LAC Docket | Vol. V Issue 2

The Newsletter of the American Immigration Council 

April 15, 2015

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OUR WORK

Due Process

Federal Judge Rejects Government’s Motion to Dismiss Case Seeking Appointed Counsel for Children in Removal Proceedings

On April 13, a federal judge in Washington state rejected the U.S. government’s motion to dismiss our pending class action lawsuit challenging the government’s failure to provide legal representation to thousands of unrepresented children in removal proceedings.  Reasoning that “the due process question plaintiffs have raised in this case is far too important to consign it, as defendants propose, to the perhaps perpetual loop of the administrative and judicial review process,” the judge found that the serious constitutional claims raised in the lawsuit merit a full hearing at trial. However, the judge dismissed on jurisdictional grounds the claim that the immigration statute requires appointment of counsel and dismissed, without prejudice, the claims of three named plaintiffs.

The case, J.E.F.M. v. Holder, No. 2:14-cv-01026, is pending in the U.S. District Court for the Western District of Seattle. Our co-counsel are the American Civil Liberties Union, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP.

Challenging CBP FOIA Delays

On March 13, the Council and three partners filed a class action lawsuit on behalf of three immigration attorneys and eleven noncitizens challenging U.S. Customs and Border Protection’s (CBP) nationwide practice of failing to timely respond to requests for case information under the Freedom of Information Act (FOIA). FOIA gives an individual the right to access information that the federal government possesses about him or her within 20 business days of making the request. CBP routinely fails to provide requested documents within 20 days, but instead takes months—and in many cases more than a year—to do so. As a result, plaintiffs and others like them are forced to delay filing applications for lawful permanent residence while they wait for necessary documents from their own case files.

The case, Brown et al. v. U.S. Customs and Border Protection, No. 4:15-cv-01181, is pending in the U.S. District Court for the Northern District of California.  Co-counsel are the Law Offices of Stacy Tolchin, Northwest Immigrant Rights Project, and the National Immigration Project of the National Lawyers Guild.

Protecting Noncitizens’ Ability to Reopen Their Cases 

On March 6, the Immigration Council, AILA and the National Immigration Project of the National Lawyers Guild (NIPNLG), in collaboration with Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A., submitted an amicus brief to the U.S. Supreme Court in Mata v. Holder, No. 14-185. The case addresses the Fifth Circuit Court of Appeals’ jurisdiction to review denials by the Board of Immigration Appeals (BIA) of requests for equitable tolling of the motion to reopen filing deadline in cases involving ineffective assistance of counsel. The Council’s brief explains the time-consuming process that noncitizens facing removal must follow to make an ineffective assistance of counsel claim. It presents the stories of several immigrants whose requests for tolling of reopening deadlines originally were denied by the BIA but eventually were granted after review by a federal court of appeals. The Supreme Court will hear oral argument in the case on April 29.

Additionally, on April 10, the Immigration Council and NIPNLG filed an amicus brief in support of a pro se petition for rehearing to the Fifth Circuit Court of Appeals in Villatoro-Avila v. Holder, No. 14-60330. The detained petitioner sought rehearing after the Fifth Circuit denied his pro se petition for review, which raised the same issue that is pending before the Supreme Court in Mata.

   
Paths to Legal Status

Defending Against Legal Challenges to Executive Action 

In early April, the Council, in collaboration with other immigration, civil rights and labor groups, filed an amicus brief in State of Texas, et al. v. United States, No. 15-40238 (5th Cir. amicus brief filed April 6, 2015), supporting the federal government’s request to reverse the preliminary injunction currently blocking implementation of expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).  The brief provides powerful testimonials about potential beneficiaries of the new deferred action programs and explains how the new initiatives will positively impact the U.S. economy by raising wages, increasing tax revenue, and creating new jobs. In addition, the brief provides case examples to prove that, contrary to unfounded assertions from the district court, DHS in fact exercises discretion on a case-by-cases basis in DACA requests and, on occasion, has denied requests filed by individuals who meet all of the eligibility guidelines.

Ongoing Efforts to Implement Executive Action

In February, Council staff spoke on multiple panels at Ready America, a national conference of legal services providers focused on implementing certain aspects of executive action, which was organized by the Committee for Immigration Reform Implementation (CIRI). The Council also continued to develop resources for CIRI’s website, www.adminrelief.org. In addition, the Council’s legal fellow, Patrick Taurel, appeared on C-Span’s Washington Journal to discuss the implementation of executive action. Together with AILA, the Council is closely monitoring the implementation of DHS’s new enforcement priorities, as well as ICE’s new case escalation process to assist individuals wrongly denied prosecutorial discretion under the new policy.

TPS as “Admission” for Purposes of Adjustment of Status

In an amicus brief filed in Ramirez v. Dougherty, No. 14-35633,the Council and AILA argued that the Ninth Circuit should uphold the decision of the district court and find that a TPS recipient who is otherwise eligible to adjust status may do so even if he entered the United States without inspection. Our brief explains that Congress created a legal fiction under which a TPS recipient is “considered” to be in lawful nonimmigrant status for “purposes of adjustment of status.” Because an admission is a necessary prerequisite to lawful immigrant status, the recipient must also be “considered” admitted for purposes of adjustment of status. As such, the admission requirement of INA § 245(a) is satisfied, notwithstanding the individual’s initial entry without inspection. This interpretation has been upheld by the Sixth Circuit and a district court in Pennsylvania. Read here for more on this topic.   

Narrow Interpretation of § 212(h) Aggravated Felony Bar

In an amicus brief filed in Mansfield v. Holder, No. 13-2876 (8th Cir.), the Council and AILA urged the Eighth Circuit Court of Appeals to vacate Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014). Roberts stands alone – out of the ten Circuits to address the issue – in holding that the aggravated felony bar in INA § 212(h) applies to all lawful permanent residents (LPR) regardless of the manner in which they gained LPR status. The nine other courts of appeals have held that Congress intended the bar to apply only to individuals who were admitted to the United States as LPRs and not to those who adjusted to LPR status following their admission. The majority view allows a greater number of LPRs to avoid deportation if they can demonstrate to an immigration judge that their removal will result in extreme hardship to close family members in the United States. Read here for more on this topic. 

Ending Family Detention

The Council has joined forces with AILA, the Catholic Legal Immigration Network, and the Refugee and Immigrant Center for Education and Legal Services, to provide legal services to women and children detained in Karnes City and Dilley, Texas and to advocate aggressively for the end of family detention. The project will build on the partners’ collective experiences providing legal services, running a pro bono project for families detained in Artesia and Karnes, training lawyers and BIA accredited representatives, and leading advocacy and litigation efforts to challenge unlawful asylum, detention, and deportation policies. 

Preserving Federal Court Jurisdiction over Damages Cases

The Council and the National Immigration Project of the National Lawyers Guild filed an amicus brief in the Ninth Circuit arguing that a district court’s dismissal of a Federal Tort Claims Act (FTCA) case for lack of jurisdiction was in error.  Specifically, amici argued that INA § 242(g) is inapplicable to detention that is not mandatory—such as in the case at issue—because such detention is not encompassed in § 242(g)’s bar to review of cases involving the “commencement” of removal proceedings.  Amici also argued that the bar to review in INA § 236(e) does not apply to cases such as this, where probable cause did not exist and thus DHS had no discretion to detain the plaintiff.  The parties subsequently settled the case, Rivas Martinez v. Holder, No. 14-56041 (9th Cir. amicus brief filed Jan. 21, 2015), with the Petitioner receiving $30,000 in damages.  

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