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The LAC Docket | Volume IV, Issue 1
The Newsletter of the American Immigration Council’s Legal Action Center
January 28, 2014
The LAC, in collaboration with AILA, filed an amicus brief in an en banc case 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 involved a regulation that requires employers to notify certain U.S. employees that they have laid off about new job opportunities before hiring foreign workers. The amicus brief focused on the agency’s failure to provide fair warning about its interpretation of the notification requirement before applying a new, more restrictive reading that was inconsistent with past practice. Amici argued that the Department acts arbitrarily and violates due process when it does an about face without giving prior notice. The parties reached a settlement on December 11, 2013. DOL agreed to reverse the denials and importantly, has indicated it plans to issue public guidance regarding the notification of laid off employees.
In Whiteley v. Holder, No. 12-60355, the Fifth Circuit Court of Appeals denied a petition for review seeking equitable tolling of the 90-day limit for filing motions to reopen. The LAC and the National Immigration Project of the National Lawyers Guild submitted an amicus brief in support of the petition for rehearing in the case. We argued that, in practice, the Court’s current case law bars individuals with viable tolling claims from pursuing statutory motions to reopen by treating statute-based motions to reopen, which may be subject to equitable tolling, as if they were regulation-based requests for sua sponte reopening. While the Fifth Circuit has decided to take no action on the motion to submit the amicus brief at this time, the petition for rehearing is still pending before the Court.
In December, the LAC filed an amicus brief in the currently-pending First Circuit case of Blackman Hinds v. Holder, No. 13-2129, where the petitioner is arguing that due process and the Constitution’s prohibition against excessive punishment require that he have an opportunity to show that his removal would be disproportionate under the circumstances. The LAC’s brief, which was the subject of a blog post on Immigration Impact, tells the stories of five individuals who either already have or soon will face the extreme penalty of deportation and a permanent reentry bar for minor or nonviolent crimes committed years earlier.
The LAC, joined by the Florence Immigrant & Refugee Rights Project, filed an amicus brief in support of rehearing in a Third Circuit case, Verde-Rodriguez v. Attorney General, No. 2:11-cv-01475, in which an unrepresented noncitizen initially was ordered removed at a perfunctory group removal hearing. During the hearing, the immigration judge neglected his obligations to ensure that each individual understood his rights and made misleading statements about the petitioner’s removability. As a result of these procedural defects, the petitioner was denied the opportunity to obtain judicial review. The government subsequently reinstated this removal order.
The amicus brief addressed the flaws in the underlying removal order and argued that, in rushed group hearings, immigration judges are less likely to accurately explain the law to unrepresented noncitizens and adhere to procedural protections intended to safeguard such noncitizens’ rights. These risks reinforce the importance of preserving a court’s ability to review the validity of a flawed removal order when it serves as the basis of a reinstatement order. Without such review, even removal orders that were invalid at the time that they were issued could be reinstated. Although the Court accepted the amicus brief, it subsequently denied the petition for rehearing.
The LAC, with co-counsel Dorsey & Whitney, continues to pursue FOIA litigation against ICE and CBP, seeking to compel the release of records relating to noncitizens’ access to counsel in interactions with the immigration agencies. In the suit against ICE, defendants renewed their motion for summary judgment. The LAC responded, arguing that ICE still had not conducted an adequate search for records and that the agency had not justified some of its withholdings and redactions of responsive documents. In the suit against CBP, the LAC received less redacted versions of several records, including documents addressing the deferred inspection process and the treatment of unaccompanied minors at the border. CBP filed a motion for summary judgment, to which LAC responded, challenging the partial redaction of seven remaining documents.
Additionally, in early 2013, the LAC made a supplemental FOIA request to USCIS for a limited number of documents related to the agency’s access to counsel policies, including certain training materials, pursuant to a settlement with the agency in a similar FOIA case. After receiving documents in the spring, the LAC conferred with the agency to determine whether all relevant offices had been searched. USCIS conducted additional searches and, in December 2013, provided the LAC with training materials that address changes to the Adjudicators Field Manual relating to access to counsel. The LAC is currently seeking clarification from the agency about the content of redacted portions of documents provided in response to the supplemental FOIA request.
On December 10, the Court heard oral argument in the consolidated Child Status Protection Act (CSPA) cases Cuellar de Osorio v. Mayorkas and Costelo v. USCIS, which concern whether “aged-out” derivative beneficiaries of all visa petitions – both family- and employment-based – are entitled to retain the priority date of the visa petition on which they were originally named as derivatives. The Council, along with co-counsel Latham & Watkins, and joined by AILA, Asian Americans Advancing Justice, the Mexican American Legal Defense and Educational Fund, and the National Immigrant Justice Center, submitted an amicus brief in support of the aged-out children.
As explained in our post-argument blog, the government argued that, because the aged-out children were derivative rather than principal beneficiaries, they were not “waiting in line” when they waited with their families for visas to become available on the original petitions. Fortunately, the Justices appeared to recognize the hardships aged-out children and their families have suffered as the result of visa delays.
The LAC also continues to litigate against other restrictive interpretations of the CSPA. In particular, the LAC filed an amicus brief in the Seventh Circuit challenging the BIA’s narrow interpretation of the phrase “sought to acquire the status of a lawful permanent resident,” found in the CSPA’s age-preservation formula. We argue that the phrase should include substantial steps taken towards filing an application for permanent residence. We urge the Court to reject Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), which held that the term required either the filing of an application or a showing of extraordinary circumstances for failing to file. The case is Velasquez Garcia v. Holder, No. 13-2610 (7th Cir. amicus brief submitted Sept. 30, 2013).
On December 3, 2013, EOIR and USCIS began implementing the Settlement Agreement in B.H., et al. v. USCIS, et al. (also known at ABT) – the national class action challenging the manner in which these agencies determine an asylum applicant’s eligibility for employment authorization. The agreement requires EOIR and USCIS to adopt systemic changes with respect to their policies for administering the “asylum EAD clock.” Information regarding the terms of the ABT Settlement Agreement is available on the LAC’s website.
LAC Joins AILA in Challenging Matter of Koljenovic on Eligibility for § 212(h) Waiver in Second Circuit. The LAC and AILA filed an amicus brief urging the Second Circuit to join the Third, Fourth, Fifth, Seventh, and Eleventh Circuits and find that the statutory bar to the waiver in INA § 212(h) applies only to individuals who entered the United States as lawful permanent residents (LPR), not to those who subsequently adjusted to LPR status. The brief argues that the Board’s contrary interpretation, as set forth in Matter of Koljenovic, 25 I&N Dec. 219 (2010), ignores the plain language of the INA, which distinguishes between applicants who entered the country as LPRs and those who gained LPR status post-entry. The case is Sampathkumar v. Holder, No. 11-4342. Subsequent to filing our brief, the Ninth Circuit adopted the position we support in an unrelated case. The LAC also is amicus in a case that remains pending in the Sixth Circuit, Stanovsek v. Holder, No. 13-3279.
In an amicus brief filed in the Sixth Circuit in Jama v. DHS, No. 13-4192, the LAC argues that the district court erred in finding that USCIS’ decision terminating the plaintiff’s refugee status was not “final” for purposes of the Administrative Procedure Act where the termination decision could not be appealed or raised in removal proceedings. While this case involves termination of refugee status, the finality issue is broader and could arise in other circumstances such as, for example, a USCIS denial of an adjustment application of an arriving alien.
The LAC, with co-counsel Jenner & Block, submitted an amicus brief in Flores Perez v. Holder, No. 12-71363, a pending Ninth Circuit case involving a motion to suppress evidence obtained during an ICE worksite raid. The LAC contended that ICE violated the Fourth Amendment by seizing a restaurant employee during the execution of a search warrant without any particularized suspicion that he had committed an immigration violation. Further, we argued that the Fourth Amendment violation was consistent with a widespread pattern of ICE raids on homes and businesses, conducted to detain and interrogate large numbers of individuals without any individualized suspicion. The LAC previously submitted an amicus brief in Sanchez Lopez v. Holder, No. 13-70431, another Ninth Circuit case stemming from the same series of ICE worksite raids. In December, the parties in Sanchez Lopez filed a joint motion for remand to the Board for administrative closure, which the court granted.
The LAC, with the National Immigration Project of the National Lawyers Guild, filed an amicus brief in a district court case, Avalos-Palma v. United States, No. 3:13-cv-05481 (D.N.J.), arguing in support of a noncitizen’s right to seek damages for injuries he suffered as a result of an unlawful removal. The plaintiff in the case was removed from the United States in violation of a mandatory stay of removal and then prevented from returning for more than three years. He was separated from his children for this entire time and also lost his job. The government does not dispute that the removal was unlawful, but argues that the court has no jurisdiction and has moved to dismiss the case. In response, our amicus brief demonstrates, first, that the Immigration and Nationality Act does not bar the court from hearing this type of damages case; and second, that this is an appropriate case for damages under the Federal Tort Claims Act because, as required by that Act, the United States, if it were a private person, would be liable in similar circumstances under state law.
Pursuant to the August 2, 2013 settlement agreement in our FOIA lawsuit challenging ICE’s refusal to release documents regarding the Criminal Alien Program (CAP), ICE has begun to release hundreds of records. Records produced to date include information about encounters by ICE officials with individuals under the auspices of the CAP program from 2010 to the present, including dozens of discrete data fields for each encounter; guidance regarding the implementation and operation of CAP; and correspondence among agency officials about the program. The LAC is currently reviewing and analyzing the documents, which will be posted in the near future. The FOIA lawsuit was filed by the American Immigration Council, in collaboration with the Worker and Immigrant Rights Advocacy Clinic of Yale Law School and the Connecticut AILA Chapter.
Paths to Legal Status
The LAC continues to work with partner organizations to provide legal trainings, respond to technical assistance requests, and engage in administrative advocacy to ensure successful implementation of Deferred Action for Childhood Arrivals (DACA). In November, DACA Legal Services Fellow Patrick Taurel hosted an educational workshop with Long Island high school students designed to increase awareness of the DACA program. Subsequently, the LAC traveled to the state of New Mexico to participate in a DACA clinic and train organizers and attorneys on the provision of DACA legal services. In December, the LAC was invited to Mexico City to speak about DACA challenges and opportunities to a gathering of the Institute of Mexicans Abroad, an advisory committee for Mexico’s Ministry of Foreign Relations focused on improving the quality of life of Mexicans in the diaspora.
- The LAC issued a new practice advisory, Motions to Suppress in Removal Proceedings: Fighting Back Against Unlawful Conduct by U.S. Customs and Border Protection, which addresses some of the factual scenarios and legal issues that may arise when seeking to suppress evidence unlawfully obtained at or near the border.
The LAC released updates to the following practice advisories:
- Seeking a Judicial Stay of Removal in the Court of Appeals
- Departure Bar to Motions to Reopen and Reconsider: Legal Overview and Related Issues
- Motions to Suppress in Removal Proceedings: A General Overview
- Why Is There a Disparity in DACA Application Rates Among Different Nationalities? (January 16, 2014)
- Supreme Court Considers Restrictive Interpretation of Child Status Protection Act (December 11, 2013)
- The Punishment Should Fit the Crime for Immigrants, Too (December 4, 2013)
- Keeping CBP In Line With Proposed Reforms (November 26, 2013)
- Understanding DACA's Education Requirement (November 18, 2013)
- Supreme Court to Interpret Child Status Protection Act (November 14, 2013)
- New York City Pilots Free Legal Representation in Immigration Court (November 13, 2013)
- Report Exposes Treatment of Asylum Seekers in Detention (November 7, 2013)
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