“Freedom is never given, it is won” A. Philip Randolph.
This appeared on the trophy I was given yesterday as the recipient of the Tommie Smith/John Carlos Award at the 66th Annual NAACP Gala. It is humbling and honoring in many ways. Last year was the first time that I met with our local NAACP leader and I told him about my belief that immigration rights were the civil rights of our time. He asked me then if I would speak at the NAACP Flag Raising Ceremony, and I spoke challenging the African American community to rise up in defense of their immigrant neighbors and friends who were being targeted. Clearly, I was not the only one to raise this awareness and even in the list of awardees last night, it was gratifying to see this recognition that the fight that we are in is part of the universal civil rights movement towards justice. Tommie Smith and John Carlos used their platform boldly and courageously, by taking their shoes off to protest poverty and by lowering their heads and raising their fists. They made known to the world that all was not okay. My friends, that is our struggle today. Our work, our passionate representation, our proclamation of our client’s stories, our relentless pursuit of justice is a struggle for freedom, freedom for our clients to enjoy the American dream and promise. This administration to a large extent, and previous administrations as well, have shown us that freedom is never given, it is always won. As I write this, the first of the refugee caravan making its way through Mexico to Tijuana is at the border, with many asking for asylum. I am proud of the many lawyers who have taken time off and gone to the border. The AG says he’s ready with his army of IJ’s to swiftly remove asylum seekers, but we will fight, because freedom is never given, it is won.
Nationally, in a bit of good news, the AG announced in his written remarks before the Senate Appropriations Subcommittee Hearing that the Legal Orientation Program will continue. http://www.aila.org/advo-media/whats-happening-in-congress/congressional-updates/opening-statement-of-attorney-general-jeff-session. I don’t know how many of you have seen this, but I found it quite interesting how ICE is targeting its enforcement action There have been about 2729 reported actions and AILA has mapped out where these actions have been. Note that California has been hit quite hard http://www.aila.org/infonet/map-ice-enforcement-actions-january-2017-current. In yet another “complicate even further” solution, USCIS is implementing a new delivery method where applicants must present identification to sign for their documents upon delivery. I don’t know about you, but I have a great number of clients who have no identification. http://www.aila.org/infonet/uscis-to-begin-using-more-secure-mail-delivery. But the big news in AILA National this week is the May 1, 2018 deadline to get Early-bird discount for the National Conference. I would love to see many people from our Chapter register because this literally is in our backyard and for those of you that have never been to an annual conference, just being around over five hundred immigration attorneys feels good. I am speaking at the conference as are some others in our Chapter. There is also going to be a joint reception/event with AILA NorCal which is a great way to make new and lasting friends. I will also encourage you to sign up for the pro bono event. That is how I met one of my best friends, an immigration attorney in Chicago and that is how she and I even volunteered together in Dilley, Texas a few years ago. Here is the link to register. https://agora.aila.org/Conference/Detail/1412?utm_source=aila.org&utm_medium=ContentBlock-Home Another AILA National announcement is the last day to get the Chapter discount for the purchase of Kurzban. The regular price of Kurzban is $449 and the discounted price is $335. Preorder your copy before May 1.
Locally, we had our final and perhaps most well attended Chapter meeting for this term last Wednesday. It was followed by a 2-hour incredibly practical, useful CLE given by Reid Trautz. What a year it has been and I am grateful the Chapter is where we are today. I will give a complete report and highlights at our Installation Dinner on May 15, 2018. It is at the Capital Club with an exciting program. We have invited representatives from our Congressional Offices, USCIS, EOIR and others to attend. We have a dynamic speaker, a well-known and respected TV personality, a great venue and we hope you all attend. We have excellent incoming Executive Committee candidates that you will vote for at the installation dinner. I encourage everyone to come, after all how often do we get to celebrate each other? I know how much it will mean to the New Executive Committee to have the support of all of the members. Plus, being with USCIS and other folks in a social setting is cool. Who’s going to Sacramento with me on May 14, 2018 for Immigrant Day? Let me know. Merle’s Corner is always my “make sense” review of what is going on. Note what she says about DACA filings, i.e. file renewals but not new DACA. And now to Merle’s Corner.
Weekly Updates for Week Ending 4.27.18
This week we had oral arguments in the travel ban case in the Supreme Court and a District Court’s decision to reinstate DACA in its entirety. I will not be blogging about either one of these decisions until they 1) come down; or 2) are final. It’s important to remember that the District Court stayed its decision reinstating DACA for 90 days to enable the Government to come up with a logical rationale for discontinuing the program. (I wish we could get these kinds of reprieves for our clients. You know, “Counsel, I don’t like your reasoning. Please come back in 90 days with a better legal argument.”). So, do not file new DACA cases and do not file for advanced parole for DACA recipients, because that holding is not yet in effect. However, we can still renew lapsing DACA applications under the other DACA decision. The Ninth Circuit did not issue any published immigration decisions or criminal decisions with potential immigration consequences this week. However, the BIA did issue a new decision holding that noncitizens who are subject to reinstatement of removal are ineligible for asylum and only qualify for withholding of removal or relief under the Convention Against Torture. The decision also holds that the government may file a Motion to Reconsider within the regulatory time period where the government believes that the Immigration Court erred in its decision.
Board of Immigration Appeals
A Noncitizen Subject to Reinstatement of Removal is Ineligible for Asylum; and, the Government has the Authority to File a Motion to Reconsider in Immigration Court
In decision that delved deeply into the regulations and into legislative history, the BIA held that a noncitizen who is subject to reinstatement of removal and who is in “withholding only” proceedings is ineligible for asylum. The BIA held that the government is not statutorily barred from filing Motions to Reconsider, and that the government’s motion was not subject to res judicata because the underlying case was not administratively final.
The noncitizen is a native and citizen of Guatemala. On August 6, 2013, she was removed from the United States. On August 10, 2013, she illegally reentered the United States. On August 15, 2013, DHS reinstated the prior removal order against her. However, she had a reasonable fear interview and the asylum officer found that she had a reasonable fear of persecution. The asylum officer referred the case to the Immigration Court. On August 1, 2016, the IJ granted the noncitizen asylum.
On August 31, 2016, DHS filed a timely Motion to Reconsider with the IJ arguing that an intervening Ninth Circuit decision held that the noncitizen was ineligible for asylum and only qualified for withholding of removal. Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016), cert. denied 138 S.Ct. 737 (2018). (The Ninth Circuit found that the regulation promulgated by the Attorney General limiting the relief available to noncitizens in reinstatement proceedings to withholding of removal only, was a reasonable interpretation of the statute and was subject to Chevron deference). Perez-Guzman came down on August 31, 2016. Somehow, the government managed to file a Motion to Reconsider with the Immigration Court that same day! After the government filed its motion, the noncitizen argued that the government does not have the statutory authority under INA § 240(c)(6) to file a Motion to Reconsider. The IJ agreed with the noncitizen and denied the Motion to Reconsider. The IJ held that 1) the INA does not confer upon the government the ability to file a Motion to Reconsider; and 2) the government’s motion was barred by res judicata.
The BIA did a deep dive into the regulations, statute, the legislative history of the statute, and the INS responses to the comments during the notice and comment rule-making period regarding the regulations. The statute at issue is 240(c)(6) and limits the noncitizen to filing only one Motion to Reconsider. The BIA found that the statute is silent as to the government’s ability to file a Motion to Reconsider but, that did not mean that the government could not file a Motion to Reconsider. In support of its position, the BIA looked at the legislative history and concluded that the purpose of the statute was to streamline procedures for removing undocumented immigrants. The BIA held the government was statutorily able to file Motions to Reconsider. It further noted that noncitizens were limited to filing only one Motion to Reconsider. It did not determine whether the government could file more than one Motion to Reconsider. In support of its position, the BIA also looked to the comments on the implementing regulation and found that while several commenters argued that the same time and numerical limitations should apply to all parties for Motions to Reconsider, those limitations were only imposed on the noncitizens, not the government.
The noncitizen here also argued that government’s arguments were foreclosed under res judicata. The BIA held that because the Motion to Reconsider was timely filed, and the administrative process was not complete, because Motions to Reconsider may be filed within 30 days of the Immigration Court’s decision, that the case was not administratively final. Thus, res judicata did not apply. The BIA remanded the case to allow the noncitizen to apply for withholding of removal.
Matter of L-M-P-, 27 I.&N. Dec. 265 (BIA 2018).