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The LAC Docket | Volume III, Issue 2

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

April 10, 2013
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DACA Developments

In February, the LAC welcomed its DACA Legal Services Fellow, Patrick Taurel.  Patrick comes to the LAC from Andrade Legal in Boise, Idaho, where he focused on complex removal cases.  Patrick works with the LAC and AILA’s Practice and Professionalism Center to develop, implement and oversee the provision of pro bono legal services to low-income DACA requesters.  This includes building relationships with key pro bono stakeholders, including AILA chapter chairs and pro bono liaisons; coordinating and assisting in training volunteer attorneys; compiling and drafting training materials to assist AILA chapters and volunteer law firms to develop effective pro bono training; and assisting in organizing DACA pro bono clinics around the country.

The LAC continues to work with partner organizations to provide legal trainings, respond to technical assistance requests, and engage in administrative advocacy to ensure successful implementation of DACA. In January, the LAC issued two new DACA-related practice advisories, “Brief, Casual and Innocent” Absences from the United States and Inspection and Entry at a Port of Entry: Where is There an Admission?  Based on the information provided in these advisories, staff attorneys Emily Creighton and Mary Kenney provided strategic advice to attorneys in a webinar hosted by the Immigration Advocates Network (IAN).

LAC Coordinates Litigation to Highlight CBP Abuses Across the Country

In March, the LAC, in collaboration with the National Immigration Project of the National Lawyers Guild, the Northwest Immigrant Rights Project, and the ACLU of San Diego and Imperial Counties, coordinated the filing of ten damages cases alleging unlawful conduct by U.S. Customs and Border Protection (CBP) in northern and southern border states.  These cases, which received extensive press coverage, including a USA Today exclusive, are intended to highlight the need for better training, oversight and accountability mechanisms within CBP.  The LAC, in collaboration with pro bono counsel at Cleary Gottlieb Steen & Hamilton, represents one of the plaintiffs, a four-year-old U.S. citizen child whom CBP unlawfully detained for more than twenty hours, deprived of contact with her parents, and sent back to Guatemala on the basis that they could not return her to “illegals.”

Unit Chief of Criminal Alien Program Deposed in FOIA Lawsuit

American Immigration Council, et al., v. DHS, No. 12-00355 (D. Conn. limited discovery ordered Dec. 6, 2012)

The LAC, in collaboration with the Worker and Immigrant Rights Advocacy Clinic of Yale Law School and the Connecticut AILA chapter, continues to litigate a Freedom of Information Act (FOIA) lawsuit to compel the release of records concerning ICE’s Criminal Alien Program (CAP).  On February 1, plaintiffs deposed Mr. Jamison Matuszewski, the Unit Chief for CAP, and gained important insight into DHS’s methods for organizing and storing CAP-related data. The parties recently have entered into settlement negotiations.  To date, ICE has released 473 responsive records.  These documents are posted on the CAP page of the LAC’s website.



Systemic Reforms

   Systemic Reforms

LAC and IPC Issue Report on Two Systems of Justice

In March, the American Immigration Council issued a Special Report, entitled Two Systems of Justice:  How the Immigration System Falls Short of American Ideals of JusticeThe report provides an overview of the fundamental differences between the criminal justice system and the immigration removal process.  It also explains the legal justifications that have been offered for denying immigrants facing deportation the same rights as criminal defendants facing imprisonment.  Emphasizing that any future immigration reform legislation must include greater procedural protections for immigrants in removal proceedings, the report concludes with concrete policy recommendations.  The release of the report was timed to coincide with a Senate Judiciary Committee hearing on “Building an Immigration System Worthy of American Values.”  The report was highlighted in a piece by Voxxi, which was reprinted in the Huffington Post.

LAC Nears Settlement 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, a nationwide class action challenging USCIS and EOIR policies related to the “asylum clock.”  In February, after protracted settlement negotiations, the court ordered the parties to file a notice of settlement and dismissal by March 29, 2013. On March 29, the parties jointly requested an additional two weeks to seek final approval of the settlement terms by the Department of Homeland Security and the Department of Justice. 

Duran Gonzales Update – Court Withdraws Adverse Retroactivity Decision, Remands Case to District Court

Duran Gonzalez v. DHS, No. 09-35174 (9th Cir. rehearing petition filed Dec. 9, 2011)

Duran Gonzalez v. DHS is a Ninth Circuit wide class action addressing whether certain noncitizens (namely, those inadmissible under INA §212(a)(9)(C)(i)(II)) are eligible to adjust status under former INA §245(i).  The Ninth Circuit initially had held that they are, but overturned that ruling in a 2007 decision.  In a 2011 decision, the court held that the 2007 decision applies retroactively even to class members who applied for adjustment before the court announced the new rule.  On March 29, 2013, the Ninth Circuit withdrew the 2011 decision and issued a new opinion.  The Court held that the intervening en banc decision in Garfias-Rodriguez v. Holder, which adopted a new retroactivity test for the instant situation, requires the withdrawal of the earlier decision.  The court also vacated the district court’s decision denying plaintiffs’ retroactivity claims and remanded the case for further proceedings.  On remand, plaintiffs intend to pursue their claims that class members who submitted applications for adjustment of status and a waiver before the 2007 decision should be permitted to pursue their applications.

Government Files Petition for Certiorari in CSPA Class Action 

Cuellar de Osorio v. Mayorkas, Costelo v. USCIS, 695 F.3d 1003 (9th Cir. 2012) 

In January 2013, the Solicitor General asked the Supreme Court to review the Ninth Circuit’s en banc decision in the consolidated cases Cuellar de Osorio v. Mayorkas and Costelo v. USCIS, 695 F.3d 1003 (9th Cir. 2012).  In these cases, the court agreed with arguments made by amicus curiae Legal Action Center and held that the Child Status Protection Act (CSPA) provided alternate benefits to “aged-out” derivative beneficiaries of all visa petition categories.  In so holding, the Ninth Circuit rejected Matter of Wang, 25 I&N Dec. 28 (2009), in which the BIA held that INA §203(h)(3) limited alternate benefits to only those in the Family 2A visa category.  One of the consolidated cases (Costelo) is a nationwide class action.  The LAC is assisting the Respondents’ attorneys with strategy decisions concerning the opposition, due in early May.



   Access to Counsel

LAC Challenges DHS Restrictions on Access to Counsel, Secures Release of Additional USCIS Documents

AIC v. DHS and USCIS, No. 1:11-cv-01971 (D.D.C. dismissed Mar. 15, 2013)
AIC v. DHS and CBP, No. 1:11-cv-01972 (D.D.C. defendants' motion for summary judgment withdrawn May 22, 2012)
AIC v. DHS and ICE, No. 1:12-cv-00856 (D.D.C. defendants' summary judgment reply brief filed Mar. 29, 2013)

The LAC continues to pursue FOIA litigation against ICE and CBP, seeking to compel the release of records relating to noncitizens’ access to counsel in interactions with the immigration agencies and recently resolved a similar FOIA case against USCIS.  In January 2013, USCIS provided the LAC with more than 200 pages that the agency had improperly withheld, including PowerPoint slides used to train USCIS employees on how to interact with private attorneys and a memorandum establishing agency policy on the right to counsel for individuals seeking admission as refugees. Subsequently, the LAC and USCIS reached a settlement agreement, requiring the agency to conduct additional searches and provide documents related to recent changes to the Adjudicators Field Manual. In the suit against ICE, the LAC opposed the agency’s motion for summary judgment, and highlighted for the court the inadequacy of ICE’s search for counsel-related documents. In the suit against CBP, the LAC received additional documents outlining former INS policy regarding notice to attorneys prior to client interviews and current CBP policy for access to counsel during deferred inspections; a status conference is scheduled for April 11.

LAC Argues that Noncitizens with Serious Mental Disorders Must Have Legal Representation

Matter of E-S-I- (BIA, amicus brief submitted Jan. 15, 2013)

In response to a request from the Board of Immigration Appeals, the LAC, in collaboration with AILA, Texas Appleseed, the ACLU Immigrants’ Rights Project, and the ACLU of Southern California, among other groups, submitted an amicus brief in Matter of E-S-I- regarding the requirements for service on unrepresented respondents in removal proceedings who are not competent to proceed pro se.  The LAC argued that noncitizens with serious mental disorders cannot receive fair hearings without legal representation and that they must be provided with representation from the outset of proceedings to ensure effective service.



   Access to Courts

Government Agrees With Petitioner and LAC That Court Should Grant En Banc Review In Case Regarding Equitable Tolling of Time and Numerical Limitations on Motions to Reopen

Ruiz-Turcios v. Holder, No. 12-11503 (11th Cir. amicus brief submitted Jan. 2, 2013)

As previously reported, in Ruiz-Turcios v. Holder, 700 F.3d 1270 (11th Cir. 2012), the Eleventh Circuit held that the 90-day limit for filing motions to reopen is mandatory and jurisdictional and therefore not subject to equitable tolling. The LAC and the National Immigration Project of the National Lawyers Guild submitted an amicus brief in support of a petition for rehearing, arguing that the Eleventh Circuit’s decision cannot be reconciled with Supreme Court precedent regarding other statutory filing deadlines.  In its response to the rehearing petition, the government agreed that the filing deadline for motions to reopen is not mandatory and jurisdictional and that en banc review is warranted.  The government’s position in this case is helpful to individuals in circuits like the Fifth and First, where the equitable tolling law is unfavorable or unclear.

LAC Argues CBP Exceeded Authority to Issue Expedited Removal Order in Case Involving “Departure Bar”

Ledesma v. Napolitano, No. 12-72069 (9th Cir. amicus brief submitted Feb. 1, 2013)

In February, the LAC, in collaboration with the National Immigration Project of the National Lawyers Guild and the ACLU Immigrants’ Rights Project, submitted an amicus brief to the Ninth Circuit Court of Appeals in Ledesma v. Napolitano, arguing that CBP exceeded its limited authority to issue an expedited removal order and that the court must have authority to address the issue.  The petitioner traveled briefly to Mexico while her removal proceedings were pending.  Upon return, CBP issued an expedited removal order against her, maintaining that the departure bar automatically terminated her removal case.  In its amicus brief, the LAC argued that the removal case was not automatically terminated upon her departure and that CBP exceeded its authority in issuing the expedited removal order while immigration court proceedings were pending.  The government is arguing that the petitioner has no right to seek court review of the expedited removal decision, regardless of whether CBP’s actions were unlawful.


Practice Advisories

Regulatory Comments

  • The LAC, with AILA, the Catholic Legal Immigration Network (CLINIC), and the National Immigration Law Center (NILC), submitted comments on agency revisions to Form I-821D, Consideration of Deferred Action for Childhood Arrivals, and the accompanying instructions.

Litigation Training

On March 8-10, the AILA & AIC Litigation Institute was held at AILA's office in Washington, D.C. The Institute is a hands-on practicum designed for attorneys of all experience levels to become more confident and knowledgeable about litigating removal cases in immigration court and federal court. Throughout the course of the weekend program, participants divided into small groups and participated in six mock hearings. Each mock hearing segment was preceded by a panel presentation and a demonstration by the faculty. In addition, the faculty led discussions on professionalism, dealing with difficult judges and government attorneys, and use of objections and the rules of evidence.

The LAC worked with AILA’s Conference Department, Federal Court Litigation Section, and the conference committee to develop the program and materials. The participant reviews were overwhelmingly positive.



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