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The LAC Docket | Volume I, Issue 4
The Newsletter of the American Immigration Council’s Legal Action Center
September 8, 2011
Circuit courts continue to target departure bar on motions to reopen
Prestol Espinal v. Attorney General, --- F.3d --- (3d Cir. 2011)
Contreras-Bocanegra v. Holder, No. 10-9500 (10th Cir. rehearing en banc granted Aug. 2, 2011)
In August, the U.S. Court of Appeals for the Third Circuit became the latest federal court to reject the government’s efforts to prevent noncitizens outside the United States from having their cases reopened or reconsidered. In a unanimous ruling, the court held that the regulations underlying the “departure bar” violate the plain text of the Immigration and Nationality Act (INA), which sets deadlines for filing motions to reopen or reconsider but says nothing to limit such rights for noncitizens already outside the country.
In reaching its decision, the Third Circuit relied on many arguments made in an amicus brief submitted jointly by the Legal Action Center and the National Immigration Project of the National Lawyers’ Guild. (LAC Deputy Director Beth Werlin also participated in oral argument before the Third Circuit.) The two organizations have coordinated litigation challenging the departure bar and have repeatedly called on the Department of Justice to abandon the regulations preventing noncitizens from challenging deportation orders following their removal from the United States. As the Third Circuit noted, the departure bar not only conflicts with federal law, but allows the federal government to effectively moot pending motions by forcibly removing individuals seeking to have their cases reopened or reconsidered.
Meanwhile, the day before the Third Circuit’s ruling, the U.S. Court of Appeals for the Tenth Circuit agreed to consider the validity of the departure bar en banc. This is significant because the Tenth Circuit is the only court to uphold the departure bar after considering whether it conflicts with the INA and constitutes a proper exercise of the agency’s authority. Oral argument in the case is scheduled for the week of November 14, 2011. The Legal Action Center and National Immigration Project filed amicus briefs in support of the petition for rehearing en banc and just filed supplemental briefs, as ordered by the en banc court.
On August 18, the Obama Administration announced the formation of a high-level working group to review approximately 300,000 pending removal cases and administratively close proceedings against individuals found to be a “low” enforcement priority. The review process, which will be conducted by members of the Departments of Justice and Homeland Security, is intended to ease the tremendous backlog in the immigration courts and to ensure that government resources are focused on cases involving the government’s highest immigration enforcement priorities—public safety, national security and border security. In determining whether to exercise prosecutorial discretion, working group members will take relationships of LGBT families into account, just as they will all other family ties. Although no category of cases will receive a blanket exercise of favorable prosecutorial discretion, certain categories of individuals—including veterans, long-time permanent residents, minors, the elderly, individuals who have been present since childhood, individuals with serious disabilities or health issues, nursing or pregnant women, and victims of domestic violence or other serious crimes—will receive particular attention. Respondents whose cases are administratively closed will be eligible to apply for an employment authorization document through USCIS.
The announcement came in response to calls by Members of Congress and immigrants’ rights organizations, including the American Immigration Council, for the increased exercise of prosecutorial discretion in the absence of comprehensive immigration reform. Over the past two months, the LAC has stepped up its media outreach on prosecutorial discretion; issued practice advisories for attorneys on requesting prosecutorial discretion, low priority case reviews, and cases involving LGBT families; and participated in several attorney CLE trainings and congressional briefings on prosecutorial discretion, the new DHS review process, and options for “DREAMers”—young adults who would potentially qualify for relief under the DREAM Act.
Over the past several months, the LAC and AILA, in collaboration with the Massachusetts Law Reform Institute, have undertaken a survey of immigration attorneys across the country to gather updated information about the processing of applications for employment authorization by asylum seekers and the calculation of timeframes for employment authorization eligibility (the “asylum clock”). This information was intended to update the findings summarized in Up Against the Clock: Fixing the Broken Employment Authorization Clock, which was published in February 2010 by the American Immigration Council and Penn State Law School’s Center for Immigrants’ Rights.
Based on over 100 responses received to date, the LAC is concerned that asylum seekers often must wait much longer than the legally permitted timeframe to receive an Employment Authorization Document (EAD). Delays often result from overly broad interpretations by U.S. Citizenship and Immigration Services and the immigration courts of what constitutes “delay requested or caused by the applicant,” which, pursuant to 8 C.F.R. § 208.7(a)(2), causes the clock to stop. When applicants in removal proceedings request continuances to secure additional evidence or prepare for their hearings, the clock is properly stopped. However, after such applicant-caused delays have been cured, the applicants’ asylum clocks are not adjusted at least until the next available hearing date, which—due to court backlogs—may be months or even years in the future. During this time, asylum applicants are prevented from obtaining work authorization and must either depend on the goodwill of others or work without authorization despite the inherent risks.
In August, the Legal Action Center co-filed briefs in two Ninth Circuit cases involving retroactivity—one concerning a longstanding class action over adjustment of status under INA § 245(i), and another on the accumulation of “unlawful presence” prior to the enactment of IIRIRA. In the first case, Duran Gonzalez v. DHS, the LAC submitted a supplemental brief requesting a remand to district court in light of the Ninth Circuit’s recent decision in Nunez-Reyes v. Holder, which held that courts engaging in retroactivity analysis must consider the factors set forth in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). In a previous decision in the long-running class action, the Ninth Circuit reversed a prior opinion permitting certain noncitizens to adjust status under Section 245(i), but did not address whether the decision should apply retroactively to class members who relied on the prior decision.
In Carrillo de Palacios, the LAC co-filed an amicus brief in response to a decision holding that time spent in the United States prior to the enactment of IIRIRA can be counted toward periods of “unlawful presence.” The brief contended that the Ninth Circuit’s decision was incompatible with established Supreme Court retroactivity principles, and unfairly prejudiced noncitizens who left the United States prior to the enactment of the unlawful presence bars. The LAC asked that the court remand the case to the Board to clarify its position whether unlawful presence can be accumulated prior to the effective date of IIRIRA; rehear the case en banc; or withdraw the opinion pending resolution of another case involving a person’s eligibility for adjustment of status—the outcome of which likely would affect the petitioner in Carrillo de Palacios.
In its June decision in Matter of Le, the BIA resolved the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. under the age of 21, is eligible for adjustment of status even after turning 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. In doing so, it rejected the Department of Homeland Security’s position that a K-2 visa holder is eligible only if he or she is under 21 at the time the adjustment of status application is adjudicated.
The Board’s decision is consistent with the position that the American Immigration Council and the American Immigration Lawyers Association advocated in amicus briefs submitted to the Board in approximately a half dozen other cases where the child turned 21 after being admitted to the United States. The noncitizens in these and many other cases before Immigration Judges or U.S. Citizenship and Immigration Services offices throughout the country now will be able to become lawful permanent residents as Congress intended.
- The LAC is monitoring implementation of the Board’s recent decision in Matter of E-R-M-F- & A-S-M, 25 I&N Dec. 580 (BIA 2011), which held that noncitizens arrested without a warrant need not be advised of their rights under 8 C.F.R. 287.3(c)—including their right to counsel and notification that any statements made can be used against them—until after a Notice to Appear has been filed with an Immigration Court. Attorneys whose clients made inculpatory statements without the benefit of such warnings should contact us at email@example.com.
- The LAC and the American Immigration Lawyers Association are monitoring implementation of the memoranda on prosecutorial discretion issued by ICE Director John Morton on June 17, 2011. If you have requested prosecutorial discretion on behalf of a client after June 17, or if you have discussed the memoranda with local ICE officials, please complete this survey about your experience. (Note: New questions have been added to the survey to reflect the August 18 announcement of the formation of a DHS-DOJ task force to review pending and future removal cases for compliance with existing priorities.)
- The LAC is currently drafting a practice advisory on the Ninth Circuit’s decision in Dent v. Holder, No. 09-71987 (9th Cir. Nov. 9, 2010), which requires the government to provide respondents in removal proceedings with copies of their alien files (A-files). The LAC organized a recent conference call with advocates from around the country where participants shared experiences regarding the implementation of Dent both inside and outside the Ninth Circuit. We encourage other lawyers from all circuits to send reports of their efforts to use Dent to their clients’ advantage firstname.lastname@example.org.
- Following reports that the Department of Labor (DOL) had temporarily suspended processing of prevailing wage determinations, Senior Staff Attorney Mary Kenney updated the LAC’s practice advisory, “Mandamus Litigation Against DOL to Address Delays in Prevailing Wage Determinations and Labor Certifications” (Aug. 18, 2011). The practice advisory now discusses mandamus actions against DOL where delays involve either a prevailing wage determination or a labor certification.
- Senior Staff Attorney Mary Kenney updated the practice advisory, “Prosecutorial Discretion: How to Advocate for Your Client” (June 24, 2011).
- The LAC and Immigration Equality issued a practice advisory entitled “Protecting and Preserving the Rights of LGBT Families: DOMA, Dorman, and Immigration Strategies” (June 13, 2011).
- Law Fellow Ben Winograd criticized the BIA’s recent decision in Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011) (“Nation’s Highest Immigration Court Says Government Can Ask Questions First, Explain Right to Silence Later,” Aug. 16, 2011).
- Law Fellow Ben Winograd analyzed the state of Arizona’s Supreme Court petition in the legal challenge to SB 1070 (“Immigration Restrictionists Take SB 1070 to Supreme Court,” Aug. 11, 2011).
- Law Fellow Ben Winograd noted numerous inaccuracies in a report from the Center for Immigration Studies (“Report Reveals Basic Misunderstanding of Deportation Process,” July 22, 2011).
- LAC Director Melissa Crow was quoted in a Los Angeles Times story on the Obama Administration’s plans to administratively close removal proceedings of low-priority respondents (“Deportation reviews raise some immigrants’ hopes,” Aug. 28, 2011). Melissa also discussed the review process on KPBS Radio in San Diego (listen here).
- LAC Director Melissa Crow was quoted in a story in Mother Jones on the BIA’s recent decision in Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011) (“You Have the Right to Remain Silent…After Questioning,” Aug. 23, 2011).
- LAC Director Melissa Crow spoke at the annual conference of the National Disability Rights Network on “Persons with Disabilities in ICE Detention.”
- LAC Director Melissa Crow spoke on prosecutorial discretion during the AILA DREAM Defenders Training Webinar.
- LAC Director Melissa Crow participated in a telephonic media briefing on prosecutorial discretion.
- Senior Staff Attorney Mary Kenney participated in a CLINIC webinar entitled, “Prosecutorial Discretion: What it Is and How and When to Use It.”
- Senior Staff Attorney Mary Kenney participated in an AILA webinar entitled “Strategic Requests for Prosecutorial Discretion—Utilizing the June 17 Morton Memos.”
- Senior Staff Attorney Mary Kenney participated in a telephonic media briefing regarding prosecutorial discretion and gay and lesbian bi-national couples.
- Deputy Director Beth Werlin participated in a telephonic media briefing entitled, “Dissecting the HALT Act: The Impact of Eliminating Discretion in our Immigration System.”
- The LAC welcomes our new law fellows, Agnes Gyorfi, who recently graduated from the McGeorge School of Law in Sacramento, CA, and Kate Voigt, who recently graduated from Boston College Law School in Boston, MA. Thanks to funding from their respective law schools, Agnes and Kate will be volunteering with the LAC for six months
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