August 23, 2021

ICE Suspends Use of May 2021 Prosecutorial Discretion Memo

On Aug. 20, 2021, ICE posted this revised notice : "Due to an August 19, 2021 preliminary injunction issued in Texas v. United States, 6:21-cv-16 (S.D. Tex. Aug. 19, 2021), OPLA has suspended reliance on the May 27, 2021 memorandum from the Principal Legal Advisor,  Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities . Questions from noncitizens and their...

August 22, 2021

Chats With Charlie: Sept. 2021 Visa Bulletin

In this 45-min. Aug. 19, 2021 YouTube video , Charlie Oppenheim discusses the September 2021 Visa Bulletin .

August 21, 2021

CA9 on Venue, Social Group, CAT, Mexico, Cartels: Plancarte Sauceda v. Garland

Plancante Sauceda v. Garland "We first address venue and hold that the Ninth Circuit is the proper venue for this petition for review because Boise, Idaho, is the place “in which the immigration judge completed the proceedings.” See 8 U.S.C. § 1252(b)(2). We next address the substance of Plancarte’s petition and hold that (1) the BIA’s rejection of the proposed particular social group...

August 21, 2021

Justice Alito Grants Short Stay in TX v. Biden (MPP)

Here is the stay application, and here is the stay.  Amy L. Howe has the story here .

August 20, 2021

Public Charge ANPRM

This document is scheduled to be published in the Federal Register on 08/23/2021. "Under provisions of the Immigration and Nationality Act, the Department of Homeland Security (DHS) administers the public charge ground of inadmissibility as it pertains to applicants for admission and adjustment of status. DHS is publishing this advance notice of proposed rulemaking (ANPRM) to seek broad public feedback on the public...

August 20, 2021

CA1 on Bond, Burden of Proof: Hernandez-Lara v. Lyons

Hernandez-Lara v. Lyons "[W]e hold that, in order to continue detaining Hernandez under section 1226(a), due process requires the government to either (1) prove by clear and convincing evidence that she poses a danger to the community or (2) prove by a preponderance of the evidence that she poses a flight risk. ... For the foregoing reasons, we affirm in part, reverse in part, and remand to the district court with...

August 20, 2021

CA5 Denies Stay in MPP Case

TX v. Biden, Aug. 19, 2021 "This case concerns the Migrant Protection Protocols (“MPP”) created by the Secretary of the Department of Homeland Security on December 20, 2018, and purportedly rescinded by DHS in a memorandum on June 1, 2021 (“June 1 Memorandum”).1 After a full bench trial and 53 pages of findings of fact and conclusions of law, the district court concluded that DHS’s purported rescission of MPP violated...

August 19, 2021

USCIS Reaches Settlement Agreement in “No Blank Space Rejection Policy” Case

USCIS, Aug. 19, 2021 "U.S. Citizenship and Immigration Services reached a settlement agreement in the case of   Vangala et al. v. USCIS et al., No. 4:20-cv-08143(N.D. Cal.)  (PDF, 499.84 KB) . The agreement allows certain individuals to receive updated receipt dates for resubmitted immigration benefit applications or petitions originally rejected under the  former “No Blank Space” rejection policy . Under this...

August 19, 2021

Court Enjoins Civil Immigration Enforcement Priorities Memos

TX v. US, Aug. 19, 2021 "[T]he Court GRANTS the States’ Motion for Preliminary Injunction. (Dkt. No. 18). Therefore, it is hereby ORDERED that: 1. Defendants and all their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with them are hereby ENJOINED and RESTRAINED from enforcing and implementing the policies described in: a. Section B of...

August 19, 2021

Court Finds 8 USC 1326 Unconstitutional

U.S. v. Carrillo-Lopez "Because Section 1326 violates the Equal Protection Clause of the Fifth Amendment, the Court will grant Carrillo-Lopez’s Motion. ... It is therefore ordered that Carrillo-Lopez’s motion to dismiss (ECF No. 26) is granted. It is further ordered that Carrillo-Lopez’s indictment (ECF No. 1) is dismissed."

August 19, 2021

Court Orders DOS to Adjudicate More DV-2020 Applications

Arreguin Gomez v. Biden "Defendants shall process DV-2020 applications in a random order until all 9,905 diversity visas have been granted. The parties shall notify the court by August 25, 2021, whether they have agreed to a time within which to process the reserved visas."

August 18, 2021

Advance Copy of Proposed Rule: Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers

This document is scheduled to be published in the Federal Register on 08/20/2021. "The Department of Justice (“DOJ”) and the Department of Homeland Security (“DHS”) (collectively, “the Departments”) are proposing to amend the regulations governing the determination of certain protection claims raised by individuals subject to expedited removal and found to have a credible fear of persecution or torture. Under the...

August 18, 2021

OFLC Enhances FLAG

OFLC, Aug. 17, 2021 "As part of the Department's technology modernization initiative, the FLAG system was implemented to improve customer service and modernize the administration of foreign labor certification programs. On August 16, 2021, the Office of Foreign Labor Certification (OFLC) released several important enhancements to the FLAG system that improves accessibility to OFLC case decisions, reduces the...

August 16, 2021

CA9 on Due Process: Flores-Rodriguez v. Garland

Flores-Rodriguez v. Garland "The IJ’s failure to put Flores-Rodriguez on notice of this central issue in his case denied him “a full and fair hearing” by preventing him from submitting significant testimony and other evidence. Colmenar, 210 F.3d at 971. Because the IJ’s conduct potentially affected the outcome of the proceedings, Flores-Rodriguez has also suffered prejudice. Id. For these reasons, a due process...

August 16, 2021

USCIS Temporarily Extending Validity Period of Form I-693

USCIS, Aug. 12, 2021 "Beginning Aug. 12, U.S. Citizenship and Immigration Services is temporarily extending the validity period for  Form I-693, Report of Medical Examination and Vaccination Record , from two years to now four years due to COVID-19-related delays in processing. USCIS may consider a completed Form I-693 as valid if:  The civil surgeon’s signature is dated no more than 60 days before the...

August 15, 2021

Comparing Local OPLA Interim Guidance Requirements For Documenting Criminal Histories: NIPNLG

NIPNLG, Aug. 11, 2021 "Recently, the 25 main field locations of the DHS Office of Principal Legal Advisor (OPLA) released guidance for requesting Prosecutorial Discretion (PD) to implement the department-wide memorandum issued by ICE Principal Legal Advisor John Trasviña (“Trasviña memo”), which provided interim guidance to OPLA attorneys about how and when to exercise prosecutorial discretion (“PD”) under DHS...

August 14, 2021

Visa Bulletin for September 2021

Visa Bulletin for September 2021

August 14, 2021

Judge Enjoins Biden's Cancellation of MPP

Texas v. Biden, Aug. 13, 2021 "1. Defendants and all their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with them are hereby PERMANENTLY ENJOINED and RESTRAINED from implementing or enforcing the June 1 Memorandum. 2. The June 1 Memorandum is VACATED in its entirety and REMANDED to DHS for further consideration. 3. Defendants are ORDERED...

August 13, 2021

CA5 (2-1) on Motions to Reopen, Change in Law: Gonzalez Hernandez v. Garland

Gonzalez Hernandez v. Garland Majority : "Because the statute specifies that a motion to reopen must state “new facts,” and Gonzalez Hernandez’s motion arose from a change in law, the BIA’s decision not to construe Gonzalez Hernandez’s motion as a motion to reopen is not arbitrary and capricious, legally in error, or an abuse of discretion. To allow changes of law to be addressed in motions to reopen would contravene...

August 12, 2021

CA8 on Continuances: Gonzales Chechaluno v. Garland

Gonzales Chechaluno v. Garland "In sum, we conclude that the BIA abused its discretion in two respects: it departed from established policy when it failed either to apply the Sanchez Sosa factors or to remand to allow the IJ do so, and it failed to provide a rational explanation for its decision, including its treatment of this court’s binding precedent in Caballero-Martinez. ... We grant the petition for review...

August 12, 2021

New ICE Policy: Using a Victim-Centered Approach with Noncitizen Crime Victims

ICE, Aug. 11, 2021 "U.S. Immigration and Customs Enforcement (ICE) announced today its updated policy to support noncitizen victims of crime. ICE will help victims seek justice and facilitate access to immigration benefits for noncitizens who have been victims of crime. This new policy is designed to improve victims’ ability to seek justice against perpetrators of crime, including in cases of human trafficking...

August 11, 2021

"Round Table" Files Niz-Chavez Amicus Brief at BIA

The BIA invited amici to submit briefs on the following question: "Whether, and if so to what extent, Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), impacts the jurisdiction of an Immigration Court where the Notice to Appear fails to satisfy the statutory requirements of section 239(a) of the Act, 8 U.S.C. § 1229(a)?" On Aug. 10, 2021, the Round Table of Former Immigration Judges submitted this brief . ...

August 10, 2021

Matter of Castro-Tum is Dead Everywhere Except in the Sixth Circuit: It Must be Buried There Too

Cyrus D. Mehta, Kaitlyn Box, Aug. 10, 2021 "In a  previous blog , we argued that  Matter of Castro- Tum , a Trump era decision by then Attorney General Jeff Sessions should be withdrawn.  Matter of Castro -Tum  held that Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) do not have the authority to administratively close cases, unless expressly authorized by a previous regulation or a previous...

August 10, 2021

BIA on NACARA: Matter of Hernandez-Romero

Matter of Hernandez-Romero, 28 I&N Dec. 374 (BIA 2021) Section 240A(c)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(c)(6) (2018), bars an applicant, who has previously been granted special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2198 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997...

August 09, 2021

At What Rate Do Noncitizens Appear for Their Removal Hearings? Measuring In Absentia Removal Order Rates

CRS, Aug. 5, 2021 "Noncitizens who are charged by the Department of Homeland Security (DHS)with immigration violations may have their cases adjudicated during immigration court removal proceedings. Immigration courts operate within the Department of Justice’s Executive Office for Immigration Review (EOIR). During proceedings, immigration judges (IJs) determine whether noncitizens (i.e.,respondents) are removable...