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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Administrative Relief Resource Center
Learn how individuals can prepare for administrative relief, find legal assistance and community education resource, and ways that you can help immigrants and immigrant-serving organizations.
- District Court Rules Grant of TPS Is an Admission for Adjustment of Status Purposes
- First Circuit Joins Other Courts in Holding That Immigrants Can Pursue Cases From Outside the United States
- Seventh Circuit Decision Expands Availability of Hardship Waivers to Lawful Permanent Residents
- ICE Agrees to Release Thousands of Previously-Withheld Records
- Court Says ICE Failed to Satisfy FOIA Requirements in Council’s Suit to Compel Disclosure of Records on Access to Counsel
- Eleventh Circuit Holds That Filing Limitations on Motions to Reopen Are Subject to Equitable Tolling
- Visa Bulletin “Do-Over” Undercuts Visa Modernization
- First Step in Visa Modernization: Making the Wait More Palatable
- Five Families Released After Prolonged Detention
- Restrictionists Continue to Attack H-4 Work Authorization
- Government Ordered to Promptly Release Children From Family Detention
- Court Issues Decision in Washtech, Case Challenging Training for U.S.-Educated Noncitizens
- Annual Review of State-Level Immigration Policy Still Trending Pro-Immigrant
- The Government Doubles Down on Locking Up Immigrant Mothers and Children
- Insider Speaks Out Alongside Formerly Detained Mothers Seeking Protection in the U.S.
- Court Finds Federal Officers Can be Sued for Mistreatment of Immigrants in Detention
- Judge’s Order in Flores Should Signal the End of Family Detention
- White House Report on Improving Our Legal Immigration System: Too Little Too Late?
- Some 3-Year Work Permits Being Recalled by USCIS
- Appellate Court Hears Oral Argument in Texas v. United States
- U.S. Settles With 4-Year-Old U.S. Citizen They Wrongfully Deported
- Members of Congress Report on Texas Family Detention Center Visits
- Supreme Court Finds Conviction for Possession of a Sock Was Not a Deportable Offense
- Court Rejects Restrictionists’ Attempts to Derail Work Authorization for H-4 Spouses
- Immigration Appeals Court Reverses Position on Deportation Waivers
- Why DAPA Applications Were Not Accepted by USCIS on May 19, 2015
- Reports: Detention Doesn’t Deter Migrants and Refugees From Coming to United States
- Arpaio Faces Skeptical Judges In Lawsuit Challenging Obama’s Immigration Action
- Supreme Court to Decide Whether It’s Okay to Deprive a Person of His Day In Immigration Court
- No Justice For Family of Mexican Child Killed By U.S. Border Patrol Agent
- The Court Decision on Deferred Action Everyone Should Be Talking About
- Faith Leaders Visit Immigrant Detention Center as Mothers Begin Hunger Strike
- Immigration Agency Issues Long-Awaited Guidance on L-1B Visa Petitions
- Government Claims Children in Family Detention Centers Are Not Entitled to Protections
- Documenting Ongoing Border Patrol Abuses
- Immigration Action Provides Certain H-4 Spouses Work Authorization
- New Immigration Enforcement Policy Remains In Effect Despite Texas Lawsuit
- Supreme Court Hears Argument on Whether Government Must Justify Its Visa Denial
- The Detention of Children and Their Families is Still Unjust and Still Against the Law
- Unrepresented Children Still Being Fast-Tracked Through Immigration Hearings
- When is Possession of a Sock a Deportable Offense?
- U.S. Education of Foreign Students is Under Attack
- Do the President’s New Immigration Policies Really Mark the End of Secure Communities?
- How New Guidance Improves a Waiver Program to Limit Family Separations
- Five Things to Know About Deportation Relief for Some Immigrant Parents
- How Many Immigrants Could Be Eligible for Relief and Not Know It?
- Civil Rights Complaint Documents Government’s Failure to Properly Screen Asylum Seekers
- Third Federal Court Rejects Government Interpretation of ‘Admission’ into U.S.
- How USCIS Tried to Keep Out a Skilled Brazilian Steakhouse Worker
- How Can a Three Year Old Represent Himself in Court?
- Report Discloses Deportation of Central American Asylum Seekers
- Federal Court Refuses to Dismiss Case of U.S. Citizen Girl Who Was Deported
- Inspector General Falls Short in Documenting Border Detention Conditions
- Why Groups Are Suing the Government over Rushed Deportation Process for Mothers and Children
- Courts Continue to Reject Arizona Style Laws, Even as House Embraces SAFE Act
- Here Are Some of the Stories of Women Held at Artesia
- Why We are Suing the Government on Behalf of All Children Facing Deportation
- District Court Decides Some TPS Beneficiaries May Finally Become Lawful Permanent Residents
- SCOTUS Decides Immigrants Can “Age-Out” of Visa Petitions
- The DACA Renewal Process: Everything You Need to Know
- CBP Releases Report Critical of Agency, Issues Updated Use of Force Policy
- Summary Removal Procedures and Their Role in Rising Deportations
- New Data Show More Than Half a Million Immigrants Granted DACA
- Drop in Court-Ordered Deportations Means Little to Overall Deportation Numbers
- USCIS Releases Information About DACA Renewal Process
- Circuit Court Ruling Affirms Detainers Not Mandatory
- New Directive Clarifies Existing Use of Force Policy at CBP
- Customs and Border Protection Conceals Scathing Audit of Border Patrol’s Use of Force Policy
- What the DACA Renewal Process Should Look Like
- Petition Challenges DHS on Enforcement Priorities
- The Washington Post Exposes Sorry State of Immigration Courts
- Miranda-like Warning for Immigrants Argued in Ninth Circuit
- Why Is There a Disparity in DACA Application Rates Among Different Nationalities?
- Supreme Court Considers Restrictive Interpretation of Child Status Protection Act
- The Punishment Should Fit the Crime for Immigrants, Too
- Keeping CBP In Line With Proposed Reforms
- Understanding DACA's Education Requirement
- Supreme Court to Interpret Child Status Protection Act
- New York City Pilots Free Legal Representation in Immigration Court