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The LAC Docket | Volume II Issue 4

The Newsletter of the American Immigration Council’s Legal Action Center

October 25, 2012
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   Access to Courts

Post-departure Litigation: Victory in Fifth Circuit, AIC File Amicus Briefs in Asylum Cases

Lari v. Holder
, No. 11-60706 (5th Cir. Sept. 27, 2012)
Taylor v. AG
of the US, No. 12-2599 (3d Cir. amicus brief submitted Aug. 30, 2012)
Izquierdo v. AG
of the US, No. 12-2499 (3d Cir. amicus brief submitted Aug. 23, 2012)

On September 27, 2012, the Fifth Circuit Court of Appeals became the ninth circuit court to reject the government’s ongoing attempts to bar noncitizens from seeking reopening and reconsideration of their cases from outside the United States.  The court found that the “departure bar”—a regulation barring noncitizens from pursuing their cases after departure or deportation— is unlawful.  In so doing, the court adopted arguments offered by the LAC and the National Immigration Project of the National Lawyers Guild (NIPNLG) in an amicus brief to the court.  The LAC also participated in the oral argument before the Fifth Circuit in May 2012.  The petitioner was represented by Matthew Hoppock of Dunn & Davison, LLC.

The LAC, in collaboration with NIPNLG, is also challenging two BIA decisions denying reopening to asylum applicants who were deported while their motions were pending.  The government maintains that once an asylum applicant has been deported, the asylum, withholding of removal and Convention Against Torture claims are “moot.”  In amicus briefs filed in the Third Circuit Court of Appeals, we argue that if the Board’s decisions were allowed to stand, they would undermine judicial review and deprive noncitizens of their right to pursue reopening (in conflict with circuit precedent finding the departure bar regulation unlawful).  We are interested in hearing about similar cases.  Please contact us at if you have such a case.



Systemic Reforms

   Systemic Reforms

En Banc Ninth Circuit Decision Overrules BIA’s Interpretation of CSPA
Cuellar de Osorio
, No. 09-56786, and Costelo v. Napolitano, No. 09-56846 (9th Cir. Sept. 26, 2012)

Last month the Ninth Circuit, sitting en banc, agreed with arguments made by amicus curiae American Immigration Council and held that Congress, in the Child Status Protection Act (CSPA), provided alternate benefits to “aged-out” derivative beneficiaries of all visa petition categories and not simply the Family 2A visa category as the BIA had held in Matter of Wang, 25 I&N Dec. 28 (BIA 2009).   In the two cases pending before it, one of which is a national class action, the court ruled in favor of young adults who, due to long delays caused by visa backlogs, lost the opportunity to obtain lawful permanent residence before they turned 21. 

The court found that Congress intended, in INA § 203(h)(3), to allow all derivatives listed as children on visa petitions filed for their parents, but who subsequently aged-out while the petitions were pending, to retain the filing date of the parents’ petitions when new visa petitions were filed for them as adults.  As the court explained, “[t]his ensures that visas are available quickly, rather than requiring the now-adult aliens to wait many more years in a new visa line.”

Amici American Immigration Council and National Immigrant Justice Center (NIJC) were represented by Kirkland & Ellis LLP.  The petitioners in the two cases were represented by Reeves and Associates and the Law Offices of Carl Shusterman.

Third Circuit Overrules Matter of Koljenovic, Eligibility for § 212(h) Waiver
Hanif v. Attorney General
, No. 11-2643 (3d Cir. Sept. 14, 2012)

On September 14, the Third Circuit issued a unanimous ruling that will allow immigration judges to exercise discretion in cases involving lawful permanent residents (LPRs) whose removal would cause extreme hardship to family members in the United States.  The ruling marks the fourth federal appellate court to reject the BIA’s contrary decision, Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010). 

The case involved a 1996 amendment to the INA that bars certain immigrants who were “admitted” to the United States as LPRs from eligibility for the § 212(h) hardship waiver.  For many LPRs facing removal, the ability to obtain a § 212(h) hardship waiver is the only means to avoid separation from U.S. family members.  In its amicus brief and at oral argument as amicus, the LAC argued that the Board ignored the plain language of the statute and improperly conflated applicants who entered the country as LPRs with those who gained LPR status post-entry. Ryan Muennich of Muennich & Bussard, LLP represented the petitioner.

On September 20, the LAC participated as amicus in oral argument in the Fourth Circuit case, Mendoza-Leiba v. Holder, No. 11-1845.  There, the somewhat  narrower issue before the court is whether a noncitizen who originally entered without inspection and subsequently adjusted to lawful permanent resident status – and thus was never “admitted” within the INA’s definition of that term – is barred from a § 212(h) waiver.

LAC Pursues Mediation in Asylum Clock Lawsuit
A.B.T. et al. v. U.S. Citizenship and Immigration Services
, No. 11-02108 (W.D. Wash. filed December 15, 2011)

The LAC continues to pursue resolution of the claims raised in A.B.T. v. USCIS in mediation.  The lawsuit is a nationwide class action challenging USCIS and EOIR policies related to the “asylum clock,” a system used to track the 180-day period that an asylum applicant must wait, after filing the asylum application, before he or she may apply for work authorization. Please visit the LAC website for a description of the lawsuit and other LAC efforts related to the asylum clock.





LAC Issues Practice Advisory, Provides Technical Assistance on Deferred Action for Childhood Arrivals (DACA) 

Within a week of the Obama Administration’s announcement of its new deferred action initiative for certain young people who came to the United States as children, the LAC, in collaboration with AILA and NIPNLG, published a practice advisory, which has been repeatedly updated to incorporate new developments.  The advisory analyzes relevant DHS guidance and offers strategic advice for attorneys representing individuals who may qualify for deferred action under this initiative.  The LAC is working with partner organizations, AILA, NIPNLG, Catholic Legal Immigration Network, Immigration Advocates Network, National Association of Latino Elected and Appointed Officials Educational Fund, National Immigration Law Center, and United We Dream, on a national DACA legal implementation strategy. 

LAC and Northern Border Groups Receive Documents from DHS regarding Border Patrol Involvement in Interpretation and 911 Dispatch Activities

In response to FOIA requests filed in May 2012 on behalf of an alliance of immigration advocacy groups, the LAC has received documents from DHS’s Office of Civil Rights and Civil Liberties and DHS’s Office of Inspector General regarding Border Patrol agents’ provision of Spanish-English interpretation for other law enforcement agencies and their participation in 911 dispatch activities.  These documents are indexed and posted on our website; their content is also summarized in the Immigration Policy Center’s recent report, Border Patrol Agents as Interpreters Along the Northern Border:  Unwise Policy, Illegal PracticeWe continue to await documents from U.S. Customs and Border Protection.


   Access to Counsel

LAC Welcomes Legal Fellow

Kristin Macleod-Ball, a Yale Public Interest Fellow, joined the LAC on August 6, 2012.  She will spend the year focusing on issues relating to access to counsel for noncitizens.  During law school, Kristin served clients seeking relief in immigration court, applying for benefits with USCIS and challenging racial profiling by local police.  As a legal intern with AILA during the summer of 2011, she helped to document problematic examples of state and local involvement in immigration enforcement

LAC Challenges DHS Restrictions on Access to Counsel
, No. 1:11-cv-01971 (D.D.C. filed Nov. 8, 2011)
AIC v. DHS and CBP, No. 1:11-cv-01972 (D.D.C. filed Nov. 8, 2011)
AIC v. DHS and ICE, No. 1:12-cv-00856 (D.D.C. filed May 31, 2012)

The LAC continues to pursue FOIA litigation against USCIS, CBP and ICE seeking to compel the release of records relating to noncitizens’ access to counsel in interactions with the immigration agencies.  As previously reported, after the LAC and co-counsel Dorsey & Whitney LLP filed suit against USCIS, the agency released over 2,000 pages of documents.  Many of the pages were significantly redacted, and the LAC now is challenging some of USCIS’s redactions, as well as the adequacy of USCIS’s search for responsive documents.  Similarly, after the LAC filed its suit against ICE, the agency released over 1,000 heavily redacted pages of documents and has begun releasing additional documents, to be completed this fall.  We expect to challenge some of ICE’s redactions as well.  Finally, after extensive summary judgment briefing, CBP agreed to conduct a nationwide search for responsive records.  CBP released its first set of records on October 12, 2012 and its second set on October 17, 2012.  The agency expects to complete its production by November 9, 2012.  Summaries of these lawsuits, and documents released to date can be found on our Access to Counsel Before DHS webpage.


Practice Advisories


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