Featured Issue: U.S. Immigration Courts under Trump 2.0

AILA Press Call on EOIR Memo Obtained via FOIA About Reducing the Immigration Court Backlog

AILA Senior Policy Counsel Laura Lynch and the American Immigration Council’s Deputy Legal Director Emily Creighton joined retired Immigration Judge Paul Schmidt and AILA Treasurer Jeremy McKinney to discuss an EOIR memo on the immigration court backlog that was obtained through FOIA.

Language Access Has Life-or-Death Consequences for Migrants

The Center for American Progress issued a report on the responsibility of the Border Patrol to provide meaningful interpretation and translation services to migrants who speak indigenous languages as well as resources available for the Border Patrol to promote language access.

CA8 Says Petitioner's Convictions in Missouri for Passing a Bad Check Are CIMTs

Applying the modified categorical approach, the court denied the petition for review, concluding that the petitioner's four Missouri convictions for passing a bad check qualified as crimes involving moral turpitude (CIMTs). (Dolic v. Barr, 2/20/19)

CLINIC Submits Brief Regarding “Particular Social Group” Membership

CLINIC submitted a brief in Matter of L-E-A-, and argued that the Attorney General should reaffirm that immediate family units qualify as particular social groups and that the statutory one central reason test applies to such claims.

BIA Reopens and Terminates Proceedings Sua Sponte Following Withdrawal of Guilty Plea

Unpublished BIA decision reopens and terminates proceedings sua sponte following withdrawal of guilty plea to the controlled substance-related offense pursuant to Cal. Penal Code 1203.43. Special thanks to IRAC. (Matter of Uribe, 2/19/19)

BIA Terminates Proceedings Against Respondent in Dimaya

Unpublished BIA decision terminates proceedings against respondent from Sessions v. Dimaya upon finding burglary under Cal. Penal Code 459 is not a CIMT. Special thanks to IRAC. (Matter of Dimaya, 2/19/19)

AILA Sends Response Letter to EOIR on Discipline Policy Memo

On 2/15/19, AILA sent a letter to EOIR Director McHenry to express concern with the continued imbalance in the treatment of counsel appearing before EOIR components perpetuated by the 12/18/18 memo, “Internal Reporting of Suspected Ineffective Assistance of Counsel and Professional Misconduct.”

CA8 Denies Petition for Review for Gay Man from Bangladesh

The court found IJ/BIA correctly determined that asylum application filed more than six months after termination of student status was untimely; it also affirmed harm suffered did not rise to level of persecution for withholding or torture for CAT relief. (Lesum v. Barr, 2/15/19)

CA3 Holds Petitioner Not a Citizen, Mooting Citizenship Claims for Underlying District Court Appeal and Agency Review Petitions

The court found that, based on the law at the time of petitioner’s father’s naturalization, petitioner was not entitled to derivative citizenship because his never-married parents could not have “legally separated” for purposes of 8 USC §1432(a)(3). (Dessouki v. Att’y Gen., 2/14/19)

CA2 Remanded Due to Ineffective Assistance and Vacated Both Plea and Conviction that Mandated Removal

The court held district court failed to consider corum nobis legal standards and improperly denied writ; CA2 found petitioner met standards/entitled to relief (in particular, ineffective assistance was prejudicial and, thus, compelling circumstance for writ). (Doe v. United States, 2/14/19)

EOIR Announces Plans to Relocate the Buffalo Immigration Court

EOIR announced it will temporarily close its Buffalo, NY, immigration court at 12:00 noon (ET) on February 20, 2019, to prepare for relocation to another floor within the building. Hearings will recommence on the third floor of the building on February 26, 2019.

Bite-Sized Ethics: Asylum and Adult Mental Impairment

When representing a mentally impaired client in removal proceedings, a lawyer must pay special attention to the ethics rule on clients with diminished capacity. In this bite-sized article, learn about whose support the attorney should enlist and the attorney’s ethical obligations to their client.

Importance of Nationality in Immigration Court Bond Decisions

TRAC found that the chances of being granted bond at hearings before IJs vary markedly by nationality, as do required bond amounts. More than three out of every four individuals from India or Nepal, were granted bond, while only between 11 and 15% of immigrants from Cuba received a favorable ruling.

CA11 Holds It Lacks Jurisdiction to Review Factual Findings Underlying Denials of Withholding and Deferral of Removal Relief

In an unpublished decision, the court denied in part and dismissed in part the petition for review, holding that it lacked jurisdiction to review the petitioner’s argument about the likelihood of future harm in Lebanon. (Nasrallah v. Att’y Gen., 2/14/19)

BIA Holds Utah Possession of Drug Paraphernalia Not a Controlled Substance Offense

Unpublished BIA decision holds that conviction for possession of drug paraphernalia was not a controlled substance offense because the record of conviction does not identify substance involved. Special thanks to IRAC. (Matter of Lopez-Morales, 2/13/19)

BIA Holds New York Statute Targeting Unlicensed Drivers Not a CIMT

Unpublished BIA decision holds that aggravated unlicensed operation of a motor vehicle under NY Veh. and Traf. Law 511.3 is not a CIMT because defendant need not have actual knowledge that driving privileges were revoked. Special thanks to IRAC. (Matter of Alcantara, 2/13/19)

DHS OIG Finds Issues Requiring Action at the Essex County Correctional Facility in Newark, NJ

DHS OIG issued a report after a visit to the Essex County Correctional Facility identified serious violations, stating that ICE must “more closely scrutinizing the facility’s process for reporting incidents involving detainees, the handling of perishable foods, and the detainees’ living conditions.”

CA10 Upholds BIA Denial of Asylum and Withholding for Former Mexican Police Officer

The court held BIA reasonably relied on substantial evidence to find petitioner failed to show that threats he received while an active officer established past or future persecution based on his current status as an incorruptible former police officer. (Aguilar-Perez v. Whitaker, 2/13/19)

CA9 Affirms Removability, Upholds BIA Interpretation of “Single Scheme of Criminal Misconduct” and Its Inapplicability to Petitioner

The court denied petition for review, upholding BIA’s interpretation and finding that the petitioner was removable because his crimes did not arise out of a single scheme under BIA precedent. (Szonyi v. Whitaker, 2/13/19)

CA4 Grants Petition for Review After Finding CAT Risk of Torture Must Be Considered from All Sources in the Aggregate

The court held that neither the IJ nor BIA properly aggregated tattooed former gang member’s risk of torture from a combination of police, gangs, and vigilante groups; it also found neither meaningfully engaged with the submitted evidence. (Rodriguez-Arias v. Whitaker, 2/12/19)

ICE Releases Memo on Implementation of the Migrant Protection Protocols

ICE released a memo on its implementation of the Migrant Protection Protocols.

ICE Releases Guidance on Migrant Protection Protocols

ICE released a memo providing guidance to impacted Enforcement and Removal Operations (ERO) field offices on implementation of the Migrant Protection Protocols.

Bicameral Letter to DHS and USCIS on DACA Recipients’ Eligibility for Advance Parole

On 2/12/19, U.S. Senators and Representatives sent a letter to DHS and USCIS asking for information about DACA recipients’ eligibility for advance parole to travel internationally.

AILA Submits Amicus Brief on Motions to Reopen Based on Changed Country Conditions

AILA submitted a second amicus brief in Hamama v. Homan with a primary focus on the “when” of a Motion to Reopen based on changed country conditions.

Practice Pointer: Arguing Against Pretermission of Asylum Cases in Immigration Court in the Aftermath of Matter of A-B- and Matter of E-F