July 13, 2021

CA9 on Service, Suppression, CAT: B.R. v. Garland

B.R. v. Garland "All substantive hearings, pleadings, and orders occurred after service on B.R. was perfected. B.R. has not shown he was prejudiced by the delay in service in obtaining relief from removal. B.R. is not entitled to termination based on his claims of DHS’s regulatory violation. We deny his petition for review for all arguments related to service of the NTA. ... [W]e have serious misgivings as...

July 12, 2021

Practice Advisory: "Realistic Probability" in Immigration Categorical Approach Cases

IDP, NIP/NLG, June 3, 2021 "The concept of “realistic probability” as an aspect of the categorical approach first emerged in 2007 in a Supreme Court decision, Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007). In that decision, and in Moncrieffe v. Holder, 569 U.S. 184 (2013), and subsequent categorical approach cases, the Court has treated realistic probability as being applicable to determining whether a statute...

July 09, 2021

CADC on Adoption: National Council for Adoption v. Blinken

National Council for Adoption v. Blinken "Members of the National Council For Adoption help prospective parents adopt children. In 2018, the Department of State issued guidance barring adoption agencies from referring certain children to certain parents. When the Council challenged that guidance, the district court dismissed its suit for lack of subject matter jurisdiction after concluding that the Council lacked...

July 09, 2021

CADC on EB-5 Visa Numbers: Wang v. Blinken

Wang v. Blinken "The Immigration and Nationality Act makes a limited number of visas available to foreign investors who create jobs in the United States. It also grants investors’ spouses and children the “same status” and “same order of consideration” for those visas as the investors. 8 U.S.C. § 1153(d). When the Department of State calculates how many visas it may issue for foreign investors, it includes an investor...

July 09, 2021

ICE Directive: Identification and Monitoring of Pregnant, Postpartum, or Nursing Individuals (July 1, 2021)

ICE Directive 11032.4, July 1, 2021 "Superseded: ICE Directive I I 032.3 Identification and Monitoring of Pregnant Detainees (December 17, 2017) ICE Policy I 0070. I: Discretion for Nursing Mothers (November 7, 2007) This Directive sets forth policy and procedures to ensure individuals known to be pregnant, postpartum, or nursing in U.S. Immigration and Customs Enforcement (ICE) custody are effectively identified...

July 08, 2021

Yemen: TPS, EADs for Yemeni F-1 Students

" This notice announces that the Secretary of Homeland Security (Secretary) is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Yemen (regardless of country of birth) and who are experiencing severe economic hardship as a direct result of the current crisis in Yemen. The Secretary is taking action to provide relief to Yemeni citizens who are lawful F-1 nonimmigrant...

July 07, 2021

CA9 on Admission, Voluntary Departure: Posos-Sanchez v. Garland

Posos-Sanchez v. Garland "Noncitizens factually admitted to the United States at a U.S. port of entry while they hold temporary resident status under § 1255a(a) do not magically become unadmitted once their temporary resident status ends. ... That leaves the question of whether the agency correctly denied Posos’s application for voluntary departure because he had not been physically present in the United States...

July 07, 2021

FAQs on the June 2021 EB-5 Program Changes

H. Ronald Klasko and Tammy Fox-Isicoff, July 6, 2021 "The  EB-5 Immigrant Investor Program  saw two very important changes in June 2021. Below are the most common questions our EB-5 visa lawyer team members have been answering as the industry adjusts to these major, and likely temporary, changes. 1. WHAT EB-5 PROGRAM CHANGES OCCURRED IN JUNE 2021? Two major changes occurred. First, a federal court ruled that...

July 07, 2021

TPS Extended for Yemen

DHS, July 6, 2021 "Secretary of Homeland Security Alejandro N. Mayorkas announced an 18-month extension and re-designation of Yemen for Temporary Protected Status (TPS). This extension and re-designation will be in effect from September 4, 2021, through March 3, 2023. “Yemen continues to experience worsening humanitarian and economic conditions that prevent individuals from safely returning to their homes,” ...

July 07, 2021

Unpub. CA6 on Honduras, Social Group: Corea Escoto v. Garland

Corea Escoto v. Garland (unpub.) "Given the BIA’s repeated reliance on A-B-, briefing on the effect of A-B-’s overruling is necessary. We remand to the BIA to reconsider Corea’s asylum claim in the first instance, this time under pre-A-B- caselaw." [Hats off to Sally M. Joyner !]

July 07, 2021

Requesting Premium Processing on a Downgraded I-140 Petition

Cyrus D. Mehta and Kaitlyn Box, July 6, 2021 "In October 2020, USCIS’ decision to apply the Filing Dates, rather than the Final Action Dates, to employment-based I-485 adjustment of status applications, together with advancement in the Filing Dates in the State Department Visa Bulletin allowed many noncitizen workers who had been trapped in the green card backlogs for years to file I-485 adjustment of status applications...

July 07, 2021

CA9 to Rehear Tomczyk En Banc

Tomczyk v. Garland "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel disposition is vacated."

July 06, 2021

OFLC on Court-Ordered H-2A Backpay (July 6, 2021)

OFLC, July 6, 2021 "On December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in  United Farm Workers, et al. v. DOL, et al. , No. 20-cv-01690, enjoining the Department of Labor (Department or DOL) from implementing its Final Rule,  Adverse Effect Wage Rate Methodology (AEWR) for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States...

July 02, 2021

ICE Withdraws Proposed F, J and I Visa Rule

"The U.S. Department of Homeland Security (DHS) is withdrawing a notice of proposed rulemaking (NPRM) that published on September 25, 2020. The NPRM proposed to revise DHS regulations governing the length of stay for F, J, and certain I nonimmigrants." - This document is scheduled to be published in the Federal Register on 07/06/2021.

July 02, 2021

Joint Niz-Chavez Practice Advisory (June 30, 2021)

CLINIC, AIC, NIP/NLG, July 30, 2021 Strategies and Considerations in the Wake of Niz-Chavez v. Garland - "This practice advisory will discuss the Supreme Court’s decisions in Niz-Chavez and Pereira and provide strategies for practitioners to consider in cases where the client’s NTA was defective." Copyright (c) 2021, American Immigration Council, The Catholic Legal Immigration Network, Inc. (CLINIC), and...

July 01, 2021

Chats with Charlie: July 2021 Visa Bulletin

YouTube Video, June 28, 2021 - Chats with Charlie, July 2021 Visa Bulletin

July 01, 2021

Unpub. CA5 on Honduras, CAT, State Involvement: Guity Casildo v. Garland

Guity Casildo v. Garland (unpub.) "[T]he BIA has not addressed the question of the applicability of the color-of-law rule regarding state involvement in torture. ... The parties agree that a remand is the best alternative where the BIA has made an unauthorized or inadequately supported factual finding on the likelihood of torture, thereby leaving unresolved whether the IJ failed to apply the rule-of-law theory...

July 01, 2021

CA2 on Matter of J.M. Acosta, Finality: Brathwaite v. Garland

Brathwaite v. Garland "[W]e hold that the limitations the BIA imposed in [Matter of] J.M. Acosta [ 27 I. & N. Dec. 420 (BIA 2018) ] are unreasonable. ... [W]e conclude that the specific burden-shifting regime and evidentiary standard demanded by the BIA to show a merits-based appeal is not reasonable.  Specifically, the BIA requires a non-citizen to make a merits-based showing at the notice stage, often before...

June 30, 2021

E-3 Engineer Awarded $337K Back Wages: Linnie v. Murphy Pipelines

Linnie v. Murphy Pipelines "I REVERSE the determination of the Administrator, Wage and Hour Division, USDOL, in this matter, and ORDER payment of back wages of $336,730.77, and fringe benefits of $67,346.15, plus interest."

June 30, 2021

USCIS EB-5 Regional Center Alert (June 30, 2021)

USCIS, June 30, 2021 "Statutory authorization related to the EB-5 Immigrant Investor Regional Center Program will expire at midnight on June 30, 2021, unless Congress reauthorizes it. A lapse in authorization does not affect EB-5 petitions filed by investors who are not seeking a visa under the Regional Center Program. In the event of a lapse in authorization related to the Regional Center Program, we will reject...

June 30, 2021

Niz-Chavez Practice Advisory (June 30, 2021)

American Immigration Council, The Catholic Legal Immigration Network, Inc., and the National Immigration Project of the National Lawyers Guild, June 30, 2021 Strategies and Considerations in the Wake of Niz-Chavez v. Garland "On April 29, 2021, the U.S. Supreme Court issued Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), holding unequivocally that a Notice to Appear (NTA)—the charging document that commences immigration...

June 30, 2021

BIA on In Absentia, Reopening, Exceptional Circumstances: Matter of S-L-H & L-B-L-

Matter of S-L-H- & L-B-L-, 28 I&N Dec. 318 (BIA 2021) (1) Immigration Judges may exercise their discretion to rescind an in absentia removal order and grant reopening where an alien has established through corroborating evidence that his or her late arrival at a removal hearing was due to “exceptional circumstances” under section 240(e)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(e)(1) (2018...

June 30, 2021

Wrongful Death Suit Against CoreCivic Gets to Proceed with Rehab Act Damages Claim Included: Romero-Garcia v. CoreCivic

R. Andrew Free reports: "Writing to report on a  decision  handed down Friday, June 25, by the U.S. District Court for the Middle District of Georgia in  Efrain Romero de la Rosa 's wrongful death lawsuit against CoreCivic's Stewart Detention Center.  This marks the first  case  we're aware of  in which a  federal court allow ed  disability claims  for money damages  under Section 504 of the Rehabilitation...

June 30, 2021

CA9 Upholds Flores

Flores v. Garland "In the latest iteration of this decades-long litigation, the district court issued two orders enforcing the consent decree incorporating the Flores Agreement. The orders enjoined the Department of Homeland Security (“DHS”) from detaining certain minors in hotels for more than a few days in the process of expelling them from the United States. We conclude that the district court’s second order...

June 30, 2021

DOL: Operative Date of Wage Regulation is Oct. 7, 2020

DOL, June 29, 2021 OFLC Announces Updates to Implementation of the Final Rule Affecting Wages for H-1B and PERM Workers; District Court’s Order Vacating Final Rule "On June 23, 2021, the U.S. District Court for the Northern District of California issued an order in  Chamber of Commerce, et al. v. DHS, et al. , No. 20-cv-7331, vacating the Final Rule,  Strengthening Wage Protections for the Temporary and Permanent...