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The LAC Docket | Volume I, Issue 3

The Newsletter of the American Immigration Council’s Legal Action Center

June 3, 2011
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OUR WORK

Enforcement

Obama Administration urged to exercise prosecutorial discretion in compelling cases

Frustrated by Congress’ failure to enact comprehensive reform, immigration advocates have increasingly advocated for a robust prosecutorial discretion policy that encourages immigration officers to grant relief from deportation in compelling cases. In a letter to DHS Secretary Janet Napolitano in early April, the American Immigration Council and the American Immigration Lawyers Association (AILA) asked the Department of Homeland Security to offer written guidance setting forth detailed criteria on the favorable exercise of prosecutorial discretion. A subsequent legal memorandum released by the Immigration Council and co-signed by two general counsels of the former Immigration and Naturalization Service outlined specific steps the Administration could take to forestall removals in sympathetic cases. 

These increased calls for prosecutorial discretion come at a time when federal agents routinely commence removal proceedings against the same individuals whom the President has said should be eligible for an eventual legalization program. As detailed in a series of examples provided to Secretary Napolitano, ICE continues to pursue removal in cases crying out for a favorable exercise of prosecutorial discretion. In one case, ICE deported a woman from Guatemala with facial eligibility for a U visa on very same day an immigration judge entered a stay of removal. In another, ICE declined to join a request to administratively close proceedings to enable a trafficking victim to pursue an application for a T visa. And in another, ICE initiated removal proceedings against a longtime lawful permanent resident with three U.S. citizen children for inadvertently bouncing a check. 

While the President has rightfully criticized members of Congress who refuse to consider reforming our nation’s immigration laws, he has wrongfully rejected calls for increased use of prosecutorial discretion. Presidents cannot make new laws, but the executive branch has authority to determine how the current laws should be enforced.

District court rules for H-1B employee arrested during pendency of timely extension request
El Badrawi v. United States, No. 07-01074 (D. Conn. 2011)

Last month, a federal judge in Connecticut held that ICE lacked probable cause to arrest an H-1B employee who remained in the United States pending the adjudication of a timely filed extension application on his behalf.  Echoing the arguments in an amicus brief filed by the Immigration Council and AILA, the decision in El Badrawi v. United States recognized that 8 C.F.R. § 274a.12(b)(20) allows an H-1B employee to continue working for up to 240 days after the expiration of an authorized period of stay while a timely filed extension application remains pending. 

Noting that this regulation addresses work authorization granted “incident to status,” the court reasoned that “work authorization is part and parcel of th[e] authorization to be in the country, not a separate matter.” The district court also found that the government’s contrary interpretation would present “grave” due process concerns, since El Badrawi lacked notice that government agents could arrest, detain, and remove him during the period in which he enjoyed continued employment authorization.

With supporting declarations from three companies that rely on H-1B workers (special thanks to AILA lawyers Daryl Buffenstein, Bruce Morrison and Eleanor Pelta for their help with these!), the amicus brief argued that arresting noncitizens with pending extension applications could disrupt key sectors of the U.S. economy and undermine the goals of the H-1B program. The court’s decision noted that the brief “highlights the substantial interest that employers have in the administration of the H-1B visa program, the lack of notice provided by the regulation at issue, and the hardship that the government’s proposed interpretation would impose upon them.”

Summary Judgment Motion Filed in FOIA Lawsuit
AILA v. DHS, No. 10-01224 (D.D.C. filed July 20, 2010)

In late May, AILA, represented by the Legal Action Center and Steptoe & Johnson LLP, filed a motion for summary judgment seeking the public release of records concerning agency policies and procedures related to fraud investigations in the H-1B program. The filing of the motion followed the government’s continued application of improper exemptions under the Freedom of Information Act, and its repeated failure to segregate and release portions of previously disclosed and newly identified documents. AILA filed the complaint last year after the government denied two previous FOIA requests.

Access to Courts

Momentum continues on departure bar
Reyes-Torres v. Holder
, No. 08-74452 (9th Cir. 2011)
Prestol Espinol v. Attorney General
, No. 10-1473 (3d Cir. argued April 27, 2011)
Contreras-Bocanegra v. Holder
, No. 10-9500 (10th Cir. petition for rehearing en banc filed March 8, 2011)
Marroquin v. Holder
, No. 10-1846 (8th Cir. 2011)

The Legal Action Center continues to successfully challenge the validity of regulations barring noncitizens from pursuing motions to reopen from outside the United States. In April, the Ninth Circuit Court of Appeals issued the latest in a series of decisions rejecting the government’s position that immigration courts lack jurisdiction to consider such motions once immigrants are outside the country. Drawing on arguments in an amicus brief filed by the LAC, the panel emphasized that the government’s position would allow the Department of Homeland Security to unilaterally restrict the right to seek reopening by deporting a person before the deadline for filing a motion to reopen. Thus, upholding the departure bar would “completely eviscerate the statutory right to reopen provided by Congress.”

Following the Ninth Circuit’s decision, LAC Deputy Director Beth Werlin argued as amicus curiae in a Third Circuit case challenging the departure bar. The court appeared responsive to the LAC’s arguments, and a decision is expected in the next few months. In addition, the LAC submitted an amicus brief urging the Tenth Circuit—the only circuit to definitively adopt the government’s position—to reconsider its prior decision and grant en banc review of a case involving the departure bar. Finally, the Eighth Circuit issued a favorable decision in a case in which the LAC appeared as amicus curiae; however, the court declined to decide the validity of the departure bar and instead remanded on a different ground.

Since 2006, the LAC has coordinated litigation on this issue with the National Immigration Project of the National Lawyers Guild. To date, five appellate circuits have found that the bar to motions to reopen from outside the United States is unlawful.

System Fixes

DHS and DOJ asked to hold in abeyance cases involving Defense of Marriage Act

Following the Obama Administration’s decision to cease defending the Defense of Marriage Act (DOMA) in federal court, the Immigration Council joined dozens of other organizations, including AILA, in asking executive branch agencies to adopt interim measures in cases involving same-sex marriages between foreign nationals and gay or lesbian U.S. citizens. In letters submitted to the Department of Homeland Security, Executive Office for Immigration Review, and Office of Immigration Litigation, the organizations asked federal officials to hold in abeyance all immigration petitions and applications—and to administratively close or otherwise continue all removal cases—involving marriages between two men or two women until the statute’s viability is resolved in Congress or by the courts.

For purposes of federal laws and regulations, section 3 of DOMA defines “marriage” as “a legal union between one man and one woman as husband and wife,” and “spouse” as “a person of the opposite sex who is a husband or wife.” Under these definitions, a marriage between a foreign national and a gay or lesbian U.S. citizen cannot confer an immigration benefit—such as immediate relative status for purposes of an adjustment of status petition—even if the marriage was legal under state law. In a separate but related matter, Attorney General Eric Holder recently certified a case to himself, vacated the underlying removal order and remanded it to the Board of Immigration Appeals to determine whether a gay foreign national was eligible for cancellation of removal under federal immigration laws based upon his civil union with a resident of New Jersey. The Immigration Council is working with Immigration Equality on a Practice Advisory addressing the Attorney General’s decision, which we intend to issue later this month.

Information sought on problems relating to asylum “clock”

Working in collaboration with the Massachusetts Law Reform Institute, the Immigration Council and AILA have launched a survey to gather information about problems with the asylum “clock”—the mechanism used to calculate the date when an asylum applicant can apply for an employment authorization document (EAD). The survey, which will remain open through June 22, seeks information regarding (1) cases when an Asylum Officer or Immigration Judge improperly stopped or failed to start the clock, and (2) denials of EAD applications resulting from an improperly stopped clock. This information will be used in ongoing administrative advocacy efforts to address asylum clock problems. 

Release of the survey follows reports of continued problems with the clock experienced by attorneys and asylum applicants. Many problems result from inconsistent and overly broad interpretations of what constitutes “delay requested or caused by the applicant,” which, under federal regulations, causes the clock to stop. For example, when respondents request a continuance to seek counsel or prepare for a hearing, many IJs stop the clock until the next hearing date. As immigration court backlogs result in increasingly long delays between master calendar and merits hearings, erroneous stopping of the clock can force asylum applicants to rely on others for financial assistance and/or work without authorization. 

“REQUESTS FOR EVIDENCE”

  • The LAC is interested in hearing about immigration cases that involve the validity of a marriage involving a lesbian or gay noncitizen.  Please email us at clearinghouse@immcouncil.org about (1) any case in which relief from removal hinges upon a qualifying spouse who is a lesbian or gay foreign national or (2) any case in which an application for an immigration benefit (such as an I-130) hinges on recognition of a marriage involving a lesbian or gay foreign national. 
  • The LAC is drafting a series of practice advisories for immigration lawyers on the use of motions to suppress in removal proceedings. We encourage attorneys who have filed motions to suppress based on unlawful conduct of state or local police officers, or on unlawful conduct of CBP officers, to send reports to clearinghouse@immcouncil.org.
  • The LAC is continuing to monitor implementation of the Ninth Circuit’s decision in Dent v. Holder, No. 09-71987 (9th Cir. Nov. 9, 2010), which construed INA § 240(c)(2)(B) to require the government to provide respondents in removal proceedings with a copy of their alien files (A-files). The LAC is developing guidance on Dent and encourages lawyers from all circuits to send reports of their experiences to clearinghouse@immcouncil.org.
  • The LAC is monitoring cases in which the government has revoked advance parole after noncitizens with pending applications for adjustment of status left the United States.  Attorneys aware of such cases should send reports to clearinghouse@immcouncil.org.

QUICK LINKS

Practice Advisories

Issue Pages

  • The LAC has updated its issue page on the Supreme Court following the decision in Chamber of Commerce v. Whiting.

Advocacy

  • The Immigration Council submitted testimony to the Senate Judiciary Committee on “Improving Efficiency and Ensuring Justice in the Immigration Court System.”

Blog Posts

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