Law Criminalizing ‘Encouragement or Inducement’ of Immigrants to Live in the US Unlawfully Is Upheld in SCOTUS Case

 

Written by Kelly Chauvin, Summer 2023 Legal Intern for the American Immigration Council

Last month, the U.S. Supreme Court held that a section of immigration law that forbids “encourag[ing] or induc[ing]” a non-citizen to enter or reside in the United States did not violate the U.S. Constitution’s protection of free speech guaranteed in the First Amendment. The Court’s decision, however, places certain limits on the statute’s application.

The case of U.S. v. Hansen involved the prosecution of a fraudster whom the government charged with violating the “encouragement and inducement” statute after he scammed immigrants by promising them a path to U.S. citizenship through adult adoptions. Unfortunately for the victims, this path does not exist.

In fighting the charges, the defendant argued the “encourage or induce” subsection was unconstitutional because in its effort to regulate unprotected speech—like criminal conduct—the law risked infringing on protected speech.

More information https://www.inmigracionyvisas.com/a5789-in-the-US-Is-Upheld-in-SCOTUS-Case.html

What Does Legal Representation Look Like in Immigration Courts Across the Country?

 

Written by Emily Creighton of the American Immigration Council and Jennifer Whitlock of the American Immigration Lawyers Association.

It might seem like a straightforward statistic: 44% of individuals who appear in deportation proceedings have an immigration attorney. But it’s not so simple.

Instead, it is a number that must factor in deportation cases that proceed on expedited timelines and the reality that a person may retain counsel only for a specific stage of a case. The number also changes significantly depending on the location of the immigration court. Legal representation in immigration proceedings is actually quite complex. Depending on how you look at the numbers, the rates of representation can look significantly different.

More information https://www.inmigracionyvisas.com/a5529-legal-representation-in-immigration-court.html

Immigrants Waiting For Their Immigration Records Can Now Challenge Agency Delay

By Emily Creighton www.immigrationimpact.com

A federal court in San Francisco certified two nationwide classes of immigrants and attorneys challenging extreme agency delays in producing immigration case files.

Plaintiffs allege that U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) have a system-wide practice of failing to provide access to immigration case records—called A-Files—within deadlines set by the Freedom of Information Act (FOIA). Without these files, immigrants and their attorneys are at a severe disadvantage in moving forward with their cases.

The court’s decision on Tuesday allows the case to proceed on behalf of all noncitizens and attorneys with delayed FOIA requests, and not simply on behalf of the five individuals who filed the lawsuit.

At the end of Fiscal Year 2018, USCIS reported a backlog of 41,320 pending requests. This means that tens of thousands of individuals did not receive a determination on their A-File FOIA requests within the time period required by law. USCIS admitted that 98% of the FOIA requests that it receives—which would include all the cases in the backlog—are requests for A-Files.

The decision also is significant because this is the first time a court has certified a class in a lawsuit alleging a pattern and practice of violating FOIA.

The Court granted class certification because the problem is widespread. Individuals nationwide experience significant delays in obtaining their immigration records—delays that ultimately harm their cases. By granting class certification, the court could guarantee that all class members receive timely determinations on their FOIA requests.

The attorneys in the case often described the “legal limbo” their clients were forced into. While waiting for the A-Files, their clients could not move on with their immigration cases or, consequently, their lives.

As the Court noted, by summarizing the statements by impacted attorneys, delayed responses to FOIA requests result in, among other things:

“Risk of deportation,” “longer detention time,” “prolonged family separation for clients who have to wait longer for their naturalization cases to be approved in order to file ‘immediate relative’ visa petitions,” “the inability to travel to visit sick family because of risks associated with re-entry while cases are still pending,” and “loss of access to public assistance such as Social Security Income and housing without proof of immigration status.”

The Court focused on the inherent unfairness of a system where immigration agencies push for speedy resolution of immigration cases, but delay access to FOIA records so noncitizens are prevented from fully participating in their own cases:

“The irony should not be lost on anyone that the agencies that are delaying noncitizens’ right to timely obtain copies of their A-Files are the same agencies pushing to accelerate proceedings in immigration cases. 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.”

Rejecting the government’s argument that all FOIA cases are different and so the harm to these individuals can’t be the same, the Court pointed to the delay itself as the injury shared by all members of the class. This delay in responding to the FOIA requests, the Court said, was the “glue” that holds the class together.

Additionally, the Court explained that the plaintiffs don’t have to show that an “egregious policy” exists; it is enough to demonstrate a policy and practice of failing to comply with FOIA.

Members of the certified classes are individuals who filed or will file an A-File FOIA request with USCIS that has been pending or will be pending for more than 30 business days without a determination, including requests that USCIS has sent or will send to ICE for additional review.

Though this case is far from over, this ruling allows class members a meaningful opportunity to challenge the unjust system currently in place. It also gives hope that the agencies will ultimately adhere to the timelines under FOIA established by Congress.

Source: www.immigrationimpact.com

https://www.inmigracionyvisas.com/a4556-Immigrants-Waiting-for-Their-Immigration-Records.html

Which Immigration Cases Will The Supreme Court Rule On This Session?

By Katie Rane www.immigrationimpact.com

The Supreme Court began a new session this October, and in the coming months, the justices will hear several high-profile immigration cases.

These cases involve the attempted termination of the Deferred Action for Childhood Arrivals (DACA) initiative, the highly-criticized killing of a young boy in Mexico by a Border Patrol agent, and the criminal prosecution of immigrant workers.


The Termination of the DACA Initiative

On November 12, the Supreme Court will consider the Trump administration’s decision to end DACA, an Obama-era initiative that offers legal protection to some immigrants who arrived in the United States as children. Previous decisions from lower courts have temporarily stopped the termination.

The plaintiffs in this case (Department of Homeland Security v. Regents of the University of California) claim that the attempted rescission of DACA violates the Administrative Procedure Act (APA). The APA outlines specific procedures that must be followed in implementing large-scale policy changes to prohibit executive decisions that are “arbitrary and capricious.”

The end of DACA would upend the lives of hundreds of thousands of people in the United States and would increase the number of unauthorized immigrants in the United States by nearly 700,000. This could have disastrous effects for DACA recipients, their families, and the country at large.


Young Boy in Mexico Killed by Border Patrol Agent

The Supreme Court will also hear a case on November 12 based on the story of a 15-year-old boy who was shot in Mexico by a Border Patrol agent in the United States. The case is Hernandez v Mesa.

Sergio Hernandez, a Mexican citizen, was playing with a friend in the canal between Juarez, Mexico and El Paso, Texas when Border Patrol agent Jesus Mesa fired shots from the U.S. side. One bullet hit Hernandez, who was on the Mexican side of the border, killing him.

The Court will determine if Hernandez’s family can sue the Border Patrol agent for damages.

In order to recognize the family’s claim for damages, the Court must determine that the agent violated the U.S. Constitution by using excessive, deadly force against Hernandez. In making this determination, the Court will consider whether Agent Mesa is protected under “qualified immunity,” a legal doctrine that protects federal officers from prosecution when they act within the scope of their employment.

Cases involving excessive force and abuse rarely result in serious disciplinary action by the agency. A Bivens remedy in this case would create real consequences for immigration officials who violate noncitizens’ rights.

The Prosecution of Immigrant Workers The immigrant worker case (Kansas v. Garcia) deals with three individuals accused of identity theft—a state crime—based on information they provided in federal employment documents. On October 16, the Supreme Court will address whether federal documents can support state criminal charges and whether federal immigration law prevents states from criminally charging noncitizens for identity theft.

This case highlights a recurring pattern in the prosecution of unauthorized immigrant workers: it is the workers, not the employers, being brought to court.

For example, in the Mississippi ICE raids this summer, a federal investigator testified that there was probable cause to believe that employers hired unauthorized workers “for the purpose of commercial advantage or private financial gain.” Yet none of the employers have been prosecuted.

Each of these cases will have far-reaching policy implications affecting immigrants throughout the United States. Hopefully, the Court will take this opportunity to increase the due process rights of individuals impacted by immigration enforcement in the United States.

Source: www.immigrationimpact.com

https://www.inmigracionyvisas.com/a4550-Immigration-Cases-Will-the-Supreme-Court-Rule.html

DOJ Moves To Further Politicize Immigration Court System

By Katie Shepherd www.immigrationimpact.com 

The Trump administration implemented more drastic changes to the U.S. immigration court system. A new rule gives the director of the Executive Office for Immigration Review (EOIR)—a Trump political appointee—the power to adjudicate cases and appeals. 

Described as a “wolf in sheep’s clothing,” the rule turns the immigration court system into a law enforcement agency and undermines any semblance of judicial independence within the immigration court system. 

The new interim final rule was published by the Department of Justice (DOJ) just days after it was announced by the administration. It allows the director of EOIR to decide cases that “cannot be completed in a timely fashion”–within 90 days for detained cases and 180 days for non-detained cases. The move raises grave concerns about having a political appointee adjudicate immigration cases—essentially allowing the director to shape case law. The director reports to Attorney General William Barr and may now feel beholden to his political whims. 

Currently, only immigration judges, the Board of Immigration Appeals, and the attorney general are permitted to adjudicate cases. The immigration court system is currently housed within the DOJ, the same executive branch agency responsible for prosecuting immigrants in federal court. This is an inherent conflict of interest. 

This summer, the National Association of Immigration Judges (NAIJ), American Immigration Lawyers Association (AILA), and others sent a letter to Congress, calling for an independent immigration court system. 

The new rule has met immediate criticism. NAIJ issued a stinging statement in response, calling the announcement: “An unprecedented attempt at agency overreach to dismantle the Immigration Court,” alleging that the “DOJ’s action ends any transparency and assurance of independent decision making over individual cases.” 

The rule also formalizes the creation of the Office of Policy, which is housed within EOIR and has been in operation since 2017. Many of the more problematic policies issued by EOIR over the past year—including initiatives to speed up deportations and weaken due process protections—have originated from this Office of Policy. The office has remained largely unresponsive to stakeholders seeking clarification or basic information about new policies. 

Monday’s new rule is hardly the first time the Trump administration has taken aim at the immigration court system. 

Earlier this month, the Trump administration moved to decertify the immigration judge’s union, the 40-year-old collective bargaining representative of U.S. immigration judges. 

The House Judiciary Committee issued a strong statement in response: “The Trump Administration has taken unprecedented steps to strip immigration judges of judicial independence by limiting their ability to manage their dockets and make informed discretionary decisions.” 

The committee pledged to hold hearings in the coming months to explore the current state of the immigration court system and the possibility of legislation to create an independent immigration court. 

The new rule has concerning implications for the future of the immigration court system and erosion of due process for the thousands of immigrants whose lives are now in the hands of the EOIR director. 

 

Source: www.immigrationimpact.com 

https://www.inmigracionyvisas.com/a4438-DOJ-Further-Politicize-Immigration-Court-System.html

Tent Immigration Courthouses Are Being Built At The Texas Border

By Melissa Cruz www.immigrationimpact.com 

Immigration judges from across the country will soon be reassigned from their normal caseload to preside over thousands of immigration cases along the U.S.-Mexico border, reportedly in an effort to speed up hearings under the controversial “Remain in Mexico” program. 

To handle the cases faster, the Trump administration is in the process of building makeshift immigration courthouses out of tents in the border towns of Laredo and Brownsville, Texas. 

Immigration judges will conduct these hearings via video teleconferencing from their court rooms, while the individuals will reportedly appear for court in the tents. Contracted assistants will organize the hearings in person by taking roll call, sending case documents to judges, and operating the video systems. 

Over 1,000 people may appear at one of these two courts each day. This means that people who fled violence in their home countries and were then forced to wait in cartel-controlled Mexican towns will be allowed to enter the United States—and the tents—for their hearings. 

The challenges of using a tent for a courthouse include notoriously spotty video teleconferencing with a judge thousands of miles away, and the likelihood that few people will have access to an attorney to guide them through the process. This makes a person’s chance at receiving asylum protections even slimmer. It’s reported that only 1% of people subject to the Remain in Mexico program have been able to obtain a lawyer. 

Department of Homeland Security (DHS) officials expect that around 150 immigration judges will be reassigned to handle the cases of asylum seekers and others who were forced to remain in Mexico while awaiting their U.S. immigration court case. More than 35,000 people have been sent back since Remain in Mexico’s implementation in January 2019. 

Removing judges off their regular dockets to process asylum cases at the border could also worsen the backlog of pending immigration cases. 

Judges will likely need to postpone their own hearings in order to prioritize these cases. This means immigration court cases around the country could be delayed for months or years. 

A former immigration judge under President Trump, Rebecca Jamil, told BuzzFeed News this shuffle could have a profound impact on those waiting for their court hearing outside of the border region: 

“Those families have been waiting for years to have their cases heard, and now will wait another two or three years, and due process is denied by the delay—evidence becomes stale, witnesses die, country conditions change.” 

It’s clear the Trump administration has devastated the U.S. asylum system and continues to disregard the basic due process rights of those seeking protection in the United States.

Source: www.immigrationimpact.com 

https://www.inmigracionyvisas.com/a4431-Tent-Immigration-Courthouses-Are-Being-Built.html

Trump Administration Moves To ‘Disband and Destroy’ Immigration Judges Union

Posted by Melissa Cruz

Immigration judges around the country are denouncing the Trump administration’s latest move to “disband and destroy” their union. 

The judges’ union has been openly critical of the administration’s immigration enforcement agenda. 

The Department of Justice (DOJ) filed a petition to the Federal Labor Relations Authority on Friday asking to revoke the National Association of Immigration Judges’ (NAIJ) union certification. Department officials claim that NAIJ members are “management officials” and therefore banned from collectively organizing. 

Judge Amiena Khan, vice president of NAIJ, says the step to decertify is a “a misguided effort to minimize our impact. We serve as a check and balance… and that’s why they are doing this to us.” 

Under their official capacity as DOJ employees, immigration judges cannot publicly speak out on issues that could be considered political. But representatives of the union can discuss—and criticize—DOJ policies on behalf of its members. They have done so since the union’s founding in 1971. 

But tensions between the department and immigration judges have only escalated in recent years. The union has even called on Congress to remove the immigration court system from the DOJ and establish it as an independent entity. 

In 2018, the Trump administration implemented case completion quotas as part of immigration judges’ performance reviews, compelling them to decide cases under strict deadlines. The quota was set in place to tackle the growing backlog of pending cases, which now totals more than 930,300. 

The quotas do not take the complexity of a case into consideration, nor the due process rights granted to all immigrants in court. Judges also risk termination if they do not complete the quota deadline. 

NAIJ called the move a “death knell for judicial independence in the immigration courts.” 

At the same time, then-Attorney General Jeff Sessions stripped judges of their ability to manage their caseload by taking away a vital case management tool. He also made it more difficult for judges to grant asylum to domestic violence victims, as well as dismiss cases. 

These changes are amounting to a slower system with an increased backlog. Immigration judge and NAIJ President Ashley Tabaddor noted last month: 

“…It’s just a lot of chaos and counterproductive measures that undermine the ability of judges to use their expertise to help a case go through the system.” 

The call to dismantle the union appears to fall under that same goal of undermining and silencing immigration judges. 

NAIJ plans to respond to the administration’s petition once it receives an official notice from the Federal Labor Relations Authority. The agency will then likely investigate NAIJ to determine whether its certification can be revoked. 

The union once faced similar threats under President Bill Clinton and survived. For the sake of due process, the outcome will hopefully be the same this time too. 

 

 

Source: www.immigrationimpact.com 

https://www.inmigracionyvisas.com/a4393-Immigration-judges-are-denouncing-disband-and-destroy-their-union.html

Rushing Immigration Court Cases Through ‘Rocket Dockets’ Deprives Families Of Due Process

In an attempt to rush through immigrant families’ court cases, the government began implementing “rocket dockets” in September 2018 for parents and children who had recently entered the United States together without authorization. The program is intended to discourage Central American families from coming to the United States by quickly deporting those already here. But by drastically shortening the timeline of the court process, the dockets prevent many asylum-seeking families from accessing a meaningful day in court. 

As of June 2019, over 56,000 cases were on these dockets in 10 cities around the country. 

Some immigrant families are only given a matter of weeks to find a lawyer and prepare their cases, and many attorneys report that expedited cases are scheduled too quickly to prepare well. This compressed timeline increases the chances that a family will have to navigate our complex immigration detention and removal system without an attorney. Those who go into court with no representation are much more likely to lose their cases .

Additionally, judges are under increasing pressure to close cases due to strict completion quotas . This adds more incentive to rush through cases at the expense of due process. 

While testifying before Congress in June, acting DHS Secretary Kevin McAleenan claimed that the majority of families did not show up for court. But in fact, 86% of families released from detention attended their hearings from 2001 to 2016. 

Rocket dockets are unnecessary to ensure that people attend their immigration hearings. Immigrant families are generally eager to attend their hearings. These hearings are the only way for them to obtain permanent protections in the United States. The consequences of missing a hearing are also exceptionally high. Immigration judges are generally required to issue in absentiaremoval orders when someone fails to appear. 

Most families who miss court do so by accident. Often, the government has failed to notify them properly. In 2018, judges overturned 44 of 46 in absentia removal orders. The families in those cases had not received notice of their hearing or presented “extraordinary circumstances” for missing court. Thousands of hearing notices arrived after the hearing or to the incorrect address. Others included a date that doesn’t exist , a date on which the court was closed, or no date at all. 

There are meaningful and more effective alternatives available to these rocket dockets. 

To increase court appearances, the Trump administration could restart the Family Case Management Program (FCMP). This program provided individualized comprehensive help to families in five cities at a cost of only $38 per day for a family of two, compared to $592 for family detention . FCMP had a 99% success rate for compliance with court hearings and ICE appointments, but the government nevertheless ended it in June 2017. 

Other simple methods like text or email reminders about hearing dates have proven effective. 

The administration said it aims to discourage parents from traveling with children. To do this, they could reinstate the Central American Minors Program . This program allowed certain children with parents with legal status in the United States to apply as refugees. Hope of a legal path to the United States later may prevent parents from bringing them on the dangerous initial journey.

Instead of fast-tracking the court process, immigration courts should give these families the chance to prepare their cases. The opportunity to seek asylum is an American value—these programs would help restore that value. 

Source: immigrationimpact.com 

https://www.inmigracionyvisas.com/a4386-Rushing-Immigration-Court-Cases-Through.html

Attorney General Barr Rolls Back Asylum Protections For Families

By Aaron Reichlin-Melnick 

Attorney General William Barr issued a decision that significantly restricts the ability of many current asylum seekers to win their cases on Monday. In Matter of L-E-A-, Barr issued a new immigration court decision that says people should generally not be granted asylum if they face persecution because of who their family is.

Many individuals currently qualify for asylum because they have been targeted for persecution based on who is in their family. For example, cartels often kill a target’s relatives to send a message or governments may go after a political dissident’s family as a means of leverage. 

Despite the courts granting such “family-based” asylum claims for years, in Matter of L-E-A-, Barr declared that membership in a family would generally not qualify as “membership in a particular social group” for the purposes of asylum law. This essentially means that families are not “social groups” under the law. Under Barr’s decision, “family-based” asylum could largely be eliminated. Barr left in place only a few exceptions. This includes individuals who come from families of “greater societal import” and people from clan-based societies where family groups are significantly larger than in most Western societies. 

Although Barr did not give an exact definition for families that are of “greater societal important,” it suggests that he believes only some families matter enough to qualify for asylum. For example, the child of a rich and powerful family might qualify for asylum while the child of a poor family might not, even if the motive of the persecutor—and potential for harm or death—is the same. 

Barr’s decision comes slightly more than a year after former Attorney General Jeff Sessions issued a similarly sweeping decision restricting asylum for victims of domestic violence. That decision was decried by former immigration judges as “an affront to the rule of law.” Not surprisingly, asylum grant rates this year have fallen. 

Monday’s decision may also cause the asylum grant rate to go down. Absurdly, the Trump administration is making it harder to win asylum, yet using the very fact that fewer people are winning asylum to argue that Congress should further restrict asylum. Through these artificially created barriers to asylum, the Trump administration is building its own evidence that the asylum process should be reformed—even though individuals’ reasons for fleeing their home countries is unchanged. 

Before Barr issued his decision, an individual in Honduras who was targeted for death because a family member chose to speak out against the gangs would have been able to argue that he was eligible for asylum. After Barr’s decision, such cases will be far harder to win. 

Barr’s decision also flies in the face of years of legal precedent. In a 2015 case, the Fourth Circuit Court of Appeals held that “the family provides a prototypical example of a particular social group.” Indeed, every single federal court to consider whether families qualified for asylum that way agreed that they did. The Ninth Circuit has also declared that “the family remains the quintessential particular social group.” 

Despite this long legacy of historical precedent, Barr declared that his interpretation of the law was binding and that each federal circuit court had come to the wrong conclusion. This declaration of authority will likely be tested as cases affected by his new decision go through the appeals process. 

Many individuals won’t be able to wait for appeals, however. Barr’s decision goes into effect immediately in immigration courts across the country and will be applied at border asylum screenings as well. Regardless of whether a court eventually find that the decision is wrong, asylum seekers today face an even higher bar to winning their cases than ever before. 

As more asylum seekers arrive at the border in 2019 than any previous year, we should be working on ensuring that our system provides full protections to anyone fleeing harm—not working to undermine the basic humanitarian protections that we have offered for decades. Barr’s decision takes us in the wrong direction. 

 

Source: www.immigrationimpact.com 

https://www.inmigracionyvisas.com/a4358-Rolls-Back-Asylum-Protections-for-Families.html

Certain Detained Asylum Seekers Must Receive a Bond Hearing Within 7 Days

Written by Kristin Macleod-Ball 

Attorney General William Barr announced in April 2019 plans to eliminate bond hearings for immigrants who pass an asylum screening interview after entering the United States. This would have forced many people to remain incarcerated for months or years during their asylum proceedings. However, on Tuesday, a federal court recognized that this fundamental attack on due process is unconstitutional. 

A U.S. district court judge found that the government cannot lock up certain detained asylum seekers without giving a bond hearing before an immigration judge. The Seattle judge ordered that those hearings must take place within seven days of requesting one and that immigration courts must provide new legal protections at the hearings. 

This ruling comes after the Attorney General said, in a case called Matter of M-S-, that he would bar immigration courts from deciding whether to release certain asylum seekers held in immigration detention during their often-lengthy asylum proceedings. 

The district court’s recent decision in the Padilla v. ICE case protects these immigrants’ right to a bond hearing. It is set to go into effect on July 16. It applies nationwide to people who enter the United States between ports of entry, are put into a fast-tracked deportation process called expedited removal, and then pass an initial screening interview about their requests for asylum. The government is likely to ask a higher court to overturn the decision. 

In response to Tuesday’s decision, the White House issued a statement. The statement claims that the decision in Padilla would somehow “lead to the further overwhelming of our immigration system” and that amounted to the judge “[imposing] his or her open borders views on the country.” 

Unfortunately, this is merely more of the same from the Trump administration. The White House regularly sends out harmful, anti-immigrant rhetoric with no basis in fact and attacks the courts when judges uphold the Constitution. In reality, Tuesday’s decision simply protects against the Attorney General’s unlawful efforts to upend a half century of standard immigration court procedure by indefinitely and unnecessarily incarcerating asylum seekers. 

No one should be subject to arbitrary imprisonment while seeking asylum. This decision could protect many immigrants who would otherwise spend months or years locked up by the Department of Homeland Security simply because they are seeking protection in the United States.

 

Source: www.immigrationimpact.com  

https://www.inmigracionyvisas.com/a4294-Asylum-Seekers-Must-Receive-a-Bond-Hearing-Within-7-Days.html