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THE GIBSON REPORT – 04-02-18 — Compiled By Elizabeth Gibson, ESQ, NY Legal Assistance Group

THE GIBSON REPORT – 04

HEADLINES:

TOP UPDATES

Immigration Courts: Last Week Tonight with John Oliver (HBO)

If you need some dark humor but also want an excellent resource for explaining immigration courts to lay people.

 

Venting on Immigration, Trump Vows ‘No More DACA Deal’ and Threatens Nafta

NYT: President Trump, blaming Democrats and the Mexican government for an increasingly “dangerous” flow of illegal immigrants, unleashed a series of fiery tweets on Sunday in which he vowed “NO MORE DACA DEAL” and threatened to walk away from the North American Free Trade Agreement.

 

Public Charge Regs Sent to OMB

CLASP: The proposed rule would instruct immigration agents to consider whether an immigrant or a member of their family is likely to participate in any governmental assistance program when determining who can enter the U.S. or become a permanent resident.

 

ICE Ends Policy Of Presuming Release For Pregnant Detainees

HuffPo: The Trump administration has abandoned a policy of generally releasing pregnant women from immigrant detention, according to a directive publicly shared by Immigration and Customs Enforcement on Thursday.

 

ICE Used Private Facebook Data To Find And Track Criminal Suspect, Internal Emails Show

Intercept: ICE, the federal agency tasked with Trump’s program of mass deportation, uses backend Facebook data to locate and track suspects, according to a string of emails and documents obtained by The Intercept through a public records request

 

DOS Request for Comments on Proposed Changes to Form DS-260, Including Collection of Social Media Information

DOS 60-day notice and request for comments on proposed changes to Form DS-260, Electronic Application for Immigrant Visa and Alien Registration. One of the proposed new questions requires the applicant to provide certain social media identifiers. Comments are due 5/29/18. (83 FR 13806, 3/30/18) AILA Doc. No. 18033064. See also DOS Request for Comments on Proposed Changes to Forms DS-160 and DS-156, Including Collection of Social Media Information.

 

Trump Administration Adds Citizenship Question to Census 2020, California Immediately Files Suit

Imm Prof: The Commerce Departmentannounced late last night that the 2020 Census will ask about people’s citizenship, which some claim will lead to a significant undercount of immigrant communities. NPR reports. If their immigrant residents are not counted, state and local communities stand to lose significant federal funding.

 

Trump Administration Refugee Admissions Fall Drastically Short of Six-Month Benchmark

AIC: The United States is on track to admit fewer refugees than ever before—going against our long-held values of welcoming the persecuted and oppressed.

 

USCIS Is Withholding Records Showing That Border Agents Are Abusing Asylum Seekers 

AIC: A new Freedom of Information Act lawsuit hopes to reveal how asylum officials’ repeated concerns about CBP officer misconduct were left unaddressed. The lawsuit, filed by Human Rights Watch and Nixon Peabody LLP, seeks information about such misbehavior, including hundreds of reports that CBP failed to properly screen asylum seekers.

 

With Yellow Vests and an ‘ICE-Sniffing Dog,’ Activists Watch for Immigration Agents

WNYC: Each day that court is in session, they patrol the courthouse in North Brunswick, where activists say three immigrants without documentation were recently detained by ICE after showing up to court to pay fines for driving-related infractions.

 

IDP/Make the Road: Guidance for ICE “Call-In Letter”

Immigration has mailed these letters to non-citizens with open criminal cases asking them to report to the 12th floor of Varick Street in NYC. These letters usually arrive shortly after the individual has been arrested (which includes receiving a Desk Appearance Ticket) or during their criminal case.

 

IJs Who Require Written Pleadings

A few immigration judges have recently joined the list of those who require written pleadings in the New York and New Jersey area. Advocates report that the list includes:

  • IJ Bain
  • IJ La Forest
  • IJ Wright
  • IJ Farber
  • IJ David Cheng (NJ)

 

LITIGATION/CASELAW/RULES/MEMOS

 

US Judge Opens Door for Thousands to Apply for Asylum

AP: A federal judge in Seattle opened the door Thursday for thousands of immigrants to apply for asylum, finding that the Department of Homeland Security has routinely failed to notify them of a deadline for filing their applications. Mendez-Rojas v. Johnson, No. 2:16-cv-01024-RSM (W.D. Wash. Filed June 30, 2016)

 

California, NY sue Trump administration over addition of citizenship question to census

WaPo: The suits are just the start of what is likely to be a broader battle with enormous political stakes that pits the administration against many Democratic states, which believe that the citizenship question will reduce the response rate for the census and produce undercounts.

 

Class Action Suit in California Challenges Prolonged Detention Under INA §241(a)(6) Without Bond Hearings

Plaintiffs filed a class action suit in federal district court on behalf of all individuals in the Ninth Circuit detained pursuant to INA §241(a)(6) for at least six months without a bond hearing. (Aleman Gonzalez v. Sessions, 3/27/18) AILA Doc. No. 18033001

 

Lawsuit Filed by Diversity Visa Lottery Winners from Travel Ban Countries

The court dismissed the case as moot because the Supreme Court already mooted the challenges to Executive Order 13780 in IRAP v. Trump and Hawaii v. Trump and did not rule on the legality of Executive Order 13780. (Almaqrami v. Tillerson, 3/27/18) AILA Doc. No. 17080730

 

BIA Finds Attorney Who Left Law Firm Provided Ineffective Assistance

Unpublished BIA decision finds respondent’s prior attorney provided ineffective assistance by failing to submit documents and leaving firm one week before hearing without providing notes for new attorney. Special thanks to IRAC. (Matter of Camacho-Luz, 5/10/17) AILA Doc. No. 18032801

 

BIA Finds Child Endangerment Statute Not a Crime of Child Abuse

Unpublished BIA decision holds that endangering the welfare of a child under 18 Pa. Cons. Stat. 4304(a)(1) is not a crime of child abuse because it does not require a knowing mental state or a likelihood of harm to a child. Special thanks to IRAC. (Matter of Gutierrez, 5/12/17) AILA Doc. No. 18032633

 

BIA Affirms Finding that Public Lewdness Is Not a CIMT

Unpublished BIA decision denies DHS motion to reconsider prior decision holding that public lewdness under NYPL 245.00 is not a CIMT. Special thanks to IRAC. (Matter of Kaminski, 5/11/17) AILA Doc. No. 18032637

 

Unpublished BIA Decision on Proper Authentication of Form I-213

In an unpublished decision, the BIA remanded the case, disagreeing with the Immigration Judge’s conclusion that the Form I-213 was properly authenticated and stating that “the inherent reliability for an I-213 depends on its proper authentication.” Courtesy of Fausto Falzone. AILA Doc. No. 18032734

 

CA4 Vacates Matter of Jimenez-Cedillo

The court remanded to the BIA, holding that the BIA’s failure to provide a reasoned explanation as to why it abandoned its precedent regarding when a sexual offense against a minor is a CIMT was arbitrary and capricious. Courtesy of Ben Winograd. (Jimenez-Cedillo v. Sessions, 3/20/18) AILA Doc. No. 18032933

 

Liberian Deferred Enforced Departure Extension to March 31, 2019

White House: I find that conditions in Liberia no longer warrant a further extension of DED, but that the foreign policy interests of the United States warrant affording an orderly transition (“wind-down”) period to Liberian DED beneficiaries.  In consultation with my advisors, I have concluded that a 12‑month wind‑down period is appropriate in order to provide Liberia’s government with time to reintegrate its returning citizens and to allow DED beneficiaries who are not eligible for other forms of immigration relief to make necessary arrangements and to depart the United States.

 

ACTIONS

 

 

RESOURCES

 

 

EVENTS

 

·             9/26/18 Representing Children in Immigration Matters 2018: Effective Advocacy and Best Practices

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Thanks, Elizabeth, for keeping us up to date on all that’s happening!

 

PWS

04-03-18

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9TH CIR: BIA BOBBLES ROUTINE CREDIBILITY DETERMINATION – FAILS TO APPLY “TOTALITY OF CIRCUMSTANCES” — HUINAN LIN v. SESSIONS

9TH CIR Lin v. Sessions, 9th, Credibility

Huinan Lin v. Sessions, 9th Cir., 01-26-17, unpublished

PANEL: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

OPINION: PER CURIAM

KEY QUOTE:

“Finally, the BIA’s adverse credibility determination was not supported by substantial evidence because the BIA, in adopting the Immigration Judge’s (“IJ”) rationale, used omissions and discrepancies in Cao’s asylum application and testimony in his own immigration proceedings to find Lin not credible. See Bao v. Gonzalez, 460 F.3d 426, 431–32 (2d Cir. 2006) (finding that there was no basis for assuming Bao’s account was fabricated and her husband Zheng’s was the correct account of facts). The IJ found that nothing in Lin’s demeanor detracted from her credibility, yet rejected all of Lin’s explanations, even when she stood by her own version of events. We conclude that the overall reliance on Cao’s asylum application and prior testimony was arbitrary.

As Lin argues, the totality of the circumstances compel that she should be deemed credible. Because neither the BIA nor the IJ made an adverse credibility

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finding against Lin’s witness, Xiao Qin Lin (“Qin Lin”), we treat her factual allegations as true. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). Qin Lin testified that she knew Lin was involuntarily taken by officials to have the abortion performed. Qin Lin stated that she took care of Lin two days after the abortion while she was crying, pale, and weak. See Shrestha v. Holder, 590 F.3d 1034, 1040–41 (9th Cir. 2010) (stating that the IJ should not ignore evidence that corroborates the alien’s claim). The 1999 Country Conditions Report notes that forced abortions and sterilizations occurred despite China’s official policy. Zhu v. Gonzales, 493 F.3d 588, 598 (5th Cir. 2007). Further, as part of the evidence in her case, Lin provided documentation from Jiangjing Town Hospital showing that she had an abortion on December 27, 2000. Lin also provided a notice addressed to her to report for IUD and pregnancy checks from the Cangxi Village Committee. The notice stated that if she did not report to the Family Planning Office, she “will be punished pursuant to relevant Family Planning Regulations.” A note from Dr. Gwendolyn P. Chung and Dr. Diana Y. Huang in Hawaii showed that Respondent’s second IUD was removed on September 15, 2008. The Government did not object to the submission of these copies and there was nothing in the record to “support a finding that the documents [were] not credible.” See Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir. 2003) (finding

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documentary support credible where “there was no opposition to the introduction or challenge to the authenticity of these documents by the INS,” even where the IJ found the documents unbelievable). Because the documentation and Qin Lin’s testimony are credible, they corroborate her past persecution claim, i.e., that she had a forced abortion and multiple IUD insertions. See Shrestha, 590 F.3d at 1040–41.

After a reversal of an adverse credibility determination, “[w]e must now decide whether we determine eligibility for asylum and withholding of removal or whether we remand for a determination by the BIA.” Wang, 341 F.3d at 1023. As set forth above, this Court finds credible Lin’s claim that she was forced to abort her pregnancy. See He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003). As a victim of forced abortion, Lin is therefore statutorily eligible for asylum and “entitled to withholding of removal as a matter of law.” Tang, 489 F.3d. at 992. Based on the totality of circumstances, there is no “reasonable prospect from the administrative record that there may be additional reasons upon which the IJ or BIA could rely” to find her claim not credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th Cir. 2009).

In sum, we grant the petition in part and hold that Lin is entitled to withholding of removal as a matter of law. In addition, since Lin is statutorily

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eligible for asylum, we remand to the BIA so that the Attorney General may exercise its discretion in granting asylum. See 8 U.S.C. § 1158(b)(1); Tang, 489 F.3d. at 992. We deny the petition in part as to the due process violation claim and challenge to the IJ’s finding of fear of future persecution.”

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You can read the full opinion at the link. Unfortunately, as with many Circuit Court opinions these days, it is “unpublished.” But, it is very instructive.

Yes, as a former BIA Chair and Appellate Judge, I “get it” that the BIA has lots of cases and nobody’s perfect. Certainly, I made my share of mistakes in my career. But, as I have noted before, these are hardly “major questions of law” on which divergence of opinion between the BIA and the Circuit Courts is understandable.

No, they are “failures of mechanics” — failure to correctly apply the everyday rules that Immigration Judges are supposed to be following in Immigration Courts across the country. And, although the legal issues might not be profound, the effects of such mistakes have a profound adverse effect on individuals’ lives.

This respondent was entitled to mandatory protection that the BIA was perfectly ready to ignore had the respondent not had the good fortune to have a persistent attorney to help her perfect an appeal to the Ninth Circuit. Many respondents in this system, however, do not have the good fortune to be so competently represented at their trial level and have no chance of winning an appeal without attorney assistance.

All of this points to the logical conclusion that the U.S. Immigration Courts, at both the trial and appellate levels are already running at “warp speed” where serious mistakes in the application of routine rules and precedents are all too common. To suggest, as Jeff “Gonzo Apocalyto” Sessions has, that the solution is to make the system go even faster, impose “production quotas,” and restrict the already limited rights of the individuals seeking justice from this system is totally absurd! Yet, he’s getting aways with it, at least so far.

We need an independent Article I U.S. Immigration Court where quality, fairness, Due Process, and “getting it right” are the driving considerations. Until we get such a court, we will be falling short of our Constitutional obligation to provide fair and impartial decisions to those coming before the U.S. immigration system.

PWS

10-29-17

 

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