Migrant Center May Newsletter

USCIS ORDERED TO PROCESS SIJ PETITIONS FOR CHILDREN OVER 18

April 8 – A federal district court ordered USCIS to adjudicate Special Immigrant Juvenile (“SIJ”) petitions for youth between the ages of 18 and 21 who have been issued special findings orders by the New York Family Court. The statute allows for SIJ status – and a pathway to permanent residency – for children under age 21 who have been abused, abandoned, or neglected by one or both parents. The case is R.F.M. v. Nielsen.

COURT BATTLE OVER REMAIN IN MEXICO PROGRAM HEATS UP

April 8 – District Court Judge Seeborg granted plaintiffs' motion for a preliminary injunction haltingthe Remain in Mexico program, officially dubbed the Migrant Protection Protocols, which sends asylum seekers to wait in Mexico while their case is processed. On April 11 the government submitted an emergency motion, to the Ninth Circuit asking that it stay the preliminary injunction. On April 12 the Ninth Circuit agreed, issuing an order temporarily staying the district court's preliminary injunction, thereby allowing the Remain in Mexico policy to continue. On May 7 the court permanently stayed the preliminary injunction, thereby allowing the return of asylum seekers to Mexico while the case is litigated. Migrants forced to wait in Mexico have become victims of crime and violence. Read here about how the Remain in Mexico program also creates significant due process concerns. The case is Innovation Law Lab v. Nielsen.

GOVERNMENT AGREES TO RESPECT RIGHT OF ATTORNEYS TO PROVIDE ASSISTANCE TO UNREPRESENTED IMMIGRANTS

April 17 – Northwest Immigrant Rights Project (“NWIRP”) and the Department of Justice (“DOJ”) entered into a settlement agreement in which the parties jointly agreed to stay proceedings pending DOJ's elimination of Rule 102(t) and its issuance of a new rule clarifying that NWIRP and other attorneys are not required to file a notice of appearance with the Executive Office for Immigration Review (“EOIR”) for any actions or conduct assisting unrepresented respondents in removal proceedings, other than preparing a pleading for filing with, or appearing in person before, one of EOIR's immigration courts or the Board of Immigration Appeals (“BIA”). The preliminary injunction will remain in place pending DOJ's implementation of the new regulation. The case arises from an EOIR cease-and-desist letter ordering NWIRP not to provide immigrants with any legal assistance in connection with matters before EOIR without entering an appearance and providing full legal representation. The case is NWIRP v. Sessions.

BORDER WALL CONSTRUCTION MOVES FORWARD

April 24 – DHS waived certain laws to build the border wall in New Mexico, San Luis, Arizona, and Yuma County, Arizona. These laws include the National Environmental Policy Act, the Endangered Species Act, the Federal Water Pollution Control Act, the National Historic Preservation Act, the Migratory Bird Treaty Act, the Migratory Bird Conservation Act, the Clean Air Act, the Archeological Resources Protection Act, the Paleontological Resources Preservation Act, the Federal Cave Resources Protection Act, the National Trails System Act, the Safe Drinking Water Act, the Noise Control Act, the Solid Waste Disposal Act, the Comprehensive Environmental Response Compensation and Liability Act, the Archeological and Historic Preservation Act, the Antiquities Act, the Historic Sites Buildings and Antiquities Act, the Wild and Scenic Rivers, the Farmland Protection Policy Act, the Federal Land Policy and Management Act, National Fish and Wildlife Coordination Act, the Wild Horse and Burros Act, the Administrative Procedures Act, the Rivers and Harbors Act, the Eagle Protection Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, and the Military Lands Withdrawal Act.

TPS FOR HAITIANS TEMPORARILY PROTECTED

April 11 – District Court Judge Kuntz II issued a preliminary injunction halting the termination of Temporary Protected Status (“TPS”) for Haitians after finding that the plaintiffs are likely to succeed on the merits of their Administrative Procedures Act (“APA”) claims, arguing that the administration's actions are arbitrary and capricious and failed to follow required notice-and-comment procedures, as well as in violation of equal protection due to racial animus. The Administration had announced that TPS for Haitian nationals would expire on July 22, 2019, affecting the lives of over 50,000 Haitians and their 27,000 U.S. citizen children. The case is Saget v. Trump.

COURT FINDS NO RIGHT TO BE DETAINED NEAR FAMILY

April 16 – The Fourth Circuit affirmed the district court’s dismissal of a lawsuit challenging the constitutionality of the plaintiffs’ transfer to an out-of-state ICE detention facility, thereby separating the plaintiffs from their children. The court ruled that there is no substantive due process right to family unity in the context of immigration detention, and that there is no procedural due process right to notice and hearing prior to transfer. The case is Reyna v. Hott.

NEW YORK PROTECTS ABILITY TO ATTEND COURT WITHOUT FEAR OF ICE

April 17 – The State of New York’s Office of the Chief Administrative Judge issued a memo governing activities in courthouses by law enforcement agencies, including ICE, stating that ICE can no longer arrest undocumented immigrants inside New York courthouses without a warrant signed by a judge.

NINTH CIRCUIT PROTECTS CALIFORNIA’S “SANCTUARY” LAWS

April 18 – The Ninth Circuit affirmed the district court’s denial of the United States’ motion for a preliminary injunction as to California’s AB 450 (Immigrant Worker Protection Act), which requires employers to alert employees prior to federal immigration I-9 inspections, and SB 54 (California Values Act), which limits the cooperation between state and local law enforcement and federal immigration authorities. The court also upheld provisions of AB 103 (Dignity not Detention Act) that requires the Attorney General to monitor detention facilities and prohibits new contracts. However, the court said that the subsection of AB 103 which requires examination of the circumstances surrounding the apprehension and transfer of immigration detainees, discriminates against and impermissibly burdens the federal government. Read our op-ed about how states have the authority to set policing policies. The case is United States v. State of California.

ATTORNEY GENERAL UNILATERALLY REVOKES THE RIGHT OF ASYLUM SEEKERS TO ASK AN IMMIGRATION JUDGE FOR RELEASE ON BOND

April 16 – Attorney General William Barr ruled in Matter of M-S- that asylum seekers with valid protection claims who entered the U.S. without documents are ineligible for bond hearings before an Immigration Judge (asylum seekers who present themselves at a port of entry are already denied bond hearings). The right to a bond hearing is recognized in the 5th and 14th Amendments of the U.S. Constitution, which state that no person should be deprived of liberty “without due process of law.” Read our op-ed here for why leaving these decisions in the hands of ICE without the checks and balances of judicial review is extremely problematic. For example, in some areas ICE uniformly refuses to exercise its parole authority under INA 212(d)(5)(A). See Damus v. Nielsen. There is no harm in allowing judges to serve as a check-and-balance on ICE by reviewing whether an asylum seeker is a flight risk or danger to the community and every incentive for them to do so. Matter of M-S- becomes effective in 90 days.

The American Bar Association has written a letter to the Attorney General asking him to reconsider his decision. 8 CFR § 1003.1(h) provides the Attorney General the authority to refer Board of Immigration Appeals (“BIA”) cases to himself for review. This Administration has exercised this authority to an unprecedented degree. That one political appointee in the Executive, in this case the Attorney General, has the power to change immigration law nationwide with the stroke of a pen is one of the important reasons the Immigration Courts and BIA must be made independent of the Executive. Read our op-ed on the issue here.

CPB BUILDS NEW TENT CITIES IN TEXAS DESPITE ICE FILING FEW FAMILY CASES IN COURT, OVER 50% OF FAMILIES RELOCATE TO SANCTUARY CITIES, AND DOJ RESTRICTS ACCESS TO INFORMATION

April 19 - CBP awarded a contract to Deployed Resources LLC of Rome, New York, to construct temporary tent cities in El Paso and Donna, Texas, to accommodate up to 500 individuals in CBP custody. They are expected to open May 1st at a cost of $36.9 million for four months. Although families apprehensions are high, they remain a minor proportion of new cases filed by ICE with the Immigration Courts each month. For example, during March 2019, family cases represented just 18.7% of the new cases filed. Interestingly, after being released in border communities, over half of family cases were registered in courts headquartered in sanctuary cities. Full data is not available as the Department of Justice has stopped providing the information needed to track the processing of asylum and related applications for relief, including information on historical as well as new asylum applications.

SECOND CIRCUIT UPHOLDS POLITICAL SPEECH RIGHTS OF IMMIGRANTS

April 25 – The Second Circuit ruled that the First Amendment prohibits the government from targeting immigration activists for deportation based on their political speech. “To allow this retaliatory conduct to proceed would broadly chill protected speech… advocacy for reform of immigration policies and practices is at the heart of current political debate ... [thus it is] a matter of “public concern”.”. A group of organizations filed suit after two members of the New Sanctuary Coalition were abruptly detained by ICE in January 2018 after years of routine check-ins, in what appears to be part of a pattern and practice of targeting of immigrant rights activists across the country in an effort to silence political opponents by deporting them. The case is Ragbir v. Homan.

COURT FINDS CLASS ACTION ON EXCESSIVE DETENTION FOR MINORS CAN PROCEED

April 26 – A federal district court certified two classes: 1) unaccompanied immigrant children detained for more than 60 days in Virginia and 2) children’s sponsors. The court previously found that there were plausible claims that the Office of Refugee Resettlement’s (“ORR”) release and reunification policies violated the Trafficking Victims Protection Act, procedural due process rights to family unity and freedom from detention, and the Administrative Procedures Act’s notice and comment requirement and prohibition on arbitrary and capricious / contrary to law policies related to ORR’s ICE information-sharing policy, where the child is not released when the sponsor lives with an adult who does not want to have their fingerprints shared with ICE. The case is J.E.C.M. v. Lloyd.

TRUMP ISSUES MEMO TO CHARGE ASYLUM APPLICATION FEES, DENY WORK PERMITS, AND INCREASE PROCESSING TIMES

April 29 – Trump issued a memorandum calling on the Attorney General and Secretary of Homeland Security to develop policies within 90 days to ensure that asylum cases are adjudicated within 180 days (this timeframe is already in agency guidance but is made next to impossible for cases on the non-detained docket due to the high number of cases in relation to the low number of Immigration Judges). Additionally, the memo sets out to require asylum seekers to pay a fee to file their application, not to exceed the cost of adjudication (which is likely in the thousands of dollars), as well as pay a fee for a work permit ($410 plus biometrics if necessary). There is no mention in the memo of how indigent asylum seekers who cannot pay will be able to access the asylum system. The memo lastly sets out to deny work permits to asylum seekers who cross the border without documents and revoke the work permits of those who have received denials or final removal orders (it is unclear what this language means as an Immigration Court denial on appeal is not a final order until the Board of Immigration Appeals makes a ruling).