The LAC Docket | Volume III, Issue 4
The Newsletter of the American Immigration Council’s Legal Action Center
November 4, 2013
On December 10, the Supreme Court will hear oral argument in the consolidated Child Status Protection Act (CSPA) cases Cuellar de Osorio v. Mayorkas and Costelo v. USCIS. The issue in these cases is whether the benefits for aged-out derivative beneficiaries in INA § 203(h)(3) are available to derivative beneficiaries of all visa petition categories, not just the Family 2A category, as the government contends. The government and the petitioners have filed their briefs, and amici curiae will file briefs next week. The American Council will submit an amicus brief highlighting compelling cases to help put a human face on the otherwise technical legal CSPA provision.
The LAC also continues to litigate against other restrictive interpretations of the CSPA. In September, the LAC filed an amicus brief in the Seventh Circuit challenging the BIA’s narrow interpretation of the phrase “sought to acquire the status of a lawful permanent resident,” found in the CSPA’s age-preservation formula. We argue that the phrase should include substantial steps taken towards filing an application for permanent residence. We urge the Court to reject the Board of Immigration Appeals decision in Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), which held that the term required either the filing of an application or a showing of extraordinary circumstances for having failed to file. The case is Velasquez Garcia v. Holder, No. 13-2610 (7th Cir. amicus brief submitted Sept. 30, 2013).
In B.H. et al. v. USCIS et al., also known as “ABT,” the class action challenge to USCIS and EOIR’s procedures for determining employment authorization eligibility for asylum applicants, the district court held a fairness hearing on the settlement agreement on September 21, 2013. Prior to the hearing, the parties addressed the sole response received to the Class Notice announcing the settlement agreement through a minor amendment to the agreement. The court accepted this amendment and ordered a 30-day notice period for class members to review the revised settlement agreement and a supplemental class notice regarding attorney’s fees. On October 30, following this 30 day period, the parties filed a joint proposed Order for final approval of the settlement agreement. Additionally, the government filed an unopposed motion to extend the implementation date of the settlement from November 8 until December 3 due to the government shutdown in October. We anticipate that the Court will rule on these matters the first week in November.
In Papazoglou v. Holder, decided in August, the Seventh Circuit joined the Third, Fourth, Fifth, and Eleventh Circuits and held that the statutory bar to the waiver in INA § 212(h) applies only to individuals who entered the United States as lawful permanent residents (LPR), not to those who subsequently adjusted to LPR status. The LAC, with the National Immigrant Justice Center, submitted an amicus brief, arguing that the Board’s interpretation ignored the plain language of the INA, which distinguishes between applicants who entered the country as LPRs and those who gained LPR status post-entry.
On August 2, 2013, a U.S. District Court in Connecticut approved a settlement in a FOIA lawsuit challenging ICE’s refusal to release tens of thousands of documents about the Criminal Alien Program (CAP), one of the agency’s largest enforcement programs. The lawsuit was filed by the American Immigration Council, in collaboration with the Worker and Immigrant Rights Advocacy Clinic of Yale Law School and the Connecticut AILA Chapter. The Immigration Council also released an updated CAP fact sheet that provides an overview of what currently is known about the CAP program based on the documents we have received to date and the deposition of Jamison Matuszewski, the Unit Chief for CAP, taken during the litigation.
LAC Urges Court to Permit Noncitizens to Seek Remedies for Unconstitutional Conduct by Federal Officers
In Turkman v. Ashcroft, eight noncitizens of Arab and South Asian descent sued individual federal officials for physical and emotional abuse that they suffered when detained on immigration charges in the aftermath of September 11. The plaintiffs were held in particularly egregious conditions while the FBI decided whether they were terrorists, or had any value to the 9/11 investigation. In the current appeal at the Second Circuit, the LAC and the National Immigration Project of the National Lawyers Guild filed an amicus brief supporting the plaintiffs’ right to hold federal officers responsible for their unconstitutional conduct. The LAC amicus brief argues that the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics provides a remedy for their claims.
In an amicus brief challenging the Board of Immigration Appeals’ denial of a motion to suppress evidence, the LAC argued that ICE violated the Fourth Amendment by seizing a restaurant employee during the execution of a search warrant without any particularized suspicion that he had committed an immigration violation. We argued further that the Fourth Amendment violation was consistent with a widespread pattern of ICE raids on homes and businesses, conducted in order to detain and interrogate large numbers of individuals without any individualized suspicion. The case is Sanchez-Lopez v. Holder, No. 13-70431 (9th Cir. amicus brief submitted Aug. 7, 2013).
Paths to Legal Status
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 Deferred Action for Childhood Arrivals (DACA). In addition, in anticipation of the one year anniversary of DACA, the Immigration Council, in conjunction with AILA and the Immigration Advocates Network (IAN), launched Pocket DACA, a free smartphone application designed to assist young immigrants in learning more about DACA and finding legal help. To date, Pocket DACA has been downloaded over 21,000 times.
Access to Courts
In response to a FOIA request submitted to the Executive Office for Immigration Review (EOIR), the LAC received several hundred records regarding video hearings in immigration court. The records provide a historical overview of EOIR’s use of video hearings over the past twenty years. They document the significant increase in the use of video hearings, particularly over the last ten years. The records also include advocates’ complaints and critiques over the years and EOIR’s responses.
In October, the First Circuit Court of Appeals held that individuals who have been deported must have the opportunity to pursue motions to reopen their cases from outside the United States. A motion to reopen is an important procedural safeguard that helps ensure noncitizens are afforded a fair immigration hearing. The LAC and the National Immigration Project of the National Lawyers Guild had filed an amicus brief in the First Circuit and argued before the court. Despite having lost in nine other circuits, the government continued to vigorously defend a regulation – the so called “departure bar” – barring individuals from pursuing their cases from outside the United States. This most recent decision means that all but one circuit court of appeals has rejected the government’s arguments and concluded that the regulation is unlawful. Only the Eighth Circuit Court of Appeals has yet to rule on the legality of the departure bar.
The LAC and co-counsel Public Citizen filed a lawsuit on behalf of AILA seeking information about complaints alleging immigration judge misconduct. This suit stems from a November 2012 Freedom of Information Act (FOIA) request AILA submitted to EOIR asking that the agency disclose complaints against immigration judges and records indicating how the agency has resolved those complaints. EOIR failed to release any documents, prompting the filing of the lawsuit in June 2013. In October 2013, the parties agreed to a schedule for the production of documents and briefing in the district court. Beginning in November 2013, and stretching over the course of almost four months, EOIR is expected to release at least several hundred complaints against immigration judges.
Access to Counsel
In September 2013, the LAC submitted an amicus brief challenging DHS’s failure to inform individuals prior to their interrogation of the reason for their arrest, their right to legal representation, and that anything they say may be used against them in a subsequent proceeding. The Ninth Circuit and the BIA have previously held that such advisals are not required by 8 C.F.R. § 287.3(c) until after formal proceedings have been initiated. The LAC argued that such a reading misinterprets the language and purpose of the regulation. The case is Segovia v. Holder, No. 09-72359 (9th Cir. amicus brief submitted Sep. 24, 2013). The LAC has submitted briefs in other cases addressing the timing of advisals under § 287.3(c), including a petition for review of Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the published BIA decision on the issue.
- The LAC, in collaboration with Immigration Equality, issued a new practice advisory, Immigration Benefits and Pitfalls for LGBT Families in a Post-DOMA World, which provides an overview of marriage-based immigration benefits and forms of relief from removal associated with United States v. Windsor.
- The LAC released a practiced advisory, Motions to Suppress in Removal Proceedings: Cracking Down on 4th Amendment Violations, which deals primarily with Fourth Amendment limitations on state and local immigration enforcement efforts and also briefly addresses Fifth Amendment violations that may arise from the same types of encounters with state and local officers.
- The LAC released a new practice advisory, Advance Parole for Deferred Action for Childhood Arrivals (DACA) Recipients. This practice advisory provides guidance on advance parole eligibility for DACA recipients; addresses the legal issues that can confront a DACA recipient considering travel on advance parole; and covers the impact that the travel may have on the DACA recipient’s future immigration benefits.
The LAC released updates to the following practice advisories:
- How to get Judicial Relief Under 8 USC 1447(b) for a Stalled Naturalization Application
- Motions to Suppress in Removal Proceedings: A General Overview
- The Child Status Protection Act
- Are You Really Too Old for DACA? (October 24, 2013)
- Holding the Detention System Accountable for Alleged Post 9/11 Abuses (October 18, 2013)
- ICE Detainers Continue to Target Immigrants with No Criminal Convictions (October 3, 2013)
- Customs and Border Protection’s New “Use of Force” Initiatives Are Welcome First Steps (September 25, 2013)
- Questions About Traveling Abroad Confront DACA Recipients (September 16, 2013)
- Why is the Obama Administration Arguing that Undocumented Immigrants Should Not Practice Law? (September 4, 2013)
- Courts Continue to Reject Arizona Style Laws, Even as House Embraces SAFE Act (August 5, 2013)
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- 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