Litigation Clearinghouse Newsletters
From 2005-2010, the Legal Action Center issued newsletters on topics being litigated by immigration lawyers nationwide. These newsletters served to highlight resources, share novel arguments, and provide updates on Supreme Court developments. The Clearinghouse Newsletter has since been replaced with the LAC Docket, which provides quarterly updates on the latest developments in immigration litigation, as well as details of the LAC's ongoing advocacy and litigation.
The Newsletter of the American Immigration Council
November 4, 2014
Appointed Counsel for Children in Immigration Proceedings
On July 9, 2014, the Immigration Council, in collaboration with the American Civil Liberties Union (ACLU), Northwest Immigrant Rights Project (NWIRP), Public Counsel, and K&L Gates LLP, filed a nationwide class action lawsuit on behalf of thousands of unrepresented children challenging the federal government’s failure to provide them with counsel in their deportation hearings. After legal service providers around the country reported that immigration courts had instituted “rocket dockets” for children’s cases, exacerbating the shortage of attorneys for children in removal proceedings, the Plaintiffs moved for a preliminary injunction for several of the named plaintiffs. While the court ultimately denied the motion on ripeness grounds, the court recognized that the case-in-chief posed “an important constitutional question” that has yet to be resolved. Currently, the court is considering the Plaintiffs’ motion to amend the complaint, and the Defendants’ motion to dismiss. The case, J.E.F.M. v. Holder, No. 2:14-cv-01026, is pending in the U.S. District Court for the Western District of Seattle.
Fair Procedures for Women and Children Detained in Artesia, New Mexico
On August 22, 2014, the Immigration Council, in collaboration with the American Civil Liberties Union, the National Immigration Project of the National Lawyers Guild, the National Immigration Law Center, Van Der Hout, Brigagliano, & Nightingale LLP, and Jenner & Block LLP, sued the government to challenge unlawful deportation procedures at DHS’ family detention facility in Artesia, NM. The complaint charges the government with enacting a new strong-arm policy to ensure rapid deportations by holding these families to a nearly insurmountable and erroneous standard to prove their asylum claims, and by placing countless hurdles in front of them. We are demanding that the expedited deportation process comport with the immigration laws and the Constitution and that each person be afforded a meaningful opportunity to apply for asylum in the United States. The case, M.S.P.C. v. Johnson, No. 1:14-cv-01437, is pending in the U.S. District Court for the District of Columbia.
More recently, we and our partners filed a lawsuit under the Freedom of Information Act (FOIA) to compel the release of government documents regarding the expedited removal process against families with children, including those detained by DHS in Artesia, New Mexico. The case, American Immigration Council v. DHS, No. 14-cv-8403, is pending in the U.S. District Court for the Southern District of New York.
Fundamental Fairness in PERM Adjudications
On August 29, 2014, the Immigration Council and AILA filed an amicus brief in Simply Soup Ltd. d/b/a NY Soup Exchange, ETA Case No. A-08322-06241, 2012-PER-00940, urging the Board of Alien Labor Certification Appeals to reaffirm that due process and fundamental fairness are essential components of the PERM adjudication process. Amici requested that the Board affirm that the Certifying Officer (CO) cannot deny a PERM application for failure to comply with the recruitment report requirements in 20 C.F.R. § 656.17(g)(1), when the employer’s compliance is evident from the record despite the omission of certain documentation. Rather, the regulatory framework governing the PERM application process permits, and due process and fundamental fairness require, that the CO request missing documentation, per 20 C.F.R. § 656.20(d)(1), when other evidence in the record indicates that such documentation was in existence at the time the application was filed, and maintained by the employer to support the PERM application.
New Synopsis of CBP Documents Addressing Access to Counsel
The Immigration Council’s fact sheet, CBP Restrictions on Access to Counsel, provides a summary of CBP policies related to access to counsel, based on documents obtained through a FOIA request. The summary addresses access to counsel in inspections and CBP detention, and policies on advisals of rights and the treatment of children.
Federal Court Refuses to Dismiss Case of U.S. Citizen Girl Who Was Deported
In a decision issued on September 18, 2014, the U.S. District Court for the Eastern District of New York denied the government’s motion to dismiss the complaint in Leonel Ruiz o/b/o E.R. v. U.S., No. 1:13-cv-01241. This lawsuit, filed in March 2013 by the American Immigration Council and Cleary, Gottlieb, Steen & Hamilton, seeks damages under the Federal Tort Claims Act (FTCA) on behalf of a U.S. citizen child whom CBP detained for more than twenty hours, deprived of contact with her parents, and effectively deported to Guatemala. The court found in no uncertain terms that the CBP officers’ conduct – including their decision to keep the girl with her grandfather while he was in secondary inspection at Dulles Airport, their alleged failure to contact her parents for fourteen hours and to provide adequate food and care, their refusal to send her to JFK airport to reunite with her parents, and their decision to give her father one hour to decide whether to send her back to Guatemala or to an adoption center – did not fall within the discretionary function exception to the FTCA, and that the court thus had subject matter jurisdiction. The court also found that CBP's treatment of the girl violated the settlement agreement in Flores v. Reno regarding the detention of minors, as well as CBP internal policies promulgated to comply with the Flores agreement. The court granted the government's request for a change of venue and transferred its motion for judgment on the pleadings to the Eastern District of Virginia.
Holding Immigration Agencies Accountable for Misconduct
The Immigration Council continues to oppose the government’s campaign to strip the district courts of jurisdiction in damages claims that involve immigration agents. Most recently, in Avalos-Palma v. USA, No. 13-5481 (D.N.J. amicus brief filed Jan. 12, 2014), the District Court for the District of New Jersey accepted the arguments from the amicus brief that we filed with the National Immigration Project of the National Lawyers Guild (NIPNLG), and held that it had jurisdiction to proceed with damages claims brought under both Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act. Since then, we have filed an amicus brief with NIPNLG in the Fifth Circuit that addressed the district court’s jurisdiction under Bivens. Frias v. Torrez, No. 14-10018 (5th Cir. amicus brief filed July 10, 2014).
Suppression of Unlawfully Obtained Evidence
The Immigration Council, with co-counsel the ACLU Immigrants’ Rights Project, the ACLU of Massachusetts, and Jenner & Block, LLP, submitted an amicus brief in Garcia-Aguilar v. Holder, No. 14-1185, a pending First Circuit case involving a motion to suppress evidence obtained during an ICE worksite raid. The Council argued that immigration officers violated the Petitioner's constitutional and regulatory rights when they arrested her without any individualized suspicion, and then interrogated her under inhumane and coercive conditions without advising her of her rights. The Council contended that a tip that “several” of a factory’s employees were undocumented does not give immigration officers carte blanche to raid the premises, arrest more than 360 workers, and cart them away to a remote location to be interrogated.
New Practice Advisory on Notices to Appear
The Immigration Council’s new practice advisory, Notices to Appear: Legal Challenges and Strategies, provides innovative legal and procedural arguments and suggested strategies to cancel, mitigate, or challenge the contents of a Notice to Appear.
Paths to Legal Status
Court Approves Settlement in Duran Gonzalez v. DHS
On July 22, 2014, a federal district court issued its final approval of a settlement agreement in our long pending Ninth Circuit-wide class action, Duran Gonzalez v. DHS, No. 2:06-cv-01411. This case involves eligibility for adjustment of status under INA § 245(i) along with an accompanying I-212 waiver application for individuals who previously were removed and subsequently entered the country without admission. After nearly eight years of litigation, certain individuals with longstanding ties to the United States will have the opportunity to apply for lawful permanent resident status in the United States.
TPS As “Admission” for Purposes of Adjustment of Status
The Council continues to advance this path to legal status for the many thousands of Temporary Protected Status (TPS) recipients who are “immediate relatives” and would be eligible to adjust status but for having originally entered the country without inspection. Our argument, set forth in an in an amicus brief we filed jointly with the Northwest Immigrant Rights Project, is that the plain language of the TPS statute demonstrates that a grant of TPS benefits constitutes an admission for purposes of adjustment of status. Our most recent filing was in Medina v. Johnson, No. 14-1010-RB (E.D. Pa. amicus brief filed Aug. 5, 2014).
Broad Interpretation of 212(h) Hardship Waiver
The Immigration Council, in collaboration with AILA, filed an amicus brief in Husic v. Holder, No. 14-607 (2d Cir. Aug. 18, 2014), urging the court to join the six other circuits that have held that the “aggravated felony” bar to the § 212(h) waiver does not apply to LPRs who adjusted status, but instead is limited to those who gained residency upon entry.
With hundreds of thousands of DACA recipients preparing to seek renewal and many more potentially eligible individuals who have yet to step forward, the Immigration Council issued an updated version of its practice advisory on Deferred Action for Childhood Arrivals, as well as a new practice advisory on Screening Potential DACA Requestors for Other Forms of Relief. Meanwhile, the Council continued informing key constituencies about DACA through presentations hosted by the Peruvian Embassy and BB&T Bank. Finally, the Council took a lead role in drafting a sign-on letter for policymakers on the lessons learned from DACA for the President’s eagerly anticipated administrative relief announcement.
- How USCIS Tried to Keep Out a Skilled Brazilian Steakhouse Worker (October 28, 2014)
- How Can a Three Year Old Represent Himself in Court? (October 22, 2014)
- Report Discloses Deportation of Central American Asylum Seekers (October 21, 2014)
- Corte Federal Niega Desestimar Caso de Ciudadana de Cuatro Años Deportada por CBP (October 10, 2014)
- Federal Court Refuses to Dismiss Case of U.S. Citizen Girl Who Was Deported (October 10, 2014)
- Why We Are Suing the Government on Behalf of All Children Facing Deportation (July 9, 2014)
- Inspector General Falls Short in Documenting Border Detention Conditions (June 5, 2014)
- Why Groups Are Suing the Government over Rushed Deportation Process for Mothers and Children (June 3, 2014)
- Courts Continue to Reject Arizona Style Laws, Even as House Embraces SAFE Act (May 28, 2014)
- Here Are Some of the Stories of Women Held at Artesia (May 15, 2014)
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Published On: Tuesday, November 4, 2014 | Download File
This issue covers the Supreme Court's favorable decision in an aggravated felony case, a legal challenge to the H-1B/Neufeld Memo on the employer-employee relationship, EOIR resources on BIA precedents, a court of appeals decision vacating a BIA precedent on the finality of a conviction, updates on the suits challenging Arizona's immigration law (SB 1070), and LAC litigation on access to courts, motions to reopen, and the Child Status Protection Act.
Published On: Friday, June 18, 2010 | Download File
This issue covers lawsuits challenging Arizona’s immigration enforcement law SB 1070; two Supreme Court decisions issued this spring involving immigrants; a lawsuit challenging continued detention after the expiration of a detainer; an overview of several “material support” mandamus cases challenging delay in adjudicating adjustment applications, and important reminders from the LAC (including dates and locations for the Council’s litigation and detention meetings at AILA’s Annual Conference, as well as LAC litigation and practice advisory updates).
Published On: Friday, May 21, 2010 | Download File
This issue covers an upcoming Supreme Court argument on the aggravated felony definition; a decision in a suit challenging a state law regulating verification of employment eligibility; favorable court of appeals asylum decisions; litigation resources, and highlights from the LAC (including litigation involving federal court jurisdiction and the Child Status Protection Act, and advocacy around the asylum clock).
Published On: Wednesday, March 17, 2010 | Download File
This issue covers the Supreme Court’s recent decision on judicial review of motions to reopen; upcoming BIA oral arguments addressing Brand X and whether the date of adjustment qualifies as the date of admission under INA § 237(a)(2)(A)(i)(I); a BIA decision on portability; a favorable K-2 “age out” decision; and motions to reopen after deportation.
Published On: Monday, January 25, 2010 | Download File