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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

JANUARY 2021

NEWSLETTER
 
In This Issue:

OUR UPDATES

Reporter-Telegram Features Executive Director

The Midland Reporter-Telegram quotes our Executive Director on the value of Biden reinstituting the case management program to assist immigrants in attending their court hearings in their article Immigrant groups hopeful and wary of Biden administration. The 2016 pilot program, which served nearly 1,000 people, had a 99% appearance rate with ICE and 100% appearance rate in Immigration Court, according to a report by the Office of the Inspector General. Trump terminated the program.

Calling on Trump and Biden to Grant TPS to Individuals from Countries Affected by Hurricanes Eta and Iota

December 8 - The Migrant Center joined more than 230 organizations in a call to Trump and President-elect Biden to grant immediate protection, in the form of Temporary Protected Status (TPS), to Nicaraguans, El Salvadorans, Hondurans, and Guatemalans due to the devastation wrought by Hurricanes Eta and Iota, that have exacerbated the challenges of extreme poverty, violence, and the adverse effects of COVID-19. More than 4.9 million people are affected and conditions are life-threatening. It is not the time to return people to their countries.

Raising Our Voice for an Independent Immigration Judiciary

December 14 - The Migrant Center joined over 120 organizations in a letter calling for Congress to establish an independent court system. This issue is of fundamental importance to ensuring that the immigration judiciary treats all parties equally and interprets the law in a neutral manner, so that everyone has a fair day in court as required by the due process clause of our Constitution. We have been working on this issue since our founding in the summer of 2017. For more, read our Op-Ed and our Public Comments.

Advocating for Immigrants' Inclusion in COVID Relief Pays Off

The Migrant Center has joined our voice to the community’s call to ensure that immigrants are not left out of congressional COVID relief and protection efforts. We’ve advocated for people to contact their members of Congress and explain how important it is for immigrants to be included. Some of our efforts include:

  • On March 23 the Migrant Center joined over 630 organizations in calling on Congress to include immigrants in the health and economic support measures being considered. Later that evening a House bill was introduced that reflected the language in our letter.
  • On April 21 the Migrant Center joined a letter calling on Congress to pass legislation to ensure that everyone has access to health care, nutrition, and income support they need during COVID-19.
  • On July 21 the Migrant Center joined the community in writing a letter to Congress calling for immigrants to be included in any COVID-19 protection legislation.


On December 21, 2020 Congress passed a spending package that includes COVID relief for mixed-status families for the first time and provides retroactive relief to families who did not receive payment in the CARES Act for up to $1,200 and an additional $500 per child. U.S. citizens and permanent residents who filed a joint tax return with an undocumented spouse will receive a check for $600, as well as $600 per dependent child. An estimated 16.7 million people live in mixed-status households, including 8.2 million U.S.-born or naturalized citizens. A class action lawsuit filed in the spring challenging the CARES Act on behalf of seven US citizen children of undocumented immigrant taxpayers, arguing that the Act unfairly discriminates against these children based on their parents’ immigration status, and denies them equal protection under the law in violation of the Constitution’s due process clause.


The bill also extends several immigration programs that were set to expire:

  • EB-5 Regional Center Program extended only until June 30, 2021.

  • E-Verify program extended until September 30, 2021.

  • Non-minister Special Immigrant Religious Workers Program extended until September 30, 2021.

  • Conrad-30 extended until September 30, 2021.

  • Liberian Refugee Immigration Fairness program filing deadline extended until December 20, 2021, which allows more than 10,000 Liberians and their eligible family members to apply for lawful permanent resident status. Only 2,500 were able to apply by the previous deadline due to COVID-19, including burdensome paperwork requirements and mandatory in-person interviews.

  • Grants DHS authority to issue additional H-2B visas beyond the statutory limit of 66,000. 

On December 27, Trump signed the bill into law.

DON'T MISS: Dream Week Morning Podcasts

ADVOCATING FOR EQUALITY AND JUSTICE FOR IMMIGRANTS UNDER THE BIDEN ADMINISTRATION

Join the Migrant Center in a conversation about where the incoming Biden Administration stands on immigration policy. Come for one or all of our five-part morning “podcast” series to learn about the issues, where Biden still needs to take a position, and how to advocate for positive change.
 

     Monday: Asylum Policy

     Tuesday: Border Policy

     Wednesday: Detention Policy

     Thursday: Interior Enforcement

     Friday: Affirmative Benefits

 

This event runs daily from January 18th until January 22nd from 8:30 AM – 9 AM. Tune in here.

Donate

IMMIGRANT VOICE

Denied My Freedom For No Reason

- By Mr. Ondobo (name changed for confidentiality)

 

I asked both ICE and the judge to release me from detention so I can work on my case outside detention. I think it would be better to prepare my case, I am limited here and don't have the capacity to do my case.

Here there are a lot of people here with COVID and they demand distance between people but there are a lot of people in the dorm and it is difficult and a person can die.

I am not habituated to this situation and I am often depressed. Because of my situation in my country, and in my family, and all this combines in my head and doesn’t put me in a good place. My kids can’t talk to me anymore; they think that I abandoned them. They are not happy. My oldest child is autistic and I was always the one who took care of him.

Immigration denied my release without giving me any explanation. I can’t know why they won’t let me out. I haven’t committed any crimes.

When I arrived in the U.S. I didn’t know how it would be in the U.S. I passed the river because that is the place where my friends said to go; I didn’t have another place in my head. I got a positive on my asylum interview.

The judge said I couldn’t leave detention because my asylum case is in two weeks. My attorney says that the judge decided that I am a flight risk.  I would have done my case outside because I can’t go back to my country. I need to fight however I can to not be deported.
 
 

BACKGROUND: Mr. Ondobo is eligible for release under the same humanitarian and public interest principles that underlie DHS’ Memorandum on Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (issued December 8, 2009, effective January 4, 2010). This memorandum acknowledges that there is little purpose served by keeping a bona fide refugee in detention when their identity is not in question, they have a stable place to live, they are not a danger to the community, and they do not present a flight risk.

In speaking with ICE, we were informed that he was not being released because he didn’t have any particular COVID risk factors, although this is not required to be released. ICE has broad discretion to release individuals and COVID risk factors are only a new, additional way that someone can obtain their release. ICE has the authority to release him on conditional parole under 8 U.S.C. 1226(a)(2)(B), by granting him a $1,500 bond under under 8 U.S.C. 1226(a)(2)(A), or by granting him humanitarian / public interest parole under 212.5(d). Furthermore, our country’s fundamental values of freedom from unnecessary restraint and due process are enshrined in our Constitution.

The Immigration Judge denied his release, finding that, per the BIA’s 2020 case Matter of R-A-V-P-, he presents a flight risk as he has no friends or family in the U.S. However, someone is not a flight risk simply because they do not have community ties. He has a stable place to live with a well-established immigrant shelter that DHS and the Immigration Court have often released asylum seekers to in the past. The shelter assists immigrants with transportation to and from their court hearings, provides English class and other social services, and connects them with attorneys. This solid support system with the shelter’s team of legal and social workers, as well as a network of immigrant support in the community, makes the shelter’s residents have a high court attendance rate. Our office has worked with the shelter for many years and attested to the reliability and stability of the residence before the Immigration Judge.

Mr. Ondobo has had a letter from a license psychologist explaining that his detention is re-triggering his PTSD and that he needs specialized therapy not available at the facility, writing that “the longer his condition is allowed to persist, the harder it will be for Mr. Ondobo to fully recover, even with treatment”. Watch this training video for a fictional demonstration of a mental health evaluation done to support an asylum/withholding/CAT claim.

POLICY ANALYSIS

Why Judicial Flexibility for Continuances, Motions, and Stays of Removal is Important to Ensuring Due Process

On November 27 EOIR issued a Notice of Proposed Rulemaking that limits access to stays of removal and makes it harder for a motion to reopen or reconsider to be granted. Read the Migrant Center's analysis, or listen to our podcast below, to understand more about how these judicial tools help our adjudicators ensure due process. 467 public comments were submitted.
 
Learn about EOIR's Notice of Proposed Rulemaking on Motions to Reopen and Reconsider; Effect of Departure; Stay of Removal.

Bonus Policy Analysis: Why Continuances in Immigration Court are Crucial to Guaranteeing Due Process
On November 27 EOIR published a proposed rule titled “Good Cause for a Continuance in Immigration Proceedings”. Read the Migrant Center's analysis for how the new definition of “good cause” narrows the circumstances in which immigrants can get time to prepare their cases, including the opportunity to seek and obtain an attorney to represent them, takes away judges' discretion to respond to the situation and facts of the case before them, and denies the ability of USCIS to issue a decision on a collateral matter that could grant an immigrant legal status. The public submitted 666 comments to the Administration.


The Migrant Center submitted seven public comments to the Trump Administration in the second half of 2020 as Trump worked to cement his restrictionist immigration agenda before leaving the White House. We have let the Administration know how the proposed regulatory changes will affect the people in our communities, using our years of on the ground experience working daily with immigrants and litigating cases to inform the decision-makers in D.C. We have also maintained an advocacy campaign to encourage others to submit comments. These public comments are important because they can provide the Administration a perspective that hasn't been considered.

 
Support Our Advocacy with the Federal Government
 

IMPORTANT NEWS

Bond Company Libre Settles Investigation for $425,000

December 1 (reported) - Libre by Nexus agreed to pay $425,000 to settle an investigation by the Virginia State Corporation Commission that also imposed severe restrictions on the ability to operate in the state where it was founded, including by curtailing Libre’s ability to collect controversial monthly fees in exchange for helping undocumented immigrants bond out of detention centers. Launched in April 2013 Libre acts as a middleman, using GPS ankle monitors to reassure bond agencies that immigrant clients will show up in court by placing them on ankle monitors and charging $420 a month for the service. Without a bond agency willing to pay, some immigrants are unable to get released from detention. The company’s yearly income nearly doubled to more than $60 million in the last few years. Libre has been under intense scrutiny for having clients sign English contracts they did not understand without knowing they would be placed on an ankle monitor or having large monthly fees to pay. Most immigrants are not authorized to work after being released from detention. Some people reported that they were threatened with being re-detained if they did not pay. Under the agreement, the Bureau of Insurance will monitor the company for the next 30 months.

Libre is under investigation by at least nine additional state or federal agencies, including the U.S. Justice Department, the U.S. Labor Department, the Consumer Financial Protection Bureau, the Colorado Division of Insurance, the California Labor Commissioner’s Office, the California Department of Fair Employment and Housing, and the attorneys general of Virginia, New York and Massachusetts. In August 2019, the attorney general’s office in Washington state reached an agreement for Libre to provide more than $2.7 million in debt relief and refund $58,800 to 140 customers in the state. In November 2020 the California Department of Insurance reached a $5.5 million settlement with Libre — most of it in debt forgiveness — through which it will stop using ankle monitors, after finding that the company had effectively been acting as an unlicensed bail bond agency. The company is also being sued by Buddi - a GPS ankle monitor company - for $7.3 million as well as a former law firm for $1.4 million in unpaid bills. In summer 2020 Libre announced it was replacing its ankle monitor program with a smartphone app.

District Court Sets Aside Interim Final Rules on Work Visas

December 1 - U.S. District Judge White issued an order setting aside DHS’ interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program”, and the Department of Labor interim final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”, providing relief for companies looking to fill and retain critical positions with foreign talent. The court found that the government failed to show good cause to excuse public notice and comment as they took seven months to issue the salary schedules. The Complaint for Declaratory and Injunctive Relief argued that due to inflated salary requirements, employers would be forced to sever relationships with existing foreign national professionals as well as be precluded from hiring and sponsoring new candidates for temporary work and immigrant visas. For example, the annual salary of $58,802 allocated to a mechanical engineer position in Charleston, South Carolina increased to $91,749 overnight. The U.S. issues roughly 85,000 visas to high-skilled foreign workers each year, a large chunk which go to tech, engineering and medical companies. 

Ninth Circuit Upholds Public Charge Preliminary Injunction

December 2 - The Ninth Circuit upheld a preliminary injunction issued against DHS’s public charge rule by district courts in California and Washington, but vacated the entry of a nationwide injunction. The case is City and County of San Francisco, et. al. v. USCIS.

Ninth Circuit Rules All Spouses of Crime Victims Granted U-Visas Can Receive Legal Status

December 3 - The Ninth Circuit en banc held that 8 CFR §214.14(f)(4) is invalid insofar as it requires a derivative U visa spouse to have been married to the principal petitioner when the Form I-918 was filed, rather than when the principal petition is granted. This case applies in the Ninth Circuit. The case is Tovar v. Zuchowski.

Court Enjoins Interim Final Rule Increasing H-1B Prevailing Wage Rates

December 3 - The district court granted a preliminary injunction enjoining the Department of Labor from enforcing the interim final rule issued on October 8, which significantly increased the prevailing wage rates for H-1B, as it was issued without advance notice and comment. The prevailing wage rate dictates what employers must pay immigrant workers. The case is ITServe Alliance, Inc., et al. v. Scalia, et al.

Court Orders Processing of New DACA Applications and Advance Parole to Begin

December 4 - After previously finding that DHS Acting Secretary Wolf’s appointment was not lawful and setting aside his July 2020 memorandum restricting DACA applications, the U.S. District Court for the Eastern District of New York ordered DHS to post a public notice by December 7 that it is accepting first-time requests for DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017. The court also ordered DHS to ensure that one-year deferred action grants and EADs be extended to two years. USCIS is extending to two years the 65,800 one-year EADs already granted. The case is Batalla Vidal, et al., v. Wolf, et al.

Federal Judges Expands Oversight of Mesa Verde Detention Center

December 4 - EOIR issued a Notice of Proposed Rulemaking (NPRM) to implement electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals. The proposed rule would also make changes to the regulations regarding law student filing and accompaniment procedures. Submit your public comment by 11:59 EST on January 4, 2021.

EOIR Proposes Rule on Electronic Filing and Accompaniment Procedures

December 4 - Judge Chhabria expanded oversight of the Mesa Verde detention center in Bakersfield, California, accusing ICE of giving "false testimony" to the court "several times" and obstructing proceedings. The judge wrote that: "It should thus come as no surprise that the Mesa Verde facility experienced a severe and prolonged outbreak during the summer — an outbreak that ICE and GEO made no meaningful effort to prevent and were totally unprepared to respond to." Judge Chhabria said ICE needed a comprehensive plan to anticipate, cope with and respond to a potential coronavirus outbreak inside the facility, but "nine months later they still have not created one." He accused officials of avoiding implementing widespread testing at the facility "for fear that the results would require them to take expensive and logistically challenging safety measures." In November a "rapid surge" in cases among facility staff resulted in 15 staff members contracting COVID-19. Judge Chhabria said "cannot be trusted on their own" to protect detainees at Mesa Verde as a result of "clear evidence of deliberate indifference". The center, with 45 detainees now, is at 11% capacity. The case is Zepeda Rivas et al. v. Jennings et al., case number 20-cv-02731.

DOJ Settles with Texas Company for Giving Preference to Immigrant Workers

December 8 - DOJ signed a settlement agreement with Ikon Systems, LLC, of Texas, resolving claims that it discriminated against U.S. workers by posting job advertisements specifying a preference for temporary work visa holders, and failed to consider a U.S. citizen applicant who applied to such an advertisement.

DOS Changes Refugee Biographic Data Collection

December 8 - The Department of State published a Notice of Proposed Information Collection: Refugee Biographic Data. This proposed change is open for public comment until February 8, 11:59 EST.

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

December 9 - DHS published a Federal Register Notice with information about the automatic nine-month extension of Temporary Protected Status (“TPS”) and work authorization for approximately 300,000 TPS holders, from January 4, 2021, from El Salvador, Haiti, Nicaragua, Sudan, Honduras and Nepal covered by court orders in the Ramos v. Wolf, Bhattarai v. Wolf, and Saget v. Trump. Congress created TPS to protect people from being forcibly returned to a country that is facing an ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions that would make returning life-threatening. Many of those impacted are long-term residents who have lived in the U.S. for close to 20 years since TPS was initially designated. They are part of the country’s “essential critical infrastructure” workforce in occupations such as healthcare, food, and transportation, and are parents to U.S. citizen children. A recent report explains how COVID has resulted in the loss of roughly 500,000 jobs in Honduras, 200,000 jobs in El Salvador, and 104,000 jobs in Guatemala, making it all the more difficult for TPS holders to return.

Ninth Circuit Rules It Has No Authority Over Expedited Removal and Related Credible Fear Proceedings and that Immigration Judges Cannot Reopen Credible Fear Proceedings

December 9 - The Ninth Circuit dismissed the petitions for review of the Immigration Judge’s decisions denying the petitioners’ motions to reopen their credible fear determinations on the basis that judges lack jurisdiction to reopen credible fear proceedings under 8 CFR §1208.30(g)(2)(iv)(A). The court concluded that it lacked jurisdiction under INA §§242(a)(2)(A) to review expedited removal orders and related matters affecting those orders, including underlying negative credible fear determinations. The case is Singh v. Barr.

Ninth Circuit Remands Landownership Asylum Case for Additional BIA Consideration

December 10 - The court granted the petitioner’s unopposed motion to vacate the BIA’s decision in Matter of E-R-A-L-, which pertains to establishing a particular social group based on landownership. On remand, the court instructed the BIA to permit the parties to submit further briefing. The case is Albizures-Lopez v. Barr.

American Institute of Architects Prohibits Solitary Confinement in Building Designs

December 10 - The American Institute of Architects changed its ethics code to prohibit members from designing spaces for solitary confinement and execution. The American Institute of Architects is the main professional organization with over 90,000 members, representing a majority of the profession. The ethics code adopts the UN Standard Minimum Rules ("Mandela Rules") as their definition of solitary confinement. The New York chapter (the largest in the country) has also called on members to "no longer to design unjust, cruel or harmful spaces of incarceration."

DHS and DOJ Finalize Extreme Restrictions on Protection in the U.S.

December 11 - DHS and DOJ published regulations that radically restrict eligibility for asylum, withholding of removal, and protection under the Convention Against Torture, only making minor changes to the June 15 proposed rule that garnered 88,933 organization and individual comments, including a public comment from the Migrant Center. The new regulation takes effect on January 11, 2021, and applies prospectively to applications filed on or after the effective date. Some of the most significant changes include:

  • Allowing immigration judges to “pretermit” asylum applications, meaning immigration judges would not need to hold an individual hearing if they believe the applicant’s application does not make out a prima facie case;

  • Narrowing the definitions of particular social group and political opinion;

  • Defining persecution, emphasizing that the harm must be “severe;”

  • Increasing the burden to prove nexus, and stating that “in general” adjudicators “will not favorably adjudicate claims” where there is interpersonal animus, where claims relate to gangs, or where gender is the basis of the claim, reversing decades of legal precedent;

  • Increasing the burden to prove that an applicant cannot safely relocate internally;

  • Adding nine negative discretionary factors, including:

    • Entering without inspection,

    • Failing to seek asylum in a transit country,

    • Spending more than 14 days in a country of transit,

    • Accruing more than one year of unlawful presence in the United States, and

    • Failing to pay taxes in the United States;

  • Increasing the burden of proving that the applicant has not firmly resettled in a third country;

  • Expanding the definition of frivolous asylum applications;

  • Making it more difficult to prove government acquiescence in Convention Against Torture cases; and

  • Increasing the standard in credible fear interviews;

  • Restricting the types of evidence that asylum seekers may present; and

  • Letting immigration judges label many more asylum applications as “frivolous”, making them ineligible for any type of immigration status at any point in their lives.

EOIR issued a memo (PM 21-09) establishing EOIR policy and procedures regarding  the new regulations. Of note, the memo states: "Although the rulemaking itself is not retroactive, nothing in the rule precludes adjudicators from applying existing authority codified by the rule to pending cases."

Several groups have requested a temporary restraining order in a lawsuit challenging the rule, arguing that the rule violates the Immigration and Nationality Act, the Administrative Procedures Act, the Due Process Clause of the U.S. Constitution, and the United States’ duty under international law not to return people to persecution or torture. The plaintiffs also argue that the rule is procedurally invalid, as it was co-issued by Acting DHS Secretary Wolf, whom multiple courts have declared was unlawfully appointed and therefore lacks the authority to promulgate rules. More than 30 former immigration judges and BIA members submitted an amicus brief arguing that the final rule purports to address problems that either do not exist or can be resolved under existing regulations. The case is Pangea Legal Services, et. al. v. DHS, et. al.

Judge Rules the Public was Due Notice and an Opportunity to Comment on the Change to Prevailing Wage Rates for Immigrant Visas

December 14 - A federal judge granted summary judgment against the Department of Labor (DOL) Interim Final Rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” issued on October 8, 2020, that changed the prevailing wage rates. The judge stated that: "DOL did not sufficiently justify its prediction that advance notice-and-comment procedures would have been contrary to the public interest" and ordered DOL to reissue prevailing wage determinations that had been issued pursuant to the rule. Despite the Administration arguing that the rule would strengthen the economy, the judge agreed that the rule was substantively arbitrary, incorrect, and irrational. The rule would have had a drastic impact on employers across every industry that relies on high-skilled foreign workers, including scientists and medical professionals that could help our country with COVID-19. This decision follows two similar decisions related to the Interim Final Rule. The case is Purdue University v. Scalia.

USCIS Expands Discretionary Criteria Used to Determine Whether to Interview Asylee and Refugee Applicants for Permanent Residency

December 15 - USCIS published a policy alert with updated guidance expanding the discretionary criteria officers use to determine if applicants for permanent residents based on refugee or asylee status should be interviewed, resulting in an increase in the number of applicants interviewed. The new criteria will be applied to any adjustment applications that are filed on December 15 or later. The interview criteria have been added to the USCIS Policy Manual, and these policy manual changes are open for public comment until January 15, 2021.

U.S. to Begin Removing Asylum Seekers to El Salvador

December 15 - DHS announced that the United States and El Salvador have concluded the implementation accords for the Asylum Cooperative Agreement, under which certain migrants requesting asylum or similar humanitarian protection at the border will be transferred to El Salvador to seek protection in El Salvador. There are similar agreements in operation with Guatemala and Honduras.

EOIR Publishes Final Rule Limiting Judicial Rights, Discretion, and Finality of Decision-Making

December 16 - The Executive Office for Immigration Review published its Final Rule on Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure making the Notice of Proposed Rulemaking of August 26 law with very few changes. Read our Public Comment to learn more about the likely harmful effects of this new regulation. The new federal regulation will: 

  • Require briefs to be filed simultaneously by both parties within 21 days and allow each party to request only one briefing extension of no more than 14 days;

  • Completely eliminate the BIA and Immigration Judge's authority to grant motions to reopen sua sponte;

  • Codify the elimination of administrative closure;

  • Authorize the EOIR Director to issue decisions in cases that are not decided within newly imposed time limits; and

  • Allow Immigration Judge's to certify cases directly to the EOIR Director if the Immigration Judge believes the BIA’s decision was incorrect.

The rule will go into effect on January 15, 2021.

EOIR Finalizes Regulation Limiting Access to a Fair Asylum Process

December 16 - The Executive Office for Immigration Review published its Final Rule on Procedures for Asylum and Withholding of Removal adopting the Notice of Proposed Rulemaking of September 23 with little change. It requires that asylum applications be filed within 15 days of the first hearing, states that good cause is not sufficient to continue cases past 180 days, sets strict requirements for filing, and denies a meaningful opportunity to review evidence. Read our Public Comment to learn more about the likely harmful effects of this new regulation. The regulation becomes law on January 15, 2021.

Third Country Transit Bar Becomes Final

December 17 - DHS and DOJ published a Final Rule which, with minor changes, finalizes the Interim Final Rule published at 84 FR 33829 on July 16, 2019 barring from asylum any refugee who traveled through a third country without seeking protection. The rule is effective January 19, 2021. Read our Special Report and Practice Advisory to learn more about how this rule has been implemented in practice and see AILA's practice pointer.

District Court Rules A-Files Must Be Produced Promptly

December 17 - The district court granted declaratory and injunctive relief in the nationwide class challenge to A-File FOIA delays, Nightingale v. USCIS, finding that DHS, USCIS and ICE have a pattern or practice of failing to make timely A-File FOIA determinations. FOIA requires agencies to respond within 20 days, with some exceptions, but wait times have recently been several months. The court ordered defendants to make determinations on all backlogged FOIA requests within 60 days and enjoined defendants from further failing to adhere to the statutory deadlines for A-File FOIA requests. The court stated that the delay “undermines the fairness of immigration proceedings, particularly for the vast number of noncitizens who navigate our immigration system without assistance of counsel” because “FOIA is the only realistic mechanism through which noncitizens can obtain A-Files” these being of “critical importance... to removal defense and legalizing status” and the agencies should have expected a higher number of requests given the Administration’s aggressive enforcement policies. A-Files contain records of interactions with DHS, prior entries, removal orders, statements made to immigration officials, and past applications for immigration benefits. While waiting, immigrants live in legal limbo, often enduring emotional and financial hardship.

EOIR Finalized Dramatic Increases in Filing Fees

December 18 - EOIR published its Final Rule increasing the filing fees for applications, appeals, and motions. The final rule will be effective January 19, 2021. Fee increases are as follows:

  • Form I-589, Application for Withholding of Removal increased from $0 to $50

  • EOIR-26 Notice of Appeal from a Decision of an Immigration Judge increased from $110 to $975.

  • EOIR-29 Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer increased from $110 to $705.

  • EOIR-40 Suspension of Deportation increased from $100 to $305.

  • EOIR-42A Cancellation of Removal for Certain Permanent Residents increased from $100 to $305.

  • EOIR-42B Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents increased from $100 to $360.

  • EOIR-45 Notice of Appeal from a Decision of an Adjudicating Official in a Practitioner Disciplinary Case increased from $110 to $675.

  • Motion to reopen or reconsider before the Office of the Chief Immigration Judge increased from $110 to $145.

  • Motion to reopen or reconsider before the BIA increased from $110 to $895.

    December 18 - EOIR issued a policy memorandum (PM 21-10) memorializing and updating EOIR policy regarding biennial fee reviews, fees, and fee waivers. This memo supersedes and replaces Operating Policies and Procedures Memoranda (OPPM) 06-01, Fee Waiver Form.

    Several organizations have sued and are asking for a stay or preliminary injunction. The case is Catholic Legal Immigration Network, et al., v. Executive Office for Immigration Review, et al.

Honduran Asylum Cooperative Agreement Ready for Implementation

December 18 - DHS announced that the United States and Honduras have concluded the implementation accords for the Asylum Cooperative Agreement, under which certain migrants requesting asylum or similar humanitarian protection at the U.S. border will be transferred to Honduras to seek protection in Honduras.

USCIS Pauses Blank Space Rejection Policy

December 18 - USCIS has agreed to pause implementation, during settlement negotiations,  of the blank space rejection policy starting December 24, 2020; the parties will enter into negotiations to resolve the claims, including a remedy for proposed class members who have already had applications rejected. This policy had USCIS rejecting applications if there was a question left unanswered, even if the question was not applicable, or if USCIS deemed the format or response inappropriate. The policy has led to the rejection of thousands of applications, primarily targeting humanitarian benefits such as asylum applications and T and U visa petitions. However, USCIS also applied the policy to other applications, including I-360s and I-751s. The lawsuit asserts the rejection policy is an unlawful departure from past practice without a reasonable explanation, without publication or notice and comment, is contrary to existing regulations and instructions, and serves no valid basis. If you receive a rejection notice dated after December 24 you can contact counsel for plaintiffs at bspolicy@nwirp.org. The case is Vangala v. USCIS.

Supreme Court Throws Out Suit against Trump’s Census Policy as Premature

December 18 - In a 6-3 ruling the Supreme Court threw out a lawsuit seeking to block Trump’s plan to exclude undocuments immigrants from the population count used to allocate congressional districts to states, stating that “judicial resolution of this dispute is premature” in part because it is not clear what the administration plans to do. December 31 is the statutory deadline to finalize a Census Bureau report containing the final population data, including the number of immigrants to be excluded. It is unclear how this number will be calculated. The Constitution requires apportionment of House seats based on the “whole number of persons in each state.” Trump’s plan could leave several million people uncounted and cause Texas, California, and New Jersey to lose House seats.

District Judge Declines to Order Expedited Bond Hearings for High-Risk COVID Detainees

December 18 - District Judge Robart declined to order speedier bond hearings for detainees in ICE detention in Tacoma who are especially at risk from COVID-19, despite recent cases at the facility. The GEO Group run facility has 1,575 beds, of which approximately 290 are occupied. Some 70 of the 290 detainees are considered high risk for COVID-19 complications due to their age or pre-existing conditions. Judge Robart said he could not conclude that the detention center’s COVID-19 precautions have been unreasonable.  Attorneys also asked for the judge to put a cap on the detention center’s population and to order periodic testing of detainees and staff. Separately, in October a federal judge ordered the release of about 250 detainees from the Adelanto, California, facility to allow for social distancing after dozens tested positive and several were hospitalized. The Ninth Circuit found detainees there had inadequate access to masks, guards were not required to wear masks, there was a lack of cleaning supplies, and new arrivals were not adequately quarantined or tested.

USCIS Drops Fee Schedule Appeal

December 28 - USCIS filed an unopposed Motion for Voluntary Dismissal in its appeal of the District Court’s September 29, 2020 preliminary injunction in ILRC v. Wolf challenging the agency's new fee schedule published on August 3, 2020 and set to go into effect on October 2, 2020. This final rule would have significantly increased certain immigration and naturalization fees, remove certain fee exemptions, change fee waiver requirements, alter premium processing time limits, and modify inter-country adoption processing.

USCIS Extends Parole for CNMI Resident Applicants

December 30 - USCIS announced that it will automatically extend parole, and employment authorization, for Commonwealth of the Northern Mariana Islands parolees who timely applied for CNMI long-term resident status on or before December 31, through June 30, 2021. These are individuals who have This status was created on June 25, 2019 for those who have resided continuously and lawfully in the CNMI since Nov. 28, 2009.

Trump Extends Indefinitely Visa Sanctions for Countries that Deny or Delay Receiving Deportation Flights

December 30 - Trump issued a memorandum extending his April 10, 2020 memorandum imposing visa sanctions on any country that denies or delays the acceptance of its citizens, subjects, nationals, or residents, during COVID-19. The memorandum is in force until terminated.

Ninth Circuit Allows Bar on Immigrant Visas for Individuals without Health Insurance

December 31 - In a 2-1 decision the Ninth Circuit lifted a nationwide preliminary injunction on Trump’s October 2019 Proclamation 9945 barring entry to immigrants without health insurance or the means to pay for hospital bills, ruling that the proclamation was within the president’s executive authority. The dissent wrote: “The Proclamation overrides both the Affordable Care Act (“ACA”), which makes recently arrived lawful immigrants eligible for subsidized health insurance plans… and the public charge rule of the Immigration and Nationality Act (“INA”), which comprehensively addresses the circumstances under which individuals may be excluded from this country due to their limited financial means or the financial burdens they will place on others”. The injunction will remain in place until the mandate issues in approximately 45 days. The case is Doe, et al., v. Trump, et al.

Trump Extends Visa Ban for Another Three Months

December 31 - Trump extended his April 2020 immigration proclamation limiting immigration, extended in June 2020 to include some guest worker visas, through March 31, 2021. The proclamation covers visas for workers transferring jobs within companies that already employ them, for highly skilled workers in specialized occupations, for seasonal workers employed during U.S. labor shortages, and for cultural exchange visitors, including trainees, interns and work-study programs. Foreign workers have long been shown to help the American economy.

In October 2020, a federal judge issued a preliminary injunction to block Trump’s ban on foreign guest workers - but only applied the injunction to the plaintiffs - finding the ban would cause “irreparable harm” to the businesses by interfering with their operations and leading them to lay off employees and close open positions. The court further found:

  • The President’s power to limit entry to the United States is intended to address foreign policy and national security interests, not domestic policy such as the U.S. economy.

  • The ban would essentially replace several U.S. laws allowing work visas. These laws already include protections for U.S. citizen workers, by preventing the government from issuing work visas if doing so would displace U.S. workers.

  • The proclamation did not include any evidence showing that banning foreign workers would actually help the U.S. economy or U.S. citizen workers.

The Department of Justice appealed the decision to the Ninth Circuit. The cases is National Association of Manufacturers v. U.S. Department of Homeland Security.

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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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