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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