Beth Werlin, Deputy Legal Director for the American Immigration Council, discusses the recent...
The LAC Docket | Volume II Issue 2
The Newsletter of the American Immigration Council’s Legal Action Center
March 23, 2012
FOIA Lawsuit Prompts USCIS to Turn Over Documents about Counsel; CBP Claims to Have Few Responsive Records
AIC v. DHS and USCIS, No. 1:11-cv-01971 (D.D.C. filed Nov. 8, 2011)
AIC v. DHS and CBP, No. 1:11-cv-01972 (D.D.C. filed Nov. 8, 2011)
Last fall, the LAC filed two lawsuits against DHS to compel the release of records relating to noncitizens’ access to counsel before USCIS and CBP. The LAC had pursued disclosure of these records, as well as records from ICE, through Freedom of Information Act (FOIA) requests filed in March 2010. Prior to filing the suits, USCIS had failed to turn over any documents, and CBP had turned over only 2 pages of excerpts from its practice manuals. (We are continuing our pursuit of records from ICE but are not currently in litigation.) In response to the suit against USCIS, the agency determined that it had over 2042 pages of documents responsive to our request. However, USCIS released only 455 pages in their entirety. It withheld 1169 pages and released 418 pages with redactions, claiming FOIA exemptions protected the records from disclosure.
Many of the released documents are email exchanges detailing the review and amendment of the counsel-related provisions of the Adjudicator’s Field Manual’s (AFM). The records reveal that attempts to amend the AFM have started and stalled on numerous occasions over the past six years. The records also suggest that recent advocacy efforts by the American Immigration Council and the American Immigration Lawyers Association prompted USCIS to prioritize amendments to the AFM (discussed below). Other noteworthy records include 2010 and 2011 directives from USCIS headquarters expressing concern that the policy of allowing attorneys to sit next to their clients is not being followed and e-mail correspondence regarding one field office’s now-superseded policy that beneficiaries do not have the right to counsel. All of the records are available on our website. The LAC is in the process of assessing the adequacy of USCIS’s response to our request and is awaiting the agency’s answer to our suit.
In our FOIA suit against CBP, the agency filed a motion for summary judgment, asserting that it had conducted a reasonable search, but was unable to uncover any records responsive to our request other than the 2 pages it produced. We plan to contest the adequacy of CBP’s search in our opposition brief, which is due on March 26.
In response to calls from the American Immigration Council and the American Immigration Lawyers Association, USCIS issued immediate, comprehensive changes in December 2012 to ensure an appropriate role for attorneys in the immigration process. Although the LAC commends USCIS on taking these important steps, the new guidance (which came in the form of an interim memo amending the Adjudicator’s Field Manual (AFM)) fell short in several ways. The LAC submitted comments to address these concerns. Among other things, we recommended that USCIS further clarify the role of attorneys in the adjudication process; clarify that adjudicators must consider a representative’s statements and submissions and that all submissions must be included in the record; improve the complaint process; and provide more protections when an adjudicator is considering terminating an interview.
In early March, the LAC, in collaboration with the Worker and Immigrant Rights Advocacy Clinic of Yale Law School, filed a FOIA lawsuit to compel the release of records concerning the Criminal Alien Program (CAP). Co-plaintiffs American Immigration Council and the Connecticut Chapter of the American Immigration Lawyers Association initially sought disclosure of records related to CAP through a FOIA request to ICE in December 2011. To date, ICE has failed to produce a single document.
Under CAP, ICE agents are stationed in prisons and jails, visit other detention facilities, and initiate deportation proceedings against people convicted of criminal offenses. Although CAP supposedly targets the worst criminal offenders, the program appears to target individuals with little or no criminal history and to incentivize pretextual stops and racial profiling. Over the past five years, CAP has led to the arrest of more than a million people, and the program was implicated in approximately half of all removal proceedings in FY 2009.
Parties Plan Mediation in Asylum “Clock” Class Action
A.B.T. et al. v. U.S. Citizenship and Immigration Services et al., No. 11-2108 (W.D. Wash. filed December 15, 2011)
The LAC continues to pursue its class action lawsuit against U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) alleging widespread problems with the asylum “clock” — the system used by immigration officials to determine when noncitizens with pending asylum applications become eligible to obtain work authorization in the United States. In a joint motion filed on March 9, the parties agreed to enter into mediation on or around May 1, 2012 and stipulated to an extension of 60 days, until May 14, 2012 for defendants to respond to the complaint and to file the Administrative Record. The court has not yet ruled on the motion. Even if mediation is granted, the parties have agreed to continue litigating the case. Plaintiffs’ response to the government’s opposition to class certification is due on March 23. The LAC is seeking additional plaintiffs for this lawsuit. (Please see “Requests for Evidence” below.).
The U.S. Court of Appeals for the Ninth Circuit recently ordered rehearing en banc in a case raising many of the same issues involved in our long-running class action, Duran Gonzalez v. DHS. Duran Gonzalez is a Ninth Circuit wide class action involving whether certain noncitizens (namely, those inadmissible under INA § 212(a)(9)(C)(i)(II) are eligible to adjust status under former INA § 245(i). The Ninth Circuit initially had held that they are, but subsequently overturned that ruling in its 2007 decision Duran Gonzalez v. DHS. Through a petition for rehearing, the plaintiffs are arguing that the adverse decision should not apply retroactively to class members who relied on prior case law that permitted them to adjust. Read more about the Duran Gonzalez litigation on our website.
On March 1, 2012, the Ninth Circuit withdrew its decision in a related case, Garfias-Rodriguez v. Holder, and ordered rehearing en banc. Garfias-Rodriguez involves adjustment of status under former INA § 245(i) for those inadmissible under INA § 212(a)(9)(C)(i)(I), as opposed to Duran Gonzalez class members who are inadmissible under INA § 212(a)(9)(C)(i)(II)). Significantly, the panel in Garfias-Rodriguez reached the same conclusion as the Duran Gonzalez panel regarding whether the new rule should apply retroactively where a person relied on a prior rule. Thus, the court’s decision to rehear Garfias-Rodriguez en banc has major implications for Duran Gonzalez class members.
On behalf of the Duran Gonzalez class, we are planning to submit an amicus brief in support of the petitioner in Garfias-Rodriguez. The court has scheduled argument in Garfias-Rodriguez for the week of June 18, 2012.
- Update on Call for Plaintiffs in Asylum EAD Clock Class Action: Please review the information about this lawsuit listed under Systemic Reforms above. The LAC is seeking two types of additional plaintiffs for this suit: 1) Plaintiffs who meet the current class definitions, and 2) Plaintiffs with claims not currently challenged in the suit. If your client falls into one of these categories, please see our Call for Plaintiffs and review the Frequently Asked Questions before completing the Plaintiff Questionnaire.
- Update on Prosecutorial Discretion: The LAC and the American Immigration Lawyers Association continue to monitor implementation of the DHS prosecutorial discretion initiative. If ICE made an offer of prosecutorial discretion in any of your cases or if you reached out to ICE and requested such relief in a case, please complete this survey.
- Updates to the Detainer Issue Page: The LAC has provided new and updated summaries of lawsuits challenging immigration detainers. The lawsuits generally have challenged local law enforcement authorities’ unlawful practice of holding noncitizens on expired detainers. Please contact the LAC at firstname.lastname@example.org with information about pending detainer cases.
- CBP Monitoring Efforts: The LAC is interested in learning about cases where (1) U.S. Customs and Border Protection (CBP) officers have assisted local law enforcement agencies by serving as Spanish-English interpreters, or (2) CBP officers have been involved in 911 dispatch activities. Please send relevant information to email@example.com.
- The LAC updated its practice advisory entitled DHS Review of Low Priority Cases for Prosecutorial Discretion updated February 13, 2012).
- The LAC, in collaboration with the National Immigration Project of the National Lawyers Guild, issued a new practice advisory entitled Departure Bar to Motions to Reopen and Reconsider: Legal Overview and Related Issues (March 14, 2012).
- Staff Attorney Ben Winograd reviewed recent developments on prosecutorial discretion (“Holding the Obama Administration to Its Word on Prosecutorial Discretion,” January 20, 2012).
- Staff Attorney Emily Creighton commented on DHS restrictions on attorneys in immigration proceedings and analyzed recent USCIS policy changes (“It’s Time to Improve Noncitizens’ Access to Counsel,” January 23, 2012).
- The LAC submitted comments on the Immigration Adjudication Draft Report by the Administrative Conference of the United States (ACUS) (submitted February 13, 2012). The LAC commented on several issues addressed by the draft report, including representation, stipulated removal orders, prosecutorial discretion, video hearings, and the asylum clock. Read the draft report on the ACUS website.
- LAC Director Melissa Crow was quoted in the Texas Observer story about the Northern Border Coalition meeting in Detroit.
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