TOP UPDATES
TRAC Finds ICE Deportations Dropped by Almost Half Over Past Five Years
TRAC released a report on ICE deportations, updated through October 2017, finding that deportation levels have dropped by almost half since October 2012. TRAC also provided updated web tools on ICE deportation data including a breakdown on convictions and number of ICE deportations. AILA Doc. No. 18052231
BIA Holds Two-Week Continuance Not Sufficient Time to Find an Attorney
Unpublished BIA decision finds that IJ denied respondent’s right to counsel by providing only two weeks to find an attorney. Special thanks to IRAC. (Matter of Santos-Gijon, 6/22/17) AILA Doc. No. 18052337
Neglect and Abuse of Unaccompanied Immigrant Children by U.S. Customs and Border Protection
ACLU: Documents obtained by the American Civil Liberties Union featured in a new report released today show the pervasive abuse and neglect of unaccompanied immigrant children detained by U.S. Customs and Border Protection.
She came to the US for a better life. Moments after arrival, she was killed
CNN: Claudia Patricia Gomez Gonzalez traveled 1,500 miles to the United States, hoping to find a job and a better future. Shortly after she set foot in Texas, a Border Patrol agent shot and killed her.
Border Patrol union calls Trump’s National Guard deployment ‘colossal waste’
LA Times: A month after President Trump called for sending National Guard troops to the U.S.-Mexico border, the head of the national Border Patrol union called the deployment “a colossal waste of resources.” “We have seen no benefit,” said Brandon Judd, president of the union that represents 15,000 agents, the National Border Patrol Council.
Swept up in the Sweep: The Impact of Gang Allegations on Immigrant New Yorkers
NYIC: Through an extensive field study, the report shows how Immigration and Customs Enforcement (ICE), with other federal agencies and law enforcement, uses arbitrary methods to profile immigrant youth of color to allege gang affiliation.
ILRC: This report details findings from a national survey of legal practitioners concerning the increased use of gang allegations against young immigrants as a means of driving up deportation numbers, at the encouragement of the Trump administration.
Pretermitting Gang PSGs
AILA Listserv: It appears that, at least in some jurisdictions, DHS is moving to pretermit gang PSGs for asylum before merits hearing. Looks like we must also be prepared to respond to these arguments going forward. See useful gang PSG resources attached.
Civil rights groups slam DeVos for saying schools can report undocumented students
WaPo: Civil rights groups slammed Education Secretary Betsy DeVos for saying Tuesday that schools can decide whether to report undocumented students to immigration enforcement officials, saying her statements conflict with the law and could raise fears among immigrant students.
DHS Prosecutes Over 600 Parents in Two-Week Span and Seizes their Children
AIC: Following implementation of a “zero tolerance” policy, the Department of Homeland Security (DHS) announced that 638 parents who crossed with children had been prosecuted in just a 13-day span this month.
New RFE Policy
From the USCIS District Director’s meeting: Starting immediately if you are issued an USCIS RFE that you need to submit to 26 Federal Plaza they will be issuing a notice giving you a time to hand deliver it. The dates will always be on Fridays and the notice will state that you can come in anytime between 7am-12pm on that date to hand the RFE response in at the indicated window. There will be no interview – you will just hand in the response and get your copy stamped. They are moving away from mail in RFE responses because of too many problems with the post office.
U-visa Categories (attached)
ASISTA: The AAO seems to have paid attention to our amicus arguments on U visa crimes as “categories” in their decision in the case underlying our amicus, see attached redacted decision and the amicus. We will need to keep pushing this framework, however, so please continue using the arguments in the amicus when arguing crime categories. We do not, for instance, agree that the DV category contemplates only the facts involving relationships; many crimes are DV depending on the facts of the crimes, not just the relationships. See attached.
Stay Requests
HerJustice: On this topic, I learned last year that ICE ERO (NYC) wasn’t even accepting applications for stay of removal if the applicant didn’t have a current passport—is this still the case?
LSNYC: As I understand it, it’s always been ICE’s policy that the applicant for a stay (I-246) must have a current passport. Really, the Officers are all over the place when it comes to stays. Some say they are not accepting stays, some say so long as the client has something pending (appeal, MTR, U/VAWA/T, etc) no removal will be effectuated and that no stay is needed until removal is imminent.
Sanctuary: Our office recently filed a stay of removal, and in the alternative request for deferred action, for a client with a removal order from 2009 whose son has hemophilia. ERO accepted the stay without her passport. ERO said that they would make a decision on within 3 months, and if not, she is to return for another check-in at the end of June.
Immigrant Legal Aid Group Withdraws Request for Montgomery County Funding with Carve Out
Bethesda Mag: A Washington, D.C., nonprofit set to receive about $374,000 in Montgomery County funds to provide deportation defense to detained immigrants has withdrawn its request for the money in response to an updated list of criminal convictions that would bar certain immigrants from receiving legal aid.
Anti-Immigrant Extremist Nominated to Run Refugee Office at State Department
HRF: In response to the nomination of Ronald Mortensen to serve as Assistant Secretary of State for Population, Refugees and Migration, the senior-most American diplomat representing the United States in matters relating to the most vulnerable populations in the world, Human Rights First’s Jennifer Quigley issued the following statement: “Mortensen has spent the past several years working at an anti-immigrant hate group, spewing vile, extremist views that have no relation to reality.”
Immigration dominating GOP candidates’ TV ads in House contests across the country
USA Today: House Republican candidates are blanketing the airwaves with TV ads embracing a hard line on immigration — a dramatic shift from the last midterm elections in 2014 when immigration was not on the GOP’s political radar, according to a USA TODAY analysis of data from Kantar Media.
U.S. Immigration Courts, Long Crowded, Are Now Overwhelmed
The Wall Street Journal reports on the U.S. immigration court system’s backlog increasing 25 percent since President Trump took office, with insights on the situation from AILA National Secretary Jeremy McKinney. AILA Doc. No. 18052342
This Salvadoran Woman Is At The Center Of The Attorney General’s Asylum Crackdown
NPR: Attorney General Jeff Sessions is stirring panic in immigrant communities by moving to limit who can get asylum in the United States. Perhaps no one is more alarmed than one Salvadoran woman living in the Carolinas…Now Sessions has personally intervened in her case, questioning whether she and other crime victims deserve protection and a path to American citizenship.
LITIGATION/CASELAW/RULES/MEMOS
SIJS Family Court Appellate Case
2d dept remanded and ordered a new judge be assigned after a Nassau County Fam Court Judge dismissed a mother’s petition for guardianship and refused to set the motion for special findings, without any hearing. They also made note of the judge’s wildly inappropriate remarks.
ImmProf: [May 21], the Supreme Court granted certiorari in four cases and also issued orders (denied cert, etc.) in a number of cases. The press room, as it has been for so many weeks, was buzzing about the possible disposition of the U.S. government’s cert petition in Azar v. Garza, a case involving the undocumented pregnant teenager. The government wants the Supreme Court to vacate the D.C. Circuit decision that cleared the way for her to get an abortion. The Court did not act on the case this morning.
Detainees in Stewart Detention Center File Suit Challenging Forced Labor Practices
Plaintiffs filed a class action suit against private prison company CoreCivic challenging its practice of depriving detained immigrants of basic necessities so they are forced to work at well below minimum wage to purchase items at the prison commissary. (Barrientos v. CoreCivic, 4/17/18) AILA Doc. No. 18052163
DOJ Announces Airlines Staffing Executive Sentenced for Immigration Fraud
DOJ announced that Eleno Quinteros, Jr., the former vice president of operations for two airline mechanic staffing companies, was sentenced today to 12 months in prison for making false statements in support of legal permanent resident petitions for dozens of the companies’ mechanics. AILA Doc. No. 18052162
DOJ Settles Immigration-Related Discrimination Claim Against University of California, San Diego
Posted 5/25/2018
DOJ announced a settlement agreement with the University of California, San Diego. The settlement resolved whether the University’s Resource Management and Planning Vice Chancellor Area discriminated against workers in violation of the INA when verifying their continued authorization to work.
AILA Doc. No. 18052532
The court issued an order granting the government’s request to expedite the case. The case will be calendared for September 2018. (Los Angeles v. Sessions, 5/15/18) AILA Doc. No. 18041638
BIA Holds Two-Week Continuance Not Sufficient Time to Find an Attorney
Unpublished BIA decision finds that IJ denied respondent’s right to counsel by providing only two weeks to find an attorney. Special thanks to IRAC. (Matter of Santos-Gijon, 6/22/17) AILA Doc. No. 18052337
BIA Holds Child Abuse Ground of Deportability Does Not Apply to Attempt Crimes
Unpublished BIA decision holds that attempt to endanger the welfare of a child under N.Y.P.L. 260.10 is not a crime of child abuse because INA §237(a)(2)(E)(i) only applies to completed crimes. Special thanks to IRAC. (Matter of B-Q-, 6/20/17) AILA Doc. No. 18052432
BIA Finds Wisconsin Prostitution Statute Is Categorically an Aggravated Felony
The BIA reinstated removal proceedings, after finding that INA §101(a)(43)(K)(i) encompassed offenses related to the operation of a business that involves engaged in, or agreeing or offering to engage in, sexual conduct for anything of value. Matter of Ding, 27 I&N Dec. 295 (BIA 2018) AILA Doc. No. 18052164
BIA Holds Possession of Drug Paraphernalia in Arizona Is Not a Controlled Substance Offense
Unpublished BIA decision holds possession of drug paraphernalia under Ariz. Rev. Stat. 13-3415(A) is not a controlled substance offense because the state schedule is overbroad and the identity of the drug is not an element of the offense. Special thanks to IRAC. (Matter of Lopez, 6/16/17) AILA Doc. No. 18052160
BIA Reverses Discretionary Denial of Adjustment Application
Unpublished BIA decision reverses discretionary denial of adjustment application where respondent had five U.S. citizen children, was active in church, and last DUI offense was more than eight years prior. Special thanks to IRAC. (Matter of Rodriguez, 6/15/17) AILA Doc. No. 18052230
BIA Limits Application of Firm Resettlement Bar
Unpublished BIA decision holds that the firm resettlement bar does not apply to asylum applicants who fear persecution in the country of alleged resettlement. Special thanks to IRAC. (Matter of L-K-U-, 6/16/17) AILA Doc. No. 18052332
CA4 Upholds CBP Search of Smartphone Seized While Defendant Was Exiting the United States
The court found it was reasonable for the CBP officers who conducted a month-long forensic analysis of the defendant’s smartphone to rely on precedent allowing warrantless border searches of digital devices based on at least reasonable suspicion. (U.S. v. Kolsuz, 5/9/18, amended 5/18/18) AILA Doc. No. 18052165
White House Releases Fact Sheet on MS-13
The White House released a purported fact sheet on MS-13, in which it refers to these individuals as “animals.” AILA Doc. No. 18052232
USCIS Issues Policy Guidance on CSPA
USCIS issued policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA). This guidance is controlling and supersedes any prior guidance on the topic. Comments are due by 6/6/18. AILA Doc. No. 18052339
USCIS Notice on the Termination of the Designation of Nepal for Temporary Protected Status
USCIS notice on the termination of the designation of Nepal for TPS on 6/24/19. Holders of TPS from Nepal who wish to maintain their TPS and receive an EAD valid through 6/24/19 must re-register for TPS in accordance with the procedures set forth in the notice. (83 FR 23705, 5/22/18) AILA Doc. No. 18052236
EOIR Released Percentage of Detained Cases Completed Within Six Months
EOIR released statistics on the percentage of detained cases completed within six months. As of 3/31/18, 89 percent of initial case completions were completed in less than six months. AILA Doc. No. 18052237
ICE Announces 24-Month Imprisonment for ICE Agent Impersonator
ICE announced that Matthew Ryan Johnston was sentenced to 24 months in federal prison after possessing multiple destructive devices and using fake ICE badges and uniforms to falsely represent himself as an ICE agent to unsuspecting members of the public. AILA Doc. No. 18052561
ACTIONS
- AILA Call For Examples: Delays in Receiving Green Cards, EADs, and Travel Documents Due to USCIS Error or Delay
- AILA Call for Examples: Continuances and Administrative Closure Following EOIR Policy Changes
- AILA: ake Action: Congress Must Vote to Protect Dreamers
- June 1st National Day of Action for Children
- AIC: Challenge the unconstitutional conditions in short-term detention facilities, often called “hieleras.”
- Center for Gender and Refugee Studies action toolkit in light of this Administration’s efforts to break the promise of protection for refugee women
RESOURCES
- NaturalizeNY: This latest round runs from May 1, 2018 – June 15, 2018. By visiting www.NaturalizeNY.org, users can screen themselves for citizenship eligibility, find out their eligibility for the Federal Fee Waiver, and enter a lottery to win a fee voucher to cover the cost of the $725 naturalization application fee.
- Family Court U certifications to the Google Tracking Doc
- Migratory Notes Weekly Roundup
- IDP: Making Constitutional Arguments in the Second Circuit to Challenge Prolonged Mandatory Detention after Jenningsand Lora
- IDP and NYU: Making Statutory Arguments in the Second Circuit on the Meaning of “When…Released” and “Released” in U.S.C. § 1226(c) To Challenge Mandatory Detention After Jennings and Lora
- ACLU Report: Neglect and Abuse of May 2018 Unaccompanied Immigrant Children by U.S. Customs and Border Protection
- List of Law Student Immigration Organizations
- Ethical Considerations in Declining Representation
- DOS Field Offices Directory
- Bite-Sized Ethics: Choosing Between Loyalty and Lying
- DOJ Fact Sheet: Attorney General Jeff Session Issues Opinion in the Matter of Castro-Tum
- Filing DACA Applications in the Wake of Federal Court Rulings
- The Refugee Caravan: Human Rights First’s Observations from the Border
- Timeline: How the Trump Administration is Rolling Back Protections for Children
- KIND: Death By A Thousand Cuts: The Trump Administration’s Systematic Assault On The Protection Of Unaccompanied Children
- NIJC: The Trump Administration’s Checklist To Destroy The U.S. Asylum System 1
- Gang PSG resources attached.
- Hofstra Training on SIJS AAO appeals, RFEs NOIDs
- State Department redefines public charge standard
- Levin-Goffe Scholarship for LGBTQI Immigrants
EVENTS
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5/30/18 Challenging Conditions of Release and Creative Uses of Habeas
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5/31/18 3rd Annual Iftar in the City
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5/31/18 Immigration Court Practice
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6/5/18 CLINIC:Four-Part Asylum Series: Overview of Asylum and Related Relief
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6/7/18Strengthening the Global Refugee Protection System: The Global Compact on Refugees
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6/11/18Protecting Immigrant Youth from Gang Violence & the Deportation Machine
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6/12/18 CLINIC:Four-Part Asylum Series: Overview of Asylum and Related Relief
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6/13-16/18 2018 AILA Conference
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6/20/18 Leadership and Advocacy Training (LAT)intended for emerging advocates from Southeast Asian American and ally communities to learn how to advocate effectively for policy change – Apply by February 28
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7/1-3/18 National Institute for Trial Advocacy & CLINIC Training in Boulder, CO
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9/26/18Representing Children in Immigration Matters 2018: Effective Advocacy and Best Practices
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The second item on Elizabeth’s List is well worth a look. Although the BIA has stayed away from addressing in a precedent the length and number of continuances required to meet minimum standards of Due Process, this unpublished BIA decision finds that a two-week continuance to locate counsel was inadequate.
That certainly would have been the case in Arlington when I was there, particularly given the unnecessary pressure being put on pro bono counsel by the Obama’s Administration’s policies of “ADR” and “gonzo scheduling” of so-called “priority cases.”
This decision also confirms and reinforces what many of us retired U.S. Immigraton Judges and BIA Appellate Immigration Judges have been saying all along: by pushing the court system to move more cases, faster, and with limited continuances, Immigration Judges are effectively being encouraged to deny Due Process to respondents who do have a right to be represented at no expense to the Government. That right clearly includes reasonable access to, and a resonable opportunity to locate, pro bono counsel. Clearly that didn’t happen here. I suspect it’s also not happening in thousands of other cases — particularly detained cases — across the country.
Instead of protecting Due Process and encouraging “best practices” by U.S. Immigration Judges, Sessions and EOIR Management are feverishly working to instill “worst practices” in the Immigration Courts. The BIA won’t catch all of them, particularly in the absence of helpful precedents. Indeed, and quite remarkably, even this modest declaration of minimum Due Process produced a “split” BIA panel with Judge Roger Pauley signing the order, joined by Judge Edward Grant, but with Judge Ana Mann “dissenting without opinion.”
All of this is likely to mean 1) more denials of Due Process in Immigration Court; 2) more lives ruined; and 3) more “otherwise avoidable” remands from the Courts of Appeals.
Just like mother always said: “Haste Makes Waste!”
PWS
05-30-18