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11/29/12 | Federal Judge Orders USCIS to Release Records on Access to Counsel

This week, a federal district court issued an opinion highly critical of U.S. Citizenship and Immigration Services’ (USCIS) handling of a Freedom of Information Act (FOIA) request submitted by the American Immigration Council (AIC) for records relating to noncitizens’ access to counsel. The Court ordered USCIS to turn over records that it previously had refused to produce. 

Most decisions about immigration status—including whether to grant lawful permanent residence, asylum or citizenship—are made by government officials outside the courtroom. Given the significant impact such decisions have on the lives of noncitizens and their families, it is critical that they be allowed to have their private attorneys with them during complex administrative proceedings.  

Historically, USCIS has imposed unwarranted restrictions on access to counsel, though in recent months the agency has made significant progress toward addressing these problems. Through its FOIA request, the AIC hopes to shed light on USCIS policies about counsel. 

After waiting almost a year for USCIS to respond to the request, the AIC’s Legal Action Center and co-counsel Dorsey & Whitney LLP filed a FOIA suit on behalf of the AIC, alleging that USCIS had failed to turn over records responsive to the FOIA request. After filing suit, USCIS determined that it had over 2042 pages of documents responsive to the request.  However, it withheld 1169 pages and released 418 pages with redactions, claiming FOIA exemptions protected the records from disclosure. In response to the government’s motion for summary judgment, the AIC argued that USCIS had not demonstrated the adequacy of its search and had improperly withheld numerous documents not protected under the FOIA exemptions.  

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11/28/12 | AIC Challenges Denial of Motion to Suppress Evidence Obtained Through Unlawful Conduct

The American Immigration Council’s Legal Action Center argued that local police violated the Fourth Amendment by unnecessarily prolonging an individual’s detention based solely on the suspicion that he was not lawfully present in the United States.  In Arizona v. United States, the Supreme Court cautioned against prolonging a detention to investigate immigration status when it sanctioned Section 2(B) of SB1070, which requires local police to investigate immigration status during a lawful stop or arrest based on reasonable suspicion of unlawful presence.

The Legal Action Center filed an amicus brief in Jimenez-Domingo v. Holder, No. 12-14048-D, which is currently pending in the Eleventh Circuit Court of Appeals.  Following a routine traffic stop, the Palm Beach Gardens Police Department detained the Petitioner and other passengers for over an hour to await the arrival of Customs and Border Protection (CBP).  Rejecting the Petitioner’s repeated requests to consult his lawyer, CBP arrested, interrogated and placed him in removal proceedings.

The Council challenged the Board of Immigration Appeals’ denial of the Petitioner’s motion to suppress evidence obtained through the police’s unlawful conduct.  Although the Supreme Court has held that evidence unlawfully obtained by federal immigration officers need not always be excluded from removal proceedings, the Court’s rationale does not apply to situations in which evidence was obtained through a constitutional violation by local law enforcement officers. 

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11/23/12 | Thankful for a New Conversation on Immigration Reform

Dear Friend:

Two weeks ago, many national leaders awoke to a new political and demographic reality—one that they had long suspected and been warned about, but couldn’t quite believe until the election results were in. The unmistakable lessons of this political season are that national elections are won by uniting a diverse coalition of American voters and promoting positive solutions to the challenges that face our nation. 

The good news for our political system is that neither party has a monopoly on the ability to meet this new demand. These lessons reflect a need and an opportunity to break through the partisan gridlock that has crippled the nation and to build broad coalitions in support of real solutions that are driven by messages that unite us rather than divide us.   Nowhere is this clearer than in the immigration debate.   Misguided and mean-spirited ideas like “self-deportation” no longer have credibility on the national stage. The strategy of ignoring the human and economic toll of “enforcement only” policies and refusing to reform an outdated and dysfunctional immigration system must be put to rest once and for all.   The shrill voices of the nativist fringe must give way to the chorus of conservative and progressive voices that have long called for a path towards citizenship for the 11 million undocumented (including the courageous DREAMers who helped to shape this new political reality) and the creation of a 21st century immigration system that allows families and businesses to flourish and succeed.

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11/19/12 | LAC Wins Release of H-1B Fraud Documents for AILA

For Immediate Release

LAC Wins Release of H-1B Fraud Documents for AILA

Washington, D.C.—USCIS released in full the four remaining contested documents in a FOIA lawsuit brought by the American Immigration Council’s Legal Action Center (LAC) and Steptoe & Johnson LLP on behalf of AILA. The documents plainly describe - in more detail than documents previously released in this lawsuit - “fraud indicators” that result in greater scrutiny of certain H-1B applications. These documents are troubling evidence of a near presumption of fraud in H-1B applications submitted by small and emerging businesses and for certain types of positions at these businesses.  The following documents were released:

Background of the Lawsuit

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11/13/12 | AIC Commends Latest Ruling Allowing Immigration Judges to Consider Evidence of Hardship

 For Immediate Release

American Immigration Council Commends Latest Ruling
Allowing Immigration Judges to Consider Evidence of Hardship

Washington, D.C.—Last Friday, the U.S. Court of Appeals for the Fourth Circuit issued a unanimous ruling that will allow Immigration Judges to exercise discretion in cases involving lawful permanent residents (LPRs) whose removal would cause extreme hardship to family members in the United States. The ruling is the latest opinion from a federal appellate court to reject a contrary decision of the Board of Immigration Appeals. The American Immigration Council’s Legal Action Center, which filed an amicus brief in the case and participated in the oral argument, applauds today’s ruling and repeats its call for the Board to overturn its decision in Matter of Koljenovic, 25 I&N Dec. 219 (2010).

The case involved a 1996 amendment to the Immigration and Nationality Act that prevents Immigration Judges from considering evidence of hardship in certain cases involving immigrants who were “admitted” to the United States as LPRs. For many LPRs facing removal, the ability to obtain such hardship waivers is the only means to avoid separation from U.S. family members. In its amicus brief, the Council argued that the Board ignored the plain language of the statute, which distinguishes between applicants who entered the country as LPRs and those who gained LPR status post-entry.

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11/02/12 | Warrantless Arrests and the Timing of Right to Counsel Advisals

Challenging Matter of E-R-M-F- & A-S-M-:
Warrantless Arrests and the Timing of Right to Counsel Advisals

Washington, D.C.In Matter of E-R-M-F- & A-S-M-, 25 I. & N. Dec. 580 (BIA 2011), the Board of Immigration Appeals severely undermined the protections provided by 8 C.F.R. § 287.3(c), holding that certain noncitizens arrested without a warrant need not be advised of their rights, including the right to counsel, prior to post-arrest examinations. In a new practice advisory, Challenging Matter of E-R-M-F- & A-S-M-:  Warrantless Arrests and the Timing of Right to Counsel Advisals, the LAC highlights flaws in the E-R-M-F- decision and suggests strategies for challenging the BIA’s reading of § 287.3(c) and moving to suppress evidence obtained in violation of the regulation.

The Legal Action Center encourages attorneys with ongoing cases involving the timing of the 8 C.F.R. § 287.3(c) advisals to contact clearinghouse@immcouncil.org for further information.

For a complete list of all LAC practice advisories, please visit the LAC’s website.

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For more information, contact clearinghouse@immcouncil.org.

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10/25/12 | Updated Practice Advisory on Deferred Action for Childhood Arrivals

Updated Practice Advisory on Deferred Action for Childhood Arrivals

Washington, D.C. — The Legal Action Center (LAC) is pleased to release an updated Practice Advisory, Deferred Action for Childhood Arrivals. This Practice Advisory incorporates recent DHS guidance regarding fraudulent Social Security numbers, required evidence, and travel considerations for individuals who are requesting Deferred Action for Childhood Arrivals (DACA).  It also offers strategic advice for attorneys representing individuals who may qualify for DACA.  The LAC issued this advisory jointly with the American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild.

For additional resources related to DACA, visit the Immigration Policy Center’s website

For a complete list of all LAC Practice Advisories, please visit the LAC’s website.

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10/17/12 | Employment Authorization and Asylum: Strategies to Avoid Stopping the Asylum Clock

LAC Practice Advisory on Employment Authorization and Asylum:
Strategies to Avoid Stopping the Asylum Clock

 

Washington, D.C.—The Legal Action Center (LAC) released an updated practice advisory, Employment Authorization And Asylum: Strategies To Avoid Stopping The Asylum Clock.  This practice advisory provides an overview of the work authorization process for asylum applicants, addresses the operation of the “asylum clock,” which is used to track the 180-day waiting period during which an applicant cannot apply for work authorization, and discusses possible solutions to several common asylum clock problems.  The practice advisory also discusses the policies and practices the LAC and co-counsel are challenging in a class action filed on behalf of asylum applicants harmed by the asylum clock process. 

For additional resources related to the LAC’s work on employment authorization for asylum applicants, including information about the class action, visit our Asylum Clock webpage.

For a complete list of all LAC practice advisories, please visit the LAC’s website.

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For more information contact clearinghouse@immcouncil.org.

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10/01/12 | Fifth Circuit Joins Other Courts in Holding That Immigrants Can Pursue Cases From Outside the United States

Last week, the U.S. Court of Appeals for the Fifth Circuit rejected the government’s ongoing attempt to bar noncitizens from seeking reopening and reconsideration of their cases from outside the United States.  Ruling in two companion cases, the court found that the “departure bar”—a regulation barring noncitizens from pursuing their cases after departure or deportation— is unlawful.  In so doing, the court adopted arguments offered by the American Immigration Council's Legal Action Center (LAC) and the National Immigration Project of the National Lawyers Guild (NIPNLG) in an amicus brief to the court.  These decisions are an important step toward ensuring that all noncitizens are afforded the opportunity to fully present their cases to an immigration judge and the Board of Immigration Appeals.

In the first of the two cases, Lari v. Holder, the court struck down the departure bar in the context of a motion to reconsider.  Mr. Lari was represented by Matthew Hoppock of Dunn and Davison, LLC.  The LAC and NIPNLG filed an amicus brief and argued in support of Mr. Lari.  In the second case, Garcia Carias v. Holder, the court struck down the departure bar in the context of a motion to reopen.  Mr. Garcia Carias was represented by Boston College’s Post-Deportation Human Rights Project and Nixon Peabody LLP. 

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09/28/12 | Legal Action Center Welcomes Ninth Circuit’s Decision on Child Status Protection Act

An en banc panel of the Ninth Circuit Court of Appeals ruled in favor of young adults who, due to long delays caused by visa backlogs, lost the opportunity to obtain their green cards before they turned 21. In accordance with arguments made in an amicus brief submitted by the Legal Action Center and the National Immigrant Justice Center, the court held that Congress specifically remedied this problem in the Child Status Protection Act (CSPA) of 2002, by allowing children who were listed on their parents’ visa petitions, but who turned 21 before a visa became available, to retain the earlier filing date of their parents’ visa petitions when new visa petitions are filed for them as adults. As the court explained, “This ensures that visas are available quickly, rather than requiring the now-adult aliens to wait many more years in a new visa line.”

The court’s ruling overturned a precedent decision of the Board of Immigration Appeals, Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009), which interpreted the law as benefiting only one visa category of “aged-out” children.

The court issued its decision in two cases, one of which is a national class action. The petitioners in the two cases were represented by Reeves and Associates and the Law Offices of Carl Shusterman.

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For more information contact clearinghouse@immcouncil.org or 202-507-7516

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