.org/training/archive/orders-border. It also affects the ability to file motions to change venue because DHS is serving the NTA on EOIR the day of the master calendar hearing, so there are no proceedings for which to file a motion until the day of court.
Judge Garland isn’t worried! HE doesn’t have to practice before the dysfunctional Immigration Courts! PHOTO: Wikipedia Commons
Absolutely “nutsos!” But just “another day at the office” in the three-ring circus 🎪🤹♀️🤡that “Ringmaster Garland” calls his “courts!” Where’s the accountability for this disgraceful mess? Where is the Congressional oversight? What happened to the essential “Article I legislation” to remove this continuing clown show from a flailing and failing DOJ?
AIC: On September 30, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued the long-awaited new set of enforcement priorities, entitled “Guidelines for the Enforcement of Civil Immigration Laws”. The guidelines, which will go into effect on November 29, 2021, will replace the February 18 interim enforcement priorities memo issued to U.S. Immigration Customs Enforcement (ICE), as well as Initial interim guidelines issued on January 20, 2021. See also IDP Statement: DHS’s Deportation Memo Reinforces Flawed Policies of the Past.
Politico: A federal court has moved to preserve the Biden administration’s ability to use a Trump-era public health order to expel migrant families arriving at the southern border.
Reuters: The U.S. Department of Homeland Security said on Wednesday it intends to issue a new memo in the coming weeks ending the “remain in Mexico” immigration program.
Intercept: [T]he arrival of Haitians was anticipated, and much of the chaos that ensued seemed preventable with basic planning and logistics. But in the scramble to contain the media crisis, the U.S. employed tactics that set off a cascade of repression and violence on both sides of the border. By allowing the situation to reach critical levels, federal officials created conditions that made a militarized crackdown seem inevitable, making criminals out of people asserting their right to seek asylum. See also Most of the migrants in Del Rio, Tex., camp have been sent to Haiti or turned back to Mexico, DHS figures show.
Texas Tribune: Defense attorneys have started asking courts to set migrants free because local justice systems, overwhelmed by arrests under Gov. Greg Abbott’s border security push, are routinely violating state law and constitutional due process rights.
NJ Monitor: Now the coalition of faith leaders, advocates, formerly incarcerated people, and their family members have formed the Interfaith Campaign for Just Closures. The group aims to push New Jersey’s congressional delegation to support HR 536, which would revamp the immigration detention system.
NYT: The settlement will provide restitution to passengers who were detained, arrested or deported after immigration agents conducted warrantless searches on buses, Washington State’s attorney general said.
BuzzFeed: The new initiative will provide government-funded legal representation to certain children in Atlanta, Houston, Los Angeles, New York, San Diego, San Francisco, Seattle, and Portland. The Executive Office for Immigration Review, which runs the nation’s immigration courts, is also updating training for attorneys who want to handle immigration cases.
AILA: The BIA dismissed the respondent’s appeal after finding that a Notice to Appear that lacks the time and place of an initial removal hearing constitutes a “charging document.” Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021)
AILA: Where the Yemeni petitioner had been kidnapped and tortured before being convicted and sentenced to 10 years’ imprisonment for political opposition to the Houthi regime, the court concluded that the BIA erred in determining that he was ineligible for asylum. (Ghanem v. Att’y Gen., 9/22/21)
Law360: The Third Circuit refused to undo deportation orders against a Peruvian national who had a simple assault conviction, ruling that the offense amounted to a removable crime of violence.
AILA: The court held that the BIA abused its discretion by entirely failing to address the Libyan petitioner’s Convention Against Torture (CAT) claim, where the petitioner had raised his CAT claim several times in his briefing before the BIA. (Abushagif v. Garland, 9/24/21)
AILA: The court upheld BIA’s denial of asylum, finding petitioner’s proposed particular social group of “family unaffiliated with any gangs who refuse to provide any support to transnational criminal gangs in Guatemala” lacked particularity and social distinction. (Osorio Tino v. Garland, 9/20/21)
AILA: The court concluded that the BIA did not abuse its discretion in determining that the petitioner’s 2016 motion to reopen was untimely, nor did it commit legal error in declining to sua sponte reopen her case. (Cui v. Garland, 9/23/21)
AILA: Where the petitioner claimed she was persecuted because of her membership in a house church that was not registered with the Chinese government, the court held that the BIA appropriately relied on two inconsistencies in making its adverse credibility determination. (Li v. Garland, 9/21/21)
AILA: Granting the petition for review, the court held that the petitioner’s convictions in Washington for robbery in the second degree and attempted robbery in the second degree did not qualify as aggravated felony theft offenses under INA §101(a)(43)(G), (U). (Alfred v. Garland, 9/22/21)
AILA: Granting the petition for review and remanding, the court found that the BIA at least partly relied on a legally erroneous—and thus invalid—rationale for declining to exercise its sua sponte reopening authority. (Berdiev v. Garland, 9/21/21)
Law360: The D.C. Circuit on Thursday granted the Biden administration’s bid to stay a district court order that blocked the administration from expelling migrant families, providing it time to pursue an appeal of the ruling, which was slated to go into effect on Friday at midnight.
Law360: A D.C. federal judge banned U.S. Marshals in the nation’s capital from detaining criminal defendants based on suspicion related to their immigration status Thursday, ending a class action over the agency’s practice of holding individuals despite release orders.
AILA: Where USCIS had refused to adjudicate the adjustment of status application of the plaintiff, a Temporary Protected Status (TPS) recipient with advance parole, the court held that the plaintiff was an “arriving alien” who had executed his deportation order. (C-E-M- v. Wolf, et al., 9/29/21)
AILA: A federal district court in Mississippi held that plaintiffs had established unreasonable delay by USCIS in the adjudication of their adjustment of status applications, and ordered USCIS to adjudicate their applications before the end of FY2021. (Parcharne, et al. v. DHS, et al., 9/30/21)
AILA: The federal district court in D.C. ordered DOS to reserve 6,914 diversity visas (DVs) for adjudication pending final judgment for Goodluck-related plaintiffs, and to reserve 481 DVs for Goh plaintiffs to be issued by the end of FY2022. (Goh, et al. v. DOS, et al., 9/30/21)
Law260: A border-focused law enforcement initiative launched by Texas earlier this year suffered setbacks in a state court on Tuesday, with prosecutors agreeing to release dozens of immigrants being held in state custody and to completely drop charges against two of them.
Law360: The Biden administration agreed to pay $1.15 million to attorneys who successfully advocated for the safe custody of migrant children held in border detention facilities, while the attorneys continued to push for additional fees for an appeal the administration abandoned.
AILA: EOIR announced its “Access EOIR” initiative, which attempts to raise representation for individuals appearing before immigration courts. New trainings under the Model Hearing Program are available, and recent EOIR efforts include the development of the Counsel for Children Initiative.
AILA: DHS issued updated guidance on the enforcement of civil immigration law. Guidance is effective on 11/29/21 and will rescind prior civil immigration guidance.
AILA: DHS issued a statement announcing that it “intends to issue in the coming weeks a new memorandum terminating the Migrant Protection Protocols (MPP).” However, DHS is moving forward with plans to restart the program pursuant to a district court order.
AILA: SAVE announced that DHS will admit Afghans as special immigrant (SI) conditional permanent resident status and CBP will admit Afghans as non-SI parolees. The memo describes both categories, the qualifications for either, the ways their status will be documented, and more.
AILA: DHS automatically extended the validity of certain EADs with a category code of A12 or C19 issued under TPS for Syria through 3/28/22. For Form I-9, TPS Syria beneficiaries may present qualifying EADs along with an individual notice issued by USCIS that indicates extension of EAD.
I’d go even further than the article in The Intercept. The Biden Administration was told by experts during the early Transition Period to make restoring order and the rule of law to the asylum system at our borders one of their highest priorities. That included reviving and expanding the USCIS Asylum Office, reopening legal ports of entry, replacing the BIA with qualified progressive expert Appellate Judges who understood asylum law and would establish practical humane precedents, bringing in progressive, dynamic progressive asylum leadership at both the DHS and DOJ, reopening legal border ports of entry, and instituting a robust refugee programs for the Northern Triangle and the rest of the Americas.
With a 10 week “head start,” these were neither rocket science nor unachievable. Instead the Administration dawdled and fumbled, treating asylum reform as an issue that would “just go away.” Once in office, Mayorkas, Garland, and Harris aggravated the problem by not making the obvious progressive personnel and structural changes necessary to restore the asylum and refugee systems.
Now, we have the worst of all worlds! Disorder at the border, cruelty and abuse of migrants, and folks like Harold Koh, who have the expertise, backbone, and creative solutions that Mayorkas and Garland so stunningly lack fleeing the Administration and speaking out against its inane and inhumane policies.
All so stupid! All so unnecessary! All so damaging to America and humanity!
Politico: With bipartisan immigration talks stalled, the White House and congressional Democrats are pushing to add a path to legal residency for 8 million immigrants to their sprawling social spending plan this fall. In order to steer that help for Dreamers, essential workers and those with Temporary Protected Status past a filibuster, though, the party has to win over the Senate parliamentarian, the chamber’s non-partisan rules arbiter.
TRAC: Alongside the growing number of asylum-seekers assigned to the new Dedicated Docket, new questions emerge about whether these cases will be completed fairly and within the promised timeline, whether Immigration Judges will be able to manage large Dedicated Docket caseloads, and whether the Court is reliably tracking these cases as promised.
AP: A federal task force is launching a new program Monday that officials say will expand efforts to find parents, many of whom are in remote Central American communities, and help them return to the United States, where they will get at least three years of legal residency and other assistance.
Reuters: Nearly three dozen former immigration judges have urged the U.S. Supreme Court to rule that federal appeals courts have the power to review immigration court rulings on whether individuals are eligible for relief from deportation.
NPR: The Dulles Expo Center outside Washington, D.C., is usually reserved for home and garden or gun shows. Now the cavernous center hosts thousands of Afghan refugees. See also US gives 1st public look inside base housing Afghans.
NPR: The workers who’d gathered at Tepeyac started compiling a list, which in the next few days grew to 700 missing people. Almost all immigrants, many undocumented.
Intercept: Djumaev himself has never faced any criminal charge nor even been brought before an immigration court. When he later booked travel to the United States, the authorities blocked his return.
Reuters: The renewals for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan will last until Dec. 31, 2022, according to U.S. Citizenship and Immigration Services, and were required as part of ongoing litigation over former President Donald Trump’s attempts to end most enrollment in the program.
Law360: A majority of the First Circuit’s judges declined on Wednesday to rehear a request for deportation relief from a Venezuelan man who said he was forced to smuggle drugs into the U.S., with one judge writing in her dissent that the full panel’s decision not to rehear the case is a “dangerously slippery slope.”
Law360: A Dominican Republic immigrant who pled guilty to endangering a child in 2006 lost his deportation fight on Tuesday when the Second Circuit ruled in favor of the retroactive application of a 2010 decision, which found such crimes a removable offense.
Law360: As he walked down a Brooklyn block with a loaded gun in his hand on a dry, hot summer evening in 2016, Javier Perez didn’t know he was about to trigger a constitutional dilemma.
AILA: The court held that the petitioner, who spoke “Pidgin” English, was denied due process, because the IJ did not conduct an adequate initial evaluation of whether an interpreter was needed and took no action even after the language barrier became apparent. (B.C. v. Att’y Gen., 9/1/21)
AILA: The court held that, because the petitioner was a naturalized citizen at the time of his conviction for a felony relating to conspiracy to illicitly traffic controlled substances, he was not removable under INA §237(a)(2)(A)(iii)’s aggravated felony provision. (Singh v. Att’y Gen., 8/31/21)
LexisNexis: Gayle v. Warden: Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings.
Law360: A Sierra Leonean national who pled guilty to aggravated identity theft lost his fight to stay in the U.S. on Friday, after the Third Circuit found that he had used fake documents for a bank fraud scheme.
AILA: The court upheld the denial of Convention Against Torture (CAT) relief to the petitioner, finding that the evidence did not compel the conclusion that any torture by the MS-13 gang would occur with the consent or acquiescence of Honduran officials. (Tabora Gutierrez v. Garland, 8/31/21)
Law360: A Fifth Circuit panel on Wednesday peppered attorneys with questions aimed at understanding the effect of an order prohibiting the U.S. Department of Homeland Security from following two Biden administration directives that prioritize the removal of certain immigrants.
AILA: Where the petitioner challenged as unconstitutionally vague INA §241(b)(3)(B)(ii)’s non-per-se “particularly serious crime” (PSC) term, the court found that the statute stands because its text imposes standards that must reference underlying facts. (Mumad v. Garland, 8/27/21)
AILA: The court held that, in making an adverse credibility determination as to petitioner, the IJ was allowed to afford substantial weight to discrepancies associated with a threat by gang members and a report the petitioner procured and submitted to the IJ. (Rodriguez-Ramirez v. Garland, 9/1/21)
Alam v. Garland: The en banc court overruled prior Ninth Circuit precedent establishing and applying the single factor rule, which required the court to sustain an adverse credibility determination from the Board of Immigration Appeals, so long as one of the agency’s identified grounds was supported by substantial evidence.
AILA: The court concluded that the petitioner had failed to present sufficient evidence to permit a rational trier of fact to find that his parents had obtained a “legal separation” as required for him to derive U.S. citizenship under former §321(a) of the INA. (Ghia v. Garland, 9/2/21)
AILA: The court held that the BIA erred in applying Matter of Cortes Medina retroactively to classify the petitioner’s 2011 conviction for indecent exposure under California Penal Code section 314.1 as a crime involving moral turpitude (CIMT). (Reyes Afanador v. Garland, 8/27/21)
LexisNexis: Etemadi v. Garland “Kami Etemadi, a citizen and native of Iran, came to the United States in 1996 and made a life in Los Angeles. After being introduced to an Iranian American church, he converted to Christianity and was baptized in 1999. The government maintains his faith is false, and endeavors to deport him.
AILA: U.S. District Judge Cynthia Bashant of the Southern District of California declared unlawful the government’s practice of systematically denying asylum seekers access to the asylum process at ports of entry (POEs) along the U.S.-Mexico border. (<=”” i=”” style=”box-sizing: content-box; background-clip: border-box;”> (9/2/21)
AILA: U.S. District Judge Amit Mehta of the District of Columbia granted summary judgment to plaintiffs on their claims that the No-Visa Policy violates the Administrative Procedure Act (APA), and that defendants unreasonably delayed their visa applications. (Goh, et al. v. DOS, et al., 9/9/21)
Documented: They said an officer violently tugged at an immigrant’s shackles as she was being transferred into ICE custody, which caused her to bleed and bruise on her hips, ankles and wrists. According to multiple women who had been held there, medical neglect there is an “ongoing systemic problem.”
AILA: EOIR issued a memo establishing a dedicated docket to certain individuals in removal proceedings with a focus on the adjudication of family cases as designated by DHS.
AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.
AILA: USCIS notice of the automatic extension of the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through 12/31/22 from the current expiration date of 10/4/21. (86 FR 50725, 9/10/21)
AILA: USCIS stated that they will extend the time that receipt notices can be used to show evidence of status from 18 months to 24 months for conditional permanent residents with pending Form I-751 or Form I-829. New receipt notices will also be provided to those who file Form I-751/I-829 before 9/4/21.
AILA: ICE provided interim guidance on motions to reopen in light of SCOTUS’s decision in Niz-Chavez v. Garland, stating that some noncitizens may now be eligible for cancellation of removal. Until 11/16/21, ICE attorneys will presumptively exercise prosecutorial discretion for these individuals.
AILA: ICE provided updated statistics on COVID-19 in ICE detainees, by facility. As of 9/7/21, there are 847 positive cases currently in custody among a total detainee population of 23,445.
AILA: CDC notice announcing a blanket humanitarian exemption to the requirement for a negative pre-departure COVID-19 test for evacuees from Afghanistan. The exemption went into effect on 8/15/21. (86 FR 49536, 9/3/21)
Item #1 on immigration reform is interesting, although I think the odds on any major reform passing are still slim. If enacted, remedial legislation would not only help America and recognize the huge contributions and potential of our many undocumented residents, but also would help eliminate the largely self-created Immigration Court backlog.
“Due Process Forever!”Hmmm, where have I herd THAT before? Thanks, Dan, for all you do for the NDPA!
The American Immigration Council, the National Immigration Alliance, and the Law Professors, all representing a number of other organizations, also filed in behalf of the “good guys, truth, justice, and the American way,” in this case. The respondents are expertly represented by my friend and legendary immigration advocate Ira J. Kurzban, Esquire, of Kurzban Kurzban Tetzeli and Pratt PA.
Ira Kurzban ESQUIRE Legendary American Immigration Lawyer
One could not imagine a group MORE in need of thorough, critical, independent Article III judicial review of its decisions than today’s dysfunctional EOIR!There, potentially fatal errors have been “institutionalized” and even “normalized” as just another “unavoidable” consequence of the anti-immigrant, “haste makes waste,” “culture” that constantly places churning out removal orders above due process, fundamental fairness, and best practices!
Ironically, doubling the number of Immigration Judges, eliminating expertise as the main qualification in judicial selections, and forcing yet more “gimmicks” down their throats has actually nearly tripled the case backlog to an astounding 1.4 million cases, without producing any quantifiable benefit for anyone!
Obviously, it’s high time for Garland to “reinvent” EOIR with progressive experts, many with private sector Immigration Court experience, as judges and leaders at both the appellate and the trial level! Who knows what wonders might result from an emphasis on quality, humanity, and getting decisions correct in the first instance? Progressives are used to creatively solving difficult problems without stepping on anyone’s rights or diminishing anyone’s humanity! Those skills are in disturbingly short supply at today’s failed and failing EOIR! And, they aren’t exactly DOJ’s “long suit,” either.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
“A federal judge declared unlawful the U.S. government’s turnbacks of asylum seekers arriving at ports of entry along the U.S southern border. The court ruled that the United States is required by law to inspect and process asylum seekers when they present themselves at ports of entry, and condemned the practice of denying access to the asylum process through metering and similar practices.
The decision came after oral arguments were held before U.S. District Judge Cynthia Bashant of the Southern District of California on Tuesday.
The case, Al Otro Lado v. Mayorkas, was brought 4 years ago by Al Otro Lado and a group of 13 individuals seeking asylum in the United States whom U.S. Customs and Border Protection turned back. The Center for Constitutional Rights, Southern Poverty Law Center, American Immigration Council, and the law firm Mayer Brown challenged the policy.
Nicole Ramos, Border Rights Project Director of Al Otro Lado, said, “After over four years, a U.S. federal court concluded what our team at Al Otro Lado has known all along, that CBP’s turning away of asylum seekers from ports of entry and metering are illegal and violate the rights of the individuals and families most in need of our protection. Despite DHS’s lies about their capacity to process asylum seekers, the reasons behind why metering exists, and the agency’s destruction of evidence in the case, today the rule of law and justice prevail.”
Baher Azmy, Legal Director of the Center for Constitutional Rights, said, “This is such an important victory for our heroic partners at Al Otro Lado, who have fought for asylum seekers for years against every variation of government lie, denial, and abuse of power. The decision will protect thousands of vulnerable people at the border.”
Melissa Crow, Senior Supervising Attorney with the Southern Poverty Law Center, said, “This decision affirms what people fleeing persecution and immigrant rights advocates have argued for years: the U.S. government’s denial of access to the asylum process at ports of entry is blatantly illegal. The Court properly recognized the extensive human costs of metering, including the high risk of assault, disappearance, and death, when CBP officers flout their duty to inspect and process asylum seekers and instead force them to wait in Mexico.”
“Turning back asylum seekers at ports of entry unconstitutionally stripped people of their right under U.S. law to access the asylum process in the United States. Ports of entry are a critical part of our nation’s asylum system and serve as the front door for arriving asylum seekers. Today’s decision underscores that the government may not simply shut that door and deny asylum seekers this right. The law protects asylum seekers arriving at our doorstep as it does those who stepped over the threshold. CBP must inspect and process arriving asylum seekers,” said Karolina Walters, senior attorney at American Immigration Council.
“Today’s decision is not just a victory for justice and the rule of law, it takes a significant step towards ending a troubling chapter in our nation’s history,” said Stephen Medlock, a partner at Mayer Brown LLP. “Under the turnback policy that was at issue in this case, the very government officials that should have been welcoming and assisting victims of persecution and torture were told to turn them away from the United States. The district court found that to be unequivocally illegal.”
Maria Frausto at the American Immigration Council, mfrausto@immcouncil.org or 202-507-7526; Marion Steinfels at SPLC, marion.steinfels@splcenter.org or 202-557-0430; Jen Nessel, Center for Constitutional Rights, 212-614-6449, jnessel@ccrjustice.org; Melissa Flores, Al Otro Lado, melissa@alotrolado.org, 213-444-6081.”
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Not surprisingly to those of us who understand the system, this illegal, inane, and unnecessary policy instituted by the Trump kakistocracy and inexplicably continued under Biden has fueled illegal entries, as we effectively gave asylum seekers no legal avenue to make their applications.
As noted above, the Trump Administration also lied to the court and the public about the justification for the program, which clearly was fabricated.
But, to be fair, the Biden Administration has done little to re-establish the rule of law for asylum seekers at the Southern Border. Obviously, this case demands a long overdue investigation into the DOJ attorneys who handled and defended the indefensible, and the misconduct of those attorneys and CBP officials in hiding or destroying evidence and creating bogus scenarios to “justify” their illegal actions. But, don’t hold your breath for Garland, who seems largely indifferent to misconduct at the DOJ or anywhere else in Government, to take any action.
Legal asylum seekers suffer severe consequences for the Government’s concerted attack on their legal rights and humanity. The “perps on our payroll” — not so much. No wonder our legal system is in free fall!
It isn’t clear to me how this case interacts with Biden’s continuation of Title 42 which illegally bars many asylum seekers from pursuing their claims in any manner. There are exceptions, but they appear to be somewhat arbitrary and depend mostly on what CBP feels like doing on any particular day.
For those allowed to pursue claims in the U.S., the Biden Administration still doesn’t have a functioning way of promptly and fairly determining their cases. “Dedicated Dockets” at EOIR are just another “designed to fail” gimmick, almost certain to increase backlogs without promoting fairness and efficiency.
That which would make the asylum system functional for all — immediate EOIR reform, including new progressive leadership, a progressive BIA, much better asylum precedents, some progressive IJs well-qualified to handle asylum cases fairly and efficiently (e.g., getting them right initially, insisting that Asylum Officers do likewise, and cracking down on frivolous behavior by DHS in Immigration Court, rather than the haste makes waste “any reason to deny culture” that drives EOIR’s incredibly poor and inept performance on asylum cases today) and working agreements with the private bar for representation and reasonable scheduling — has been of little visible interest to Garland and his lieutenants to date.
With Congress more or less living on another planet, that’s likely to leave reshaping the asylum system to the Federal Courts. There, as this case shows, there is still a smattering of Article III Judges committed to due process and the rule of law for asylum seekers. But, there are now enough right wing extremists put on the bench by the GOP to make it highly likely that any hard won progressive judicial reforms will eventually be undone.
The one place where progressive reforms could actually take place, and be made to endure, at least for the balance of this Administration — EOIR — has been mishandled by Garland to date.
What an awful, disgraceful mess — with no viable plans for improvement on the horizon!
Proposed asylum regulation changes that rely heavily on a currently broken, dysfunctional, non-expert EOIR to protect the rights of asylum seekers — after years of intentionally bashing them on behalf of their nativist overlords — is an obvious non-starter that fails to “pass the straight face test” as those who actually are condemned to practice before EOIR know all to well. Of course, the regulatory proposal wasn’t drafted by those actually familiar with the human trauma of litigating asylum cases at EOIR.
Ah, Casey, “why can’t anyone out there in ‘Bidenland’ play this game?”
“Casey Stengel might understand Judge Garland. The rest of us not so much.” PHOTO: Rudi Reit Creative Commons
SCOTUSblog: The Supreme Court on Tuesday night rejected the Biden administration’s plea for a reprieve from a district-court order requiring it to reinstate a Trump-era program known as the “remain in Mexico” policy, which requires asylum seekers to stay in Mexico while they wait for a hearing in U.S. immigration court. The court was divided on the decision to deny relief, with the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – indicating that they would have granted the government’s request and put the district court’s order on hold. See also The Supreme Court’s stunning, radical immigration decision, explained; Biden administration will continue challenging ‘Remain in Mexico’.
Politico: U.S. officials in Kabul gave the Taliban a list of names of American citizens, green card holders and Afghan allies to grant entry into the militant-controlled outer perimeter of the city’s airport, a choice that’s prompted outrage behind the scenes from lawmakers and military officials. See also In evacuation mission’s 11th hour, hope dims for Afghans seeking escape.
AP: U.S. Immigration and Customs Enforcement must test detainees for COVID-19 before they are transferred to the immigrant detention center in Tacoma, a federal judge ordered Monday.
The Intercept: ATLAS helps DHS investigate immigrants’ personal relationships and backgrounds, examining biometric information like fingerprints and, in certain circumstances, considering an immigrant’s race, ethnicity, and national origin. It draws information from a variety of unknown sources, plus two that have been criticized as being poorly managed: the FBI’s Terrorist Screening Database, also known as the terrorist watchlist, and the National Crime Information Center. Powered by servers at tech giant Amazon, the system in 2019 alone conducted 16.5 million screenings and flagged more than 120,000 cases of potential fraud or threats to national security and public safety.
AP: Five months after the Biden administration declared an emergency and raced to set up shelters to house a record number of children crossing the U.S.-Mexico border alone, kids continue to languish at the sites, while more keep coming, child welfare advocates say.
NYT: a new camp sprang up about 55 miles farther west, in the Mexican city of Reynosa, and this one, aid workers say, is far worse than the one at Matamoros ever was. Overcrowded already, with more than 2,000 people, it is filthy and foul-smelling, lacking the health and sanitation infrastructure that nonprofit groups had spent months installing at Matamoros. Assaults and kidnappings for ransom are commonplace.
NYT: . Through July, Border Patrol officials found 383 dead migrants, the highest toll in nearly a decade, and one already far surpassing the 253 recovered in the previous fiscal year.
Law360: Florida Gov. Ron DeSantis demanded the Biden administration provide personal information on undocumented migrants being relocated to Florida, including names, addresses and the number of people who tested positive for COVID-19 or refused the coronavirus vaccine.
Law360: A federal watchdog on Wednesday called on U.S. Citizenship and Immigration Services to improve its employment eligibility verification system, finding shortcomings that kept the agency from accurately confirming workers’ identities and work authorization in at least 800,000 instances.
AILA: The Supreme Court denied the application for a stay and thus preventing the Biden administration’s effort to halt the reminstatement of “Remain in Mexico.” (Biden, et al. v. Texas, et al., 8/24/21)
AILA: The court extended the district court stay on the preliminary injunction on the Biden immigration enforcement memos indefinitely. (Texas, et al., v. USA, et al., 8/27/21)
Law360: A Nepalese asylum-seeker has another shot at avoiding deportation after the Second Circuit ruled Friday that an immigration judge had prematurely declared his story of Maoist intimidation and violence not credible without giving him a chance to address minor discrepancies.
Law360: The Second Circuit rejected an immigrant’s arguments Wednesday that after being beaten by members of a rival political party for his affiliation with a Sikh party, he could not escape the threat of more violence by moving within India, affirming a Board of Immigration Appeals’ decision to deny asylum and deport the man.
Law360: A panel of Fifth Circuit judges vacated a Pakistani man’s deportation order issued after he was convicted for synthetic marijuana possession, finding that the Board of Immigration Appeals failed to fully consider whether his state law conviction is equivalent to federal drug law.
AILA: Where the petitioner alleged that the U.S. Supreme Court’s decision in Sessions v. Dimaya made his removal unlawful, the court held that the BIA did not err by construing his motion as a motion to reconsider nor by denying it as time barred. (Gonzalez Hernandez v. Garland, 8/13/21)
AILA: The court granted the petition for review of the BIA’s denial of the petitioners’ motion to reopen, finding the BIA abused its discretion by departing from established policy when it failed to apply the Matter of Sanchez Sosa factors. (Gonzales Quecheluno v. Garland, 8/12/21)
AILA: Where BIA had reversed the IJ’s findings that petitioner would more likely than not be tortured in Somalia, the court found that BIA applied the correct legal standard to the Convention Against Torture (CAT) claim and did not engage in impermissible fact finding. (Mohamed v. Garland, 8/13/21)
Law360: The Eighth Circuit refused to stop an Ethiopian refugee’s deportation, ruling Friday that a portion of the Immigration and Nationality Act allowing the deportation of certain migrants who face persecution upon return is ambiguous, but not unconstitutionally vague.
Law360: The Ninth Circuit Wednesday revived a Cameroonian rape survivor’s asylum bid, ruling that the immigration judge cherry-picked discrepancies in the woman’s testimony to justify deporting her and “displayed a dubious understanding of how rape survivors ought to act.”
AILA: The court upheld BIA’s determination that petitioner was ineligible for cancellation of removal under INA §240A(b)(1)(C) due to his conviction for an offense described in INA §212(a)(2), even though he had been previously admitted into the United States. (Sanchez-Ruano v. Garland, 8/11/21)
AILA: The court held that the IJ failed to put the petitioner on notice that his alleged false claim of U.S. citizenship would be at issue during his hearing, and that such failure violated due process by denying him a full and fair hearing. (Flores-Rodriguez v. Garland, 8/16/21)
AILA: The court found it lacked jurisdiction to review petitioner’s challenge to his expedited removal proceedings, concluding that the Supreme Court’s decision in DHS v. Thuraissigiam abrogated any colorable constitutional claim exception to INA §242(a)(2)(A). (Guerrier v. Garland, 8/16/21)
AILA: The court held that an Interpol Red Notice, among other evidence, created a serious reason to believe that the petitioner had committed a serious nonpolitical crime before entering the United States, and that he was ineligible for withholding of removal. (Villalobos Sura v. Garland, 8/17/21)
AILA: The court held that the record did not compel the conclusion that the petitioner suffered hardship in India that rose to the level of past persecution, where he did not experience significant physical harm and his harm was an isolated event, among other factors. (Sharma v. Garland, 8/17/21)
AILA: Granting in part the petition for review, the court held that vehicle theft under California Vehicle Code §10851(a) is indivisible in its treatment of accessories after the fact, and thus is not an aggravated felony theft offense under INA §101(a)(43)(G). (Lopez-Marroquin v. Garland, 8/18/21)
AILA: The court denied the petition for review, holding that because petitioner was convicted of a violation of 18 USC §1546(a) and his sentence was greater than one year, his conviction expressly fell under the definition of aggravated felony in INA §101(a)(43)(P). (Germain v. Att’y Gen., 8/18/21)
Law360: A split Eleventh Circuit panel refused Tuesday to grant asylum to a member of a Sri Lankan ethnic minority or to block his deportation, ruling he hasn’t proven past persecution or credible fear of future persecution.
Law360: A Texas federal judge has blocked an executive order from the state’s governor banning the transportation of certain migrants in the state, holding it violates the supremacy clause of the Constitution by authorizing state officials to make federal immigration determinations.
Law360: U.S. Immigration and Customs Enforcement must test immigrants for COVID-19 before transferring them to a Washington state detention center, after a federal judge blamed the agency for 240 detainees and facility staff contracting the virus over the past three months.
Law360: The U.S. Department of Homeland Security has told a California federal judge that it could not produce an administrative record related to its practice of turning back asylum-seekers at the southern border because no such policy existed.
AILA: USCIS provided information regarding a proposed class settlement in A.O., et al. v. Jaddou, et al. No. 19-cv-6151 (N.D. Cal.) regarding juvenile court orders in the California Juvenile Court with subsequent filed Special Immigrant Juvenile (SIJ) petitions after the age of 18 years old.
AILA: DHS released a memo with guidance on immigration processing for certain Afghan nationals, stating that they will be paroled into the U.S. on a case-by-case basis for a two-year period and may be eligible to apply for status through USCIS.
AILA: EOIR launched its FOIA Public Access Link (PAL), which will allow users to submit requests, check the status of requests, download records, browse the FOIA reading room, and correspond with the EOIR FOIA Service Center. The PAL also allows users to pay required fees online.
AILA: ICE issued interim guidance to all OPLA attorneys to guide them in appropriately executing interim civil immigration enforcement and removal priorities and exercising prosecutorial discretion. Note, on 8/19/21, OPLA suspended reliance on this guidance due to litigation.
Thanks, Elizabeth! It’s interesting and satisfying that several Circuits, including the 2d and the 9th, are openly rejecting EOIR’s practice of “nit-picking” asylum applicants’ testimony in an attempt to deny meritorious applications. It’s all part of the “culture of denial” that continues to flourish at EOIR’s deportation assembly line under Garland.
Sadly, the Circuits haven’t yet had the guts to face the larger problem here — the EOIR system, as currently staffed with too many “Trump plants” as judges and a continuing lack of expertise and anti-asylum, anti-immigrant bias is clearly unconstitutional under the Fifth Amendment!
Indeed, some Circuit panels take judicial review seriously, others function as rubber stamps, and most individuals wronged in Immigration Court lack the lawyers and wherewithal to take their case to the Circuits. This means that inconsistent results and lack of consistently applied expertise at all levels of the Federal legal system just add to the inconsistencies and unfairness heaped on migrants in violation of the Due Process Clause. To date, no Circuit has been willing to act on the glaring constitutional defects at EOIR staring them in the face.
Unhappily, Congress also has failed to act on long-overdue legislation to create an independent, Article I Immigration Court. In the interim, it would be possible to ameliorate, if not entirely eliminate, these constitutional problems by replacing marginally qualified IJs and BIA judges with well-qualified progressive experts and then giving them independence to issue precedents and make necessary procedural and structural changes to restore some semblence of Due Process, quality control, fair procedures, and efficiency to this disgracefully dysfunctional, unnecessarily backlogged system. The private bar could be constructively involved in creating universal representation and sane docket management. Indeed experts recommended these very changes to Garland, only to be ignored in favor of the “same old, same old” incredible mess and gross indifference to both the rule of law and human life at EOIR!
Not surprisingly, a recently issued report from the Government Accountability Office (“GAO”) highlighted lack of “shareholder engagement” — something specifically discouraged by the Trump kakistocracy — as an endemic and continuing problem at EOIR. https://www.gao.gov/products/gao-21-104404
Shareholder engagement means having a meaningful dialogue with those practicing before the courts, and honestly considering their input in advance of promulgating new policies. So called “Town Halls” to announce unilaterally developed bureaucratic policies are the antithesis of this meaningful process. It’s no mystery why EOIR continues to founder and stumble under Garland.
TRAC IMMIGRATION just released the first statistical profile of the “Dedicated Asylum Docket” created by AG Garland and his subordinates without any coherent public explanation or plan in mind. Here they are:
Stats wonks can check them out, and do their own analyses. As usual, given the haphazard nature and often questionable reliability of Government immigration statistics, it’s impossible to draw definitive conclusions.
But, here are a few things that jump out for me.
No criteria. How do you set up a program that deals with life or death decision-making without having transparent criteria about who gets placed on it and why? Easy, you work for Merrick Garland’s DOJ!
CBP in charge of dockets. Since there are no known criteria, and EOIR seems to have gone belly-up as usual, CBP, a law enforcement branch of DHS, gets to decide who is on this “Dedicated Docket.” CBP, of course, has a questionable record of competence and many issues including allegations of racism in its ranks swirling around it. It also has no known expertise or competence in establishing court dockets. Plus, letting a law enforcement agency with interests often adverse to asylum applicants, whose parent agency is a party to all Immigration Court proceedings, control dockets raises obvious ethical and conflict of interest issues.
Individuals, families, or cases? In its usual confusing manner, EOIR presents its stats in terms of individuals assigned to a docket. But, most (not necessarily all) “family units” are heard as a single “case.” According to TRAC, 4886 “individuals” on the Dedicated Docket (“DD”) represents 1,700 “family units.” That’s approximately “three individuals per family unit.” So, to get the approximate number of actual cases on a particular judge’s DD, we have to divide by three. Therefore, the number 600 assigned to a particular judge on the DD would actually represent 200 cases that require individual merits hearings. Got that? Confusing? Of course!
Who is Judge Francisco R. Pietro, and why? The short answer is that Judge Pietro is a 2019 appointee of GOP “Acting” AG Matt Whitaker, assigned to the NYC Docket and is too recent to have any “asylum grant/deny” statistics in the TRAC System. Remarkably, not to mention inexplicably, Judge Pietro has been assigned approximately 22% of the current Dedicated Docket (“DD”), or 1086 of the 4886 individuals covered by the report. (The rest of the DD is divided, very unequally, among31 other IJs).
Dividing by 3, per above, the 1086 individuals assigned to Judge P represent about 395 “actual cases.”
Now, EOIR currently demands that it’s “Assembly Line Worker/Judges” complete 700 widgets (aka, cases) per year. It also expects judges assigned to the DD to strive to complete cases in 300 days, that is 10 months.
So, completing 395 asylum cases in 10 months would only leave Judge P another 2 months to complete the other 305 cases necessary for him to make his “quota.” Something has to give here, particularly if Judge P, like the rest of us, wants to take vacations and Federal Holidays off, prepare his cases, and occasionally gets sick. Who knows, he might even need some updated asylum training, although practical aspects like that don’t appear to be part of the equation at today’s “numbers driven” EOIR.
And, let’s not forget that Judge P is a recent appointment. Recent appointees are likely to be less efficient and less inclined to grant asylum than experienced judges, according to some studies.
Therefore, to meet his quotas, keep his bureaucratic “handlers” at DOJ happy, and hang onto his job, Judge P might be left with two choices:
Cut corners big time (a traditional EOIR “built to fail” approach) which means denying lots of due process; or
Reassign part of his docket to other judges, which leads to “Aimless Docket Shuffling” and building backlog.
Theoretically, Judge P could also choose to hear asylum cases with the care required to provide due process and quality decisions, without worrying about targets and quotas. This would be a more plausible option if he were actually an independent judicial official rather than the employee of a political agency.
Also, don’t kid yourself about the “operational consequences” of assigning Judge P and others to a DD! Even assuming that he had zero cases on his docket before being assigned to the DD (highly unlikely), his unavailability for the “general docket” will place extra burdens on his judicial colleagues that will almost certainly promote more Aimless Docket Reshuffling and more backlog. This, of course, will be true for most of the other 31 judges assigned to the DD, to differing degrees, depending on their DD caseload (which ranges from 1 to 712 “individuals” for the “other 31”). “Rearranging the deck chairs on the Titanic” like this actually prevents the crew from getting more passengers off in time to save lives.
Where are the lawyers coming from? The good news is that among the “top 10 DD Judges,” (comprising 79% of the DD), four are in NYC (2d Cir.), two in Newark (3d Cir.), one in San Diego (9th Cir.), one in SF (9th Cir.), one in LA (9th Cir.), and one in Boston (1st Cir.). There are active immigration bars, including pro bono bars, in all these locations. More over, none of these Circuits is notorious for systemically mistreating asylum seekers, and one, the 9th Cir., actually has some favorable case law, although probably less so since Trump’s far-right appointees have “rebalanced” that Circuit to the right.
Yet, it’s not clear from this statistical profile, nor has EOIR revealed, what, if any, agreements might be in place with local pro bono groups in these areas to achieve universal representation within a 300 day case-completion target, without disrupting the “regular” dockets. Nor is it shown how many of those 4886 individuals now on the DD already have lawyers. These are big unanswered questions.
Why Ecuador? Individuals from Ecuador make up over 40% of the DD, even though they comprise less than 10% of the “regular” (if there is such a thing) Immigration Court docket. Go figure!
How were these particular IJs and locations selected for the DD? No clue, which is disconcerting.
Other interesting information.
Here’s a chart that I constructed giving profiles of the “Top 10 DD Judges:”
Overall, the majority (7) are recent GOP appointees from 2018-20. Of the seven with established asylum grant rates, two have grant rates significantly above the national average (Ling, Sagerman), two have grant rates significantly below the national average (Aina, Pope), and three (Auh, Sturia, Pressman) are relatively proximate to the national grant rate for the TRAC period (33.3). None sit within Circuits known for particular harshness to asylum seekers. None, to my limited knowledge, as far as stats are available, are members of the notorious “Asylum Deniers Club.”
So, we’ll see how it all plays out. Perhaps, over time, advocates will grow to “love and cherish” these DDs. More likely, they will eventually develop the same inconsistencies, inefficiencies, and maddening quirks that have accompanied almost all prior DOJ/EOIR “artificial gimmicks” intended to “speed up the treadmill” without meaningful advance input from experts of the private bar.
But, to me, it looks like the “same old” mismanaged, misguided, failing and flailing EOIR.
Should we expect better from the Biden Administration? You betcha! Will we get it? Probably not, without lots of litigation and hell-raising!
USCIS: Individuals applying for Haiti TPS must submit Form I-821, Application for Temporary Protected Status, during the 18-month initial registration period that runs from Aug. 3, 2021, through Feb. 3, 2023. Haiti TPS applicants are eligible to file Form I-821 online.
TRAC: The number of new cases continues to severely outpace the rate at which judges can keep up, resulting in a growing backlog that is approaching 1.4 million.
ImmProf: A Biden administration official announced last week that the government has processed green card applications at such a slow pace that it will come at least 100,000 slots short of using up the annual limit. Without drastic revisions in the glacial processing times, President Biden will have presided over one of the largest cuts to legal immigration in U.S. history — and almost no one is talking about it.
AIC: All told, available data shows that ICE arrested 674 potential U.S. citizens, detained 121, and deported 70 during the time frame the government watchdog analyzed.
NYT: Mr. Biden said on Thursday night that White House staff were “putting out a message right now” that “we should include in the reconciliation bill the immigration proposal.”
Hill: Although the document is deeply critical of the Trump administration, it leads with border management, relegating the Biden administration’s “root causes” initiative to the last section.
Vox: [D]iversity visa lottery winners who applied for visas amid the Covid-19 pandemic now risk losing their opportunity to come to the US — in part because the State Department has continued the Trump-era policy of deprioritizing their applications.
Buzzfeed: Thirty-two unaccompanied immigrant children who were deported to Guatemala despite a judge’s order have yet to be brought back to the US to apply for asylum, six months after the government admitted it was in the wrong. Now, immigration advocates are ramping up pressure on the Biden administration to speed up the process.
Reuters: Garland’s letter comes just a day after Abbott signed the order, which states that “no person, other than a federal, state, or local law-enforcement official, shall provide ground transportation to a group of migrants” who have been detained by federal immigration officials for crossing the border.
AP: Unless there’s a legal challenge or other exception, ICE’s options are to either transfer current detainees in Illinois to other states or release them.
WaPo: “The IRS is aware some taxpayers who filed tax returns with ITIN numbers did not receive their child tax credit payment for July. We have worked expeditiously to correct this issue and these taxpayers will start receiving payments in August. All impacted taxpayers will receive their July payment.”
Advance copy of USCIS notice announcing the designation of Haiti for Temporary Protected Status for 18 months, effective 8/3/21 through 2/3/23. The notice will be published in the Federal Register on 8/3/21. AILA Doc. No. 21073002
Lexis: Matter of Aguilar-Barajas, 28 I&N Dec. 354 (BIA 2021) (1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018). (2) The Supreme Court’s holding that a statutory rape offense does not…
Law360: The Eighth Circuit refused on Thursday to review a Honduran man’s bid for deportation relief reserved for victims of child abuse, saying the government had discretion to decide he didn’t deserve exemption because of his criminal history.
Law360: A split Ninth Circuit panel denied a Mexican woman’s petition for review of her deportation, which was previously blocked due to the ambiguous nature of her drug conviction, citing a recent U.S. Supreme Court ruling that an unclear conviction alone cannot save an applicant’s case.
Lexis: Maie v. Garland “Maie’s petition contends that his petty theft convictions are not categorically CIMTs. The government’s initial response argued only that Maie failed to preserve this argument. For reasons explained more fully below, we conclude that Maie’s argument was not waived. Because Maie’s argument presents an issue we have yet to address in a published opinion, we ordered supplemental…
Lexis: Romero v. Garland “Romero had been admitted before he applied for adjustment of status. Thus, he is not now an “applicant for admission,” and therefore the “clearly and beyond doubt” burden does not apply. Rather, the “preponderance of the evidence” burden from 8 C.F.R. § 1240.8(d) applies. … [W]e remand for the BIA to reconsider whether Romero met his burden to show by…
Law360: An LGBTQ American expat is closing down her lawsuit seeking to obtain citizenship for her daughter born overseas, following a policy change from the Biden administration that allowed the child to secure a passport even though she’s not biologically related to a U.S. citizen.
AILA: The United States filed a lawsuit in federal district court against Texas and its governor, Greg Abbott, alleging that the governor’s 7/28/21 executive order relating to the transportation of certain migrants during the COVID-19 pandemic is unlawful. (United States v. Texas, et al., 7/30/21) AILA Doc. No. 21080239
Politico: The American Civil Liberties Union on Monday announced it will resume a lawsuit against the Biden administration to force an end to the use of a provision of U.S. health code known as Title 42 to expel migrant families arriving at the border.
AILA: DHS announced that it resumed expedited removal flights for certain families who recently arrived at the southern border, cannot be expelled under Title 42, and do not have a legal basis to stay in the United States. CBP returned individuals to Guatemala, El Salvador, and Honduras. AILA Doc. No. 21080231
AILA: DOS announced that certain Afghan nationals and their eligible family members are now eligible for a Priority 2 designation granting U.S. Refugee Admissions Program access. Notice outlines eligibility. AILA Doc. No. 21080240
AILA: USCIS announced the opening of a new asylum office in Tampa, Florida on August 2, 2021, in response to an increasing asylum workload in Florida. This is the 11th asylum office in the country and the second in Florida. The Tampa and Miami asylum offices will divide the state’s asylum workload.AILA Doc. No. 21080238
AILA: DHS published its semiannual regulatory agenda providing a summary of projected regulations, existing regulations, and completed actions of DHS and its components. (86 FR 41226, 7/30/21) AILA Doc. No. 21080237
Immigration Court backlogs continue to mushroom as Garland to date has failed to take the aggressive measures needed and recommended to slash the docket by getting so-called “non-priority” cases off the docket (see, e.g., “Chen/Moskowitz proposal”) and bringing in more “progressive practical scholar judges” who know how to complete cases without compromising due process;
Biden’s announced support for “immigration legislation by reconciliation” might be the best shot for an Article I Immigration Court — is it an “idea whose time has finally come” as Judge Dana Leigh Marks, long-time Article I advocate, said recently;
Biden Administration mindlessly chooses to go to war with ACLU and human rights advocates on continued abuse of Title 42 to suspend asylum at the border (why not instead enlist these experts to restore a functioning asylum system at the border?);
ICE evidently has been deporting U.S. citizens, and not just “one or two;”
Circuits continue to “ding” BIA on basics like standard of proof, categorical approach;
Lucas Guttentag arrives on the scene @ DOJ not a moment too soon— but he’ll need lots of expert help on the inside to “right this sinking ship;”
Haste makes waste once again, as Gov. drags feet on returning 32 illegally removed children, spurring yet more unnecessary litigation (what about getting it right the first time around? — saves time and resources, also lives!);
https://lawprofessors.typepad.com/immigration/2021/07/lets-call-the-border-crisis-what-it-is-another-big-lie-from-the-right.html is also a “good read.” It seems pretty obvious, as many of us have been saying over and over, that having no legal system for screening and admitting refugees would add to the number of apprehensions and illegal entries — what other choice do desperate refugees have under the dysfunctional system maliciously created by Trump and mindlessly and illegally being maintained by Biden? Blaming the “victims” for our Government’s own intellectually dishonest, scofflaw, and immoral actions is a particularly cowardly thing to do! After nearly seven months in office (and over two months to prepare after the election) there is no excuse for the Biden Administration’s failure to have in place a fair and efficient asylum system, staffed by experts and better IJs who understand asylum and protection laws and are willing and well-qualified to grant relief to the deserving! Properly screening and establishing an orderly, fair adjudication system, with the assistance of NGOs and legal aid groups across the nation, would take pressure off of border communities. It would also allow qualified asylum seekers to become legal residents and begin fully contributing to our society and economy. Almost all experts, economists, and demographers say we need more legal immigration. Here it is staring us in the face; but, our Government wastes time and resources futilely trying to deter and expel folks who can help us out (while saving their own lives — a “win-win”)!
Reuters: U.S. President Joe Biden on Sunday said he remained adamant about the need to create a pathway for U.S. citizenship for so-called Dreamer immigrants, but it “remains to be seen” if that will be part of a $3.5 trillion budget measure.
NBC: The public health order barring border migration, known as Title 42, has expelled back to Mexico almost 1 million immigrants trying to cross the southern border since the Trump administration put it in place in March 2020.
NPR: It’s against this backdrop that Biden is set to give remarks on Monday to the nation’s largest Latino advocacy organization, UnidosUS. But some of Biden’s supporters hope his speech is directed more broadly to the American people — particularly to swing voters who are concerned about migration yet recognize the value of immigrants in their communities, and not just his base.
AP: Supporters say the trend is crucial during a coronavirus pandemic that has left immigrants, who are disproportionately essential workers, more vulnerable to COVID-19 and as federal remedies, like an immigration overhaul or “public option” health insurance, face tough political odds.
WaPo: Fleeing gang violence in El Salvador, Nancy and her two children sought asylum in the United States. Instead, they found themselves stuck in a border camp in Matamoros, Mexico — and the U.S. immigration system. Over the course of a year, in texts, voicemails and other dispatches from Matamoros, Nancy slowly unspooled her harrowing story.
BIA: (1) Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020) (“A-C-A-A- I”), is vacated in its entirety. Immigration judges and the Board should no longer follow A-C-A-A- I in pending or future cases and should conduct proceedings consistent with this opinion and the opinions in Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”), and Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”).
(2) The Board’s longstanding review practices that A-C-A-A- I apparently prohibited, including its case-by-case discretion to rely on immigration court stipulations, are restored.
The BIA found respondent did not submit sufficient objective evidence to support his fear of torture by the Rwandan government and that IJs and the Board lack the authority to recognize the equitable defense of laches in removal proceedings. Matter of O-R-E-, 28 I&N Dec. 330 (BIA 2021) AILA Doc. No. 21072233
Where the IJ had failed to provide a citation or reference to the record in denying the petitioner’s Convention Against Torture (CAT) claim, the court found that the IJ’s decision was not supported by substantial evidence. (Valarezo-Tirado v. Att’y Gen., 7/15/21) AILA Doc. No. 21072137
The court denied the petition for review, finding that the petitioner’s conviction in Texas for delivering cocaine under Texas Health and Safety Code §481.112 was included in the Controlled Substances Act (CSA). (Ochoa-Salgado v. Garland, 7/16/21) AILA Doc. No. 21072238
The court determined that the BIA correctly denied the petitioner’s motion to reopen, holding that the petitioner’s original removal order was not subject to being reopened because he had illegally reentered the United States pursuant to INA §241(a)(5). (Sanchez-Gonzalez v. Garland, 7/16/21) AILA Doc. No. 21072240
The court upheld the BIA’s determination that petitioner was ineligible for cancellation of removal for lacking good moral character, where he had been convicted of drunk driving, had multiple vehicle-related traffic violations, and used a fake social security card. (Meza v. Garland, 7/20/21) AILA Doc. No. 21072605
The court held that the issuance of the decision denying cancellation of removal to the petitioner by a different IJ than the one who had conducted the petitioner’s merits hearing did not violate his due process rights or the text of INA §240(c)(1)(A). (Orpinel-Robledo v. Garland, 7/19/21) AILA Doc. No. 21072331
Where the BIA had held that the petitioner was removable because his conviction for enticing a minor in violation of Iowa Code §710.10(3) constituted a “crime of child abuse,” the court granted the petition for review, vacated the BIA’s decision, and remanded. (Pah Peh v. Garland, 7/16/21) AILA Doc. No. 21072330
The court granted in part the plaintiffs’ motion to vacate its December 31, 2020, reversal of the district court’s injunction of the Healthcare Proclamation (PP 9945), and denied as moot the petition for rehearing en banc. (Doe #1, et al. v. Biden, et al., 7/16/21) AILA Doc. No. 21072334
Upholding the denial of asylum to petitioners, an Armenian family, the court held that substantial evidence supported the adverse credibility determination as to the husband based on implausibilities in the record, and as to the wife based on evasive testimony. (Lalayan v. Garland, 7/13/21) AILA Doc. No. 21072333
The court held that DOS has statutory authority to impose an in-person requirement to seek a certificate of loss of nationality (CLN), but found that the department acted arbitrarily and capriciously in denying the appellant a CLN. (Farrell v. Blinken, et al., 7/13/21) AILA Doc. No. 21072606
Law360: A California federal judge dismissed visa seekers’ legal challenge to a now-rescinded Trump-era order that blocked them from moving to the U.S. on new green cards, saying there was no longer a live controversy after the Biden White House ended the ban.
Advocates reached a settlement after challenging USCIS policy to reject applications with a blank response field. USCIS will accept the original submission date as the filing date for the applications it has identified as having rejected pursuant to the policy. (Vangala v. USCIS, 7/19/21) AILA Doc. No. 20112034
Law360: The federal government on Thursday and Friday filed for the dismissal of five visa fraud suits against Chinese researchers accused of being a part of an orchestrated program by the Chinese government to send military scientists to the U.S.
CDC notice of an order fully excepting unaccompanied children from the 10/13/20 “Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists.” The new order went into effect 7/16/21. (86 FR 38717, 7/22/21) AILA Doc. No. 21072140
DHS notice of Temporary Protected Status extension and redesignation of Somalia for 18 months, from 9/18/21 through 3/17/23. (86 FR 38744, 7/22/21) AILA Doc. No. 21072133
USCIS announced that TPS applicants who are eligible nationals of Burma, Somalia, Syria, Venezuela or Yemen, or individuals without nationality who last habitually resided in one of those countries, can now file their initial Form I-821, Application for Temporary Protected Status, online. AILA Doc. No. 21072138
USCIS posted statements regarding the Texas v. United States decision, stating that DHS will continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization. AILA Doc. No. 21072031
On June 24, 2021, USCIS extended the flexibilities it announced on March 30, 2020, for responding to certain agency requests. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and September 30, 2021, inclusive. AILA Doc. No. 20050133
“Today, a federal district court judge in Oakland, California, approved a final settlement in the case of Vangala v. USCIS, providing relief to over sixty thousand applicants for humanitarian immigration benefits. The lawsuit, filed on November 19, 2020, against U.S. Citizenship and Immigration Services (USCIS), challenged an agency policy adopted under the Trump administration specifically targeting humanitarian benefits for survivors of domestic violence and human trafficking and asylum seekers. Under the policy, USCIS rejected applications that left any question in the application unanswered, even where the question was not applicable—for example where the applicant failed to include a response for middle name because they have no middle name. Additionally, USCIS rejected applications where the applicant wrote “none” or “not applicable” instead of “N/A.”
The lawsuit was filed by Northwest Immigrant Rights Project (NWIRP), the National Immigration Litigation Alliance (NILA), and the Van Der Hout law firm, on behalf of three applicants who sought to represent a nationwide class of individuals whose applications were rejected under the policy. They alleged that the policy was nothing more than a pretextual basis for denying applicants the opportunity to obtain humanitarian benefits provided by Congress.
On December 22, 2020, the agency agreed to suspend the policy, and the parties then entered settlement discussions to address the tens of thousands of applications that USCIS previously rejected. The U.S. district court adopted and approved the final settlement agreement on July 20, 2021.
Under the settlement agreement, USCIS will accept the original submission date of the more than sixty thousand applications it has identified as having been rejected under the policy. USCIS will send notices to these applicants explaining the steps they can take to ensure that their applications for humanitarian benefits are recorded as having been filed as of the date they were originally submitted. Without this relief, these applicants not only would suffer the delays caused by USCIS’ rejection of their applications, but many applicants or their family members would be rendered ineligible because they were unable to file the required forms by timelines specified in the statute.
In addition, the settlement agreement prevents the agency from adopting a similar rejection policy with respect to other immigration forms unless authorized by statute or lawfully implemented through regulations.
“It was an outrageous policy clearly aimed to impede individuals from obtaining the humanitarian benefits that Congress has provided,” said Matt Adams, Legal Director for NWIRP. “It aptly demonstrates the Trump administrations’ utter disregard of the law.”
“USCIS’ rejection policy served no legitimate purpose,” said Mary Kenney, Deputy Director for NILA. “Tens of thousands of applicants will now, finally, be able to move forward with applications that the agency should have accepted in 2020.”
The settlement agreement is here and order approving the settlement agreement can be found here.
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Media contacts:
Trina Realmuto, National Immigration Litigation Alliance
Cruelty, stupidity, illegality, wasting Government resources! So, what else is new about the Trump kakistocracy’s immigration policies and procedures? Wonder why all immigration agencies are running out of control backlogs? Don’t blame the victims — the migrants exercising their legal rights!
In direct contravention of the intent of Congress in structuring DHS so that the “customer services” to migrants and their families would be separate, and no longer subordinate to, immigration enforcement, the Trump kakistocracy turned USCIS into a semi-useless branch of their corrupt, yet inept, White Nationalist enforcement agenda. So incompetent and inappropriate were Trump’s actions that his lackeys managed to “repurpose” USCIS, once one of the few self-sustaining independently funded agencies within Government, into a deficit promoting, bankrupt, money pit.
And, it was a cesspool that failed miserably in its primary mission of serving those seeking legal immigration status, their families, and their employers. A primary reason why the Biden Administration is having difficulties with immigration and human rights is the illegal eradication by the Trump regime of the U.S. legal immigration system, particularly our refugee and asylum systems.
That leaves those suffering from persecution and torture in need of legal protection with no choice but to use the “extralegal system.” Far from their stunningly false claim to have “enhanced” immigration enforcement, the GOP nativists have also destroyed rational, practical, targeted enforcement with their nonsense. Don’t let them get away with blaming the Biden Administration and the victims of their cruel and often illegal behavior which produced the results that many of us predicted!
The next time you hear Ted Cruz, Tom Cotton, or some other GOP nativist restrictionist disingenuously blabbering on about “rewarding lawbreakers” or “doing it the right way,” remember that largely because of them and the Trump regime, America has no functional immigration system for refugees, asylees, or any other type of legal immigrants, nor do we have a functioning Immigration Court system!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
THE GIBSON REPORT — 07-19-21 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group
ALERTS
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
DACA: We are still waiting for more information on how USCIS will address the new decision freezing initial DACA applications (more details below), but it sounds like biometrics for pending applications have been canceled.
Telephonic & Video Hearings at Varick Immigration Court: See list of IJ preferences at the end of today’s briefing.
EOIR Portal: There is now a “View All” button that allows representatives to view a list of their cases in the EOIR portal. Also, the forms for entering appearances have been relocated to a tab at the top titled “Appearances.”
NYT: The judge, Andrew S. Hanen of the United States District Court in Houston, said President Barack Obama exceeded his authority when he created the program, Deferred Action for Childhood Arrivals, by executive order in 2012. But the judge wrote that current program recipients would not be immediately affected, and that the federal government should not “take any immigration, deportation or criminal action” against them that it “would not otherwise take.”
Reuters: Garland in a four-page opinion said Sessions’ 2018 ruling in Matter of Castro-Tum, which has been rejected by three federal appeals courts, improperly parted from decades of practice by concluding that no federal law or regulation authorized so-called “administrative closure.”
CGRS: On July 14, on stipulation of the parties, the Board of Immigration Appeals finally granted asylum to Ms. A.B., the Salvadoran woman at the center of the Trump administration’s assault on asylum for domestic violence survivors.
Appropriations Committee: The bill additionally includes further responsible and effective investments in state and local justice, including:… $50 million for legal representation of immigrant children and families
AP: On immigration alone, the party will need solid support from vulnerable swing-district Democrats and moderates, whom Republicans are certain to accuse of favoring amnesty and open borders in next year’s elections for congressional control.
Law360: President Joe Biden’s nominee to lead U.S. Immigration and Customs Enforcement told lawmakers on Thursday that he won’t end collaboration between the agency and local law enforcement officials, despite having done so as sheriff in Texas’ most populous county.
NYT: About 2,500 Afghan interpreters, drivers and others who worked with American forces will be sent to Fort Lee, Va., south of Richmond, to complete their processing for formal entry into the United States, the officials said.
WaPo: The government’s tally of individual people stopped at the border, as opposed to total apprehensions, shows 455,000 have been taken into custody so far this fiscal year, compared with nearly 490,000 at this time in 2019.
WaPo: Homeland Security Secretary Alejandro Mayorkas on Tuesday warned citizens of Cuba and Haiti against trying to flee to the United States amid unrest in those nations, saying they would be repatriated or referred to other countries for resettlement.
WaPo: The exodus has picked up pace this month, with net outflows of residents regularly exceeding 1,000 a day, according to government figures compiled by activist investor David Webb, even as the pandemic continues to disrupt travel.
Intercept: Under council rules, bills with supermajority support are guaranteed a public hearing within 60 days. No hearing is yet scheduled, but activists say they’re working to get something on the calendar.
Vice: One in five surveyed individuals reported getting electric shocks from the ICE-mandated shackles, according to a new report by Freedom for Immigrants, the Immigrant Defense Project, and the Benjamin N. Cardozo School of Law. The finding is “alarming and worrisome,” according to Layla Razavi, Deputy Executive Director of Freedom For Immigrants.
The Attorney General stated that while the rulemaking proceeds and except when a court of appeals has held otherwise, IJs and the BIA should apply the standard for administrative closure set out in Avetisyan and W-Y-U-. Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021) AILA Doc. No. 21071534
The court upheld the BIA’s denial of the petitioner’s withholding of removal claim, finding that the IJ sua sponte considered the social groups now identified by petitioner, and that the IJ’s decision to deny withholding was supported by substantial evidence. (Quintanilla v. Garland, 7/9/21) AILA Doc. No. 21071432
Lexisnexis: Valarezo-Tirado v. A.G. “We have previously granted a petition for review in which the alleged basis for the BIA’s denial of relief was that “the evidence is insufficient” and “the arguments made by the [government] on appeal . . . are persua[sive]” because we could not “perform meaningful review of [such an] order.” Here, we have even less to work with.
The court held that the BIA and IJ erred in concluding that the petitioner had failed to demonstrate that she was persecuted in Honduras on account of her membership in her proposed particular social group, namely her nuclear family. (Perez Vasquez v. Garland, 7/9/21) AILA Doc. No. 21071434
The court found that the IJ’s incredibly high denial rate for asylum applications, along with her noncompliance with Matter of R-K-K-, presented a substantial likelihood that petitioner would be entitled to relief upon full consideration by a merits panel. (Singh v. Garland, 7/12/21) AILA Doc. No. 21071435
The court held that substantial evidence supported the BIA’s conclusion that the petitioner’s experience in Ukraine did not rise to the level of persecution, and that she had failed to show that the new Ukrainian government would persecute her if she returned. (Chuchman v. Garland, 7/12/21) AILA Doc. No. 21071436
The court upheld the BIA’s affirmance of the IJ’s denial of asylum, finding that the IJ had articulated specific, cogent reasons for concluding that the petitioner’s testimony was not credible, and that those reasons were supported by substantial evidence. (Coto-Albarenga v. Garland, 7/12/21) AILA Doc. No. 21071437
Granting in part the petition for review, the court held that the IJ erred by failing to credit evidence showing that proof of the petitioner’s alienage was tainted because it was obtained from his juvenile court records in violation of California privacy laws. (B.R. v. Garland, 7/12/21) AILA Doc. No. 21071439
The court held that petitioner’s forgery conviction under section 470a of the California Penal Code categorically constituted an aggravated felony offense “relating to forgery” under INA §101(a)(43)(R), thus rendering him ineligible for voluntary departure. (Escobar Santos v. Garland, 7/9/21) AILA Doc. No. 21071438
Law360: The Ninth Circuit doubled back on a previous order that reactivated a policy requiring green card applicants to prove they had health insurance within 30 days of arriving in the U.S., vacating its earlier decision as moot Friday.
A district court found that DHS violated the APA with the creation of DACA and its continued operation, stating that the DACA memo and the DACA program that created it are hereby vacated and remanded to DHS for further consideration. (Texas v. United States, 7/16/21) AILA Doc. No. 21071636
A district court granted final approval of a settlement agreement in Saravia v. Barr, which applies to a class of unaccompanied minors, who were detained by HHS or ORR, and have a removability warrant based in whole or in part on allegations of gang affiliation. AILA Doc. No. 21071539
Law360: A U.S. citizen and a green card holder separately sued U.S. Citizenship and Immigration Services, accusing the agency of unlawfully delaying their foreign spouses’ green card applications for over 17 months.
AIC: The American Immigration Council filed a Freedom of Information Act lawsuit against DHS and its two primary immigration enforcement agencies requesting information about the obscure network of databases, information systems, and data sharing methods that are largely shielded from public view.
DHS announced an 18-month extension and re-designation of Somalia for TPS, effective from 8/18/21 through 3/17/23. A Federal Register notice explaining the procedures necessary to re-register or submit an initial registration application and apply for an EAD will be published soon. AILA Doc. No. 21071935
EOIR: Attorney General Merrick B. Garland appointed Megan R. Jackler, Justin S. Dinsdale, Alexander H. Lee, Loi L. McCleskey, Edwin E. Pieters, Artie R. Pobjecky, Jodie A. Schwab, Kenneth S. Sogabe, Lydia G. Tamez, and Romaine L. White.
Varick IJ Motion for Remote Accommodation Preferences
Judge Auh (for NYV cases): No motion required. Parties may appear via Open Voice.
Judge Burnham: No motion required. Parties may appear via Open Voice.
Judge Conroy: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Drucker: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Haq: No motion required for UAC docket. Parties may appear via WebEx. To the extent Judge Haq covers any other judge’s docket, he will follow that judge’s practice.
Judge Henderson: No motion required. Parties may appear via WebEx or Open Voice.
Judge Hoover: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Kolbe: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice or other technical means, such as WebEx, as appropriate.
Judge Ling: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via WebEx.
Judge Mulligan: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via WebEx.
Judge Mungoven: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Norkin: Motion required, with evidence, indicating specific reasons party is requesting remote accommodation. If motion is granted, the party may appear via Open Voice.
Judge Prieto: No motion required. Parties may appear via Open Voice.
Judge Reid: No motion required. Parties may appear via Open Voice.
Judge Sagerman (for NYV cases): No motion required. Parties may appear via Open Voice.
Subject: [EXT]-Good news on funding for legal representation!
Email originates externally.
Greetings colleagues,
Yesterday House Appropriations Committee passed the CJS appropriations bill for FY 2022 for the Justice Department and other agencies. Importantly, the bill includes a historic $50 million for DOJ to pilot legal representation programs for people in removal proceedings. This is a big step for federal funding for legal counsel. Hooray!
Kudos to all the organizations in the working group on legal representation and access to counsel who have been fighting for this.Of course, we don’t have the money yet and will need to protect this language in the House and get comparable language, hopefully even more funding in the Senate. We have collectively been pushing for $200M.
Committee-passed bill text on legal representation:
“(29) $50,000,000 for a grant pilot program to provide legal representation to immigrant children and families seeking asylum and other forms of legal protection in the United States;
Committee-passed report language on legal representation:
“Legal Representation Pilot for Immigrant Children and Families.—The Committee provides $50,000,000 for the Department to establish a competitive grant program to qualified non-profit organizations for a pilot program to increase representation for immigrant children and families in civil proceedings. The amount is $35,000,000 above the request and $50,000,000 above the fiscal year 2021 level. The Committee recognizes the compelling need to ensure due process for children and families who seek asylum and who must navigate a complex legal system for processing of asylum claims. The Committee supports coordination with grantees and organizations who offer other types of legal assistance or services to immigrants seeking asylum or other forms of legal protection. As with any new pilot program, the Committee expects the Department to assess this program with metrics that will be scaled appropriately to evaluate how this initial investment could be further enhanced to represent a larger portion of un-represented individuals and the impact that it may have on improving attendance rates and decreasing court costs. Within 90 days of enactment of this Act, the OJP shall brief the Committee on its implementation plan for this pilot.
Gregory Z. Chen, Esq.
Senior Director of Government Relations
Direct: 202-507-7615 I Cell: 202.716-5818 I Email: gchen@aila.org
American Immigration Lawyers Association
Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org
1331 G Street, NW, Suite 300, Washington, DC 20005
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With courts reopening, please be aware that mask and courtroom policies may vary by judge/court. Judges have voted to require masks at 26 Federal Plaza, but this is not always the case at the other NY courts.
NY non-detained does have WebEx capabilities, but use is up to the discretion of the judge and be aware that bandwidth may be low.
Just a quick reminder that the NY Immigration Court home page has the wrong links to the standing orders, but you can find the correct links on the operational status page.
For courts that reopened last week, don’t forget that email filing will no longer be allowed as of September 4, 2021.
The attorney entrance to 26 Federal Plaza remains closed. Allow sufficient time to enter by the main security line.
Despite the stated requirement for a certificate of good conduct for PD with OPLA NYC, it sounds like this is most relevant in cases where termination is being requested and there have not been biometrics taken.
NY no longer allows remote notarization: New York’s State of Emergency expired on June 24, 2021. The Executive Order authorizing remote notarization is no longer active. Notary publics can no longer perform notary services remotely.
Guardian: The news comes amid an effort by the Biden administration to boost the use of the monitors as an alternative to putting people in brick-and mortar prisons as they await the outcome of their immigration cases.
WaPo: While social media and word-of-mouth play a role in channeling some migrants toward certain crossing points, smuggling organizations are taking advantage of uneven enforcement policies to convert sections of the U.S. border into designated entry lanes for specific nationalities and demographic groups.
WaPo: In May 2017, Border Patrol agents in Yuma, Ariz., began implementing a program known as the Criminal Consequence Initiative, which allowed for the prosecution of first-time border crossers, including parents who entered the United States with their children and were separated from them.
AP: Immigrant advocates say they have reached a settlement with the U.S. government so they can keep operating a free hotline that lets detained immigrants report concerns about custody conditions.
NYT: As their populations swell nearly to prepandemic levels, U.S. immigration detention centers are reporting major surges in coronavirus infections among detainees.
The court held that the BIA erred in reversing the IJ’s grant of petitioner’s adjustment of status application, finding that it was required to consider in an individualized manner the hardship he might suffer if he were required to return to El Salvador. (Perez-Trujillo v. Garland, 6/28/21) AILA Doc. No. 21070734
The court concluded that the BIA’s interpretation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) to require a noncitizen pursuing a late-filed appeal to make a merits-based showing at the notice stage is unreasonable. (Brathwaite v. Garland, 7/1/21) AILA Doc. No. 21070933
The court held that petitioner was ineligible for asylum based upon his conviction for unlawful wounding in Virginia, and found that the BIA did not err in denying his claims for withholding of removal or Convention Against Torture (CAT) protection. (Moreno-Osorio v. Garland, 6/23/21) AILA Doc. No. 21070736
The court held it had jurisdiction to review the agency’s determination that events that would befall the petitioner’s U.S.-citizen children if he were removed would not amount to “exceptional and extremely unusual hardship” as Congress intended the phrase. (Guerrero Trejo v. Garland, 7/2/21) AILA Doc. No. 21070938
Where the IJ ordered the petitioner removed due to his conviction for online solicitation of a minor in Texas, the court held that the BIA did not err in determining that his conviction was a removable offense under INA §237(a)(2)(E)(i) for a crime of child abuse. (Adeeko v. Garland, 7/1/21) AILA Doc. No. 21070934
Law360: The Sixth Circuit has given a Honduran mother and her son another chance to seek asylum in the U.S., saying the Board of Immigration Appeals must take another look at her petition in light of changes in policy under the new administration.
The court found that petitioner forfeited any objection to the deficiency in his Notice to Appear (NTA) by not timely raising it in the removal proceeding, and that he had not shown cause for forfeiture nor prejudice resulting from the defect in the NTA. (Mejia-Padilla v. Garland, 6/29/21) AILA Doc. No. 21070832
Where petitioner received a procedurally defective Notice to Appear (NTA) for his removal proceedings and made a timely objection, the court held that BIA erred in finding he was not entitled to relief unless he could demonstrate prejudice from the NTA. (Avila de la Rosa v. Garland, 6/24/21) AILA Doc. No. 21070738
The court held that the BIA erred by applying the modified categorical approach to determine that the petitioner’s two Illinois convictions for burglary were removable offenses under federal law, finding that the Illinois burglary statute is not divisible. (Parzych v. Garland, 6/28/21) AILA Doc. No. 21070830
Upholding the denial of withholding of removal, the court found that petitioner had failed to establish membership in a particular social group, and that BIA did not err in determining he could reasonably relocate in Guatemala to avoid a vigilante group. (Bautista-Bautista v. Garland, 7/6/21) AILA Doc. No. 21070940
The court held that petitioner’s Notice to Appear (NTA)—which lacked the time and date of his removal proceedings—did not terminate his period of physical presence in the United States, and thus BIA erred in finding him ineligible for voluntary departure. (Posos-Sanchez v. Garland, 7/7/21) AILA Doc. No. 21071231
The court ordered rehearing en banc and vacated its prior decision in Tomczyk v. Garland, which held that the act of reentering illegally under INA §241(a)(5) requires some form of misconduct by a noncitizen rather than merely the status of inadmissibility. (Tomczyk v. Garland, 7/6/21) AILA Doc. No. 21071230
The court held that the circumstance-specific approach applies to the 30-gram limit of INA §237(a)(2)(B)(i)’s personal-use exception, and that the circumstances of the case established that the amount of marijuana in the petitioner’s possession exceeded 30 grams. (Bogle v. Garland, 6/23/21) AILA Doc. No. 21070834
The court held that the IJ had failed to evaluate the factors weighing in favor of granting voluntary departure to the petitioner, and thus granted in part the petition for review and remanded to the BIA. (Zamorano v. Garland, 6/25/21) AILA Doc. No. 21070833
The court affirmed the district court’s order requiring DHS to apply the 1997 Flores Settlement Agreement to certain minors detained in hotels for more than a few days pending their expulsion from the United States under the CDC’s Title 42 order. (Flores v. Garland, 6/30/21) AILA Doc. No. 21070632
Law360: U.S. Citizenship and Immigration Services has reached a tentative deal with three individuals whose applications for immigration benefits were rejected because they left fields empty, a settlement that could affect thousands of individuals.
Law360: The Biden administration bucked asylum-seekers’ request that it retrieve waitlists of migrants who weren’t immediately allowed to enter the U.S., telling a California federal court that the request goes beyond their claims against the policy of “metering.”
Law360: A group of Texas sheriffs and a law enforcement nonprofit asked a federal judge for a sweeping block on current immigration policy, requesting a five-part injunction that would increase immigration detention and force authorities to arrest more migrants.
The district court released a proposed settlement agreement between ICE and detained immigrants at three detention centers in Florida, in which ICE agreed to implement certain COVID-19 vaccination guidelines and protocol, among other things. (Gayle, et al. v. Meade, et al., 6/28/21) AILA Doc. No. 21070831
Freedom for Immigrants (FFI) reached a settlement with ICE, under which ICE agreed to provide uninterrupted access to FFI’s National Immigration Detention Hotline for at least a five-year period and to pay FFI $100,970 in attorneys’ fees. (Freedom for Immigrants v. DHS, 7/1/21) AILA Doc. No. 19121634
DHS notice of Temporary Protected Status extension and redesignation of Yemen for 18 months from 9/4/21 through 3/3/23. (86 FR 36295, 7/9/21) AILA Doc. No. 21070932
ICE issued a directive stating that it should not detain, arrest, or take into custody for an administrative violation individuals known to be pregnant, postpartum, or nursing, unless release is prohibited by law or exceptional circumstances. Guidance effective 7/1/21. AILA Doc. No. 21070930
AILA’s DOS Liaison Committee provides an alert concerning member reports received from posts in Europe and confirmed in official guidance from DOS that NIEs issued by DOS in the last 12 months have been automatically extended for 12 months.
AP: The children were interviewed by immigrant advocates from March to June, and their accounts were filed late Monday with a federal court in Los Angeles that oversees a longstanding settlement governing custody conditions for children who cross the border alone.
WaPo: Many of the nearly 17,306 Venezuelans who have crossed the southern border illegally since January had been living for years in other South American countries, part of an exodus of millions since President Nicolás Maduro took power in 2013.
Reuters: DOJ’s Executive Office for Immigration Review (EOIR) on Friday withdrew its opposition to the National Association of Immigration Judges’ motion for reconsideration of the November ruling, which said the judges were management employees who cannot unionize under federal law.
Reuters: At the current pace, the total border arrests for the fiscal year, which ends on Sept. 30, would be the highest since 2000, when nearly 1.7 million migrants were apprehended by U.S. authorities.
NYT: The Biden administration is forcing out the chief of the United States Border Patrol, Rodney S. Scott, who took over the agency during the final year of the Trump administration, a Department of Homeland Security official said on Wednesday.
Politico: The plan is to use the Special Immigrant Visa category to process the interpreters once they’re moved to a third country, likely to happen in August.
Law360: New Jersey is on track to join California and become the first East Coast state to ban U.S. Immigration and Customs Enforcement detention facilities following a vote Thursday.
Law360: The U.S. Supreme Court on Monday agreed to assess an Eleventh Circuit decision holding that courts lack authority to review “non-discretionary” determinations by the Board of Immigration Appeals related to findings of inadmissibility.
Law360: The U.S. Supreme Court undid two lower court rulings that blocked a Trump-era asylum policy Monday, deeming an injunction on the Migrant Protection Protocols moot three weeks after President Joe Biden formally ended the program.
The BIA sustained the appeal and remanded to allow the IJ to evaluate if the respondent qualifies for the “simple possession” exception to §245(h)(2)(B) under the circumstance-specific approach. Matter of Moradel, 28 I&N Dec. 310 (BIA 2021) AILA Doc. No. 21062335
Law360: The First Circuit stood by its decision to wipe a lower court ruling that had blocked federal immigration authorities from making arrests in and around Massachusetts courthouses, ruling Thursday that the Biden administration’s decision to curb many such arrests does not render the case moot.
The court found that the BIA did not abuse its discretion in dismissing petitioner’s motion to reopen as untimely, finding that her motion did not contain any evidence that Jamaican officials would likely acquiesce to her torture if she were returned to Jamaica. (Darby v. Att’y Gen., 6/17/21) AILA Doc. No. 21062533
Law360: The Fifth Circuit on Thursday refused to reinstate the asylum status of a schizophrenic Pakistani man who called his brother and threatened to kill up to 50 people in Amarillo, Texas, rejecting his counsel’s arguments that his threat wasn’t serious because he’s mentally ill.
LexisNexis: Avila de la Rosa v. Garland “Cristian Avila de la Rosa received a procedurally defective Notice to Appear for his immigration removal proceedings, and (unlike many others) he made a timely objection to that Notice. The immigration judge, however, disregarded Avila’s objection, and the Board of Immigration Appeals thereafter insisted that Avila was not entitled to relief unless he could demonstrate prejudice.
LexisNexis: Zamorano v. Garland “Victor Luis Angeles Zamorano, a native and citizen of Mexico, seeks review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a decision of the immigration judge (IJ) that denied his application for voluntary departure. Because the IJ failed to evaluate the factors weighing in favor of granting Zamorano voluntary departure, we grant the petition and remand.
Law360: The Ninth Circuit ordered the immigration courts on Tuesday to reconsider a Ukrainian asylum-seeker’s request for protection, finding a series of errors with a judge’s ruling that the migrant wasn’t credible.
The court held that while a self-induced change in personal circumstances does not qualify for the changed country conditions exception, that principle does not apply when changed country circumstances, while personal to petitioner, are entirely outside her control. (Kaur v. Garland, 6/21/21) AILA Doc. No. 21062831
Law360: An immigrant advocacy group wants to know more about the U.S. Department of Homeland Security’s “obscure” network of databases and how immigration agencies store their enforcement data, but alleges that the agencies are dodging its records request in violation of the Freedom of Information Act.
DOJ issued guidance to all immigration court and BIA personnel with information regarding the adjudication of motions to reopen in Migrant Protection Protocols (MPP) cases. AILA Doc. No. 21062437
DHS announced that it will expand the pool of MPP-enrolled individuals who are eligible for processing into the United States. Beginning June 23, 2021, DHS will include MPP enrollees who had their cases terminated or were ordered removed in absentia. AILA Doc. No. 21062332
In response to member inquiries, AILA updated its practice alert to inform members that the new zip code for Essex Junction is correct, however, it appears that some courier services do not yet recognize the new zip code, which goes into effect on 6/25/21. AILA Doc. No. 21061642
USCIS announced that, as of June 2021, will allow attorneys and accredited representatives to use self-service kiosks in USCIS field offices to pay the fees for filing an appeal of a DHS officer decision to the BIA or EOIR immigration court motions. AILA Doc. No. 21062231
Sloan, Tupper: Immigrants deserve right to legal representation
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Sloan, Tupper: Immigrants deserve right to legal representation
Andrea Sloan and Leni Tupper
June 06 2021
The Honorable Andrea Sloan is a retired Portland Immigration Court judge. Leni Tupper is a former attorney adviser in the Portland Immigration Court, and current co-director of Portland Community College’s CLEAR Clinic and co-chair of PCC’s Paralegal Program.
ANDREA SLOAN
LENI TUPPER
Legal representation in immigration court can mean the difference between someone being allowed to remain home, safely in the United States, or being permanently torn from their family, deported and placed in harm’s way.
It can mean access to interpreters in a person’s correct language and dialect so they can fully express their experiences, trauma, and fear. It can mean access to the mental health services and diagnosis necessary to support their wellbeing and their immigration case. Most importantly, it can mean the realization of a right that everyone should be guaranteed: the right to a fair trial.
Instead, most non-citizens in immigration court proceedings are left to navigate the system, commonly referred to as second in complexity only to the U.S. Tax Code, completely alone. That includes children, sometimes very young children. The U.S. immigration court system, unlike our criminal legal system, does not provide court-appointed counsel to immigrants facing deportation who are unable to afford a lawyer. Only 37% of all immigrants and 14% of detained immigrants are represented by attorneys in immigration court, according to a 2016 American Immigration Council study.
Most importantly, immigrants with legal representation are far more likely to be released from detention and succeed in their removal defenses than unrepresented people. According to an AIC study, 63% of non-detained represented immigrants were granted relief in immigration court, while only 13% of unrepresented immigrants were. And tellingly, people appearing before the Portland Immigration Court without legal representation are nearly five-and-a-half times more likely to lose their cases and be deported than those who have an attorney.
As a retired immigration judge and former attorney advisor in the Portland Immigration Court, we have seen these struggles firsthand. We know the trauma that our immigration system inflicts on people, often with an existing history of trauma. And we know that legal representation can lessen the trauma of navigating this virtually incomprehensible system.
But most importantly, we know that legal representation can help avoid the ultimate trauma of deportation. The lack of legal representation for people in the immigration court system, which decides “death penalty cases in a traffic court setting,” is unsustainable not only for the vulnerable members of our community who are subject to its whims, but for those who work in it as well.
Our immigration legal system should be based on facts, law, and justice, not access to wealth and resources. If passed, House Bill 3230 will allow our immigrant community members to exercise their full right to due process under the law and provide access to legal representation. Oregon could be a national leader in ensuring immigrant rights by providing access to counsel.
Please join us in supporting HB 3230 to make this vision of Oregon a reality.
The Honorable Andrea Sloan is a retired Portland Immigration Court judge. Leni Tupper is a former attorney adviser in the Portland Immigration Court, and current co-director of Portland Community College’s CLEAR Clinic and co-chair of PCC’s Paralegal Program.
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Given the lack of responsiveness by the DOJ to our suggestions and recommendations, we’re going to have to fight for due process on all fronts. State and local universal representation programs are a huge opportunity.
Represented individuals are more likely to be able to hold the Government accountable and force change that ultimately will save lives and benefit all.
Thanks for speaking out so forcefully and articulately, Andrea and Leni!
