East Bay Sanctuary Covenant v. TRUMP

Decided November 19, 2018

This case struck a blow to the Trump administration’s attempt to thwart the illegal entry of immigrants along the southern boarder to seek asylum.   The Department of Justice (“DOJ”) and Department of Homeland Security (“DHS”) published a joint interim final rule, entitled “Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims” (the “Rule”). 83 Fed. Reg. 55,934 (Nov. 9, 2018) (to be codified at 8 C.F.R. pts. 208, 1003, 1208). Under the rule, an immigrant would be ineligible for asylum if the President by proclamation limited entry of immigrants across the southern border with Mexico after the effective date of the proclamation.  Of course the president did make a proclamation: “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States.” The joint effect of the rule and proclamation would be to prevent individuals who entered the United States without permission, at other than a port of entry, from being granted asylum.  Such individuals would be summarily denied asylum through the “credible fear” process, and then only eligible for Withholding of Removal or relief under the Convention Against Torture; the latter forms of relief much less appealing and much more difficult to obtain.

The Northern District of California temporarily blocked the implementation of the rule, noting that the plaintiffs were likely to succeed on the merits.  And indeed that appears the case.  There seems no good reason to provide Chevron deference to this rule when clearly contrary to the express will of Congress as provided in statute.  According to the Northern District of California:

separately from the question of admissibility, Congress has clearly commanded that immigrants be eligible for asylum regardless of where they enter. Prior to IIRIRA, asylum was potentially available to “an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status.” 8 U.S.C. §1158(a) (1980). In IIRIRA, Congress amended §1158(a) to provide that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance” with §1158 and §1225(b). 8 U.S.C. § 1158(a) (emphasis added).

Also, as the Northern District of California pointed out, not only does the rule flout the explicit language of the statute, it also represents an “extreme departure from prior practice” and is contrary to the 1967 United Nations Protocol to which the United States acceded in 1968.

USCIS Notice to Appear Policies in 2018

In the past, USCIS and ICE did not work that closely. If a case were denied with USCIS and the applicant was not legally present in the United States, the individual would generally not be placed in removal (AKA deportation) proceedings. In fact, it could even work against the immigrant in cases where judicial review was needed – resulting in a type of legal “limbo.”

Now if a case is not strong, and does not have a great likelihood of approval, it should not be filed in the first instance as a denial will most certainly trigger removal proceedings. In an policy memorandum from USCIS entitled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear(NTAs) in Cases Involving Inadmissible and Deportable Alien, USCIS made clear that it will place individuals in removal proceedings if their case is denied, even absent criminal history, so long as they are not otherwise lawfully present in the United States (see Section V).

This is a radical departure from past policy. Incredibly, USCIS will also implement this policy against applicants for Violence Against Woman Act protection (i.e., U-Visa victim cases and human trafficking cases). In a press release dated November 11, 2018, USCIS indicated that these individuals will be placed in removal proceedings starting November 19, 2018. USCIS News Update. This policy is part of Trump’s War on Immigration, representing another brick in the invisible wall. It will prevent victims from seeking assistance and working with law enforcement out of fear of being removed from the United States.

Fortunately, DACA recipients are not included in the net – perhaps partly because it would be too politically unpopular. According to a clarifying policy memorandum published on June 28, 2018 (HERE):

Notwithstanding the issuance of the PM titled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, when (1) processing an initial or renewal DACA request or DACA-related benefit request or (2) processing a DACA recipient for possible termination of DACA, USCIS will continue to follow the existing DACA information-sharing policy regarding any information provided in a DACA request or DACA-related benefit request. Consistent with that policy, which has been in effect since June 2012, and notwithstanding the General NTA PM, adjudicators must continue to refer to PM 602-0050,Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, 6 dated November 7, 2011, to determine whether an RTI or NTA should be issued in such cases.
Therefore, in DACA cases, the Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, 6 dated November 7, 2011 policy memorandum continues to apply, and DACA applicants will be referred to removal proceedings in cases involving certain criminal and other public interest concerns.

Matter of S-O-G- & F-D-B- (A.G. 2018)

Decided September 18, 2018
This is a not so exciting sequel to the Attorney General’s earlier decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).  In that case, the Attorney General Jeff Sessions basically eliminated the Immigration Court’s ability to administratively close cases.  That was a huge blow to immigrants.  This case limits the right of the Immigration Court to “dismiss” and “terminate” proceedings in some circumstances, something not quite as significant.  In the F-D-B- portion of the case, the immigrant had been granted a marriage visa, asked for his case to be administratively closed in order to qualify for a provisional (stateside waiver), and once granted the waiver, requested termination of the case so as not to self-deport when traveling abroad to consular process back into the United States.  DHS wanted him to obtain “voluntary departure” instead.  The judge granted the motion to terminate, the BIA affirmed and the AG overruled.  According to the AG:

There is no question that immigration judges have the authority to dismiss and terminate removal proceedings under the circumstances identified in the regulations. See 8 C.F.R. § 1239.2. Immigration judges also possess the authority to terminate removal proceedings where the charges of removability against a respondent have not been sustained. See 8 C.F.R. § 1240.12(c); Sanchez-Herbert, 26 I&N Dec. at 44 (“If the DHS meets its burden, the [i]mmigration [j]udge should issue an order of removal; if it cannot, the [i]mmigration [j]udge should terminate proceedings.”). But the authority to dismiss or terminate proceedings is not a free-floating power an immigration judge may invoke whenever he or she believes that a case no longer merits space on the docket.

The reason this is not a significant case is because circumstances where the Immigration Judge would “dismiss” or “terminate” a case rather than “administratively close” a case were limited.  Since Matter of Castro-Tum, with the ability to administratively close cases eliminated, the incidents of termination for reasons other than DHS’s failure to sustain charges were very rare.  This case also does not prevent the Immigration Judge from terminating a case where DHS cannot sustain the grounds of removability, or when otherwise permitted by statute, namely 8 C.F.R § 1239.2(f) for circumstances when the immigrant has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors.  However, the AG now requires immigration judges to specify whether they are “dismissing” a case or “terminating” a case and pursuant to which regulation.

Matter of L-A-B-R- (A.G. 2018)

Decided August 16, 2018

While it only deals with motions to continue, this case is a game changer for immigration law and is very important to be aware of for immigration attorneys fighting to protect their clients.  Gone are the days when an immigration lawyer would get an almost automatic continuance when petitions were pending with USCIS.  Now the attorney must be prepared to make substantive arguments on the record at the Master Calendar hearing for why the continuance is for good cause. The immigration lawyer must also prepare documents to bolster the arguments and submit them to the court.

According to the Attorney General, the Immigration Judge should consider two primary factors when deciding whether to grant a motion to continue:

(1) the likelihood that the immigrant will receive the collateral relief (e.g., Will the Form I -130 be approved?), and;
(2) whether the relief will materially affect the outcome of the removal proceedings (e.g., Does the immigrant even qualify for adjustment of status assuming the Form I-130 is approved?).
According to the Attorney General, the Immigration Judge should also consider whether the immigrant has exercised reasonable diligence in pursuing that relief, DHS’s position on the motion, the length of the requested continuance, and the procedural history of the case.  The Attorney General reminds the readers that it is the immigrant’s burden to establish good cause for the continuance.
To assess the speculativeness of a respondent’s collateral matter, an immigration judge will generally need an evidentiary submission by the respondent, which should include copies of relevant submissions in the collateral proceeding, supporting affidavits, and the like. This is consistent with Board precedents, which have repeatedly acknowledged the importance of such documentary evidence. See Hashmi, 24 I&N Dec. at 791–92; Rajah, 25 I&N Dec. at 136; Sanchez Sosa, 25 I&N Dec. at 813–14. Absent such evidence, the respondent generally will not carry his burden of showing that a collateral matter is actually likely to bear on the outcome of the removal proceedings. See Giri v. Lynch, 793 F.3d 797, 801 (7th Cir. 2015) (respondent failed to present evidence supporting a good-cause finding); Ilic-Lee v. Mukasey, 507 F.3d 1044, 1048 (6th Cir. 2007) (same). If the respondent is going to establish good cause for a continuance, and impose upon the system the resulting burdens of such a delay, it is hardly too much to ask to have him substantiate that good cause would require such a result.

The Attorney General directed Immigration Judges to outline their orders on the record in the event the Board of Immigration Appeals considers an interlocutory appeal.  Failure to do so, according to the Attorney General, would require the Board vacate the order granting the continuance in the event evidence was not clear from the record that good cause existed.

There are several situations in which the Immigration Judge could conceivably deny a motion to continue based on the case law of Matter of L-A-B-R-.    It is important to be aware of how the landscape of immigration law is changing and be fully prepared for arguments by DHS against continuances.

Example 1:  Client has a pending Form I-130 based on marriage and is otherwise eligible for adjustment of status, but will need a waiver of inadmissibility for a violent offense considered a CIMT (Crime Involving Moral Turpitude).  The client’s attorney requests a continuance to permit USCIS to adjudicate the Form I – 130 and apply for adjustment of status, but DHS objects, noting that violent crimes are not favored for a grant of a waiver for inadmissibility. See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) Hopeful Result:  The Immigration Judge understands that it is impossible to put on a case for a waiver of inadmissibility in a Master Calendar setting and grants the continuance.  Possible Result:  The Immigration Judge considers the likelihood that the waiver will be denied based on the conviction for a violent offense, denies the motion to continue and forces the client to take voluntary departure or appeal a removal order.

WAIT! That sounds really bad!  Where is due process, and wouldn’t there be a good basis for appeal? 

Maybe.  But considering that the burden of proof for a grant of a motion to continue is on the immigrant, and the Immigration Judge must only grant a continuance for good cause shown, the appeal might not be as strong as one would hope.  As the Attorney General noted:

Even if the respondent’s collateral proceeding has clear promise, it will sometimes be impossible or too uncertain that the collateral relief will affect the disposition of the removal proceedings. For example, the immigration judge must deny a continuance if he concludes that, even if USCIS approved the respondent’s visa petition, he would deny adjustment of status as a discretionary matter or because the respondent is statutorily ineligible for adjustment.

Example 2:  Client’s ex-spouse is disgruntled and calls USCIS claiming the marriage was fraudulent.  USCIS makes a rash decision without evidence that the client committed marriage fraud and places the client in removal proceedings before he can file a Form I-751 self-petition.  By the time the client reaches the Immigration Judge, the client has filed a new Form I – 751 self petition with USCIS that is currently pending.  The petition contains evidence that the the ex-spouse was disgruntled and not truthful about the marriage being fraudulent.  It also contains proof that the marriage was legitimate. The client requests a continuance so that USCIS can make a decision based on all of the facts, and the immigration judge can review that decision if necessary.  NOTE:  The immigration judge cannot decide to grant the Form I- 751 self-petition until USCIS first makes a decision The client’s attorney is prepared with a copy of the Form I – 751 filed with USCIS to provide to the Immigration Judge.   Hopeful Result:  The Immigration Judge takes a look at the documents provided by the client’s attorney, and grants a continuance since there is sufficient documentation to establish that USCIS may ultimately reverse their prior decision and grant the petition.  NOTE:  Had the attorney not been prepared with a copy of the petition, this would be a dangerous situation for the client.  Matter of L-A-B-R- makes clear that just stating on the record that a case is pending with USCIS – as was often the practice of immigration attorneys previously – will no longer be sufficient for an Immigration Judge to grant a motion to continue for good cause shown.  Possible Result: The immigration judge denies the motion to continue because the allegations of marriage fraud by USCIS are strong and the documentation provided by the client’s attorney is scant at best and does not establish a good faith marriage.

Example 3:  Client has been provided several continuances pro se (meaning without an immigration lawyer) before Matter of L-A-B-R-, and has been married to a US citizen for years.  Due to a lack of funds and sophistication, the wife does not file a Form I – 130 and the client hires an immigration lawyer at the last minute just prior to his continued Master Calendar hearing.  The immigration lawyer informs the Immigration Judge that the client is married and his US citizen spouse will be filing a Form I – 130 petition for the client.  DHS objects to the continuance, pointing out that the US citizen has not filed the Form I – 130, so that is speculative, that the client has delayed in filing it for no reason and that there has already been several continuances.  Hopeful Result: The attorney is prepared to discuss the marriage, and why it is real (e.g., the couple has children), and successfully convinces the judge to excuse the client’s negligence in failing to file the Form I – 130 because the client was very poor and unsophisticated.  The attorney promises to file the Form I – 130 on the client’s behalf that week, and the judge grants the continuance over DHS opposition.  Possible Result: The judge considers the opposition of DHS to be a strong factor against the immigrant, agrees that the wife may never help the client file a Form I-130 (indeed she has not done so for years), and rejects the excuses proffered by the attorney for the client’s delay in acting to move his case forward.  The client is ordered removed and appeals.

For a more detailed practice advisory from CLINIC, click here.