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04/14/11 | Court Protects Immigrants' Right To Reopen Cases From Outside the U.S.

A federal appellate court recently reversed a Board of Immigration Appeals’ (BIA) decision that would have prevented noncitizens from presenting new evidence in their removal cases – evidence that potentially could change the outcome – because they are outside the United States. As the Legal Action Center of the American Immigration Council and the National Immigration Project of the National Lawyers Guild argued in an amicus brief, Congress enacted laws that allow noncitizens to pursue their cases from outside the U.S. The decision from the U.S. Court of Appeals for the Ninth Circuit is the latest in a series of decisions rejecting the government's position that immigration judges and the BIA lack jurisdiction over such cases.

Federal law gives noncitizens 90 days to file a “motion to reopen,” a procedural mechanism for submitting new evidence after a removal order becomes final. But the BIA has long maintained that it cannot consider a motion to reopen if a foreign national is outside the United States. The court rejected the government’s position, emphasizing that allowing the immigration courts to refuse to hear motions in these cases enables the Department of Homeland Security to unilaterally restrict the opportunity to seek reopening by deporting a person before the deadline for filing a motion to reopen. As the court concluded, the government’s position “completely eviscerate[s] the statutory right to reopen provided by Congress.”

“Five appellate courts have found that the bar to motions to reopen from outside the U.S. is unlawful. It is past time for the government to withdraw this outdated regulation rather than proceed with costly litigation,” said Beth Werlin of the American Immigration Council’s Legal Action Center.

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04/13/11 | Federal Court Decision Protects H-1B Employees from Wrongful Arrest

Washington D.C. - A recent ruling from a federal judge in Connecticut confirmed that—as the American Immigration Council (AIC) and the American Immigration Lawyers Association (AILA) argued in an amicus brief—the government may not arrest H-1B employees for whom timely-filed extension applications remain pending. The decision in El Badrawi v. United States, by U.S. District Judge Janet C. Hall, correctly recognized that a federal regulation allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications, and that “work authorization is part and parcel of their authorization to be in the country, not a separate matter.” Permitting the initiation of removal proceedings during this period would thus be unfair to employees and employers alike, according to the decision.

The plaintiff, a Lebanese national, was gainfully employed as a medical researcher when his employer requested an H-1B extension in early 2004, more than a month before his H-1B status expired. Though his employer paid a $1,000 fee for premium processing of the application, the government never adjudicated it and refused to respond to requests for information. Nearly seven months after the request was filed, immigration agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months.

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04/13/11 | American Immigration Council Urges DHS to Undertake Regulatory Reform

In response to the Department of Homeland Security’s request for comments in connection with a review of its existing regulations, the American Immigration Council highlighted several issues of concern. We urge the Department to: (1) promulgate additional regulations to clarify that the right to counsel applies in all DHS proceedings; (2) expand existing regulations to clarify the types of delays that justify stopping the Employment Authorization Document (EAD) asylum clock and distinguish the EAD asylum clock from EOIR’s asylum adjudication clock; and (3) promulgate new regulations that ensure more effective oversight over the issuance of detainers and better protect those subject to detainers. Our letter describes these three requests and provides additional details regarding the need for regulatory reform.

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04/12/11 | American Immigration Council Hails Decision Enjoining Enforcement of Arizona’s SB 1070

Washington, D.C - The American Immigration Council applauds yesterday’s decision of the U.S. Court of Appeals for the Ninth Circuit upholding a preliminary injunction against the key provisions of Arizona’s SB 1070.  As the court correctly recognized, Arizona’s misguided attempt to drive immigrants from the state interferes with the federal government’s exclusive authority to enforce immigration law, has negatively impacted U.S. foreign relations, and reflects the dangers of allowing states to enact a patchwork of conflicting regulations.  The Ninth Circuit also rightly rejected Arizona’s claim that state police have “inherent authority” to enforce federal immigration laws and held that Congress intended state officers to “aid in immigration enforcement only under the close supervision of the Attorney General.”

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04/11/11 | Filling the Leadership Void: What is President Obama’s Vision on Immigration?

Washington D.C. - More than two years into the Obama Administration, it is still unclear whether President Obama’s immigration agenda will ultimately be remembered as an enforcement-driven enterprise, or one that uses the full force of executive branch authority to improve our badly broken system. On the one hand, the President continues to voice support for comprehensive immigration reform that would create a new immigration system that is more fair, just, and practical than the unworkable system now in place. On the other hand, the Administration repeatedly trumpets the fact that it is deporting more people with greater efficiency than its predecessors. When confronted by this apparent contradiction, Administration officials claim that, in the absence of Congressional action, their hands are tied and they must simply enforce the dysfunctional laws that are now on the books. This response ignores the important and completely legitimate role that the Executive branch of government has always played in interpreting and implementing existing laws.

It is time for the Administration to more clearly define a vision for what its legacy on immigration will be, then take action to ensure that vision is reflected in its interpretation and implementation of immigration law. Without bold and decisive action, President Obama’s legacy on immigration will come to be defined by a do-nothing Congress with a chronic inability to pass legislative reform.

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04/06/11 | AILA/AIC Letter to Secretary Napolitano on DHS' Use of Prosecutorial Discretion

AILA and AIC submitted a letter to DHS Secretary Janet Napolitano expressing concerns and offering assistance and perspective with respect to implementing a well-balanced policy on the exercise of prosecutorial discretion.

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04/06/11 | Defense of Marriage Act letters to DHS, EOIR and OIL

AILA and AIC, joined by dozens of other organizations, submitted letters to DHS, EOIR and OIL urging the adoption of interim measures in immigration cases involving same-sex marriages pending final judicial or legislative resolution regarding Section 3 of the Defense of Marriage Act (DOMA). Among the interim measures proposed, the letters ask the agencies to hold in abeyance all petitions and applications that are based upon a same-sex marriage and to administratively close or otherwise continue all removal cases in which relief may be available based upon a same-sex marriage.

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04/05/11 | House Subcommittee Continues Assault on All Forms of Immigration

Washington D.C. - Opponents of immigration reform are often quick to differentiate their disdain for unauthorized immigration from their alleged support of legal immigration. However, finding any evidence of that support has always been elusive and, over the past several months, the House Subcommittee on Immigration Policy and Enforcement has conducted hearings that question the value of all forms of immigration. They continue to perpetuate the myth that all immigrants - including legal immigrants - are stealing jobs from native-born workers.

Today, the committee continues these same attacks on legal channels of immigration with a hearing on diversity visas, a program which provides 55,000 green cards annually by lottery to persons from countries that do not currently send many immigrants to the United States. The diversity visa is a relatively small program designed to increase the diversity of our immigrant flows. One prime example of a diversity visa winner is famed soccer player Freddy Adu.

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04/04/11 | American Immigration Council Urges DOJ to Undertake Regulatory Reform

In response to the Department of Justice’s request for comments regarding a review of its existing regulations, the American Immigration Council highlighted several issues we previously have brought to the attention of the Executive Office for Immigration Review. We urge the Department to: (1) withdraw the departure bar to motions to reopen; (2) issue clear yet flexible rules governing ineffective assistance of counsel claims; (3) initiate a rulemaking process to establish fair removal procedures for noncitizens with mental disabilities; and (4) consider regulatory amendments that would remedy Employment Authorization Document asylum clock problems. Our letter describes these four requests and provides accompanying information detailing the need for regulatory reform.

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03/30/11 | Legal Action Center Pursues Campaign to Protect Judicial Review

Washington D.C. - In a continuing effort to protect the right to judicial review and promote greater federal court oversight of immigration decisions, the American Immigration Council's Legal Action Center (LAC) recently submitted an amicus brief in another case involving a sua sponte motion to reopen. A three-judge panel in this case, Salado-Alva v. Holder, No. 10-73142 (9th Cir.), said that the Board of Immigration Appeals' denial of the sua sponte motion was not reviewable. The panel relied on prior cases holding that decisions on sua sponte motions "are committed to agency discretion." The LAC is urging the Ninth Circuit Court of Appeals to rehear the case en banc.

The LAC argues that under the U.S. Supreme Court's 2010 decision in Kucana v. Holder, the Board of Immigration Appeals cannot shield its decisions from judicial review by labeling decisions on sua sponte motions "discretionary." Only Congress can limit court review of motions to reopen, and it has not done so. Moreover, the result in this case is irreconcilable with other Ninth Circuit decisions. The petitioner is represented by the U.C. Davis Immigration Law Clinic.

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For more information contact Brian Yourish at 202-507-7516 or byourish@immcouncil.org.

 

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