Filing a petition for review of a removal order does not automatically stay an individual’s removal from the United States. A court of appeals, however, may issue a judicial stay of removal to prevent the government from deporting a person while his or her petition for review is pending before the court. In Nken v. Holder, 556 U.S. 418, 434 (2009), the Supreme Court instructed courts to adjudicate stay motions by applying the “traditional” standard for a stay. Under this standard, the courts must consider the likelihood of success on the merits, the harm to the applicant absent a stay, whether the issuance of the stay will substantially injure the other parties interested in the proceeding, and where the public interest lies.
This Practice Advisory provides background information about requesting stays of removal from the courts of appeals, discusses the legal standard for obtaining a stay, and addresses the implications of the government’s policy with respect to return of individuals who are successful on their appeals. A sample stay motion, a sample declaration in support of a stay motion, and sample guidelines to assist families, friends and community members in writing letters in support of stay requests are attached to the advisory.
The LAC issued this advisory jointly with the National Immigration Project of the National Lawyers Guild, the Boston College Post Deportation Human Rights Project and the Immigrant Rights Clinic, Washington Square Legal Services, New York University School of Law.Read more...
The American Immigration Council’s Legal Action Center (LAC) is pleased to announce an update of Frequently Asked Questions About the Asylum Clock Class Action Settlement.This updated FAQ answers questions about the benefits provided under the settlement of the nationwide class action, ABT v. USCIS, which challenged policies related to employment authorization for asylum applicants. For more information about the ABT case, see the LAC’s Asylum Clock webpage. The FAQ is released in coordination with co-counsel in the lawsuit, Northwest Immigrant Rights Project, Massachusetts Law Reform Institute and Gibbs, Houston and Pauw.
Yesterday, the American Immigration Council, in collaboration with AILA, filed an amicus brief in an en banc case pending before the Board of Alien Labor Certification Appeals (BALCA), an administrative body at the Department of Labor (DOL) that reviews denials of PERM labor certifications. The case involves a regulation that requires employers to notify certain U.S. employees that they have laid off about new job opportunities before the employers are permitted to hire foreign workers.
The focus of the amicus brief is the agency’s failure to provide fair warning about its interpretation of the notification requirement before applying a new, more restrictive interpretation. The Department is notorious for failing to provide guidance and leaving it to employers to guess at what processes the Department will find to be in compliance with the regulations. Here, the Department offered no guidance, but, through a pattern of decision making, established a practice of approving certain notification procedures. Amici argue that the Department acts arbitrarily and violates due process when it does an about face without giving prior notice.
Settlement Will Provide First Detailed Look at “Criminal Alien Program”
Released on Fri, Aug 02, 2013
Washington, DC – Yesterday, a U.S. District Court in Connecticut approved a settlement in a Freedom of Information Act (FOIA) lawsuit challenging the refusal of Immigration and Customs Enforcement (ICE) to release tens of thousands of documents about the Criminal Alien Program (CAP), one of the agency’s largest enforcement programs. CAP currently is active in all state and federal prisons, as well as more than 300 local jails throughout the country and is implicated in approximately half of all deportation proceedings. Although CAP supposedly targets the worst criminal offenders, the program also appears to target individuals with little or no criminal history for deportation and to incentivize pretextual stops and racial profiling.
Although CAP facilitates the removal of hundreds of thousands of individuals each year, very little information about the program is available to the public. To better understand CAP, the American Immigration Council (AIC), in collaboration with the Worker and Immigrant Rights Advocacy Clinic of Yale Law School and the Connecticut chapter of the American Immigration Lawyers Association (AILA), filed a FOIA lawsuit to compel ICE to disclose information about CAP. Read more...
Washington, D.C.—The American Immigration Council’s Legal Action Center (LAC) is pleased to announce the release of a new practice advisory, Immigration Benefits and Pitfalls for LGBT Families in a Post-DOMA World. Last month, the U.S. Supreme Court issued a landmark decision in United States v. Windsor, holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. With the end of DOMA, married LGBT binational couples can access the panoply of marriage-based immigration benefits and relief from removal. This practice advisory provides an overview of the agencies’ initial responses to Windsor and highlights some of the issues LGBT families will face in a post-DOMA world. The LAC issued this advisory jointly with Immigration Equality.
For a complete list of the LAC’s Practice Advisories, please visit our website.
Washington D.C. - Today, the Supreme Court unequivocally affirmed that there is no legitimate reason for the federal government to discriminate against married couples on account of their sexual orientation. The Justices struck down section 3 of the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, noting in their decision, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.”
Today’s historic decision means that our immigration system must stop treating gay and lesbian families differently than other families. For far too long, gay and lesbian U.S. citizens and lawful permanent residents have been barred from obtaining immigration status for their noncitizen spouses. As a result, families have been separated and spouses of U.S. citizens and permanent residents have been deported from the United States.
President Obama issued an immediate directive to the Attorney General to “work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”
The Secretary of Homeland Security, Janet Napolitano also issued a statement to press confirming that DHS is “working with our federal partners, including the Department of Justice, [to] implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."
Washington, D.C.—Last week, the Supreme Court issued a decision in Moncrieffe v. Holder, holding that a state drug conviction is not an aggravated felony when the statute of conviction extends to the social sharing of a small amount of marijuana. The case has important implications not only for noncitizens charged with drug trafficking, but also for the application of the categorical approach in immigration proceedings.
Yesterday, the Legal Action Center, the Immigrant Defense Project, and the National Immigration Project of the National Lawyers Guild issued a Practice Advisory, “Moncrieffe v. Holder: Implications for Drug Charges and Other Issues Involving the Categorical Approach.” The advisory discusses the holding of the case, the decision’s potentially broader implications, strategies for representing noncitizen criminal defendants, and steps that lawyers should take immediately in pending or already concluded removal proceedings affected by Moncrieffe.
Washington D.C. - The Department of Justice and the Department of Homeland Security have agreed to settle a nationwide class action lawsuit challenging the denial of work authorization to asylum seekers who have been waiting six months or more for a decision on their asylum applications. If approved by a federal judge, this agreement will help ensure that asylum seekers, who have fled persecution in their home countries, are not unlawfully prevented from working and supporting their families while the government adjudicates their cases. The settlement agreement represents the culmination of years of advocacy by the American Immigration Council’s Legal Action Center (LAC) and other groups on behalf of deserving asylum seekers.
The agreement stems from a case filed in December 2011 by the LAC and the Northwest Immigrant Rights Project (NWIRP), with co-counsel from the Massachusetts Law Reform Institute and the Seattle law firm Gibbs Houston Pauw. The complaint challenged widespread problems with the “asylum clock”—the system government agencies use to determine when immigrants who have applied for asylum may obtain permission to work lawfully in the United States.Read more...
This practice advisory discusses entries in three common situations: where a noncitizen is “waved” through a port of entry with no questions asked; where entry is gained by fraud or misrepresentation; and where there is a false claim to U.S. citizenship. With respect to each situation, the practice advisory explores whether an “admission” has occurred, the individual’s immigration status upon entry, and the immigration consequences of the action. It also discusses the impact of these three types of entries on a DACA application.
This practice advisory discusses the “brief, casual and innocent” standard under existing case law. Though such case law may inform USCIS’s review of absences from the United States, DACA adjudicators are not bound by these decisions. Courts have often adopted generous interpretations of the “brief, casual and innocent” standard, and it is hoped that USCIS will do the same in the DACA context.