Immigration Case About Indefinite Detention Hits the U.S. Supreme Court – Nielsen v. Preap

Next Wednesday,  the U.S. Supreme Court (with Trump new appointee, Justice Kavanaugh) will decide Nielsen v. Preap and determine whether thousands of longtime U.S. residents face indefinite detention without a hearing.  Nielsen is a class action brought by a group of immigrants in the Ninth Circuit who have been or are being detained under 8 U.S.C. § 1226, a provision of the Immigration and Nationality Act. That section authorizes federal authorities to detain any alien who may be subject to “removal”—the technical term for deportation. That term covers a lot of immigrants—border-crossers arrested after entering the U.S. illegally, tourists or students who have overstayed their visas, and lawful permanent residents who have committed certain crimes.

The issue to be decided by the U.S. Supreme Court is whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

The statute creates two classes of “removable” aliens—first, ordinary detainees who have NOT committed crimes but are facing removal on other grounds and second, “criminal aliens” facing removal because of criminal convictions.

For the “criminal alien” group, the statute says that “when the alien is released” from imprisonment, the government “shall take [him or her] into custody.” These immigrants get no bond hearing; they must be held in detention until their cases are resolved.

This is the issue in Nielsen v. Preap: It is not whether authorities can detain these aliens—they can. But does the statute really deny bond hearings to “criminal aliens” who have been released and has returned to a community, established a family and put down roots, and lived a blameless life since that brush with the law? In other words, can criminal aliens be detained indefinitely without bond ONLY when release from prison straight into ICE custody OR can criminal aliens be detained indefinitely without bond when release from prison straight into ICE custody AND even is released into the community and later apprehended by ICE.

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Trump Travel Ban #3 Upheld by U.S. Supreme Court – Comparison to Travel Ban #1 & #2 |

The U.S. Supreme Court upheld President Trump Travel ban on travel from several predominantly Muslim countries, delivering to the president on Tuesday a political victory and an endorsement of his power to control immigration at a time of political upheaval about the treatment of migrants at the Mexican border.

In a 5-to-4 vote, the court’s conservatives said that the president’s power to secure the country’s borders, delegated by Congress over decades of immigration lawmaking, was not undermined by Mr. Trump’s history of incendiary statements about the dangers he said Muslims pose to the United States.

Below is a New York Times comparative of Travel Ban 1, Travel Ban 2 and Travel 3 (ultimately held to be lawful):

 

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Immigration Medical Exam – New Changes Effective 10/01/2018

Please beware that starting October 1,  2018,  the tuberculin skin test (TST) will no longer be accepted for US Citizenship and Immigration Services (USCIS) I-693 Form Report of Medical Examination and Vaccination Record.

All applicants ages 2 and up will now be required to obtain a TB blood test (interferon-gamma release assay or IGRA) as the initial TB screening method.

This new TB blood test will bear the following consequences:

  • Children will be subjected to venipuncture (blood work)
  • There will be an increase in the price of the medical exam
  • The sealed envelope will be ready in 4-5 business days instead of 2 days as previously promised.

Questions regarding Form I-693 Report of Medical Examination and Vaccination Record:

Q1. Can a civil surgeon accept identification issued in an applicant’s maiden name if she also provides a marriage certificate? How does the civil surgeon notate this if the Form I-693 is completed in her married name but the identity document is in her maiden name?

A1. Yes. A civil surgeon can accept government-issued identification (more…)

Immigration Judge Limited in Granting Motion for Continuance

Attorney General’s decision in Matter of L-A-B-R-, limits the discretion of the immigration judges to grant motion for continuance.  In Matter of L-A-B-R- et al.,  27 I&N Dec. 245 (A.G. 2018), the Attorney General referred the decisions of the Board of Immigration Appeals to himself for review.  An Immigration Judge is authorized to “grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017).  Under what circumstances does “good cause” exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?”

What is a motion for continuance? A continuance or adjournment is a docket-management tool that an Immigration Judge (IJ) may utilize to move an upcoming hearing from one scheduled date to another or to pause an ongoing hearing and move it to a future date.  Basically a continuance is a postponement or rescheduling of a hearing date to a future date.

When should you ask for a continuance? Motion for Continuance may be requested in a variety of circumstances, including, but not limited to, the following:

1. To request time for the respondent to acquire an attorney;

2. To request time for attorney preparation or evidence-gathering;

3. When a medical problem or other emergency prevents either the respondent or the attorney from appearing at a hearing;

4. When either the attorney or the respondent has an unexpected conflict with a hearing;

5. When the respondent is awaiting adjudication of a form of relief outside of immigration court, such as an I-130 Petition for Alien Relative or any USCIS-adjudicated application;

6. When the respondent is not competent to proceed;

7. To pursue a family court order when seeking Special Immigrant Juvenile Status;

8. To await the outcome of a pending direct appeal of a criminal conviction;

9. To await the outcome of pending post-conviction relief; or

10. To give DHS the opportunity to correct a defective or incomplete Notice to Appear (“NTA”) and to permit the respondent an opportunity to respond to the new charges.

As with all continuances, the party requesting the continuance—in these examples, the respondent—bears the burden of proof to show good cause for the continuance.

What is the difference between a motion for continuance and motion for administrative closure? Administrative closure (more…)

New redesigned Permanent Resident Card (“Green Cards”) and Employment Authorization Document

U.S. Citizenship and Immigration Services began issuing redesigned versions of the Permanent Resident Card (aka a “Green Cards”) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project.

The redesigned cards use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant than the ones currently in use.

USCIS states that the new card designs are part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and f raud and demonstrate USCIS’ commitment to continue taking a proactive approach against the threat of document tampering and fraud.

The new Permanent Resident (Green Cards) and EAD Cards will:

  1. Display the individual’s photos on both sides;
  2. Show a unique graphic image and color palette:
  3. Have embedded holographic images; and
  4. No longer display the individual’s signature.
  5. EAD cards will have an image of a bald eagle and a predominately red palette;
  6. Permanent Resident Cards (Green Cards) will have an image of the Statue of Liberty and a predominately green palette;
  7. Permanent Resident Cards (Green Cards) will no longer have an optical stripe on the back.

Both the existing and the new Permanent Resident Cards (Green Cards) and EADs will (more…)

I-751 Receipt Extends Status 18 months

We have seen longer delays by USCIS in the adjudication of Form I-751, Petitions to Remove Conditions on Residence, with adjudication trends currently longer than 12 months.

As of June 11, 2018, petitioners who file Form I-751, Petition to Remove Conditions on Residence, or Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, will receive a Form I-751 receipt notice that can be presented with their Form I-551, Permanent Resident Card, as evidence of continued status for 18 months past the expiration date on their Permanent Resident Card.

We are making the change from 12 to 18 months because current processing times for Form I-751 and Form I-829 have increased over the past year.

Additionally, we will issue new Form I-797 receipt notices to eligible conditional permanent residents whose Form I-751 or I-829 was still pending as of June 11, 2018. Those Form I-797 receipt notices will also serve as evidence of continued status for 18 months past the expiration date on petitioner’s Permanent Resident Card. (more…)

Administratively Close Immigration Court Cases May Soon be Reopened

Symbol of law and justice in the empty courtroom, law and justice concept, blue tone

In a case (Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018)) he had previously referred to himself for review, the attorney general held that Immigration Judges and the Board of Immigration Appeals have no general authority to administratively close immigration court cases. Accordingly, Immigration Judges and the Board of Immigration Appeal may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. Where a case has been administratively closed without such authority, the IJ or the BIA shall recalendar the case on the motion of either party.

Attorney General Jeff Sessions writes, “I hold that immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. (more…)

Travel Ban 3 upheld by U.S. Supreme Court

The Supreme Court upheld President Trump’s September 24, 2017 Proclamation (Travel Ban 3.0), which currently excludes nationals from seven countries, stating that the proclamation was “squarely within the scope of Presidential authority under the INA.” (Trump v. Hawaii, 6/26/18)

As a result of this review, the following countries were deemed to have inadequate identity management protocols, information sharing practices and risk factors: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. While it was also determined that Iraq did not meet the baseline requirements, nationals of Iraq will not be subject to any outright ban on travel, but will be subject to additional screening measures.

Currently, nationals of seven countries, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen are subject to various travel restrictions contained in Presidential Proclamation 9645, as outlined in the following table, subject to exceptions and waivers set forth in in the Proclamation. (more…)

Immigration Denial without issuing Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

Blue folder with the label Immigration Law

Effective September 11, 2018, U.S. Citizenship and Immigration Services (USCIS) will deny an immigration application or petition without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility.  So, it will be important to file your immigration petitions will ALL required evidence as lack of evidence and civil documents will lead to a denial.  In some cases, denials can lead to deportation in immigration court.  USCIS will not send applicants a letter asking for the missing evidence or document (known as Request for Evidence (RFE)).  Unfortunately, an innocent mistake or misunderstanding of what documents should have been submitted with the immigration petition will lead to a denial of your application.  Note, USCIS will still cash your check and accept the filing fee but will deny your application.  It is very important to understand that immigration is more than filing out a form – immigration benefits are based on a complex set of Federal immigration laws.  Consult with an Attorney Gail Seeram, an experienced immigration lawyer named Best Lawyer 2016-2019 before submitting an application that may be denied!

Examples of cases where the issuance of an immigration denial may be appropriate without prior issuance of a Request for Evidence (RFE) or Notice of Intent to Deny (NOID):

  1. Waiver applications submitted with little to no supporting evidence of extreme hardship or a qualifying relative;
  2. Submitting an affidavit of support that doe not meet the poverty guideline or the sponsor not have required income;
  3. Family-based visa petitions (I-130) filed for family members under categories that are not authorized by statute; and
  4. At the discretion of the officer.

This means that visa applicants can suddenly find themselves on a path toward deportation. This also seems to be another attack on legal immigration and the administration seems to be seeking to deport legal applicants for minor technicalities.

Whenever possible it is now even more important to file applications/petitions as early as possible to give applicants the best chance of having their case adjudicated before their status or visa expires. It is essential to make sure the files are complete and accurate.

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Notice to Appear with no time and place for Removal Proceedings is Invalid

“Symbol of law and justice in the empty courtroom, law and justice concept.”

In its June 21, 2018, decision, the Supreme Court reversed the First Circuit Court of Appeals. Justice Sotomayor, writing for the 8-Justice majority, began her opinion by stating what the majority viewed as the narrow question in the case and the simple answer:

If the Government serves a noncitizen with a document that is labeled “notice to appear,” but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule? The answer is as obvious as it seems: No. A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a “notice to appear” and therefore does not trigger the stop-time rule.

The Supreme Court stated that the cancellation of removal stop-time rule provides that “any period of . . . continuous physical presence” is “deemed to end . . . when the alien is served a notice to appear. The Court concluded: “Thus, based on the plain text of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings.”

The Supreme Court observed that “in the case of any change or postponement in the time and place of [removal] proceedings,” the Government shall give the noncitizen “written notice . . . specifying . . . the new time or place of the proceedings.”  The Supreme Court stated: “By allowing for a ‘change or postponement’ of the proceedings to a ‘new time or place,’ presumes that the government has already served a ‘notice to appear’ that would need to be amended with the new time or place of the proceedings.

Finally, the Court stated that common sense supported its ruling. The Court stated: “If the three words ‘notice to appear’ mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens ‘notice’ of the information, i.e., the ‘time’ and ‘place,’ that would enable them ‘to appear’ at the removal hearing in the first place.”

For more information on Notice to Appear,

text or call 407-292-7730 or email gail@gaillaw.com

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