June 04, 2024

Securing the Border Interim Final Rule (Advance Copy)

This document is scheduled to be published in the Federal Register on 06/07/2024 "On June 3, 2024, the President signed a Proclamation under sections 212(f) and 215(a) of the Immigration and Nationality Act (“INA”), finding that the entry into the United States of certain noncitizens during emergency border circumstances would be detrimental to the interests of the United States, and suspending and...

June 03, 2024

Unpub. BIA Hardship Remand

Hats off to Lisa Seifert , my friend and colleague from my Seattle days (1996-2001) for this remand on the issue of hardship by AIJ Sunita B. Mahtabfar.* * "Attorney General William P. Barr appointed Sunita B. Mahtabfar as an Appellate Immigration Judge in August 2020. Judge Mahtabfar earned a Bachelor of Arts in 1994 from the University of Texas at Austin and a Juris Doctorate in 1998 from Thurgood Marshall School...

May 31, 2024

CA2 Habeas Victory! - Black v. Decker

Black v. Decker "These tandem appeals arise from habeas petitions brought under 28 U.S.C. § 2241 by legal permanent residents Carol Williams Black, in No. 20-3224 (Schofield, J.), and by Keisy G.M., in No. 22-70 (Cronan, J.). As directed by 8 U.S.C. § 1226(c), the government detained Black and G.M. pending their removal proceedings: Black, for seven months, and G.M., for twenty-one months. Neither had...

May 31, 2024

CA2 on AgFel: Stankiewicz v. Garland

Stankiewicz v. Garland "In this case, we must decide whether N.J. Stat. § 2C:35-7, which criminalizes distributing a controlled substance on or near school property, is an “aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43)(B). Petitioner Aleksandra Malgorzata Stankiewicz was convicted in 2003 of violating § 2C:35-7. In removal proceedings initiated in 2018, the immigration judge...

May 31, 2024

A Guide to Obtaining Release from Immigration Detention

NIPNLG Practice Advisory, May 28, 2024 "The purpose of this guide is to provide practitioners with a comprehensive resource for representing adult clients detained by DHS in immigration court bond proceedings. The guide covers the following topics: An overview of immigration detention The different legal authorities governing immigration detention and corresponding strategies for seeking release An...

May 30, 2024

BIA Unpub. Cancellation Victory!

Superlitigator George A. Terezakis writes: " This case involved Judge Kolbe at Varick Street. I extensively briefed her demonstrated bias and hostility throughout the proceedings, and her repeated directives to DHS to file additional charges of removability against my client. She sought to unfairly limit my presentation of the equities supporting a grant for my client, by pressuring me to try not to develop the record...

May 28, 2024

CA8 on AgFel: Huynh v. Garland

Huynh v. Garland "Nguyen Chi Cuong Nmn Huynh petitions for review of a Board of Immigration Appeals (BIA) order affirming that he is removable because he was convicted of a state crime constituting “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A). Because Huynh’s statute of conviction is plainly broader than this generic federal offense, we grant his petition for review. ... All...

May 28, 2024

Advance Copy of EOIR Final Rule: Efficient Case and Docket Management in Immigration Proceedings

This document is scheduled to be published in the Federal Register on 05/29/2024 "On September 8, 2023, the Department of Justice (“Department”) published a notice of proposed rulemaking (“NPRM”) proposing to rescind an enjoined December 2020 rule (the “AA96 Final Rule”) that imposed novel limits on the authority of immigration judges and the Board of Immigration Appeals (“BIA”...

May 25, 2024

BIA on Venue, Choice of Law: Matter of M-N-I-

Matter of M-N-I-, 28 I&N Dec. 308 (BIA 2024) Since choice of law is dependent on venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. Matter of Garcia , 28 I&N Dec. 693 (BIA 2023), followed. "In a decision dated October 24, 2023, the Immigration Judge denied...

May 24, 2024

Judge Pumps Brakes on Florida Order

FWAF v. Moody, May 23, 2024 "On May 23, 2024, we entered a Supplemental Order on the Scope of the Preliminary Injunction (the “Supplemental Order”) [ECF No. 100]. In that Supplemental Order, we clarified that the preliminary injunction in this case—like the injunction the Eleventh Circuit affirmed in Ga. Latino All. for Hum. Rts. v. Governor of Ga., 691 F.3d 1250, 1267 (11th Cir. 2012)—applies...

May 22, 2024

CA1 on Motions to Reopen: Tulung v. Garland

Tulung v. Garland "[I]n reviewing the motion to reopen, the BIA discarded evidence -- without considering its merits -- on legally unjustifiable bases. The BIA retains wide latitude to weigh such evidence but may not ignore it based on legal error. Resultingly, we grant in part the petition for review, vacate the denial of the motion to reopen, and remand for further proceedings." [Hats off to William A...

May 22, 2024

CA9 on SENTRI, APA: Jajati v. CBP

Jajati v. CBP "We have jurisdiction under 28 U.S.C. § 1291. We hold that § 701(a)(2) does not bar judicial review of Jajati’s APA claims. Although CBP has broad discretion to revoke SENTRI memberships, the APA itself recognizes that discretion can be “abuse[d].” 5 U.S.C. § 706(2)(A). And the law governing SENTRI provides meaningful standards under which courts can review whether...

May 22, 2024

USCIS Updates Guidance for Family-Based Immigrant Visas

USCIS, May 22, 2024 "Effective May 22, 2024, we are updating guidance in the USCIS Policy Manual on family-based immigrant visa petitions (including Form I-130, Petition for Alien Relative and, in limited situations, family-based Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant ), including explaining how we handle correcting approval notice errors, requests for consular processing or adjustment...

May 20, 2024

ICE "Knock and Talk" Arrests Unconstitutional: Sorto-Vasquez Kidd

ACLU SoCal, May 16, 2024 "The so-called “knock-and-talk” practice by U.S. Immigration and Customs Enforcement (ICE) is unlawful and unconstitutional, according to a federal judge who vacated the enforcement practice on Wednesday. Judge Otis D. Wright II granted the plaintiffs’ motion for summary judgment in a set of claims concerning ICE’s “knock-and-talk” practice in Kidd...

May 20, 2024

CA11 on AgFel, Controlled Substance, Defective NTA: Leger v. U.S. Atty. Gen.

Leger v. U.S. Atty. Gen. "In this case, we must decide whether a Florida conviction for lewd and lascivious battery under the 2008 version of Fla. Stat. § 800.04(4)—an offense which the Florida Supreme Court has characterized as statutory rape—constitutes the sexual abuse of a minor, and is therefore an aggravated felony under the INA. Applying the categorical approach, and building on the Supreme...

May 17, 2024

Advance Copy, EOIR Final Rule: Efficient Case and Docket Management in Immigration Proceedings

This is the text of the Efficient Case and Docket Management in Immigration Proceedings Final rule as signed by the Attorney General, but the official version of the Final rule will be as it is published in the Federal Register. "On September 8, 2023, the Department of Justice (“Department”) published a Notice of Proposed Rulemaking (“NPRM”) proposing to rescind an enjoined December 2020...

May 17, 2024

Matter of Furtado

Matter of Furtado, 28 I&N Dec. 794 (BIA 2024) (1) A petitioner seeking approval of a Form I-130 for an adopted child from a country that is a party to the Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, opened for signature May 29, 1993, S. Treaty Doc. No. 105-51, 1870 U.N.T.S. 167 (entered into force May 1, 1995; for the United States Apr. 1, 2008), should provide, regardless...

May 17, 2024

Recent Trends in Immigration Delay Cases

NILA Practice Advisory, May 17, 2024 "Noncitizens and their attorneys are experiencing record-breaking delays in the adjudication of benefit applications by U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS). As processing times for most, if not all, applications stretch into years, attorneys increasingly are challenging these delays in U.S. district courts. As a result, there have...

May 16, 2024

Proposed Asylum Bar Regs Are At Odds With International Law (And Why That Matters)

Hon. Jeffrey S. Chase, May 16, 2024 "In 2003, the Office of the U.N. High Commissioner for Refugees published Guidelines for applying the bars to asylum known internationally as the “exclusion clauses” (because they exclude an applicant from being recognized as a refugee under international law). Addressing the proper procedure for applying these bars, the UNHCR Guidelines state: Given...

May 14, 2024

Saving the Labor Certification for the Backlogged Beneficiary Even After the Job Has Changed

Cyrus D. Mehta and Kaitlyn Box, May 14, 2024 "In “What if the Job Has Changed Since the Labor Certification Was Approved Many Years Ag o” we discussed strategies for noncitizen workers who are eligible to file an I-485 adjustment of status application, but find that their job has changed since the approval of the I-140 petition, which may have been many years ago. When the essence of the job remains...

May 13, 2024

USCIS Orphan Petition Denial Arbitrary and Capricious: Blanford v. USCIS

Blanford v. USCIS "Because of a consular officer’s suspicions over a $900 payment, two children have spent the last seven years in a Liberian orphanage instead of with their adoptive parents in the United States. That’s a tragedy, one that will end today. ... [T]he Court finds no evidence whatsoever of child-buying in the record. Instead, there is nothing but speculation based on timing. That cannot...

May 13, 2024

Garland Appoints 18 New IJs, 2 New BIA Members

EOIR, May 10, 2024 "The Executive Office for Immigration Review (EOIR) today announced the appointment of 20 immigration judges—18 immigration judges who joined courts in California, Georgia, Maryland, Massachusetts, New York, Oregon, Pennsylvania, Texas, and Virginia, and two appellate immigration judges who joined the Board of Immigration Appeals. Acting Director Mary Cheng delivered remarks and Deputy...

May 12, 2024

Feds Move to Partially End Flores Agreement

DEFENDANTS’ MOTION TO TERMINATE THE FLORES SETTLEMENT AGREEMENT AS TO THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES News coverage here and here .

May 10, 2024

DHS Policy and Guidelines for the Use of Classified Information in Immigration Proceedings

DHS, May 9, 2024 "This memorandum sets forth new policy and guidelines governing our Department’s use of classified information in immigration proceedings. It supersedes the October 4, 2004 memorandum that then-Secretary Tom Ridge issued, entitled “Department of Homeland Security Guidelines for the Use of Classified Information in Immigration Proceedings”..."

May 10, 2024

Advance Copy, DOS Final Rule: Third-Party Attendance at Appointments

This document is scheduled to be published in the Federal Register on 05/13/2024 "This rule adopts as final the notice of proposed rulemaking (NPRM) published in the Federal Register on July 26, 2023. This final rule provides that private attorneys, interpreters, and other third parties may attend certain appointments at passport agencies and centers and at U.S. embassies and consulates overseas to assist the person...