Dear AILA Santa Clara Valley Chapter Members,
Returning from the AILA Midwinter Conference, I came away with a renewed belief in AILA, an admiration for all the challenging work that is being done, but also an appreciation of how daunting the task is. Here is the reality. Over this last year, AILA National has provided us timely practice advisories, quick takes, tools and a sense of understanding the landscape. On the other hand, the anti-immigrant branding machine has drowned our voice. There is a keen awareness on the national level and I am excited about the various campaigns that are being launched and the engagement of the AIC and AILA in these ventures. Advocacy and winning the hearts and minds of allies continues to be key and that is a role that our chapter is taking seriously as well. As I write these notes I am speaking at the California Association of Teachers to Speakers of Other Languages (CATESOL) Conference. I shared this cute video on YouTube that I thought was a great summary. https://www.youtube.com/watch?v=ZLrYMTc585I . Even in such a group, I was amazed at how little they knew about the immigration process and how much the news is dominating their beliefs. We have a lot of work to do and imagine, this is California. On another note, I so admired the people and culture of Mexico. The vibrancy of the culture, the hard work of the people, the beauty of the countryside was breathtaking, and it gave me a new perspective. I understand that there are many parts of Mexico that are dealing with the problems that cause most of our clients to flee, but seeing their beautiful country makes me respect its citizens even more.
Nationally, the week was dominated by the fact that there was no Dreamer legislation and as the March deadline looms, nothing promising is in the works. Minority Leader Pelosi’s 8-hour marathon in 4” heels was a great feat. It was met by skepticism by many, but I think that highlighting the stories is a good thing and I am glad that their stories are still kept alive. Here are recent news clips on where the current state of affairs regarding DACA is http://www.aila.org/infonet/reactions-and-selected-press-clips-daca-rescission. To highlight the positive impact of family immigration, AILA has asked that you submit compelling stories of families benefiting from this immigration http://www.aila.org/advo-media/agency-liaison/case-examples/call-for-examples-compelling-family-immigration. It is helpful for advocacy efforts. There are two important learning tools: the first is the practice advisory on Motions to Reopen http://www.aila.org/infonet/basics-of-motions-to-reopen-eoir-removal-orders and the second is a habeas training http://www.aila.org/about/announcements/five-part-webinar-series-on-habeas-corpus. In yet one more hurdle and unnecessary process, the President issued a memorandum on extreme vetting http://www.aila.org/infonet/presidential-memo-on-the-creation-of-a-national. I am conflicted about the new Asylum processing rule expediting cases. Conflicted because so many of my clients have patiently waited for so long, but on the other hand, we are back to the normal processing of cases prior to 2014. Here is an excellent Op-ed by my friend Lindsey Harris http://thehill.com/opinion/immigration/372577-new-immigration-policy-leaves-asylum-seekers-in-the-lurch.
Locally, the biggest buzz has been the report of a local attorney that ICE agents apprehended his asylum client following an asylum interview. Th e attorney detailed his experience and shared widely on Facebook. Several news outlets picked up the story as well and the response from ICE was that the individual had a criminal arrest in Dubai, which is why they detained him. That’s weird, and if truly there had been a security problem, the time to detain should not have been after the individual has waited two and a half years for an interview! The Asylum Office liaisons reached out to the Asylum Office and were told that there was no new policy. Anecdotally, I have heard of at least three other cases in New Jersey and Arlington where visa overstays who had applied for asylum received a visit from ICE, were detained and then issued NTA’s. This is definitely something to be aware of. I have also heard anecdotally that the asylum office is going through applications and sending out letters to those with a one-year issue to see if they wanted referral to the courts. That seems like an interesting way to deal with backlogs. We are having our Chapter meeting in Santa Cruz this month. It will be on February 21, 2018 at noon followed by a one-hour CLE on Advocacy strategies. This is much needed especially because enlisting constituent services on behalf of our clients, making sure our local representatives understand exactly how immigration policies are affecting their constituents is crucial. Have you seen the website today? Please use the resources and let us know your experience. We are also ramping up the 5th grade essay contest. I have sent out an email to those of you who expressed interest in the past, so we can have a meeting. Merle’s corner this week has some good news…
Ninth Circuit Decisions
A Noncitizen Who Has Been Issued a Notice To Appear Can Still Have Their Citizenship Application Adjudicated By The District Court If USCIS Has Not A Denial – Unless The Notice To Appear Was Issued Pursuant To A Warrant Of Arrest.
I don’t know what it is about naturalization – the concepts seem so simple and yet naturalization is always unbelievably complex. Thank goodness for the lawyers that really understand it. In a very confusing, but ultimately great case that takes several re-readings to understand, the Ninth Circuit held that a District Court may decide a naturalization case (if it is filed with the District Court after USCIS has failed to issue a decision on the naturalization application within the 120-day time frame) even if there is a pending Notice to Appear, as long as the NTA was issued without an arrest warrant. It does not apply to a case where the naturalization application was denied by USCIS – only where the case was not decided within the 120-day time frame. If you understand this case differently, you might be right, there are several different opinions floating around right now on the list-serves.
Maybe the facts of this case will help. A brother and sister, Seanlim and Seak Leang Yith applied for naturalization after immigrating to the U.S. through their step-mother. While their naturalization application was pending, the step-mother said that the marriage to their father was fraudulent. On the 119th day after their naturalization applications were pending, USCIS issued Notices to Appear but did not deny the naturalization applications. The Yiths went to District Court and claimed that the District Court now had jurisdiction over the case. The District Court dismissed the case, but the Yiths went to the Ninth. The attorney, Bruce Leichty, did a fabulous job. He read the statute 8 U.S.C. § 1429 (INA § 318) very carefully. The statute in relevant part provides:
[N]o person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act; and no application shall be considered by the Attorney General if there is pending against the applicant a removal order pursuant to a warrant of arrest under the provisions of this chapter or any other Act….
If you read the statute very carefully it provides: 1) the District Court and the Attorney General (USCIS) have jurisdiction over a naturalization application where there is a final order of removal if no warrant of arrest was issued; and, 2) the District Court and the Attorney General (USICS) have jurisdiction over a naturalization application where there is a removal order pending if no arrest warrant was issued. It also appears, from this logic, that if there is an NTA pending pursuant to an arrest warrant that while USCIS does not have jurisdiction, the District Court still has jurisdiction. But, it appears that this case is limited to the holding that the District Court has jurisdiction where there is a pending NTA as long as no arrest warrant was issued.
I think that the following issues are still up in the air: 1) Does the District Court have jurisdiction over a naturalization application where there is a final order if no arrest warrant was issued? Under the logic in this case I would say yes. 2) Does the Attorney General have jurisdiction over a naturalization application where there is a final order if no arrest warrant was issued. Again, under the logic in this case I would say yes. 3) Does the Attorney General have jurisdiction over a pending naturalization application if there is no arrest warrant. Again, I would have to say yes. So, if the 120 days have passed without USCIS issuing a naturalization decision, go file in District Court. It is clear that this case does not apply to cases where USCIS has denied the naturalization application, but every other case seems to be open. I wonder if ICE is going to read this decision, and start issuing arrest warrants with every Notice to Appear.
Yith v. Nielsen, No. 16-15858 (9th Cir., Feb. 7, 2018).
District Court Decisions
Los Angeles County Unlawfully Detained Thousands of Suspected Immigrants Pursuant to ICE Detainers
I don’t often review District Court cases unless something really interesting comes down. This week we got a great decision from the District Court for the Central District of California. The District Court held that Los Angeles County unlawfully detained thousands of suspected immigrants on the basis of unconstitutional requests from ICE. In other words, at least one court has found that ICE immigration holds are unconstitutional. The court found that the ICE detainer constituted a new arrest under the Fourth Amendment and the LA County Sheriff’s Department could only arrest these individuals if the LA Sheriff Department officers had probable cause to suspect that the individuals were involved in criminal activity. The officers did not have probable cause that the individuals were involved in criminal activity, but were instead holding them on the basis of civil immigration detainers. “The LASD officers have no authority to arrest individual for civil immigration offenses, and thus, detaining individuals beyond their date for release violated the individual’s Fourth Amendment rights.” Roy v. County of Los Angeles, NO. CV 12-09012-AB (FFMx) (C.D. Cal. Feb. 7, 2018) slip op at 41. The court explained its reasoning writing, “allowing local law enforcement officers to arrest individuals for civil immigration violations would infringe on the substantial discretion Congress entrusted to the Attorney General in making removability decisions, which often require the weighing of complex, diplomatic, political, and economic considerations.” Id., at 40. The holding appears to be limited to the Central District of California; but the reasoning can be applied everywhere. Kudos to the ACLU, National Day Laborer Organizing Network, the National Immigrant Justice Center, and the law firm of Kaye, McLane, Bednarski, and Litt.
Roy v. County of Los Angeles, NO. CV 12-09012-AB (FFMx) (C.D. Cal. Feb. 7, 2018).
February 21, 2018 Monthly meeting and Advocacy Training
Thomas Immigration Law
2030 N. Pacific Ave. Suite 102A, Unit B
Santa Cruz, CA 95060