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Fifth Circuit Finds Motions to Reopen Can Be Equitably Tolled

Court Urges the BIA Not to Apply Equitable Tolling Test “Too Harshly”

Released on Fri, Jul 29, 2016

Washington, D.C. – The American Immigration Council and the National Immigration Project of the National Lawyers Guild applaud the Fifth Circuit Court of Appeals’ decision yesterday in Lugo-Resendez v. Lynch. The decision strongly reaffirms the importance of immigrants’ statutory right to file a motion to reopen, a procedural protection meant to ensure a proper and lawful outcome in an immigration proceeding.  The court recognizes that the 90-day deadline for filing such motions can be “equitably tolled,” or extended. With this decision, the Fifth Circuit protected the right of immigrants who are unable to file within the 90-day window due to circumstances beyond their control.   

Petitioner Sergio Lugo-Resendez was a long-time lawful permanent resident of the United States. The government previously deported him based on an interpretation of the law that the Supreme Court subsequently found to be erroneous. Within 90 days of learning that the law had changed, Mr. Lugo-Resendez filed a motion to reopen, asking an immigration court to equitably toll the deadline for filing his motion. Read more...

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Court Again Rules Against Federal Government's Efforts to Detain Children

Released on Thu, Jul 07, 2016

Washington, DC – The American Immigration Council and the American Immigration Lawyers Association (AILA) commented on the decision from the Ninth Circuit Court of Appeals affirming that the nearly 20-year-old Flores Settlement Agreement governs the custody and release of all immigrant children, and that the Obama Administration’s family detention practices violate that agreement.

The decision came after the Department of Homeland Security (DHS) appealed last summer’s ruling by District Court Judge Dolly Gee finding DHS in violation of the agreement. DHS had argued that the settlement did not apply to children apprehended with their mothers, and that the continued detention of children who arrived with their mothers was therefore permissible. However, the appellate court held that the Flores settlement does in fact govern the treatment of both unaccompanied and accompanied children, and that neither the family detention centers nor Immigration and Customs Enforcement’s published standards governing such detention centers comply with the settlement. The appellate court further affirmed that the district court was right to deny DHS’s request to amend the settlement agreement in order to permit family detention to continue. While the court disagreed with the district court’s finding that the settlement’s terms address the release of mothers, its decision does nothing to preclude the release of mothers with their children.Read more...

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Asylum Seekers File Class Action Lawsuit Against DHS

Released on Fri, Jul 01, 2016

Washington D.C. - The U.S. Government has placed unnecessary hurdles in front of asylum seekers who are attempting to file asylum applications within the required time period. In fact, bureaucratic obstacles, a well-documented court backlog, and jurisdictional disputes between agencies often make it impossible for individuals to file their asylum applications by the deadline, leaving them ineligible for asylum and subject to deportation. 

In an attempt to bring order and fairness to what has become an overly bureaucratic and chaotic process, today, 4 asylum-seekers filed a class action lawsuit challenging the Department of Homeland Security’s (DHS) failure to advise them of the deadline for filing their asylum applications, as well as both DHS’s and the immigration courts’ failure to adopt procedures which would ensure that an individual is able to file an asylum application by the deadline.  

Plaintiffs, represented by the American Immigration Council, Northwest Immigrant Rights Project, Dobrin & Han, PC, and the National Immigration Project of the National Lawyers Guild, sue on behalf of themselves and all other individuals in the United States who are in the same situation.
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Court Orders Release of Some Evidence of Arizona Border Patrol Detention Facilities

Order follows attempts by U.S. Customs and Border Protection to keep all evidence of unconstitutional detention conditions from the public

Released on Mon, Jun 27, 2016

Washington D.C. – Today, a federal district court unsealed some of the photographs central to ongoing litigation challenging deplorable and unconstitutional conditions in Border Patrol detention facilities in the agency’s Tucson Sector. The court also allowed the Arizona Republic newspaper to intervene in the case to argue for the release of the documents.

The initial evidence released today is only a portion of the evidence submitted in support of a motion for preliminary injunction filed in December, with the government fighting the release of additional evidence remaining under seal. The injunction is based on compelling evidence of inhumane conditions in Tucson facilities—much of which was disclosed after the Court sanctioned Border Patrol for destroying video recordings from these facilities and failing to turn over other relevant documentation.

“Border Patrol’s treatment of men, women and children in its custody is simply inexcusable and their lack of transparency shows their desire to avoid any public oversight or accountability,” said Mary Kenney, senior staff attorney for the American Immigration Council.

“Every step the Government has taken in response to this lawsuit has been designed to delay this suit and hide the conditions present at these facilities,” said Louise Stoupe of Morrison & Foerster. “The Government should be using the resources they are wasting in court to provide basic human necessities to those in its custody.”

“Migrants detained in the Tucson sector have long suffered horrific conditions,” said Dan Pochoda, senior counsel for the ACLU of Arizona. “The Border Patrol continues to resist public transparency to enable continuation of detention operations that knowingly violate U.S. and international law as well as its own standards.”
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Federal Court Grants Class-Action Status in Challenge to Obama Administration

Thousands of Children Now Covered in Lawsuit Over Lack of Legal Representation in Immigration Proceedings

Released on Mon, Jun 27, 2016

Washington D.C.— A federal court has granted class-action status to a lawsuit challenging the federal government's failure to provide children in immigration court with lawyers in their deportation hearings. Several thousand children are estimated to be members of the class.

The ruling stems from a lawsuit filed by the American Immigration Council, American Civil Liberties Union, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP.

“This ruling means that thousands of children will now have a fighting chance at getting a fair day in immigration court,” said Ahilan Arulanantham of the ACLU’s Immigrants’ Rights Project and the ACLU Foundation of Southern California. “The Obama administration should stop defending its draconian practice of conducting deportation hearings against unrepresented children.”

The class covers all children under 18 who are in immigration proceedings in the Ninth Circuit on or after June 24, 2016; lack counsel; are unable to afford legal representation; and are potentially eligible for asylum or are potentially able to make colorable claims to U.S. citizenship. 

“The government will not be able to simply delay the case in hoping that a few individual cases may resolve themselves without court intervention. Instead, the government must now defend a system that pits unrepresented children against trained federal prosecutors in an adversarial court hearing that literally may carry life and death consequences for the children involved,” said Matt Adams, legal director of the Northwest Immigrant Rights Project.
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Supreme Court Issues Disappointing Split Decision in United States v. Texas

Released on Thu, Jun 23, 2016

Washington D.C. - Today, the Supreme Court issued a 4-4 decision in United States v. Texas, the case challenging expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).  This means that the Fifth Circuit’s decision upholding the preliminary injunction against these initiatives will stand. This ruling does not impact the original DACA program launched in 2012. The decision is a huge disappointment for immigrant families and their defenders. It’s bad for American communities, workers and the economy. We will continue to explore all available legal avenues and will urge the government to do the same. Ultimately, the nation needs a permanent solution to our outdated immigration system, and that must come from Congress.  The fight will continue. 

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 For more information, contact Wendy Feliz at wfeliz@immcouncil.org or 202-507-7524

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Lawsuit Seeks to Shed Light on Customs and Border Protection's Complaint Process

Released on Mon, Jun 06, 2016

Washington D.C. – The American Immigration Council (Immigration Council), represented by Drinker Biddle & Reath LLP, today filed a lawsuit under the Freedom of Information Act (FOIA) to compel the release of additional documents related to the complaints process at United States Customs and Border Protection (CBP). Through this suit, the Immigration Council is seeking to update information received from CBP in its previously filed FOIA request, where it obtained data concerning 809 complaints of abuse lodged against U.S. Border Patrol (USBP) agents between January 2009 and January 2012.

The Immigration Council analyzed this earlier data in a May 2014 report entitled No Action Taken: Lack of CBP Accountability in Responding to Complaints of Abuse, revealing that the recorded outcome in 97 percent of the cases CBP claimed to have resolved was “no action.” The data further showed that “physical abuse” by USBP agents was the most prevalent reason given for filing a complaint (cited in 40 percent of the complaints), with “excessive use of force” referenced in 38 percent of the cases.

To determine whether there had been any improvement since January 2012, the Immigration Council filed a follow-up FOIA request to CBP on October 2, 2015, asking for documentation concerning complaints made against CBP agents and officers since January 1, 2012, as well as the process CBP has used to investigate and resolve these complaints.Read more...

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Litigation for Business Immigration Practitioners

This Practice Advisory provides information to help practitioners assess whether filing suit in federal court is the right option for challenging an employment-based petition denial. It discusses the importance of building a solid administrative record and other factors practitioners should consider before filing suit. It also discusses the components of a complaint and the standards that a federal court will apply in reviewing the agency’s decision. 

Published On: Friday, June 3, 2016 | Download File

Lawsuit Seeks Transparency in H-1B Lottery Process

Released on Mon, May 23, 2016

Washington D.C. - The American Immigration Council (Council) and the American Immigration Lawyers Association (AILA) have teamed up on a lawsuit against the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) seeking information about the government’s administration of the H-1B lottery. The lawsuit, filed last Friday, was brought under the Freedom of Information Act (FOIA). Hughes Socol Piers Resnick & Dym, Ltd. is co-counsel with attorneys from the Council.

Every year, U.S. employers seeking highly skilled foreign professionals submit petitions to USCIS on the first business day of April for the limited pool of H-1B nonimmigrant visa numbers that are available for the coming fiscal year. With an annual limit of 65,000 visas for new hires—and 20,000 additional visas for professionals with a master’s or doctoral degree from a U.S. university—employer demand for H-1B visas has exceeded the statutory cap for more than ten years. 

If USCIS determines at any time during the first five business days of the filing period that it has received more than enough petitions to meet the numerical limits, the agency uses a computer-generated random selection process (or “lottery”) to select a sufficient number of H-1B petitions to satisfy the limits, taking into account a percentage of the petitions selected which will be denied, withdrawn, or otherwise rejected. Petitions not selected are returned to the petitioning employers. U.S. employers, foreign nationals seeking H-1Bs, and immigration lawyers are keenly interested in how USCIS administers the lottery process.Read more...

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Supreme Court Hears Oral Arguments in U.S. v. Texas

Government Makes Strong Case for Moving DAPA Forward

Released on Mon, Apr 18, 2016

Washington D.C. - Today, the Supreme Court heard oral arguments in United States v. Texas. The highest court will now decide whether the President’s deferred action initiatives announced in November 2014, known as expanded DACA and DAPA, move forward.

“The lawyers arguing for the deferred action initiatives made a convincing case that the law and the Constitution are on our side. As expected, the Justices asked probing questions to both sides, demonstrating they understand the high stakes involved this case,” said Beth Werlin, Executive Director of the American Immigration Council.

According to the Council’s Legal Director Melissa Crow, “Much of the argument focused on whether Texas really has standing – a sufficient stake in the outcome of the case to file a lawsuit. The arguments highlighted the fact that this is a political dispute about enforcement policies, not the type of legal dispute that should be before the Supreme Court. Texas’ arguments on standing are unconvincing. As Justice Breyer noted, a finding by the Court that Texas has standing could flood the courts with lawsuits based on all kinds of political disagreements between States and the federal government.”

President Obama’s deferred action initiatives advance common-sense enforcement priorities. To qualify for deferred action, individuals must have continuously resided in the United States since January 1, 2010, register with the government and pass a criminal background check. Instead of tearing apart families through broad enforcement actions, the President is letting law enforcement officials focus their attention on those who pose the greatest threats to public safety.

The American Immigration Council and 325 other immigrants’ rights, civil rights, labor and service-provider organizations filed an amicus brief in the case outlining how families and communities would benefit from the initiatives.Read more...

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