COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues on listservs as best you can.
EOIR Status Overview & EOIR Court Status Map/List: EOIR has not yet provided an updated general postponement date for non-detained cases at courts that remain closed. The website still reflects last week’s Nov. 13, 2020 date, but EOIR may still plan to update it later than usual.
TOP NEWS
Trump’s Public Charge Rule to Deny Immigrants U.S. Entry Vacated
Bloomberg: The rule violates the Administrative Procedure Act and the statute requires vacatur, the opinion by Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois said.
Asylum Denial Rates Continue to Climb
TRAC: Despite the partial court shutdown during the COVID-19 pandemic, this year immigration judges managed to decide the second highest number of asylum decisions in the last two decades. The rate of denial continued to climb to a record high of 71.6 percent, up from 54.6 percent during the last year of the Obama Administration in FY 2016.
Trump aide Stephen Miller preparing second-term immigration blitz
Guardian: The hardline adviser is said to be ready to unleash executive orders deemed too extreme for a president seeking re-election…Those items are expected to include attempting to eliminate birthright citizenship, making the US citizenship test more difficult to pass, ending the program which protects people from deportation when there is a crisis is their country (Temporary Protected Status) and slashing refugee admissions even further, to zero. See also Election day preview: Trump v. Biden on immigration.
Trump Administration to Put 180-Day Ban on Many Asylum Requests
Bloomberg: The Trump administration is expected to announce a 180-day ban on a range of asylum requests citing the threat posed by the coronavirus, according to two people familiar with the matter, in its latest effort to restrict immigration ahead of the Nov. 3 election.
Trump declares 1 November to be ‘national day of remembrance for those killed by illegal aliens’
Independent: With three days left until the election, the presidential proclamation was designed to hammer home his message of law and order, and position himself as the candidate best placed to protect the United States. See also Undocumented immigrants may actually make American communities safer – not more dangerous – new study finds.
BuzzFeed: The Department of Homeland Security has expelled unaccompanied immigrant children from the US border more than 13,000 times since March, when the Trump administration gave the agency unprecedented powers to close off access at the border during the coronavirus pandemic, according to an internal document obtained by BuzzFeed News.
Across The U.S., Trump Used ICE To Crack Down On Immigration Activists
Intercept: Immigration authorities under President Donald Trump’s administration have pursued a widespread campaign of official retaliation against immigrant rights advocates around the country, according to a newly released database and searchable map assembled by the Immigrant Rights Clinic at New York University Law School. See also Black Immigrants in the United States Have Been Targeted by Trump.
Deported Marine veteran wins federal lawsuit, earns US citizenship
Military Times: A Belize-born Marine Corps veteran won his battle for U.S. citizenship on Tuesday, completing a naturalization interview that had been on hold for more than a year, according to a release from his attorneys.
The Loneliness of the Immigration Lawyer
Prospect: Four years into this migration crisis, there’s a parallel migration under way—of immigration lawyers out of the profession. Survey data and interviews the Prospect conducted with more than a dozen lawyers around the country reveal the physical, mental, and financial toll endured by members of the bar. Given the extreme violence, trauma, and inhumanity their clients often endure, immigration attorneys don’t like to talk about how it affects them. But secondary trauma also leaves a mark, making it impossible to continue for some attorneys.
From the travel ban to the border wall, restrictive immigration policies thrive on the shadow docket
SCOTUSblog: In the past three years, much of the shadow docket has been populated by emergency requests from the Trump administration asking the Supreme Court to intervene before the lower courts have reached a final outcome or to override the actions of lower courts without a meaningful review process — or both.
LITIGATION/CASELAW/RULES/MEMOS
Judge Declares Unlawful and Vacates Government’s Asylum Seeker “Credible Fear” Standards
IRAP: According to Saturday’s order, the “credible fear” lesson plans are vacated in their entirety and the government must bring back at government expense the two named plaintiffs who had been deported before the case was filed so that they can be rescreened under lawful standards.
District Court Vacates DHS Public Charge Rule Nationwide
A district court vacated the DHS final rule on public charge as well as DHS’s request to stay the judgment. This ruling is to take effect immediately thus DHS may not apply the public charge after the date of the order. (Cook County, et al. v. Wolf, et al., 11/2/20) AILA Doc. No. 20110231
The District Court for the Western District of Washington has scheduled a hearing for 11/4/20 for consideration of a proposed settlement in Mendez Rojas v. Wolf, a suit involving individuals who have filed, or will be filing, an asylum application more than one year after arriving in the U.S. AILA Doc. No. 20082430
Lawsuit Seeks to Uncover Secretive Expansion of Judicial Black Sites for Immigration Cases
AILA joined the American Immigration Council and the National Immigrant Justice Center in litigation against EOIR and GSA. The lawsuit requests information on the expansion and creation of immigration adjudication centers, which were established as part of EOIR’s Strategic Caseload Reduction plan. AILA Doc. No. 20103038
CA3 Says Petitioner’s New Jersey Conviction for Criminal Sexual Contact Is an Aggravated Felony
Denying the petition for review, the court held that the petitioner’s conviction in New Jersey for criminal sexual contact constituted an aggravated felony under INA §237(a)(2)(A)(iii) that rendered him removable. (Grijalva Martinez v. Att’y Gen., 10/21/20) AILA Doc. No. 20103036
CA3 Finds Petitioner’s Conviction Under New Jersey’s Terroristic-Threats Statute Was Not a CIMT
Granting the petition for review, the court held that, under the modified categorical approach, the petitioner’s conviction under New Jersey’s terroristic-threats statute was not a crime involving moral turpitude (CIMT). (Larios v. Att’y Gen., 10/14/20) AILA Doc. No. 20102731
The court held that the IJ and the BIA had failed to adequately address unrebutted evidence in the record that compelled the conclusion that the petitioner’s membership in her family was at least one central reason for her persecution. (Hernandez-Cartagena v. Barr, 10/14/20) AILA Doc. No. 20102733
Where the petitioner had told the IJ that he feared persecution at the hands of gangs in Honduras because of his relationship to his mother, the court held that the IJ should have advised him that he might be eligible for asylum or withholding of removal. (Jimenez-Aguilar v. Barr, 10/6/20) AILA Doc. No. 20102736
CA8 Holds That a TPS Recipient Is Eligible to Adjust to LPR Status
The court held that a noncitizen who entered without inspection or admission but later received Temporary Protected Status (TPS) is deemed “inspected and admitted” under INA §245A and thus may adjust to lawful permanent resident (LPR) status. (Velasquez, et al. v. Barr, et al., 10/27/20) AILA Doc. No. 20103037
Where there were inconsistencies, an omission, and implausibilities in the record, the court held that substantial evidence supported the denial of asylum to the petitioner, a native of the Democratic Republic of Congo (DRC), on adverse credibility grounds. (Mukulumbutu v. Barr, 10/13/20) AILA Doc. No. 20102741
The court held that Oregon’s former marijuana delivery statute, Or. Rev. Stat. §475.860, was not an “illicit trafficking of a controlled substance” offense, and thus found that the petitioner’s conviction did not make him removable as an aggravated felon. (Cortes-Maldonado v. Barr, 10/15/20) AILA Doc. No. 20102832
CA11 Says There Is No Duress or De Minimis Exception to the Material Support Bar
The court held that its precedent established that no duress exception exists to the material support bar, and that the statutory text showed that any provision of funds to a terrorist organization categorically qualifies as material support. (Hincapie-Zapata v. Att’y Gen., 10/13/20) AILA Doc. No. 20102834
BIA Finds EWIs Cannot Be Charged with Inadmissibility Under INA §212(a)(7)
Unpublished BIA decision holds that INA §212(a)(7)(A)(i) is only applicable to respondents who seek admission at a port of entry, as distinct from those who enter without inspection. Special thanks to IRAC. (Matter of Ortiz Orellana, 5/26/20) AILA Doc. No. 20102701
The BIA ruled that when there is probative evidence that a beneficiary’s prior marriage was fraudulent and entered into to evade immigration laws, a subsequent visa petition filed on beneficiary’s behalf is properly denied under §204(c) of the INA. Matter of Pak, 28 I&N Dec. 113 (BIA 2020) AILA Doc. No. 20103034
BIA Reopens Sua Sponte Because Florida Theft Statute Is No Longer a CIMT
Unpublished BIA decision reopens proceedings sua sponte upon finding theft under Fla. Stat. 812.014 is no longer a CIMT under Descamps v. U.S., 133 S. Ct. 2276 (2013), and Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016). Special thanks to IRAC. (Matter of Persad, 5/14/20) AILA Doc. No. 20102603
BIA Grants New Bond Hearing Because IJ Conducted All the Questioning
Unpublished BIA decision remands for new bond hearing because the IJ conducted all the questioning and did not give either attorney a chance to ask questions. Special thanks to IRAC. (Matter of L-R-B-, 5/12/20) AILA Doc. No. 20102602
BIA Finds Respondent Who Arrived Late to Hearing Did Not Fail to Appear
Unpublished BIA decision finds respondent did not fail to appear for hearing where he arrived 25 minutes late due to unexpectedly heavy traffic and was in communication with his attorney who was in the courtroom. Special thanks to IRAC. (Matter of Hernandez-Yanez, 5/8/20) AILA Doc. No. 20102601
BIA Holds Federal Anti-Kickback Statute Not a CIMT
Unpublished BIA decision holds that receipt of remuneration under 42 U.S.C. 1320a-7b(b)(1) is not a CIMT because it does not require any loss or harm to a person. Special thanks to IRAC. (Matter of Tejeda, 5/28/20) AILA Doc. No. 20103001
BIA Rescinds In Absentia Order Where Hearing Was Not Reflected on EOIR Hotline
Unpublished BIA decision rescinds in absentia order where EOIR hotline did not reflect the existence of a hearing and the DHS attorney confirmed that the respondent was not on DHS’s docket on the date she was ordered removed. Special thanks to IRAC. (Matter of Opondo, 5/21/20) AILA Doc. No. 20102700
BIA Finds Ninth Circuit TPS Decision Constitutes Fundamental Change in Law
Unpublished BIA decision holds that Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), represents fundamental change of law justifying sua sponte reopening for TPS holders to apply for adjustment of status. Special thanks to IRAC. (Matter of Larios Andrade, 5/27/20) AILA Doc. No. 20103000
DHS OIG Says ICE Needs to Address Concerns About Detainee Care at the Howard County Detention Center
DHS OIG released a report saying that, during an inspection of the Howard County Detention Center, it identified violations of ICE detention standards that threatened the health, safety, and rights of detainees, including excessive strip searches and failure to provide two hot meals a day. AILA Doc. No. 20103031
USCIS Adjustment of Status Filing Dates for November 2020
USCIS determined that for November 2020, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference and employment-based preference categories must use the Dates for Filing chart. AILA Doc. No. 20102991
USCIS Notice of Proposed Rulemaking Creating Wage-Based Selection Process for H-1Bs
USCIS notice of proposed rulemaking (NPRM) which would change the H-1B registration selection process from a random process to a wage-based selection process. Comments on the proposed rule are due 12/2/20, with comments on associated form revisions due 1/4/21. (85 FR 69236, 11/2/20) AILA Doc. No. 20102930
USCIS Adjustment of Status Filing Dates for November 2020
USCIS determined that for November 2020, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference and employment-based preference categories must use the Dates for Filing chart. AILA Doc. No. 20102991
USCIS Notice of Extension of the Designation of South Sudan for TPS
USCIS notice extending the designation of South Sudan for Temporary Protected Status (TPS) for 18 months, from 11/3/20 through 5/2/22. The re-registration period runs from 11/2/20 through 1/4/21. (85 FR 69344, 11/2/20) AILA Doc. No. 20110230
RESOURCES
- TRAC: Immigration Judge Reports — Asylum
- Legal Aid: Expedited Removal Fact Sheet (attached)
- Legal Aid: COVID-Related Objections in Immigration Court
- OIG: CBP Has Taken Steps to Limit Processing of Undocumented Aliens at Ports of Entry
- CRS: Immigration Relief for Victims of Trafficking
- CRS: Temporary Protected Status: Overview and Current Issues
- Vera: Evidence Shows That Most Immigrants Appear for Immigration Court Hearings
- Judiciary Committee Releases Report on Trump Administration Family Separation Policy
- Young Center: Reimagining Children’s Immigration Proceedings: A Roadmap for an Entirely New System Centered around Children
- AILA: Practice Alert: Implementation of Expedited Removal Expansion
- AILA: Practice Alert: DHS Public Charge Rule Vacated Nationwide
- AILA: Advocacy 101
- AILA Practice Pointer: USCIS’s New Policy of Identifying Waived Grounds of Inadmissibility on I-192 Approval Notices for U and T Visa Applicants
- AILA: Practice Pointer: USCIS Requires Derivatives Abroad to Sign Derivative U-Visa Petitions Filed on Their Behalf
- AILA Updated: Ethical Considerations Related to Affirmatively Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident
- ILRC: Advance Parole for DACA Recipients
- CLINIC: Practice Advisory: Adjustment Options for TPS Beneficiaries
- Todo Por Mi Familia: Mental Health Services for Reunified Families
- Board of Immigration Appeals Practice Manual (Revised 10/5/20)
EVENTS
- 11/4/20 Program Strategies for Removal Defense Practice
- 11/5/20 Introduction to Asylum Law w/ I-ARC
- 11/9/20 Asylum Based on Fear of Gangs w/ CALA
- 11/9/20, 11/12/20 Intimate Partner Violence 101
- 11/10/20 Practicing in Video Teleconference Courts
- 11/10/20 Pursuing Immigration Pro Bono Opportunities in Private Practice
- 11/10/20 CMS 2020 Academic and Policy Symposium
- 11/11/20 Climate Change and Oceanic Migrations
- 11/12/20 Defying Non-Reviewability: How to Proceed After a Consular Denial
- 11/12/20 Defending the Southeast Asian Community from ICE’s Deportation Machine
- 11/12/20-11/13/20 Public Charge Training of Trainers
- 11/17/20, 11/19/20 Trauma Informed Interviewing
- 11/17/20 Make the Government Pay! Attorney fees in Immigration
- 11/17/20 Employment-Based Immigration Opportunities for Immigrant Youth
- 11/18/20 Gender-Based Asylum w/ CGRS
- 11/18/20 Applying for Asylum and Related Relief for Clients with Convictions
- 11/24/20 VAWA Self-Petitioning Fundamentals
- 11/30/20 Perfecting a Winning Strategy for Asylum Applications
- 12/2/20 Migration, Climate Change, and Human Adaptation
- 12/2/20 An Overview of Naturalization
- 12/2/20 Informational Webinar on our E-Learning Course: Legal Writing for DOJ Accredited Representatives
- 12/2/20-12/3/20 Legal Remedies for Immigrant Survivors: Introductory Seminar Series
- 12/3/20 Representing Permanent Residents in LPR Cancellation Cases
- 12/3/20 2020 AILA Crimes and Immigration Virtual Conference
- 12/3/20-12/4/20 53rd Annual Immigration and Naturalization Institute
- 12/8/20 Litigating Your Way Out of Delay
- 12/9/20 Public Charge in Consular Processing
- 12/15/20 Crimes Involving Moral Turpitude
- 12/16/20 LPRs and Public Charge
- 12/16/20 Program Strategies for Removal Defense Practice
- 2/4/21 Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas
- 2/5/21 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2021
ImmProf
Monday, November 2, 2020
- Trump declares 1 November to be ‘national day of remembrance for those killed by illegal aliens’
- Call for Papers: Michigan Law School Seventh Annual Junior Scholars Conference
- Immigration Article of the Day: Duress in Immigration Law by Elizabeth Keyes
Sunday, November 1, 2020
- Now Streaming: His House
- New Immigrant Rights Voices website and the #ProtectImmigrantVoices campaign
- Exhibit I for Reform of the Immigration Courts: The systemic problems with our immigration courts are dire
- Deported Vet Becomes a U.S. Citizen
- Trump Campaign Closer: Promise of an even harder line on immigration and refugees
Saturday, October 31, 2020
- From The Bookshelves: The Galleons, Poems by Rick Barot
- The “Anonymous” Figure Who Claimed To Be Resisting Trump Actually Defended His Controversial Immigration Policies
- US Election Fuels Discussion of Immigration Issues
Friday, October 30, 2020
- Immigration Article of the Day: Categorical Confusion in Asylum Law by Brian Soucek
- New Fact Sheet from Vera Institute of Justice on Immigration Court Appearance Rates
- Humanizing Deportation/Humanizando la Deportación, UC Davis, Releases Multi-Media Project
- Op-Ed: When Trump says immigrants don’t show up for court hearings, he couldn’t be more wrong
- “ICE announces arrests of more than 100 at-large aliens”
- Trump aide Stephen Miller preparing second-term immigration blitz
- Border Officials Turned Away Unaccompanied Immigrant Children More Than 13,000 Times Under Trump’s Pandemic Policy
Thursday, October 29, 2020
- The Loneliness of the Immigration Lawyer
- N.J. artist attacks Trump’s immigration policy with display of caged brown baby dolls
Wednesday, October 28, 2020
- Latest TRAC Immigration Data on Immigration Courts
- The Young Center for Immigrant Children’s Rights Releases Report: Reimagining the Immigration System for Children
- Guest Post: New Data Shows Immigration Attorneys Frustrated with U.S. Immigration System by Terrence Gourlay
- 22 state coalition challenges international student rule change
- Immigration Article of the Day: Constitutional and Procedural Pathways to Freedom from Immigration Detention: Increasing Access to Legal Representation by Aditi Shah
- From the Bookshelves: Stuck Here: African Immigrants Tell Their Stories, Marvin Opiyo
Tuesday, October 27, 2020
- Immigration Legal Fellowship–California Central Coast or Central Valley
- SCOTUSBlog Symposium: From the travel ban to the border wall, restrictive immigration policies thrive on the shadow docket
- From the Bookshelves: Caged Lion: Joseph Pilates and His Legacy by John Howard Steel (2020)
- One Unsuccessful Asylum Story
- From the Bookshelves: Citizenship Reimagined by Allan Colbern and Karthick Ramakrishnan
- Immigration issues merit more attention by presidential candidates
- Undocumented immigrants may actually make American communities safer – not more dangerous – new study finds
- Many California farmworkers fear a winter of hunger and homelessness amid the pandemic
- A Poem: Isabella at Three by Hank Olguin
- Immigration Article of the Day: Pereira v. Sessions: The Supreme Court’s Call for Common Sense by Ashley Oldfield
Monday, October 26, 2020
- From the Bookshelves: The Undocumented Americans by Cornejo Villavicencio
- Event and CFP on Climate Migration
- Severed families, raided workplaces and a climate of fear: Assessing Trump’s immigration crackdown
- John Oliver: Asylum
***********************
The last item on Elizabeth’s list from John Oliver is a great (if enraging) explanation of how Trump & Miller, aided by complicit Supremes and a corrupt do-nothing GOP Senate, have rewritten American asylum laws by Executive fiat to enact a deadly, immoral, illegal, racist, White Nationalist, restrictionist agenda that tortures, maims, kills, and otherwise punishes refugees, including many women and children, without any due process and in violation of our international obligations (not to mention human decency). The stain on America will long outlast the Trump regime. Much of the harm is irreversible.
How do you know when you have entered the “Twilight Zone of American Democracy?” When the biggest threat to free and fair democratic elections in the United States of America is the President! Today’s national news reports were largely dedicated to state election officials assuring Americans that the President was lying, and that their votes cast in accordance with the rules would be counted, no matter how long it takes.
Vote ‘em out, vote ‘em out! For the good of America and the world, get out the vote and vote ‘em out!
Every vote for a Democratic candidate is a vote to save our nation, our world, our souls, and the lives of our fellow humans of all races and creeds, and to finally achieve Constitutionally required Equal Justice Under Law!🇺🇸
Due Process Forever!⚖️🗽👍🏼🇺🇸
PWS
11-03-20