September 07, 2021

CA3 on Mandatory Detention: Gayle v. Warden

Gayle v. Warden "Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who...

September 03, 2021

Is CAT a "Dead Letter" in the Fifth Circuit?

Prof. Geoffrey A. Hoffman, Sept. 3, 2021 "This week a panel of the Fifth Circuit issued  Tabora Gutierrez v. Garland , interpreting the Convention Against Torture’s (CAT’s) state action requirement so restrictively that it led the dissenting judge to call CAT a virtual “dead letter” in most cases (in the Fifth Circuit, at least).  In this piece, I want to consider this dire prognostication and also think about...

September 03, 2021

"Turnbacks Are Illegal" - Al Otro Lado v. Mayorkas

AIC, Sept. 2, 2021 "A federal judge  declared unlawful   the U.S. government’s turnbacks of asylum seekers arriving at ports of entry along the U.S southern border. The court ruled that the United States is required by law to inspect and process asylum seekers when they present themselves at ports of entry, and condemned the practice of denying access to the asylum process through  metering and similar practices...

September 02, 2021

CBP Title 42 Pregnancy and Childbirth Guidance (Aug. 18, 2021)

CBP, Aug. 18, 2021 "U.S. Customs and Border Protection (CBP) CBP is currently assisting in the implementation of the Centers for Disease Control and Prevention’s Public Health Reassessment and Order Suspending the Right to Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists (August 2, 2021) (“Order”). Pursuant to this Order, covered noncitizens – to include family units and...

September 01, 2021

CA3 on Costello, Chevron: Singh v. Atty. Gen.

Singh v. Atty. Gen. "Baljinder Singh achieved what many immigrants to our country seek: he became a naturalized citizen. Unfortunately, he did so through willful misrepresentation, and, as a consequence, his citizenship was revoked. Before that revocation and while he was still a citizen, he was convicted of conspiracy to distribute and possess with intent to distribute illegal drugs. That led the government to...

September 01, 2021

Proposed Settlement in MadKudu, Inc. v. USCIS (H-1B, Market Research Analyst)

AIC, Aug. 30, 2021 "This nationwide class action lawsuit challenges U.S. Citizenship and Immigration Services’ (USCIS) pattern and practice of arbitrarily denying H-1B nonimmigrant employment-based petitions for market research analyst positions filed by United States businesses.   The complaint alleges that USCIS unlawfully denies H-1B petitions for market research analysts by misinterpreting the term “specific...

September 01, 2021

CA3 on Due Process, Language Barriers: B.C. v. Atty. Gen.

B.C. v. Atty. Gen. "We hold that B.C. was denied due process because the IJ did not conduct an adequate initial evaluation of whether an interpreter was needed and took no action even after the language barrier became apparent. Those failures resulted in a muddled record and appear to have impermissibly colored the agency’s adverse credibility determination. We therefore vacate the BIA’s decisions and remand for...

September 01, 2021

Court: AAO Flubs Kazarian Two-Step in EB-1A Case: Zizi v. Cuccinelli

Zizi v. Cuccinelli "Plaintiff, a citizen of Belgium, is a biophysicist who holds an M.D. and a Ph.D. Dkt. 1(Complaint) ¶ 3; Dkt. 24-28 (Certified Administrative Record ("CAR")) at CAR0254. He is the founder and Chief Executive Officer of Aerendir Mobile, Inc., a company he started in 2015 based on his patented biophysics technology. CAR0119. Plaintiff was previously employed by Scanadu Inc., where his...

September 01, 2021

ICE Extends I-9 Flexibility

ICE, Aug. 31, 2021 "U.S. Immigration and Customs Enforcement (ICE) today announced an extension of the flexibilities in rules related to Form I-9 compliance that was initially granted last year. Due to the continued precautions related to COVID-19, the Department of Homeland Security (DHS) will extend this policy until Dec. 31, 2021. This extension will continue to apply the guidance previously issued for employees...

September 01, 2021

DOLETA Posts Hurricane Ida Disaster Guidance FAQ

DOL, Sept. 1, 2021 U.S. Department of Labor Employment and Training Administration OFFICE OF FOREIGN LABOR CERTIFICATION Hurricane Ida Frequently Asked Questions September 1, 2021

August 31, 2021

Parole and Beyond for Afghan Nationals

Penn State Law, PARS Equality Center, Khanbabai Immigration Law, Aug. 30, 2021 "Many Afghans are arriving in the United States through a legal mechanism called parole. This document describes the legal options and rights/responsibilities for Afghan nationals seeking or arriving in the United States through parole."

August 31, 2021

DOS on Immigrant Visa Prioritization (Aug. 30, 2021)

State Department, Aug. 30, 2021 "As noted in our recent  visa services operating status update , the Department of State is committed to sharing the current status of our worldwide visa operations.  As part of that effort, we would like to clarify how our embassies and consulates are prioritizing immigrant visa applications, as the Department works to reduce the backlog of such applications resulting from travel...

August 31, 2021

Notice of Proposed Class Action Settlement in A.O. et al. v Jaddou, et al.

USCIS, Aug. 26, 2021 "This webpage is intended to notify you of the proposed class settlement in A.O. et al. v Jaddou, et al., No. 19-cv-6151 (N.D. Cal) . For more details, you may access the proposed settlement agreement (PDF, 2.03 MB) (PDF, 1.91 MB) . NOTICE OF PROPOSED CLASS ACTION SETTLEMENT UNITED STATES DISTRICT COURT for the NORTHERN DISTRICT OF CALIFORNIA If you received a juvenile court order from...

August 28, 2021

CA9 (2-1) on Retroactivity: Reyes Afanador v. Garland

Reyes Afanador v. Garland "Taking these [retroactivity analysis] factors together, the second, third, and fourth factors all weigh against applying Cortes Medina to Reyes’s 2011 conviction, and the fifth factor, which weighs in favor of retroactivity, is not dispositive. Because imposing new legal consequences on Reyes’s decision to plead guilty to a section 314.1 offense would conflict with principles of “fair...

August 27, 2021

Unpub. CA5 Divisibility Remand Victory: Wali v. Garland

Wali v. Garland "Sajid Momin Wali, a native and citizen of Pakistan, became a lawful permanent resident in 2012. In 2017, he pleaded guilty in Texas state court to possession with intent to deliver a synthetic cannabinoid. As a result, he was charged as removable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a state-law crime relating to a controlled substance defined in the Controlled Substances...

August 27, 2021

DHS Humanitarian Parole Memo for Certain Afghans

DHS, Aug. 23, 2021 - Guidance for the Immigration Processing or Afghan Citizens During Operation Allies Refuge

August 26, 2021

Court Orders ICE to Test Certain Immigration Prisoners

Juarez et al v. Asher et al "For the foregoing reasons, the Court orders Petitioners’ motion for temporary restraining order (dkt. # 324) be GRANTED, in part. The Court ORDERS ICE to test detainees for COVID-19 prior to transfer to NWIPC and to take all reasonable measures to ensure there is no cross-exposure between COVID-19 positive detainees and COVID-19 negative detainees during transport. Further, Respondents...

August 26, 2021

Unpub. CA5 U Visa Remand Victory: Espinal-Lagos v. Garland

Espinal-Lagos v. Garland "Kevelin Danery Espinal-Lagos and her two minor sons were ordered removed to Honduras by an Immigration Judge. While their appeal was pending before the Board of Immigration Appeals, the petitioners filed derivative U visa applications with United States Citizenship and Immigration Services that, if granted, would allow them to move to reopen their removal proceedings. Accordingly, the...

August 26, 2021

CDC COVID-19 Vaccination Requirements for Immigrants

CDC, Aug. 17, 2021 "The current pandemic of COVID-19 has been determined by the World Health Organization (WHO) to be a public health emergency of international concern (PHEIC) under the International Health Regulations, and it creates unique challenges for the immigration-related medical evaluation.  COVID-19 meets the definition of a quarantinable communicable disease under 42 USC 264 and Executive Order 13295...

August 26, 2021

Goniglio v. Garland (jurisdiction, APA, "age of 18")

Coniglio v. Garland "Qiu and Coniglio state claims under the Administrative Procedure Act (APA), Declaratory Judgment Act (DJA), and the Fifth Amendment of the United States Constitution. All three causes of actions rely on their claims that USCIS (1) revoked Qiu’s classification as an “immediate relative” based upon an impermissible construction of 8 U.S.C. § 1101(b)(1)(B) that excludes children who turn 18 on...

August 26, 2021

DHS on Parole for Certain Afghan Nationals

DHS, Aug. 23, 2021 - Guidance for the Immigration Processing of Afghan Citizens During Operation Allies Refuge [I don't have a URL for the official PDF, but when I do, I will post.]

August 26, 2021

Update on Visa Processing at U.S. Embassy Kabul (Aug. 24, 2021)

DOS, Aug. 24, 2021 "The consular section at the U.S. Embassy in Kabul is closed.  Nonimmigrant visa appointments remain unavailable and all immigrant visa appointments, including Special Immigrant Visas (SIVs), at the Embassy have been cancelled. The Department of State’s efforts are devoted to evacuations at Hamid Karzai International Airport (HKIA).  Our first priority is U.S. citizens and lawful permanent...

August 25, 2021

CA9 on Credibility: Munyuh v. Garland

Munyuh v. Garland "Ms. Munyuh’s case concerns us. From our reading of the record, the IJ seemed determined to pick every nit she could find. Besides erring procedurally, the IJ discounted probative evidence on flimsy grounds and displayed a dubious understanding of how rape survivors ought to act. Although we give great deference to the IJ as factfinder, substantial-evidence review does not require us to credit...

August 25, 2021

CA9 on Right to Counsel: Orozco-Lopez v. Garland

Orozco-Lopez v. Garland "[W]e hold that non-citizens whose removal orders have been reinstated are statutorily entitled to counsel, at no expense to the government, at their reasonable fear hearings before an IJ. This statutory entitlement is cabined by 8 C.F.R. § 208.31(g)(1)’s requirement that, “[i]n the absence of exceptional circumstances,” such hearings “shall be conducted by the immigration judge within 10...

August 24, 2021

U.S. / Canada / Mexico Border Restrictions Extended

" This document announces the decision of the Secretary of Homeland Security (Secretary) to continue to temporarily limit the travel of individuals from Mexico into the United States at land ports of entry along the United States-Mexico border. Such travel will be limited to ‘‘essential travel,’’ as further defined in this document. DATES: These restrictions go into effect at 12 a.m. Eastern...