The LAC Docket | Volume III, Issue 3
The Newsletter of the American Immigration Council’s Legal Action Center
June 25, 2013
Paths to Legal Status
The Legal Action Center has worked closely with the American Immigration Lawyers Association (AILA) and the Alliance for Citizenship Policy Table to provide technical assistance to Senate staffers, analyze proposed amendments, channel information and arguments to supporters of immigration reform, draft talking points, and undertake related advocacy efforts. Although our work has included a broad spectrum of issues, we have been particularly focused on areas where the LAC has an established track record. We recently issued a series of fact sheets on due process issues in the immigration justice system: Providing Noncitizens with Their Day in Court, which addresses some of the critical immigration court proposals in S. 744; Background on Judicial Review of Immigration Decisions, which provides an overview of federal court review of immigration decisions; and Providing A Safety Valve: The Need for Greater Discretion in Immigration Decision Making, which discusses the important role of discretion in adjudications by immigration judges and DHS officers.
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. On May 15, 2013, Emily Creighton and Patrick Taurel hosted a webinar on DACA 101 for Legal Service Providers, which was primarily designed to teach DACA fundamentals to non-immigration lawyers.
A.B.T. et al. v. U.S. Citizenship and Immigration Services, No. 11-02108 (W.D. Wash. filed December 15, 2011)
On May 8, 2013, the federal district court for the Western District of Washington issued an order preliminarily approving the Settlement Agreement in A.B.T. v. USCIS, a nationwide class action challenging USCIS and EOIR policies related to the “asylum EAD clock.”
The ABT Settlement Agreement creates several important changes to the “asylum EAD clock,” the method by which USCIS and EOIR calculate the 180-day waiting period after which an asylum applicant can apply for work authorization. These changes will be phased in over two years, with many of the changes to be implemented within six months of the preliminary approval of the Settlement Agreement.
On September 20, 2013, the court will hold a fairness hearing where it will consider any objections to the Settlement Agreement filed by class members. If the court determines that the Settlement Agreement is fair to the class members, it will issue an order approving the agreement, which will then become final.
Cuellar de Osorio v. Mayorkas (and Costelo v. USCIS), No. 12-930 (S.Ct. cert. pet. granted June 24, 2013)
On June 24, 2013, the Supreme Court agreed 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), despite Plaintiffs'/Respondents' opposition to the government’s petition for certiorari. These cases, the latter of which is a nationwide class action, challenge the government’s interpretation of a section of the Child Status Protection Act (CSPA) which provides alternate benefits to aged-out derivative beneficiaries. INA § 203(h)(3). In accordance with arguments made by the LAC in an amicus brief, the Ninth Circuit rejected the BIA’s restrictive interpretation in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), and instead held that derivative beneficiaries of all visa petition categories, not simply the Family 2A category, were entitled to the alternate benefits found in INA § 203(h)(3). The parties and amici curiae will brief the merits of the case to the Supreme Court over the next four months, and the Court will hear oral argument, most likely in early 2014.
Stanovsek v. Holder, No. 13-3279 (6th Cir. filed Mar. 12, 2013)
On June 6, 2013, the LAC filed an amicus curiae brief with the Sixth Circuit Court of Appeals, urging the court to join the four other courts that unanimously have rejected the Board of Immigration Appeals' decision, Matter of Koljenovic, 25 I&N Dec. 219 (2010). The issue concerns a 1996 amendment to the Immigration and Nationality Act (INA) that bars immigration judges from exercising discretion—through an INA § 212(h) waiver—on behalf of lawful permanent residents (LPR) whose removal would cause extreme hardship to U.S. citizen and LPR family members in the United States. The BIA has misinterpreted the plain language of the statutory bar as including LPRs who gained lawful permanent residence by adjusting status within the United States in addition to those who were admitted at ports of entry as LPRs. Although four courts have rejected Matter of Koljenovic, the Board continues to apply it in circuits that have not yet ruled on the issue, thus necessitating circuit-by-circuit challenges such as this. The LAC and the National Immigrant Justice Center also are amici in a pending Seventh Circuit case raising the same issue. Papazoglou v. Holder, No. 12-2372 (7th Cir. June 8, 2012).
American Immigration Council, et al., v. DHS, No. 12-00355 (D. Conn. limited discovery ordered Dec. 6, 2012)
The parties are pursuing settlement in the Freedom of Information Act (FOIA) lawsuit filed by the LAC, in collaboration with the Worker and Immigrant Rights Advocacy Clinic of Yale Law School and the Connecticut AILA chapter, to compel the release of records concerning ICE’s Criminal Alien Program (CAP). Valuable insight gained from the deposition of Mr. Jamison Matuszewski, the Unit Chief for CAP, regarding DHS’s methods for organizing and storing CAP-related data have informed settlement negotiations. All the documents released by ICE to date, along with an index of key documents, are posted on the CAP page of the LAC’s website.
Access to Counsel
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’ motion for summary judgment denied June 24, 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. In the suit against ICE, this week, the court denied the defendants’ motion for summary judgment, finding that ICE had failed to establish that it conducted an adequate search for records and that its withholdings and redactions were justified. In the suit against CBP, the LAC received additional documents outlining CBP’s policies for secure detention at ports of entry and short-term custody in Border Patrol hold rooms, as well as information regarding the search terms used by CBP’s Field Offices and Border Patrol Sectors. CBP has agreed to conduct additional searches at ten ports of entry selected by the LAC in order to assess the adequacy of the agency’s original search.
Additionally, the LAC has submitted a supplemental FOIA request to USCIS pursuant to a settlement with the agency in a similar FOIA case. In response to the supplemental request, in April and May 2013, USCIS provided the LAC with more than 450 pages related to the agency’s Standard Operating Procedures, policies in its Orlando Field Office, and implementation of changes to the Adjudicators Field Manual relating to access to counsel. On June 11, the LAC filed an administrative appeal challenging the adequacy of the search and the application of FOIA exemptions.
- The LAC issued a new practice advisory, Moncrieffe v. Holder: Implications for Drug Charges and Other Categorical Approach Issues. This practice advisory discusses the holding of the case, the decision’s potentially broader implications, strategies for noncitizen criminal defendants, and steps that lawyers should take immediately in pending or already concluded removal proceedings affected by Moncrieffe.
The LAC released updates to the following practice advisories:
- The Child Status Protection Act
- Immigration Lawsuits and the APA: The Basics of a District Court Action
- Reinstatement of Removal
- The Fugitive Disentitlement Doctrine: FOIA and Petitions for Review
- Motions to Suppress in Removal Proceedings: A General Overview
- Deferred Action for Childhood Arrivals
- Happy Birthday DACA! (June 17, 2013)
- Why Are Some Still UnDACAmented? (April 12, 2013)
- Will Due Process Protections Be Preserved in Senate Mark-Up? (March 17, 2013)
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