The LAC Docket | Volume II, Issue 1
The Newsletter of the American Immigration Council’s Legal Action Center
December 21, 2011
Last week, the American Immigration Council’s Legal Action Center (LAC) filed a nationwide class action complaint against U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) alleging widespread problems with the asylum “clock”—the system used by immigration officials to determine when noncitizens with pending asylum applications become eligible to obtain work authorization in the United States.
The complaint, co-filed with the Northwest Immigrants Rights Project, Gibbs Houston Pauw, and the Massachusetts Law Reform Institute, was submitted on behalf of untold numbers of asylum applicants unable to lawfully work in the United States due to unlawful agency policies and practices. The named plaintiffs include asylum seekers who cannot receive employment authorization until at least 2013.
With limited exceptions, federal law requires USCIS to grant work authorization to any person with an asylum application pending for 180 days. In calculating this period, however, USCIS relies on determinations made by immigration judges. As described in the class certification motion, arbitrary EOIR policies on when the “clock” should start and stop—combined with growing backlogs in U.S. immigration courts—have unlawfully prevented asylum seekers from working.
The complaint addresses three primary problems with the administration of the asylum clock. First, decisions to stop the clock—which regulations permit for any “delay caused by the applicant”—are made without notice to the asylum seeker and are not subject to appeal. Second, for asylum claims being raised in removal proceedings, the clock does not start until the first appearance before the immigration judge, rather than the filing of the application with the immigration court. And third, immigration courts refuse to restart the clock in cases that have been remanded for further consideration by federal courts to the Board of Immigration Appeals (BIA).
The complaint alleges that taken together, the problems with the asylum clock violate the Due Process Clause of the Fifth Amendment, as well as provisions of the Immigration and Nationality Act (INA), Administrative Procedure Act (APA), and federal regulations.
In connection with this lawsuit, the LAC would like to hear about certain problems stemming from specific asylum clock policies and practices (see “Requests for Evidence” below).
The LAC filed amicus briefs in two cases challenging Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), a decision limiting lawful permanent residents’ ability to obtain waivers of inadmissibility under Section 212(h) of the INA. The cases involve a statutory amendment imposing bars on such waivers for immigrants admitted to the United States as LPRs. Adhering to the definition of “admitted” in the INA, numerous courts have held the amendment applies only to immigrants who entered the United States as LPRs, not those who adjusted to LPR status post-entry. In Matter of Koljenvoic, the Board found the amendment applies to all LPRs on the theory that adjustment of status always qualifies as an “admission.”
For many long term LPRs, relief under Section 212(h) is often the only means to avoid separation from U.S. family members. In its amicus briefs, the LAC argued that the Board ignored the plain language of the statute and mistakenly relied on absurd results it said would arise by following the definition of “admitted” in unrelated provisions of the INA. The cases are pending in the U.S. Courts of Appeal for the Third and Fourth Circuits. Oral argument has not yet been scheduled in either case.
In October, the LAC submitted an amicus brief on behalf of the Council and the American Immigration Lawyers Association, urging the Ninth Circuit to rehear en banc a decision adopting the Board’s restrictive interpretation of the Child Status Protection Act (CSPA) in Matter of Wang, 25 I&N Dec. 28 (BIA 2009). The brief argued that the Ninth Circuit’s opiniondisregarded the plain text of the statute, which allows a derivative beneficiary of any immigrant visa petition to retain the same priority date if he or she “ages out” under the CSPA’s age-preservation formula. The brief noted that within a week after the Ninth Circuit’s decision, the Fifth Circuit issued an opinion that rejected the Board’s interpretation of the CSPA. Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011). The Ninth Circuit ordered the government to respond to the petition for rehearing en banc, but has yet to announce whether it will rehear the case.
LAC files suits seeking DHS records on access to counsel
American Immigration Council v. DHS and USCIS, No. 11-1971 (D.D.C. filed Nov. 8, 2011)
American Immigration Council v. DHS and CBP, No. 11-1972 (D.D.C. filed Nov. 8, 2011)
In November, the LAC filed two lawsuits against DHS to compel the release of records relating to noncitizens’ access to counsel before USCIS and CBP. The LAC pursued disclosure of these records, as well as records from ICE, through FOIA requests filed in March 2010. USCIS has failed to turn over any documents to date, and CBP has turned over only a few excerpts from its practice manuals. ICE informed the LAC that it conducted a search but was “unable to locate or identify any responsive records.” The LAC has filed an administrative appeal of ICE’s determination and will pursue litigation if necessary.
As noted in the complaints, which the LAC filed with co-counsel Dorsey & Whitney LLP, the majority of decisions concerning noncitizens’ immigration status are made not by immigration judges, but by DHS officers in interview rooms and offices. DHS officers often prevent attorneys from speaking on their clients’ behalf, or from even being present during examinations. DHS’ policies on access to counsel are also difficult to ascertain, creating confusion for immigration lawyers, their clients, and the public alike.
LAC continues to challenge the “departure bar”
Contreras-Bocanegra v. Holder, No. 10-9500 (10th Cir. reheard en banc Nov. 15, 2011)
Lari v. Holder, No. 11-60549 (5th Cir. amicus brief filed Dec. 14, 2011)
The LAC, in collaboration with the National Immigration Project of the National Lawyers Guild (NIPNLG), continues to challenge the “departure bar” in federal courts of appeals, contesting the validity of regulations preventing immigrants from seeking reopening or reconsideration of their removal cases after they have been deported. The LAC filed a supplemental amicus brief in the Tenth Circuit in November, addressing questions raised by the court when it granted a petition for rehearing en banc. (The Tenth Circuit agreed to hear the case en banc following the submission of a previous amicus brief by the LAC earlier this year.) The LAC also filed an amicus brief in the Fifth Circuit in December, arguing that the departure bar unlawfully deprives noncitizens of their right to an adjudication of their removal case.
Motions to reopen and reconsider are important safeguards enacted by Congress to ensure a proper and lawful disposition of a removal case. They permit noncitizens to present new facts or errors of law that may undermine the government’s basis for deportation or denial of relief from removal. In order to protect these important safeguards, the LAC and NIPNLG have coordinated litigation challenging the departure bar since 2006. To date, six federal appellate courts—the Second, Third, Fourth, Sixth, Seventh, and Ninth Circuits—have struck down the departure bar. Only the Tenth Circuit, which held oral argument en banc in November, is at odds with the majority.
In October, the LAC and the National Immigration Project of the National Lawyers Guild filed an amicus brief arguing that a New York federal district court had jurisdiction to rule on a damages suit challenging the unlawful detention and mistreatment of a lawful permanent resident. The plaintiff, a native of the Dominican Republic, was improperly stopped at JFK Airport upon returning from a trip abroad and held in detention for a week, where he was physically abused and denied medical attention by CBP and ICE officers. The plaintiff seeks money damages from CBP and ICE officials under the Federal Tort Claims Act and from the United States under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The amicus brief responds to the Defendants’ arguments that the case should be dismissed on jurisdictional grounds.
- Asylum “Clock”: In connection with its recently filed lawsuit (see above), the LAC wants to hear about problems stemming from EOIR’s policy that the asylum “clock” can only start or restart at a hearing before an immigration judge, even if an applicant-caused delay has been cured prior to the next hearing. Please contact us at firstname.lastname@example.org if you have a case in which the following occurred: (1) the asylum clock was properly stopped or not started due to an applicant-caused delay; (2) the applicant-caused delay was cured before the next scheduled hearing; (3) you notified the immigration court of the cure and asked that the clock be started or restarted, or that the hearing date be advanced; and (4) the immigration court refused to start or restart the clock.
- Prosecutorial Discretion: The LAC and the American Immigration Lawyers Association are monitoring implementation of the memoranda on prosecutorial discretion issued by ICE Director John Morton on June 17, 2011. If you have requested prosecutorial discretion on behalf of a client after June 17, or if you have discussed the memoranda with local ICE officials, please complete this survey about your experience. (Note: New questions have been added to the survey to reflect the August 18 announcement of the formation of a DHS-DOJ task force to review pending and future removal cases for compliance with existing priorities.)
- Section 212(h) Waivers: The LAC is interested in cases involving the Board’s decision in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), a decision limiting lawful permanent residents’ ability to obtain waivers of inadmissibility under Section 212(h) of the INA. If your client has been denied a § 212(h) waiver under Matter of Koljenovic, please email us at email@example.com.
- The LAC issued a new practice advisory with the National Immigration Project of the National Lawyers Guild and the Immigrant Defense Project entitled "Implications of Judulang v. Holder for LPRs Seeking § 212(c) Relief and for Other Individuals Challenging Arbitrary Agency Policies" (December 16, 2011).
- The LAC updated its practice advisory “DHS Review of Low Priority Cases for Prosecutorial Discretion” (updated December 12, 2011).
- The LAC issued a new practice advisory with the University of Houston Law Center Immigration Clinic entitled “Representing Clients with Mental Competency Issues under Matter of M-A-M-” (November 30, 2011).
- Law Fellow Ben Winograd updated the practice advisory “Motions to Suppress in Removal Proceedings: A General Overview” (updated October 12, 2011).
- Law Fellow Ben Winograd answered questions about the Supreme Court’s decision to review the Arizona immigration case (“Supreme Court to Weigh in on Injunctions Against Arizona SB 1070,” December 12, 2011).
- Law Fellow Ben Winograd highlighted a report exposing alarming Border Patrol practices along the Northern border (“Report Reveals Disturbing Truths Behind Border Patrol Transportation Raids,” November 16, 2011).
- Law Fellow Ben Winograd examined a federal district court’s preliminary rulings on Alabama HB 56 (“What You Should Know About Initial Rulings on Alabama’s Immigration Law,” Sept. 29, 2011).
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