Administratively Close Immigration Court Cases May Soon be Reopened

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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)

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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.


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.”

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Asylum Seekers who Fear Domestic Abuse or LGBTQ Persecution Ineligible for U.S. Asylum

Asylum seekers can no longer seek asylum in the U.S. citing fears of domestic abuse, gang violence or fear as a LGBTQ individual .  On June 11, 2018, U.S. Attorney General Jeff Sessions referred a Board of Immigration Appeals case to himself and issued a decision stating members of particular “social groups,” including domestic violence victims and LGBTQ individuals cannot file a petition for asylum.  He reversed an immigration appeals court ruling that granted it to a Salvadoran woman who said she had been sexually, emotionally and physically abused by her husband (Matter of AB-, 27 I&N Dec. 227 (A.G. 2018)).

Asylum, the right to remain in the country,requires proof that an immigrant faces persecution because of his or her race, religion, nationality, political views or membership in a particular social group. It includes private abuses that the home government is unable or unwilling to control. (more…)

TSA New Secret Watch List “95 List”

TSA (Transportation Security Administration) has created a new secret watch list also known as a “95 list” to monitor people who may be targeted as potential threats at airport checkpoints.  “While people on the list are not necessarily subject to additional scrutiny, it seems likely that agents would single them out for additional attention, and there is no way to get off the list,” said Faiza Patel, a director of the Liberty and National Security Program at New York University’s Brennan Center for Justice.

Federal security directors, top TSA. security officials at airports and top Air Marshals supervisors can nominate individuals to be put on the watch list. Only the TSA administrator, his deputy and the top two officials at the agency’s Office of Intelligence and Analysis may add or remove people from the database

Individuals can be placed on the “95 list” for the following:

  • they have swatted away security screeners’ hands;
  • appeared unruly;
  • their actions pose physical danger to security screeners;
  • people who loiter suspiciously near security checkpoints;
  • people who present “challenges to the safe and effective completion of screening”

So far, the names of fewer than 50 people (more…)

Recall of 8,500 Green Cards for Incorrect “Resident Since” date

On May 14, U.S. Citizenship & Immigration Services (USCIS) began recalling approximately 8,500 Permanent Resident Cards (also known as Green Cards), that contain an incorrect “Resident Since” date. We issued these cards between February and April 2018 to spouses of U.S. citizens after  we approved their Form I-751, Petition to Remove Conditions of Residence. The correct “Resident Since” date on the new Green Card should be the same as the “Residence Since” date on the expired two-year Green Card.

Our office has already received letters from USCIS asking to mail back to return the incorrect green cards and a replacement card with the correct “Resident Since” date will be issued in three (3) months.

Trump terminate Honduras TPS effective January 5, 2020

Trump terminate Honduras TPS designation, with a delayed effective date of January 5, 2020. Honduran citizens with current TPS registration will be required to re-register and apply for Employment Authorization Documents (EADs) in order to legally work in the U.S. until the termination becomes effective. 

Nearly 90,000 Hondurans who have lived in the US at least two decades could be forced to leave the country after the Trump administration decided Friday to end protections for the immigrants that go back to the 1990s.

The move brings the total number of immigrants for whom the administration has decided to end temporary protected status in the last year to more than 425,000, many who have lived in the US legally for decades, according to numbers from US Citizenship and Immigration Services.


Immigration Judges New Performance Matrix will create Speedier Deportations

The Department of Justice will be implementing a new performance metrics for immigration judges on October 1, 2018.  The Justice Department official said the new metrics will require immigration judges to complete three cases per workday.  The average cases completed per year by immigration judges, per the official, is fewer than 680. The new metric will require judges to complete 700 cases per year. Completing fewer than 560 cases per year would result in the judge being evaluated at the “unsatisfactory” level.  Many worry that immigration judges will be forced to adjudicate cases more quickly, rush immigrant defendants through the system without the opportunity to obtain an immigration attorney, without an opportunity to present evidence or to present their claim in a manner that’s appropriate with due process.

The requirement to complete a removal/deportation in cases in 3 days from the hearing where the immigrant is detained (10 days when the immigrant is not detained) is nearly impossible for an immigration attorney.  The immigrant defendant and attorney cannot gather evidence to support a claim for relief and file documents in court in 3 days or even 10 days.  Usually when an immigrant is detained, an immigration judge can complete the case in 30 days – giving the government attorney and immigrant defendant reasonable time to gather evidence and present oral testimony.  These new performance metrics for immigration judges is putting a place a new system that will generate more appeals and strip defendants of a fair opportunity to fully prepare and present this case in court (a right referred to a due process). (more…)

Five Ways Trump Successfully Cut Immigration Benefits

“When it comes to putting immigrants on a path to deportation, it doesn’t seem to matter how long they’ve been here, the conditions they fled in the first place, the contributions they have made or the impact on their families, employers and communities, or the fact that they’ve had legal status for years and years,” said Frank Sharry, executive director of America’s Voice, a progressive immigration reform advocacy group.  “The bottom line seems to be this: get ready to get out; this is especially true if you are from what the president calls ‘shithole countries,’ ” he added.  The termination of special protection programs show that Trump and Homeland Security Secretary Kirstjen Nielsen are “intent on driving millions of immigrants out of the country.” 

#1: DACA

In September 2017, Trump ended Deferred Action for Childhood Arrivals (DACA) and the decision directly affected around 690,000 so-called Dreamers — immigrants who arrived in the country illegally as minors who were given an employment card and deportation protection.

The 690,000 pre-enrolled DACA recipients can currently maintain and renew their two-year permits thanks to a federal court order against Trump’s move to end the program. But uncertainty over the program’s future has created a slew of other issues for the program’s beneficiaries.

#2: TPS

Under Trump, the Department of Homeland Security has announced the end of Temporary Protected Status (TPS) for 260,000 Salvadorans, 60,000 Haitians, 5,000 Nicaraguans and a few hundred Sudanese.  Salvadoran TPS has been renewed every 18 months since 2001, after two earthquakes hit the country.  TPS allows citizens of countries that are going through man-made or natural disasters to live and work in the United States.

#3: ICE

Immigration and Customs Enforcement (ICE) is the federal government’s top immigration law enforcement agency.  Under Trump, the agency has become “unshackled,” allowing it to prioritize for deportation immigrants who were deemed out of bounds by previous administrations.  ICE can no longer use prosecutorial discretion to stop or pause deportation so the deportee can remain united with his U.S. citizen spouse or minor child.  Trump implementation of the Criminal Alien Program also denies bond to permanent residents facing criminal cases (even though not convicted and simple charged with deportable offense).  Trump has also placed new performance matrix on immigration judges creating unattainable timeframes for completing an immigration case resulting in a deportation mill at the immigration court.


United States Citizenship and Immigration Services (USCIS) is the agency that grants visas, permanent residency and citizenship to foreign applicants.  Under Trump, USCIS Director Francis Cissna changed the agency’s mission statement, removing references to the United States as a “nation of immigrants” in favor of language about “protecting Americans.”

USCIS is considering a proposal to tighten the rules on foreign citizens’ use of tax breaks and welfare programs, said Tyler Houlton, a spokesman for Homeland Security.  If the White House approves the proposal, foreigners on visas or with permanent residency could be barred from using popular tax breaks, like the earned income tax credit or public health subsidies.

#5: Refugees and travel ban

Trump issued an executive order in January 2017 banning the entry of citizens from seven predominantly Muslim countries to the United States.  The so-called travel ban was blocked by three courts using Trump’s public statements as evidence that it unfairly targeted Muslims.  But after each reversal in court, the administration released a new set of rules to impose a travel ban that could pass constitutional muster.  The Supreme Court is scheduled to permanently rule on the travel ban’s constitutionality in early May 2018.