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AILA Doc. No. 23011100 | Dated March 14, 2023
View corrections, clarifications, and selected updates to the 18th edition of Kurzban's Immigration Law Sourcebook.
|2008 (Ch. 8, ¶I.B.1.b.)||Dual intent||Second paragraph, second sentence, change the FAM cite in the initial clause to read:
The FAM should be consulted for DOS interpretations of dual intent. E.g., 9 FAM 402.13-5(b) [dual intent for O-1 and O-3]; . . .
|1393 (Ch. 7, ¶III.E.2)||Injunctive Relief||The second paragraph should read:
If 242(f)(1) applies, it does bar classwide injunctive relief challenging the operations of matters in the INA, but only those that fall within INA §§231-244. See, e.g., Miranda v. Garland, 34 F.4th 338 (4th Cir. 2022) [no jurisdiction to issue class wide injunctive relief under the Due Process Clause to require the government to bear the burden of proof to continue detention and to require IJs to consider ability to pay bond because it has no jurisdiction to enjoin or restrain INA §236(a)]; Hamama v. Adducci, 946 F.3d 875, 876-79 (6th Cir. 2020) [class-wide injunctive relief, even if characterized as habeas, is barred; reiterating Hamama I]; Hamama v. Adducci, 912 F.3d 869, 877-80 (6th Cir. 2018) [INA §242(f)(1) bars class-wide habeas injunctive relief regarding release from detention]; Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999) [Bivens class action on transfer of detainees barred by §§242(f) and 242(a)(2)(B)(ii)]. Note however that the US Code, not updated, indicates that Part IV, Subchapter II only covers 8 USC §§1221-1232, see Garland v. Aleman Gonzalez, 142 S.Ct. 2057, 2064 (2022) [citing those sections incorrectly by the Court]. There is thus substantial confusion as to the breath of sections covered by 242(f)(1). Under the IIRIRA Amendments, Subchapter II, Part IV was amended to include INA §231 to INA §244 which in the US Code is 8 USC §1221 to §1231 and 8 USC §1252 to 1254a. The Supreme Court in Aleman Gonzalez, supra, however, relied on an outdated version of the US Code and Justice Alito mistakenly stated that INA §242(f)(1) covered 8 USC §1221 to 1232. But as the Ninth Circuit held in Galvez v. Jaddou, 53 F.4th 821, 829-31 (9th Cir. 2022), the preclusion provision of 242(f)(1) does not cover 1232 because that section was an amendment to TVPRA, which was enacted after the IIRIRA amendments. If classwide injunctive relief is not related to the operation of one of the enumerated sections then it is permissible. Galvez v. Jaddou, 52 F.4th 821, 829-31 (9th Cir. 2022) [242(f)(1) does not bar injunctive relief for SIJ 180-day adjudication because 8 USC 1232(d)(2), although codified in the INA, does not fall within the sections barred from injunctive relief as it was enacted as part of the TVPRA in 2008 after the 1996 IIRIRA act incorporating 242(f)(1)]; Gonzalez v. ICE, 975 F.3d 788, 812-15 (9th Cir. 2020) [class wide injunctive relief regarding detainers is not barred because issues in the case are regulatory and the relevant statute concerning detainers is at INA §237(d), 8 USC §1357(d), which is not within the statutory sections of Subchapter II, Part IV barring injunctions].
Cite as AILA Doc. No. 23011100.
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