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Detained Asylum Seekers in Texas
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In This Issue:


Stuck in Detention Due to Asylum Ban 2.0
This month the Migrant Center is taking an in-depth look at Asylum Ban 2.0: Trump's July 16th Interim Final Rule stating that any refugee who travels through another country on their way to the U.S. is not eligible for asylum. The Immigrant Voice Section will be featuring the story of Venezuelan refugees who presented themselves at a Port of Entry (U.S.-Mexico bridge) and who, after having proved a significant possibility of winning a withholding of removal case (a higher burden of proof than asylum), ICE is refusing to release because they are subject to this ban (including several husbands who were forcibly separated from their wives). In the words of one Venezuelan refugee: "immigration is not releasing any of us; there are so many Venezuelans here in detention."


Asylum Ban 2.0: When Can a Refugee  Legally be Disqualified from Asylum due to Passing Through a Third Country

Stay tuned for our Special Report. In the meantime, please watch our Thanksgiving video about one Guatemalan family that was reunited due to the Migrant Center's help. Happy holidays to all!


Negative Credible Fear Interview Reversed with USCIS

Pro bono attorney Tony Ortega successfully wrote a Request for Reconsideration to USCIS for a Cuban detainee whose negative Credible Fear Interview results were affirmed by the Immigration Judge, despite his well-founded fear of political persecution for opposing the communist regime.  With the Migrant Center's help, including the presentation of evidence that his wife's similar case was approved by an Immigration Judge, USCIS decided to reverse the negative results it had previously issued and give him a chance to fight for protection in the U.S. alongside his wife, as well as request release from detention so that he can be reunified with his wife (who was separated from him at the border and held in detention in Aurora Colorado).

Migration Month a Success

Thank you to all who came out for Migration Month in October and collaborated with us to make it a success! We had a wonderful group of local artists who participated in our immigration art exhibition at Cherrity Bar. We had a great happy hour kickoff reception with music from the Conjunto Heritage Taller, an outdoor film screening of The River and the Wall with the support of Slab Cinema, a series of legal trainings and a community information lunch, a Remain in Mexico talk at Trinity University, and a poetry reflection evening. We received the most votes out of the three charities competing, taking home the largest percentage of Cherrity Bar’s profits ($900). Thank you!

Speaking Out for Humane Detention Conditions

October 17 – The Migrant Center joined 100 advocacy organizations around the country in sending a letter to the Georgia Congressional Delegates urging them to investigate the human rights violations occurring at the Stewart Detention Center, including a severe lack of medical and mentalhealth care, the use of force on immigrants including gas bombs and rubberbullets, the misuse of solitary confinement, forced labor and more.

100 for 100 Campaign

Our “100 for 100” campaign is underway as part of our end-of-year fundraising drive. We are looking for 100 donors to donate $100 or more to help launch our work in 2020. What can your $100 do? It can help us prepare an asylum seeker for their credible fear or reasonable fear interview with a USCIS asylum officer, help an asylum seeker prepare to testify in court for a negative interview review or for an asylum merits hearing, allow us to request release from detention to an immigration shelter, help us maintain our in-person legal consultation detention hotline, and more.

Stay tuned for more information about our work on Giving Tuesday. We are a community-based organization that relies on generous individuals like you to provide these important legal services. Thank you for your consideration!
Every dollar you donate goes towards supporting the human rights of detained migrants. We couldn't do this important work without you.
Thank you for your support.
Pro bono attorney Tony Ortega receiving Cherrity Bar's donation. Thank you to Cherrity Bar and everyone who came out to make Migration Month a success!


DOJ Issues Memo for BIA to Speed Up Cases

October 1 – DOJ issued an EOIR policy memo to pressure judges at the Board of Immigration Appeals (BIA) “to speed up adjudications without care for due process” and urge them “to dismiss appeals, before a transcript of the original hearing is even reviewed”. DOJ’s EOIR (Executive Office for Immigration Review) also recently issued a policy memo outlining new procedures for administrative review of recognition and accreditation determinations. Contact your members of Congress to urge them to support immigration court reform.

Trump Issues Proclamation Requiring Immigrants to Have Health Care Coverage

October 4 – Trump issued a proclamation requiring that immigrants entering with an “immigrant visa” (versus a “nonimmigrant visa” such as a tourist visa) to prove to a consular official that they will have approved health insurance coverage within 30 days of entry, or be able to pay for foreseeable medical costs in order to prevent the entry ofimmigrants who “will financially burden the U.S. healthcare system.” The proclamation could bar 65% of would-be legal permanent residents. The proclamation does not apply to Special Immigrant Visas for Afghanis or Iraqis, any minor not accompanied by an adult, anyone “whose entry would further important United States law enforcement objectives, as determined by the Secretary of State”, or anyone “whose entry would be in the national interest, as determined by the Secretary of State”. The proclamation was scheduled to enter into force on November 3 but on November 2 a federal court halted its implementation.Read the complaint for more information on the legal arguments. The case is Doe v. Trump.

Administration Speeds Up Asylum Process with New Secretive Program

October 7 – CBP began a pilot project called “Prompt Asylum Case Review” in El Paso for non-Mexicans who are subject to Trump’s July 16“asylum ban” (requiring them to seek asylum in all the countries they travel through) and are single men or families. Through this program, an asylum seeker has one day to contact an attorney before their reasonable fear interview. Lawyers cannot enter the CBP holding centers where asylum seekers are held and phone calls are limited in time. If they fail their interview, they can ask for judicial review of the results but it will now be conducted by a judge over the phone, where lawyers can be present but cannot formally represent their clients.This program attempts to get a decision in 10 days or less in order to deter migrants from attempting to cross the U.S. border and pushing asylum seekers out of the United States. 

Boston Ends Contract for Housing ICE Detainees

October 8 – Boston’s Suffolk County Sheriff Tompkins announced his jails will stop housing hundreds of ICE detainees, ending a contract that’s been running since 2003. ICE is expected to complete the transfer of the approximately 200 federal detainees by mid-December.

D.C. Ends Cooperation with ICE

October 8 – In an unanimous vote Washington, D.C., lawmakers decided to bar district agencies from cooperating with ICE unless provided a judicial warrant or order, including not sharing a person’s release date or providing space or equipment to ICE for searching a person in district custody. The district is also now prohibited from inquiring about the immigration status of a person in custody.

Fourth Circuit Affirms Right to a Bond Hearing for Immigrants with Prior Removal Orders

October 10 – The Fourth Circuit affirmed the district court’s summary judgement that noncitizens seeking protection in the U.S. who have prior deportation orders that DHS is trying to reinstate have the right to individualized bond hearings.

District Judge Partially Stops Implementation of Public Charge Expansion

October 11 – A federal district judge enjoined and restrained DHS and USCIS from "enforcing, applying, or treating as effective" the DHS public charge final rule. In addition, the court enjoined the government from using any new or updated forms whose submission would be required under the final rule, including Forms I-129, I-485, I-539, I-864, I-864EZ, I-944, and I-945.However,the Department of State version of the public charge rule will still take effect on October 15. The case is State of Washington, et. al., v. DHS.

California Passes Bills to Phase Out For-Profit Detention, Expand Loan Program for Dreamers, Prevent Courthouse Arrests, Require Schools to Educate on the Census, and Limit Data Sharing

October 11 – California Governor Newsom signed AB 32 that eliminates private, for-profit prisons, including those used for immigration detention, by 2028. Starting January 1, 2020, the state's Department of Corrections and Rehabilitation won't be able to enter into or renew a contract with a private, for-profit prison. DHS’ Office of Inspector General previously released a report detailing how the Adelanto Detention Facility, the nation's second largest privately-run detention center at 1940 beds, had "egregious violations of detention standards" including "nooses in detainee cells, improper and overly restrictive segregation, and inadequate detainee medical care." At least three inmates have died at the facility since 2015 and seven inmates attempted suicide between December 2016 and October 2017. GEO Group, the for-profit prison company that runs Adelanto as well as dozens of other facilities in California reported revenues of $2.33 billion in 2018, up from $2.26 billion in 2017. The facilities have been criticized for employing immigrants for as little as $1 a day.ICE’s contract with GEO to run Adelanto runs through March 25, 2020 and is worth $62,864,912. The contracts of four privately-run immigration detention centers that are set to expire within the next year, including Adelanto, currently hold about 4,000 people, leaving only the Yuba County Jail under ICE contract. California’s state Senate Judiciary Committee has predicted that the state would win any legal challenge. Five days after the Governor signed AB 32 ICE began seeking at least three new detention center contracts in California to start December 20 and run for 15 years and which would hold approximately 6,750 people in the San Diego, San Francisco and Los Angeles areas.
Similar to California’s 2017 Dignity Not Detention Actthat prevented local governments from expanding private immigration detention contracts, Illinois banned local government contracting with private detention centers earlier this year (this does not prevent ICE from contracting directly with for-profit companies). About 70% of the approximately 50,000 people in immigration detention are held in for-profit facilities. Effective alternatives to detentioncost about $4 per day per person, compared to $139 for adult detention, and $319 for family detention.
The legislation also expands California’s student loan program for Dreamers who are in graduate school and bans immigration arrests in courthouses. Read our op-ed on why courthouses should be safe spaces. The Governor also signed legislation requiring public schools to provide 2020 U.S. Census materials to students and parents that encourage them to take part in the population count. Census data is used to distribute nearly $900 billion in annual federal funding for schools, healthcare, food stamps, foster care and special education. Close to 50% of California’s population is either an immigrant or the child of an immigrant.Census results also determine the number of representatives in Congress granted to each state.However, the Governor vetoed a bill that would have given the state attorney general the authority to investigate any death at civil immigration detention centers. Since 2010 there have been 13 deaths in California immigration detention centers.
October 12 – Governor Newsom also signed AB 1747 to prohibit the use of personal information stored in statewide databases such as that maintained by the Department of Motor Vehicles and the California Law Enforcement Telecommunications System (CLETS), for immigration enforcement purposes. In 2015 AB 60’s driver’s license program began allowing people to apply for licenses regardless of their immigration status. AB 1747 allows the state’s attorney general to conduct audits and investigations to monitor compliance. It will go into effect January 1, 2020.
Subsequently, the Administration appealed to the Supreme Court arguing that a 2017 California law that restricts police from helping ICE detain and deport people except in serious criminal cases or with a judicial order undermines federal immigration enforcement efforts. The U.S. Solicitor General stated that the law “makes it more difficult for federal officers to identify, apprehend, detain, and remove aliens”. While true, the Ninth Circuit Court of Appeals upheld the law in April, saying federal immigration law doesn’t require state authorities to actively assist with deportation efforts. Read our op-eds here (local law enforcement should not act as immigration agents) and here (it’s not local law enforcement’s responsibility to do ICE’s job) and here (California and Texas – approaches to immigration and the power of states to craft immigration). The case is United States v. California.

Federal Judge Rules Border Wall Emergency Proclamation Unlawful

October 11 – U.S. District Court Judge Briones declared Trump’s February emergency proclamation to transfer money to build a border wall “unlawful”, halting at least $3.6 billion in spending transfers from the Department of Defense. The Judge said Congress made clear in a January budget measure ending a partial government shutdown that border wall funding was being denied, beyond $1.3 billion for upgrades of existing barriers.This is one of eight lawsuits filed in federal court to challenge the border wall. The Constitution’s checks-and-balances system gives Congress the power of funding appropriations, not the Executive.
To date, not a single mile of new barriers has been erected. In 2017 Congress provided $341 million to replace around 40 miles of existing barriers. In 2018 Congress provided $1.6 billion for replacement fencing and additional security technology. In 2019 Congress provided $1.4 billion for the construction of pedestrian fencing in South Texas but stated that  “[n]one of the funds made available in this or any other appropriations Act may be used to increase, eliminate, or reduce funding for a program, project, or activity as proposed in the President’s budget request….”In other words this money is for additional security technology and replacement fencing along the border, but not for the purpose of creating new barriers. In response the president proclaimed a national emergency at the southern border ordering  the re-appropriation of billions of dollars to construct new barriers and send military personnel to the border, including the $3.6 billion Department of Defense funds intended for military construction projects at issue in the case.A total of nearly $10 billion in U.S. taxpayer funds has been obtained. Separately, in July, the Supreme Court stayed a ruling in the Ninth Circuit that blocked funding for border wall expansion in California and Arizona. 
The administration has acquired 16% of the private land in Texas it needs to build the wall. Of the 166 miles of border wall planned in Texas 162 miles is on private land. There are at least 100 landowners in Texas who will need to give up their property for the wall. Nationwide, 75 miles of wall have been completed, mostly to replace smaller, older fencing in western states on land the government already controls. CBP says 158 miles total are under construction, while another 276 miles are in a “preconstruction phase.” Landowners are worried that the wall will limit access to the Rio Grande River that sustains their crops and cattle. The Rio Grande creates a natural barrier along nearly two-thirds of the 2,000-mile U.S.-Mexico border.Evidence shows that a wall is unnecessarily expensive and inefficient at controlling migration.

Three contracts have been awarded to build 65 miles of new border fencing, ranging form 18 to 30 feet tall, in the Rio Grande Valley for a cost of $385.7 to $800 million ($5.9 to $12.5 million per mile). On October 31 DHS’ notice that it is necessary to waive certain laws in order to construct barriers and roads near the border in Starr, Hidalgo, and Cameron Counties in Texas takes effect. After protests and marches the new barrier won’t be built in the Santa Ana National Wildlife Refuge, La Lomita Historical Park, Bentsen-Rio Grande Valley State Park, the Vista del Mar Ranch tract of the Lower Rio Grande Valley National Wildlife Refuge or the National Butterfly Center – locations with sensitive habitat and historical sites that had previously been targeted for construction. Since 2006, 654 miles of wall has been built on the U.S.-Mexico border mostly on land obtained from private landowners through eminent domain.DHS has circumvented laws designed to ensure fair compensation to landowners, failed to conduct formal appraisals of land, and issued low-ball offers based on substandard estimates of property values.


Judge Halts Implementation of Rule Expanding Definition of Public Charge

October 14 – U.S. District Judge Malouf Peterson issued a stay in a case brought by 13 states against the implementation of the Administration’s public charge rule that was to take effect October 15. The rule broadened the definition of who constitutes a public charge – and is therefore ineligible for certain immigration status – to include those who receive Medicaid, Social Security disability benefits, food stamps and Section 8 housing. The states argued that the rule violates federal rule-making standards, contradicts earlier Congressional decisions on immigrants’ access to Medicaid and other public benefits, and would keep people — particularly immigrant parents of U.S. citizen children — from getting needed public assistance for which they are eligible. The judge said that DHS was “unmoor[ed] from its Congressionally-delegated authority” because "Congress delegated the implementation and administration of Medicaid [to] the states”. Researchers estimate the rule may affect more than 382,000 people

Court Advances Case Against DHS for Delaying Access to Immigration Files

October 15 – The court certified two nationwide classes of immigrants and attorneys claiming that USCIS and ICE have a systemic pattern and practice of failing to provide access to immigration case records (A-files) within deadlines set by FOIA that require a determination within 30 day. Delays leave individuals and their attorneys unsure how to proceed in their immigration matter and can increase the length of detention, family separation, and the risk of deportation, as well as restrict the ability to travel and access to public assistance. As the judge stated: “Recent immigration policy changes now encourage immigration judges to limit continuances and mandate that asylum application must be resolved within 180 days, detained cases within 60 days, and non-detained cases within one year… While defendants push to accelerate adjudication of immigration cases they routinely fail to timely provide noncitizens a copy of their A-Files. For people attempting to navigate our complex immigration system, often without counsel and in danger of deportation, this is a serious impediment.” At the end of Fiscal Year 2018, USCIS reported a backlog of 41,320 pending requests. This is the first time a court has certified a class in a lawsuit alleging a pattern and practice of violating FOIA.The case is Nightingale et al. v. USCIS et al.

District Court Halts USCIS Policy Limiting the Rights of Child Asylum Applicants

October 15 – The U.S. District Court for the District of Maryland granted a preliminary injunction blocking USCIS’s May 31, 2019 memo limiting who qualifies as an unaccompanied alien child (UAC) and is therefore eligible for USCIS adjudication at a non-adversarial interview (versus needing to appear before a judge). The court found that the new policy violates the Administrative Procedure Act and that the plaintiffs were likely to experience irreparable harm if the new policy was not enjoined during the course of the litigation. The court also ordered USCIS to retract any adverse decision made under the new policy and to revert to its 2013 policy. The case is J.O.P., et al. v. DHS, et al.

Taco Bell Parent Companies to Pay $175,000 Penalty for Immigration Discrimination

October 17 – DOJ’s Civil Rights Division announced  that it reached a settlement with two Texas-based companies that own and operate 78 Taco Bell franchises over immigration-related discrimination. Contrary to the Immigration and Nationality Act's anti-discrimination provision, the companies required specific work documents from lawful permanent residents, but not from U.S. citizens. "Federal law allows all work-authorized individuals, regardless of citizenship status, to choose which valid, legally acceptable documents to present to demonstrate their ability to work in the United States," the DOJ said. The companies will pay a $175,000 penalty, create a $50,000 back-pay fund for employees affected by discrimination, provide anti-discrimination training to some employees, and be subject to DOJ monitoring and reporting.

Trump Withdraws Immigration Fines for those in Church Sanctuary

October 17 – ICE withdrew the fines for "failing to depart the U.S. as previously agreed", ranging from $300,000 to nearly $500,000 for at least seven immigrants living in sanctuary churches around the country including in Texas, North Carolina, Utah, Virginia and Ohio, but reserved the right to reassess the fines. The fines were determined based on a $799 daily rate. In 2017 Trump signed an executive order to collect "all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States." DHS began issuing notices in December 2018 on a case-by-case basis. Attorneys have argued that these fines possibly violate the Constitution.

Trump Issues Proposal to Collect DNA from Detained Immigrants

October 21 – The Administration issued a Notice of Proposed Rulemaking that would authorize DHS to collect DNA from asylum seekers and other undocumented immigrants in detention regardless of whether they have any criminal history. The DNA Fingerprint Act of 2005 allows federal agencies to collect DNA from individuals in their custody, including those who are not American, but previous DOJ regulations DHS from conducting such collection when collection is not possible due to resource limitations. In 2010, then. “In many ways, it’s unnecessary from a law enforcement perspective,” said John Sandweg, a former senior immigration official in the Obama administration. “I don’t understand what you’re going to get out of it. The idea that some guy crossing the border committed a crime, returned, and came back all undetected is very remote.” The proposed rule was published in the federal register on October 22, triggering a 20 day public comment period.
Separately, CBP is expanding its use of facial recognition technology for those 14 to 79 years of age. Concerns exist that this technology makes mistakes, particularly when trying to read black and brown faces, and that it poses a privacy threat because the government could track people without their knowledge. The ACLU found that facial recognition software falsely matched the images of 26 California state lawmakers to mugshots in a public database (a previous test using different software incorrectly matched 28 lawmakers with mugshots). Most people can only match a photo to a stranger in a lineup about 50 percent of the time.  
CBP pledged to delete photos it captures of U.S. citizens within 12 hours of confirming their identities (U.S. citizens can also opt-out) but for non-citizens CBP will hold their data for up to 14 days before transferring it to a DHS database where it will be stored for 75 years. Border search authority essentially allows CBP to skip the Fourth Amendment search protections. CBP said it processed more than 8.3 million travelers using facial recognition last year.  There was recently a data breach that exposed thousands of traveler images. There is a lawsuit pending alleging that CBP failed to comply with Freedom of Information Act requests for documents related to CBP’s use of facial recognition and the administration has also limited journalists’ access to information. ICE and the FBI already scan faces in state driver’s licenses databases to search for criminals and undocumented immigrants. According to one study, 44% of people are opposed to using the software in airports and stadiums and 50% of people are opposed to it being used in retail stores to prevent theft. 

Las Vegas Stops Holding Immigrants on ICE Detainers

October 23 – Las Vegas has suspended its 287(g) program and will no longer be honoring ICE detainer requests, although officials can still notify ICE when someone is going to be released from custody. In a California case last month U.S. District Judge Birotte Jr. ruledthat ICE “detainers” could not be honored based solely on unreliable database records searches. Birotte cited ICE data finding that nearly 800 detainers out of almost 13,000 were explicitly lifted in nine months 2016 because the person was a U.S citizen “or otherwise not subject to removal.” TRAC reported 676 people were turned over to ICE from jails in Clark County last year and the 287(g) program was responsible for 82% of ICE arrests. Las Vegas has with one of the highest populations of undocumented residents in the nation, about one of every 14 people, and Hispanics make up more than 27% of Nevada’s population.

Court Allows Case on Access to Counsel to Move Forward

October 24 – The district court denied the majority of the defendants’ motion to dismiss the complaint challenging barriers to communicating with counsel at three detention facilities in southern California: Theo Lacy, Adelanto, and Musick. The case is Torres v. DHS.

U.S. Commission on Civil Rights Condemns Trump’s Immigration Policies

October 24 – The U.S. Commission on Civil Rights published a report stating that the Administration's asylum and detention policies appear to violate the due process and civil rights of migrants and have created an unnecessary crisis at the southern border, including unsanitary conditions, basic standards of medical and mental health care, putting in particular danger LGBT migrants, and targeting migrants based national origin, language status, and gender", creating “lasting trauma and heartache, and shocking detention conditions for both children and adults." The findings mirror those of a September report by the Health and Human Services’ Office of the Inspector General, which found that migrant children experienced severe trauma as a result of family separations. The eight-member bipartisan commission, which was created by the Civil Rights Act of 1957 and has been reauthorized several times by Congress, is a fact-finding agency aimed at informing national civil rights policy. The commission has no enforcement mechanism and DHS and HHS failed to implement recommendations issued by the commission in 2015. Current recommendations include increased transparency and oversight, and legislation ending family separations, defining acceptable conditions at detention facilities and allocating more funding to reduce the immigration court case backlog. 

Attorney General Rules Two DUIs Create Presumption of Lack of Good Moral Character

October 25 – The Attorney Gengeral affirmed the BIA’s order vacating the IJ's decision to grant cancellation of removal, holding that two or more DUI convictions during the relevant time period establish a presumption of lack of good moral character.The case is Matter of Castillo-Perez. The Immigration and Nationality Act’s (INA) “good moral character” standard requires adherence to the generally accepted moral conventions of the community, and is required for certain forms of relief from removal. For example, because only individuals who possessed good moral character for a 10-year period are eligible for cancellation of removal under INA 240A(b) the individual’s application legal permanent residence should presumptively be denied. Interestingly, the White House does not consider two DUIs to show a lack of good moral character outside of the immigration context. DUIs are also not considered to be “crimes involving moral turpitude”. There is an argument that Congress must amend the statute to add any per seineligibility criteria and that the federal courts may not be required to defer to the decision under Kisor v Wilkie.

Attorney General Limits When Immigrants Past Criminal Convictions Can be Forgiven

October 25 – The Attorney General overruled the BIA’s decisions in Matter of Cota-VargasMatter of Song, and Matter of Estrada to hold that state-court orders that modify, clarify, or otherwise alter a criminal alien’s sentence will only be considered for immigration purposes only if based on a procedural or substantive defect in the underlying criminal proceeding: “these orders will have no effect for immigration purposes if based on reasons unrelated to the merits of the underlying criminal proceeding, such as rehabilitation or the avoidance of immigration consequences”. Matter of Thomas and Matter of Thompson.

USCIS Stops Automatically Granting Fee Waivers for Immigrants who Receive Poverty-Based Public Benefits 

October 25 – USCIS announced that, starting December 2, it will no longer automatically consider someone eligible for a fee waiver of an immigration application processing fee simply for using certain “means-tested” public benefits such as Medicaid, CHIP, the Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families, and Supplemental Security Income (SSI). Immigrants can still qualify for fee waivers if their annual household income is at or under 150% of the federal poverty line or lower or if they can prove financial hardship. Despite USCIS said this willcut costs and standardize the criteria for who is eligible, both of the remaining methods of proving eligibility require more difficult to obtain proof and will be more time consuming to adjudicate. To give one example, USCIS has sent the Migrant Center three letters over the course of 6 weeks asking for one of our client’s taxes even though we have written to them in response to each letter explaining that he just arrived in the U.S. and never worked or filed taxes in 2018 (we sent recent pay stubs and asked that the case be passed to a supervisor, all without getting any response except for the same form letter). This change could affect up to two-thirds of applicants annually.
Seattle and others filed suit saying that this change effectively creates a wealth test for citizenship and will block large numbers of low-income Legal Permanent Residents from becoming citizens. In 2017, nearly 40 percent of all naturalization applications were submitted with a fee waiver. Studies show that fees are a substantial barrier to naturalization. The case is City of Seattle v. DHS.
separate lawsuit alleges that USCIS violated the procedural requirements of the Administrative Procedure Act by adopting the new fee-waiver form and its instructions without undertaking notice-and-comment rulemaking, failed to comply with the requirements of the Paperwork Reduction Act, and adopted these revisions to the form, instructions, and USCIS manuals in a way that is arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with the law. The complaint states that: “USCIS failed to make clear its rationale for the changes, offered shifting and illogical justifications, and relied on assertions that lack supporting data, contradict each other, or contradict the data before the agency”. The case is Northwest Immigrant Rights Project.
Despite USCIS’s crisis-level delays in processing applications, the agency has diverted hundreds of personnel to ICE and CBP, including 233 “employee volunteers” to CBP in FY 2019 and others to ICE offices across the country. Another report indicates that USCIS may issue a regulation transferring over $200 million in applicant and petitioner fees to ICE. USCIS application fees are intended to cover the cost of application processing.

DOJ Changes Hiring and Operating Procedures for the Board of Immigration Appeals

October 29 – Documents obtained under the Freedom of Information Act show how DOJ quietly changed an already opaque hiring procedure on March 8 to permanently place six immigration judges who have been repeatedly accused of bias , have some of the highest asylum denial rates in the country (all over 80% with the national average at 57%), and who have frequently been reversed on appeal (two of the appointees had the third and fourth highest reversal rates in the country), onto the 21-member Board of Immigration Appeals (BIA). The new procedures allow BIA judges to serve from any Immigration Court in the country, can be assigned both immigration cases and appellate cases (although presumably they will not be reviewing their own cases), and will not need to serve a two-year probationary period. Retired immigration judge Schmidt has said that the BIA always had arbitrary hiring procedures that changed with each administration and suffered from “quality control” issues. All six hires come from similar backgrounds: they are immigration judges who previously served in government. The DOJ staffer who made these recommendations – McHenry, appointed in 2018 by then-Attorney General Jeff Sessions –  stated that the judges’ “current federal service was vetted and no negative information that would preclude his appointment” was reported, ignoring their post-vetting time on the bench, including past and/or pending grievances against at least three of the judges. As stated by the American Bar Association: "The most direct route to resolving these reasonable and important concerns would be for DOJ to publicize its hiring criteria, and for the inspector general to conduct an investigation into recent hiring practices.”

We work to ensure that all immigrants facing removal from the U.S. understand their rights under the law, have access to counsel, and are treated fairly and humanely.

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