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MIGRANT CENTER FOR HUMAN RIGHTS


Providing Free and Low-Cost Legal Services to
Detained Asylum Seekers in Texas
 
Learn About Our Work

OCTOBER 2021

NEWSLETTER
 
In This Issue:

OUR UPDATES

Guatemalan Released from Detention, Gets ICE to Move to Dismiss Removal Proceedings

ICE decided to release a Guatemalan crime victim after we filed an extensive packet of evidence showing that, as a cooperating witness in a federal smuggling trial, he would qualify for a U-visa or S-visa. The prosecutor subsequently decided to join a Motion to Dismiss removal proceedings. He is now with his family in Dallas and has the option to file for asylum through the non-adversarial affirmative USCIS process.

District Court Rules Title 42 Likely Unlawful and Blocks Implementation Against Families, We Call for the End of Title 42 for Everyone, and the Court of Appeals Allows Title 42 to Proceed

September 16 – A federal district court deemed the Title 42 process of expelling thousands of families away at the border, returning them to some of the most dangerous parts of Mexico, “likely unlawful,” blocking the Biden administration from implementing the process against families with minor children. The court stayed its preliminary injunction for 14 days. We responded in a Press Release


“While we are ecstatic that the federal court has recognized the unlawfulness of using Title 42 health considerations to justify the expulsion of asylum seeking families and unaccompanied children, considering there is no medically-sound rationale for this policy, we are calling on the Biden Administration to immediately end this policy for all of those seeking safety in the United States, including adult women and men,” said Sara Ramey, Executive Director of the Migrant Center for Human Rights.
 

The UNHCR has similarly urged the Biden administration to abandon Title 42, recognizing the policy’s denial of access to our asylum system as inconsistent with international law. 

 

September 17 – The Biden administration appealed the federal court’s decision to block the expulsion of migrant families under Title 42.

 

September 30 – The court of appeals granted, without explanation, the Biden administration’s request to stay the district court’s injunction prohibiting Title 42 from being applied to families. This means the injunction will not go into effect, as originally ordered by the district court. The case is Huisha-Huisha v. Mayorkas.

Executive Director Speaks on Evening News on the Situation of Haitian Migrants in Del Rio

September 17 – Migrant Center Executive Director Sara Ramey spoke with KSAT on the evening news on the migrant caravan situation under the Del Rio bridge, where about 14,000 Haitians are camped. Here is a background on the political situation leading up to the July presidential assassination, which the US followed with a TPS designation on July 29 because of extraordinary conditions of insecurity, political upheaval and dysfunction, and violence, which made it impossible to return its nationals to safe conditions, but which has not been updated after the August 14 7.2 magnitude earthquake that killed 2,200 people and destroyed 120,000 homes. We organized a sign-on letter for the TPS system to be improved to prevent arbitrary cutoff dates and more. 55 Members of Congress wrote a letter urging the Biden administration to stop deportations to Haiti and extend humanitarian parole to Haitians arriving at the U.S.-Mexico border.

 

September 18 – DHS announced the immediate implementation of a strategy to address the increase in migrant encounters in the Del Rio area, including the “surge” of 400 CBP officers, the closing of the Del Rio Port of Entry and traffic re-routing to Eagle Pass, “additional transportation to accelerate the pace and increase the capacity of removal flights to Haiti and other destinations in the hemisphere”.  The majority of migrants continue to be expelled under the CDC’s Title 42 health-related authority, despite no evidence of migrants presenting a per se risk of spreading COVID, including 4,000 Haitians. UNHCR Commissioner Filippo Grandi stated that: “The summary, mass expulsions of individuals currently underway under the Title 42 authority, without screening for protection needs, is inconsistent with international norms and may constitute refoulement.  I reiterate UNHCR’s call for the U.S. government immediately and fully to lift its Title 42 restrictions in effect since March of 2020 which continue to deny most people arriving at the southwest U.S. land border any opportunity to request asylum.” Deportation flights to Haiti under this “strategy” began on September 19 (here and here). By the end of the month 57 deportation flights had left the U.S. and 13,000 migrants were put into proceedings (10,000 to 12,000 were released into the U.S., with the others detained). Haiti’s national migration office has asked for a “humanitarian moratorium” on the forced returns, citing “ongoing security issues”.

 

September 23 – The U.S. special envoy to Haiti resigned, saying he will not be associated with ‘inhumane, counterproductive’ deportations of Haitians.

 

September 26 – Several organizations filed a formal complaint with DHS’s Office of Civil Rights and Civil Liberties demanding that any potential witnesses to Border Patrol abuses be allowed to remain in the United States while the claims are investigated (see infamous horseback enforcement), including: denial of access to attorneys and interpreters; blocking media access; absence of fear-based screening, including for affirmative Convention Against Torture claims as required even under Title 42 restrictions; physical intimidation and violence from CBP officers/agents; and  misleading statements made by DHS officers to migrants that they were being flown to other locations. Similarly, on October 1 organizations filed a FOIA request and PIA (Texas Public Information Act) requests to local agencies, state agencies and Governor Abbott demanding transparency from DHS and the State of Texas regarding the horrific treatment of Haitians and other migrants at the border, including agents armed with cords used like whips and deportations in shackles, many without being told where they are being taken. See this factsheet.

We File an Amicus Brief to Uphold Processing of Asylum for Children and Families

September 24 – We filed an amicus curiae brief with 28 legal service and advocacy organizations in opposition to Texas’ motion for preliminary injunction that would end the Title 42 exception for unaccompanied children and families, subjecting them to forced expulsion to Mexico. In light of our expertise and experience working with individuals subject to the Title 42 Policy, we explained to the court why such an injunction would potentially harm tens of thousands of individuals, highlighting the exceptional vulnerability of children and their families. In addition, we argue that expelling unaccompanied children violates the Trafficking Victims Protection Reauthorization Act (TVPRA), which affords special protections to unaccompanied children in recognition of their “specialized needs” and in response to the “special obligation [of the US] to ensure that these children are treated humanely and fairly.”

We assert that Title 42 is unlawful and should not be applied to anyone, as denounced by epidemiologists and public health experts as having 
no basis in scienceMore than 1,300 medical professionals from 49 states and territories signed Physicians for Human Rightse-action, calling on CDC Director Walensky to end Title 42. Since Biden took office, investigators have documented over 6,300 violent attacks on people expelled to Mexico.

We Support the Fair Adjudications for Immigrants Act

We signed on to endorse the Fair Adjudications for Immigrants Act which will amend the definition of “conviction” in the Immigration and Nationality Act to “a formal judgment of guilt of the noncitizen entered by a court” and would except the following from being considered a conviction: 1) An adjudication or judgment of guilt that has been dismissed, expunged, deferred, annulled, invalidated, withheld, vacated, or pardoned; 2) Any adjudication in which the court has issued a judicial recommendation against removal, an order of probation without entry of judgment, or any similar disposition; and 3) A judgment that is on appeal or is within the time to file direct appeal. Immigrants with criminal convictions face serious immigration consequences – such as being barred from naturalization – even after a conviction is no longer considered valid in the court of conviction. Currently, the Immigration and Nationality Act defines a “conviction” as a formal judgement of guilt or a judge has ordered some form of punishment, penalty, or restraint on the immigrant. This Act would apply retroactively to any conviction.

We Submit an Amicus Brief to the Fifth Circuit to Halt MPP

September 27 – We filed an amicus brief in the Fifth Circuit in Texas v. Biden, arguing that any form of MPP would violate U.S. law and our treaty obligations to people escaping persecution. Our amicus brief argues that the district judge’s Administrative Procedures Act holding is grounded in numerous factual errors, including judge’s incorrect conclusion that the termination of MPP contributed to a border “surge;” that high rates of in absentia removal orders indicate high rates of meritless asylum claims; and that a 44% rate of in absentia removal orders is acceptable. Arguments are calendared for November 2. 

 

A recent report based on government data of nearly 3,000,000 immigration court hearings found that 83% of nondetained immigrants with completed or pending removal cases attended all their hearings from 2008 to 2018, and 96% of those represented by a lawyer attended all their hearings. 15% of those immigrants who did miss a court hearing and were ordered deported were later able to successfully reopen their cases and had their removal orders rescinded suggesting that many of the individuals who fail to appear in court wanted to attend their hearings, but never received a hearing notice or faced some hardship in getting there. The study found that only 6% of those seeking asylum failed to appear, while only 3% of those seeking cancellation of removal and 2% of those seeking adjustment of status did. The results of the study support releasing far more people from custody.

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POLICY ANALYSIS

How DACA Can Be Better: Regulatory Changes Proposed to DHS

On September 27 DHS published a ​​Notice of Proposed Rulemaking on Deferred Action for Childhood Arrivals (DACA) to codify the program in regulation after a district court, on July 16, vacated the June 2012 memorandum creating the program, for failing to comply with the notice and comment rulemaking process under the Administrative Procedure Act (APA) (injunction stayed with respect to individuals granted DACA on or before the decision date).

 

The Migrant Center submitted a Public Comment explaining what we believe the Administration should change. Public comments are important because they can provide the Administration a perspective that hasn't been considered. Our Public Comment addresses the following points:

 
  • USCIS and ICE Should Have the Power to Grant DACA to People in Detention

  • DHS Should Eliminate the Arbitrary Age Cap, Make DACA Available to All Childhood Arrivals, and Advance the Continuous Residence Date

  • Fee Exemptions Should Be Expanded and Applicants Should Be Allowed to Request Fee Waivers

  • Deferred Action and Work Authorization Should Be Granted for a Period that is More than Two Years

  • EAD Renewals Should Extend from the Date of the Prior EAD’s Expiration, Not from the Date the New I-765 is Approved

  • DACA Recipients Who File Renewal Applications Prior to the Expiration of Their

  • Deferred Action Should Receive a 180-Day Automatic Extension

  • A Departure from the U.S. without Advance Parole Should Not Result in the Automatic Termination of DACA

  • USCIS Should Provide DACA Recipients with Notice and an Opportunity to Respond Before Termination


While no DHS program can be an “abdication of its statutory responsibilities”  under the Supreme Court's Chaney case, 470 U.S. at 833 n.4., when Congress provides only enough resources to arrest, detain, and prosecute a fraction of the roughly 11.4 million undocumented individuals present in the U.S., DHS must establish priorities. In FY 2016 - FY 2020, DHS resources appropriated by Congress allowed ICE to conduct an average of 235,120 removals per fiscal year. Given this, the use of prosecutorial discretion, such as deferred action, is a necessary element of fulfilling DHS’ mission.
 

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IMMIGRANT VOICE

I Want My Daughter Back: Family Separation Continues Under Biden

 -       By Erwin (name changed to protect confidentiality)

 

I came to the United States with my daughter who is two years old, crossing the river to ask for protection at the beginning of August. Immigration separated us and I haven’t been able to see her or talk to her in over three months... I asked why my daughter was not coming, what are you doing with my daughter, why isn’t she with me. They just told me to be quiet in a manner like to intimidate me. I was crying because I wasn’t with her. They didn’t give me any information about her.

...I found out through my sister-in-law, who was going to be in charge of her, that my daughter got COVID in the shelter. This made me very worried. She’s always been a healthy girl. My daughter is still in the shelter three months later by herself.

When we were separated my daughter started crying and didn’t stop. I felt that I was going to die, really... I felt destroyed, over, like life had come over me. I had never felt like this in my life.

Immigration told me that I would go on a separate commercial flight and that my daughter would be sent to Nicaragua later. I want to go back with her. I asked why we are not being sent back together if you already confirmed with the embassy of Nicaragua that I am the father.

I have never been separated from her... This process has been very hard for me. I haven’t slept well. I’m taking medicine but it gives me pain in my head... I want them to send my daughter with me.

 

Read Edwin's full story.

 

IN CONTEXT: Physicians for Human Rights published a medical article explaining how the psychological effects of forced family separation include severe psychological trauma even years after reunification. A progress report issued by the Biden administration's Interagency Task Force on the Reunification of Families states 5,636 migrant children were separated from their parents between July 2017 and when Trump left office, 20% of whom were under the age of five, and that 566 kids are still separated. In more than 1,300 cases, the parent was deported without their child. The House Judiciary Committee report explains that the government had no plan to ensure families could be reunified prior to their deportation. For example, news emerged indicating that ORR Director Lloyd told officials to stop keeping a spreadsheet used to track separated children.

 

The DHS’s Office of Inspector General (“OIG”) report found that despite senior DHS officials testifying repeatedly to Congress that every parent received the choice to reunify before deportation, a process was only put in place after a court order in June 2018. In total, OIG identified 348 separated parents where there was no evidence of any effort to ask them about reunification. The report found records of another 149 parents who had supposedly agreed to be deported without reuniting with their children but the paperwork was so incomplete—including missing signatures and basic information about the questions asked—that OIG could not conclude that the parents had received a meaningful chance to reunify with their child. The OIG report also found that officials deported parents who had told ICE they wanted to reunify and a 2018 complaint documented multiple instances where ICE officers coerced parents into signing away their right to reunify with their child even after the court order came down.

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IMPORTANT NEWS


In FY 2020 grant rates had fallen to just 29%, but in FY 2021 they rose to 37% (including 49% in the last quarter) although, during FY 2021 only 8,349 were granted asylum, half of the FY 2020 number. Full report.

The average wait time for an immigration court hearing is now over 1,600 days, with a quarter of immigrants waiting over five years. During Trump’s time in office the number of pending deportation cases increased from 542,411 to 1,290,766.

District Court Rules Turnback Policy is Illegal

September 2 - Federal judge Bashant ruled that the government’s turnback of asylum seekers arriving at Ports of Entry along the border was unlawful under both the Immigration and Nationality Act and the Due Process Clause of the U.S. Constitution as the U.S. government is required by law to inspect and process asylum seekers (the court also condemned the practice of metering). Specifically, the court found that “the record contains undisputed evidence that in 2016, 2017, and 2018, CBP officers did not carry out their discrete statutory duties to inspect and refer asylum seekers to start the asylum process once they arrived at [Ports of Entry]; instead, Defendants stationed CBP personnel at the limit line to ‘turn away’ or ‘push back’ asylum seekers as they reached [Ports of Entry].” The Court rejected the government’s claims that broad delegations of statutory authority to DHS supersedes their duty to inspect and process asylum seekers. The court found that, given that asylum seekers just outside the US have statutory rights, they also have constitutional rights. The Court also stated that forcing asylum seekers who present themselves at ports of entry to jump through additional hurdles, as compared with those who enter the country without inspection, “contravene[s] the attempt of IIRIRA to put all those not lawfully admitted ‘on equal footing.’” The Court requested supplemental briefing on remedies by October 1. The case, Al Otro Lado v. Mayorkas, was brought four years ago by 13 individuals seeking asylum in the United States, including a Migrant Center client. Learn more about metering and turnbacks. See FY 2020 expulsion statistics.

DHS Investigation Finds Violations of National Detention Standards in Ohio

September 3 - The ICE Office of Professional Responsibility, DHS Office of the Inspector General, and ICE Health Service Corps determined the Northeast Ohio Correctional Center failed to comply with four requirements of the ICE Performance-Based National Detention Standards 2011 (PBNDS) pertaining to significant self-harm/suicide prevention/intervention, detention files, admission/release, and custody classification system. The report also notes five areas of concern regarding medical care, safety, and security.

Ninth Circuit Decides there is No Constitutional Right Requiring DHS to Consider Whether to Reinstate a Prior Order, Nor a Right to Asylum Once the Order is Reinstated

September 7 - The court held that because the petitioner’s prior removal order was reinstated, he had no right under the INA to seek asylum and no constitutional right to have DHS consider whether, as a discretionary matter, it should decline to reinstate that order. The case is Iraheta-Martinez v. Garland.

USCIS Extends TPS for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal

September 10 - USCIS published notice of an automatic extension of the validity of TPS for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through December 31, 2022 from the current expiration date of October 4.

Administrative Hearing Officer Rules Language Can Be Grounds for Failure to Untimely File

September 10 - The Office of the Chief Administrative Hearing Officer (OCAHO) published a precedent decision in United States v. Popo’s Bar & Restauranting that the Respondent’s failure to file a timely answer was not due to a willful disregard for the legal process or an intentional failure to respond to litigation, but rather limited English proficiency.

 

Over the last two decades asylum seekers have traveled from over 200 countries, speaking over 400 languages.

Office of Inspector General Finds CBP is Not Required to Test for COVID

September 10 - DHS’ Office of Inspector General (OIG) issued a report on CBP’s COVID-19 response at the southwest border and determined that, although DHS follows CDC guidelines, CBP is not required to conduct testing, nor can DHS’s Chief Medical Officer direct testing procedures. OIG recommended that DHS “reassess its COVID-19 response” and coordinate with the Chief Medical Officer. DHS concurred. As of September 16, there were 532 positive cases in custody among a total detainee population of 23,445.

September 20 - The Congressional Research Service released a report documenting trends at the Southwest border, and how COVID-19 is mitigated in CBP and ICE custody. CBP provides masks to detainees, but testing is limited; ICE is required to test detainees, provide medical care, offer the COVID-19 vaccine, and isolate positive cases.

Sixth Circuit Rules U Visa Applicants Can Sue Over Processing Delays

September 13 - The Sixth Circuit ruled unanimously that USCIS’s new bona fide determination process for crime victims did not moot the plaintiffs’ case. Therefore, federal courts can still review the claims that USCIS unreasonably delayed placing them on the U visa waitlist and adjudicating pre-waitlist work authorization applications. The court found that federal courts may compel USCIS to 1) place principal petitioners on the U visa waitlist when an unreasonable delay has occurred per 5 USC §706(1) and 2) hasten any unduly delayed bona fide determination under §706(1). There is a backlog of roughly 160,000 applications for U visas. The case is Barrios Garcia et al. v. DHS et al. See also USCIS’s FAQs on the U-visa bona fide determination process.

Executive Plans to Grant Humanitarian Parole to Separated Families

September 13 - President Biden created the Family Reunification Task Force to identify and reunite parents and legal guardians with their children who were separated by the U.S. government between January 20, 2017 and January 20, 2021. The Family Reunification Task Force has established a process to bring certain family members back to the United States to reunite with each other on a three-year grant of humanitarian parole and receive support services. Individuals can apply at www.together.gov / www.juntos.gov. If the Task Force determines you are qualified for government support, you will be referred to the International Organization for Migration (IOM) who will help with reunification.

Office of Inspector General Finds Problems at Otay Mesa Detention

September 14 - DHS’ Office of Inspector General conducted unannounced inspections of the Otay Mesa Detention Center to evaluate compliance with ICE detention standards and COVID-19 requirements and found standards were not met for grievances, staff-detainee communications, segregation, resulting in seven recommendations (ICE concurred with six). Separately, a report was published on the  human rights violations suffered by immigrant women at the Irwin County Detention Center.
 

There are currently 23,014 immigrants in detention, down from more than 27,000 in early July, 77.2% who have no criminal record. San Antonio ICE monitors 12,435 of the 124,054 people on Alternatives to Detention, more than any other ICE office in the country. The South Texas ICE Processing Center in Pearsall, Texas held the largest number of ICE detainees, averaging 812 per day. The FY 2021 Congressional budget plans to allocate $3.1 billion for 60,000 detention beds, of which 55,000 are adult beds and 5,000 beds are for family units. In fiscal year 2020, the average daily rate for an adult bed was $129.64, and $295.94 for a family bed. See guaranteed minimums and average daily population year-to-date on ICE's detention statistics page.

Fifth Circuit Stays Injunction of Biden’s Enforcement Memos

September 15 - The Fifth Circuit granted a stay of the August 19 preliminary injunction in Texas et al. v. United States, et al. to allow DHS to rely on the January 20th “Pekoske Memo” and February 18th “Johnson Memo”, except for those detained subject to mandatory detention under 8 U.S.C. §§ 1226(c)(1) or individuals who have been ordered removed and subject to mandatory detention under § 1231(a) during the 90-day removal period. However, DHS officials still retain the authority to make individualized determinations of whether to detain noncitizens in these two categories. The Fifth Circuit held that the states of Texas and Louisiana were unlikely to show that the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) overrode the “deep-rooted tradition of enforcement discretion when it comes to decisions that occur before detention, such as who should be subject to arrest, detainers, and removal proceedings.”

District Court Rules Title 42 Unlawful and Blocks Implementation Against Families

September 16 - A federal district court deemed the Title 42 process “likely unlawful,” blocking the Biden administration from implementing the process against families with minor children. The court stayed its order for 14 days.

September 17 - The Biden administration appealed the federal court’s decision to block the expulsion of migrant families under Title 42.

September 30 - The court of appeals granted the Biden administration’s request to stay the district court’s injunction prohibiting Title 42 from being applied to families. This means the injunction will not go into effect, as originally ordered by the district court.  The court of appeals did not offer any detailed explanation for its ruling. The case is Huisha-Huisha.

Senate Parliamentarian Deletes Pathway to Citizenship from Congressional Budget

September 19 - The Senate Parliamentarian MacDonough ruled against including a pathway to citizenship for 8 million Dreamers, farmworkers, essential workers, and TPS holders in the $3.5 trillion budget reconciliation process. The Senate Parliamentarian is an advisor to the Senate and makes recommendations that are not binding. MacDonough wrote that the plan doesn't meet the strict rules on what can be in a spending bill, calling the plan "by any standard a broad, new immigration policy… [that is an] enduring policy change that dwarfs its budgetary impact.” 60 votes are needed to keep the language in the bill.

Court Finds ICE Routinely Fails to Consider Children Turning 18 for Alternatives to Detention

September 21 - A federal court issued a five-year injunction requiring ICE to change its policies and procedures to avoid further unlawful ICE detentions of unaccompanied children who turn 18 years old and therefore “age out” of Office of Refugee Resettlement custody. The law requires they are transferred to the “least restrictive setting” such as releasing them to a sponsor, group home, or shelter. Citing ICE’s “pervasive violations” of the law, the court ordered that ICE re-train its officers and provide every custody decision to class counsel monthly. The case is Garcia Ramirez v. ICE. Similarly, Human Rights First’s factsheet analyzing 2017-2018 ICE parole records received through FOIA shows a need for increased oversight due to arbitrary and unfair decisions in asylum cases.

Judge Strikes Down Florida Ban on Sanctuary Policies and Requirement that Law Enforcement Work with ICE

September 21 - A federal judge struck down portions of a 2019 Florida law  — SB 168 — that banned local government sanctuary policies and required local law enforcement to make their best effort to work with ICE, saying that the measure was racially motivated and that its supporters showed no evidence as to why it was needed to lower crime. The office of Governor DeSantis plans to appeal. Read our op-ed on why the state has authority to set law in these areas, absent racial animus.

Office of Inspector General Finds CBP Has Inadequate Information Sharing Processes

September 23 - The DHS Office of Inspector General (“OIG”) found the CBP standard operating procedures for searching, reviewing, retaining, and sharing information in communication, electronic, or digital devices at Ports Of Entry was inadequate and made five recommendations, which CBP accepted, including to make electronic searches traceable to the officer conducting the search and implementing continuing education on the laws.

California Governor Signs Bills to Delete “Alien” from State Law, Protect the Health and Safety of Immigrants in Detention, Solidify Protection for Immigrants under Hate Crime Legislation, and Allow for Undocumented Immigrants to Hold County Positions

September  24 - California Governor Newsom signed several bills, including AB 1096 to replace the term “alien” with “noncitizen” or “immigrant” in California’s legal code. The term “alien” has been used to identify individuals who are not born in the U.S. by the federal government since the 1798 Aliens and Sedition Acts and in California since 1937. The word had been removed from the California labor and education code in 2015 and 2016 respectively. In April, the Biden administration ordered CBP and ICE to stop referring to migrants as “aliens.”

 

In addition Newsom also signed: AB 263 and SB 334, which clarify the requirement of private detention facilities to comply with local and state public health orders, requires private operators to abide by Cal/OSHA workplace safety rules and regulations, and maintain medical professional liability and civil rights liability insurance; AB 600, which clarifies that immigration status is included in the definition of “nationality” covered by hate crime legislation; AB 1140, which ensures that unaccompanied undocumented minors housed in state-licensed facilities will be under the jurisdiction of the California Foster Care Ombudsperson’s Office and will thereby receive all of the resources and protections under state law; and SB 714, which amends the California election code to allow aspiring citizens such as DREAMers to be appointed and elected county central committee members.

Greyhound Settles Suit for Allowing CBP to Board Buses

Septe​​mber 27 (filed) - Greyhound Lines Inc., a Dallas-based company, will pay $2.2 million to settle a lawsuit over the bus line's practice of allowing CBP to board its buses in Washington to conduct warrantless immigration sweeps, a practice in place since at least 2013. Among other things, the company subjected its passengers to discrimination based on skin color or national origin, including invasive questioning by armed federal agents. The money will provide restitution to those passengers who were detained, arrested, or deported after immigration agents boarded buses. Greyhound is also required to put stickers on or near the front door of its buses stating that it does not consent to immigration agents boarding its buses without a warrant or reasonable suspicion. A February 2020 CBP memo states that CBP agents can only perform warrantless immigration sweeps on board buses with the consent of the company's owner or employees.

Fifth Circuit Finds BIA Abused Its Discretion in Denying Motion to Reopen Where Petitioner’s NTA Lacked the Time and Date

September 27 - The Fifth Circuit found that where the petitioner’s initial Notice to Appear (NTA) did not contain the time and date of his hearing there is no proper service under INA §239(a) under the Supreme Court’s decision in Niz-Chavez v. Garland, even if a subsequent Notice of Hearing (NOH) had this information. Therefore a motion to rescind his in absentia removal order for lack of notice and reopen his removal proceedings is valid.

Washington Counter-Sues to End For-Profit Control of Detention

September 28 - Washington State Attorney General filed a countersuit against private for profit prison corporation GEO Group for violating Washington State law HB1090, an act that prohibits private for profit prisons and detention centers for adults. After the passage of HB1090 in April, GEO Group filed a lawsuit, and acknowledged that they should have closed Northwest Detention Center by September 27. Since June, nearly 300 immigrants have tested positive for COVID at the facility, 40 GEO guards and 5 ICE Health Services Corp nurses.

Florida Bans State Agencies from Assisting New Immigrants

September 29 (reported) - Florida Governor DeSantis has signed an order banning state agencies from helping relocate undocumented immigrants arriving in Florida and authorizing the Florida Department of Law Enforcement and the Florida Highway Patrol “to detain any aircraft, bus, or other vehicle within the State of Florida reasonably believed to be transporting illegal aliens to Florida from the Southwest Border” unless otherwise prohibited by federal or state law. DeSantis also ordered the agencies to gather information on the identities of any immigrants arriving illegally in Florida from the Mexico border and told state agencies not to spend money assisting those immigrants unless required by law. DeSantis previously sent Florida law enforcement officers to Texas to help deter illegal border crossings. The state claims President Biden’s immigration policy will cost the state millions of dollars and cause harm to Florida.

Court Rules TPS Holder Returning on Advance Parole Can Apply for a Green Card

September 29 - A district court held that a TPS holder who had traveled abroad on advanced parole was an “arriving alien”, and was thus eligible to apply to USCIS for adjustment of status. The case is C-E-M- v. Wolf, et al.

Haitian Family Reunification Parole Program Restarted

September 29 – USCIS updated its guidance to restart the Haitian Family Reunification Parole (HFRP) program, after it was terminated in 2019. The HFRP program started in 2014 to reunite eligible U.S. citizens and residents with certain family members who live abroad and who were waiting in long green card backlogs in light of the need to get out of the country quickly due to the 2010 earthquake. Participation in the program is currently by invitation only. The USCIS field office in Port-au-Prince, Haiti, permanently closed in December 2019 and, due to COVID-19, only limited services are offered at the U.S. Embassy. 

 

The 2016 Filipino World War II Veterans Parole (FWVP) program allows Filipino veterans who served during WWII to bring family members to the United States through “parole” while they wait for a green card, which can take up to two decades. After WWII, the United States gave 26,000 Filipino veterans permission to stay in the country. As of 2019, an estimated 6,000 veterans were still waiting to be reunified with family.

DHS Issues New Enforcement Guidelines 

September 30 - DHS Secretary Mayorkas announced new Guidelines for the Enforcement of Civil Immigration Law to better focus the Department’s resources on the apprehension and removal of noncitizens who are a threat to our national security, public safety, and border security and advance the interests of justice by ensuring a case-by-case assessment of whether an individual poses a threat, taking into account the “totality of the facts and circumstances,” “guided by the knowledge that there are individuals in our country who have been here for generations and contributed to our country’s well-being, including those who have been on the frontline in the battle against COVID, lead congregations of faith, and teach our children.”
 

Factors that militate in favor of declining enforcement action include, for example, age, time in the U.S., options for relief, mental condition, status as a witness/victim or party in legal proceedings; impact of the removal on family in the U.S., military or public service of their immediate family; time since an offense and evidence of rehabilitation, and the exercise of workplace or tenant rights, or service as a witness in a labor or housing dispute (“It is an unfortunate reality that unscrupulous employers exploit their employees' immigration status and vulnerability to removal by, for example, suppressing wages, maintaining unsafe working conditions, and quashing workplace rights and activities. Similarly, unscrupulous landlords exploit their tenants' immigration status and vulnerability to removal by, for example, charging inflated rental costs and failing to comply with housing ordinances and other relevant housing standards.”).

 

The new enforcement priorities no longer identify people with aggravated felonies or gang-related convictions as specific priorities but do not provide a definition of ‘serious criminal conduct’. DHS should not rely on a conviction or a database search alone but should, “to the fullest extent possible, obtain and review the entire criminal and administrative record and other investigative information to learn of the totality of the facts and circumstances of the conduct at issue”. DHS officers can take actions without any supervisor input or approval.

 

The memo states that anyone “apprehended at the border or port of entry while attempting to unlawfully enter the United States”, or apprehended anywhere after entering later than November 1, is a threat to border security and therefore a priority for apprehension and removal.

 

The memo calls for training, a 90-day post-implementation review, and the collection of data. Montana, Arizona and Ohio have filed a lawsuit challenging the memo, with a lot of the same arguments that were used in challenges to the interim enforcement priorities, i.e., alleged APA violations, violation of 90-day removal statute, mandatory detention statute, etc. The "Mayorkas memo" will become effective on November 29. See these practice advisories for immigration and criminal defense practitioners. 

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P.O. BOX 90382 San Antonio, TX 78209
Phone: 210-802-6061
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Migrant Center for Human Rights · PO Box 90382 · San Antonio, TX 78209-9084 · USA

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