The LAC Docket | Volume IV, Issue 2

The Newsletter of the American Immigration Council’s Legal Action Center

April 16, 2014

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OUR WORK

Systemic Reforms

Systemic Reform

Court Preliminarily Approves Settlement in Duran Gonzalez Litigation

On March 21, 2014, the District Court for the Western District of Washington granted preliminary approval of a settlement agreement in our long-pending Ninth Circuit-wide class action, Duran Gonzalez. The suit involves eligibility for adjustment of status (under INA § 245(i)) and an I-212 waiver for individuals who previously were removed. In a 2007 decision, Duran Gonzalez v. DHS, 508 F.3d 1227 (9th Cir. 2007), the Ninth Circuit held that individuals who previously were removed are ineligible for adjustment of status with an I-212 waiver. However, the Ninth Circuit subsequently remanded the case to the district court for consideration of plaintiffs’ retroactivity claims. On remand, the parties negotiated a proposed settlement, which involves remedies for a subset of class members with retroactivity claims.

The court set a fairness hearing for July 11, 2014, at which the Court will consider whether to approve the settlement. Notice of the proposed settlement and hearing is located here. A copy of the proposed settlement agreement is located here.

LAC Issues Practice Materials Regarding Implementation of National Asylum Clock Class Action Settlement

USCIS and EOIR have issued extensive guidance regarding the Settlement Agreement in B.H., et al. v. USCIS, et al. (also known as ABT). This national class action challenging the manner in which USCIS and EOIR determine an asylum applicant’s eligibility for an employment authorization. In February, the LAC issued an updated FAQ, providing details about the new agency guidance and other aspects of implementation of the Settlement Agreement. The LAC also updated the Practice Advisory, Employment Authorization and Asylum: Strategies to Avoid Stopping the Asylum Clock, to explain the new scheme for determining an asylum applicant’s eligibility for employment authorization. The LAC continues to evaluate claims filed under the Settlement Agreement. Additional information about the ABT Settlement Agreement is available on the LAC’s website.

Enforcement

New Website Launched As a Clearinghouse for CBP Abuse Cases

On March 26, the LAC and several partner organizations launched HoldCBPAccountable.org to catalogue lawsuits and administrative complaints brought against U.S. Customs and Border Protection (CBP). The website will serve as a clearinghouse for litigation that exposes CBP abuses, including unlawful searches and seizures, removals based on coercion and misinformation, and the use of excessive and sometimes deadly force by Border Patrol agents. To date, we have posted information about approximately two dozen cases from seven states on the site, along with other resources such as agency documents and records released under the Freedom of Information Act. The website is designed to be a resource for both attorneys and advocates. Co-sponsors with the LAC are the National Immigration Project of the National Lawyers Guild, the Northwest Immigrant Rights Project, and the ACLU of San Diego and Imperial Counties.

LAC Urges Court to Find that Noncitizens May Sue United States for Damages Suffered as the Result of an Unlawful Removal

The LAC, with the National Immigration Project of the National Lawyers Guild, filed an amicus brief in Avalos-Palma v. United States, No. 3:13-cv-05481 (D.N.J.), arguing that the district court has jurisdiction to decide whether the United States is liable for damages suffered by a noncitizen who was unlawfully removed in violation of a mandatory stay of removal. The plaintiff was prevented from returning for three years, was separated from his children and lost his job. The government does not dispute that the removal was unlawful but argues that the court has no jurisdiction. Our amicus brief demonstrates that: 1) the INA does not bar the court from hearing this type of damages case; and 2) the United States is liable because, as required by the Federal Tort Claims Act, it would be liable in similar circumstances under state law if it were a private person.

LAC Challenges DHS’s Failure to Provide Advisals of Rights

In January 2014, LAC Director Melissa Crow appeared before the Ninth Circuit as amicus curiae at oral argument in two cases challenging DHS’s failure to inform individuals prior to interrogation of the reason for their arrest, their right to legal representation, and that anything they say may be used against them in a subsequent proceeding. While the court ultimately found that it was bound by Samayoa-Martinez v. Holder, 558 F.3d 897 (9th Cir. 2009), a prior Ninth Circuit decision holding that such advisals are not required by 8 C.F.R. § 287.3(c) until after formal proceedings have been initiated, the panel expressed disapproval with the Samayoa decision at oral argument. An attorney for one of the petitioners is currently seeking rehearing en banc, while the other case was remanded for further proceedings related to an asylum claim. The cases were Miranda Fuentes v. Holder, 2014 U.S. App. LEXIS 2578 (9th Cir. Feb. 11, 2014) and Segovia v. Holder, 2014 U.S. App. LEXIS 2576 (9th Cir. Feb. 11, 2014).

Due Process

LAC Argues for Flexible Interpretation of Procedural Requirements for Ineffective Assistance of Counsel Claims

The Second Circuit has recognized that individuals seeking to prove that a former attorney provided ineffective assistance of counsel need only substantially comply with the procedural requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). However, the court has provided little additional guidance, leading to a patchwork of unpublished decisions from the court and the BIA interpreting what amounts to compliance with the requirements. The LAC submitted an amicus brief urging the court to broadly interpret the phrase “substantial compliance,” especially where ineffective assistance is clear on the record, where the individual making an ineffectiveness claim is detained or appearing pro se, and where the individual has provided a valid explanation for failure to comply with one or more of the Lozada requirements. The case is Labissiere v. Holder, No. 13-2377 (2d Cir. amicus brief submitted Mar. 21, 2014).

LAC Challenges Denial of Asylum Based on Uncorroborated, Anonymous Hearsay

In Angov v. Holder, No. 07-74963, the Ninth Circuit Court of Appeals held that the denial of asylum based solely on unsworn, unauthenticated hearsay evidence relating to an investigation by the U.S. State Department did not violate the Immigration and Nationality Act or the Plaintiff’s due process rights. The Court found that the government made a “reasonable effort” to enable the Petitioner to cross-examine a State Department witness, “but was prevented from doing so by State’s policy of not releasing follow-up information regarding its overseas investigations.” The American Immigration Council, the Center for Gender and Refugee Studies, the Center for Human Rights and Constitutional Law, the Harvard Immigration and Refugee Clinical Program, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and the National Immigration Project of the National Lawyers Guild, represented by Mayer Brown LLP and the Supreme Court Clinic at Yale Law School, filed an amicus brief in support of the petition for rehearing en banc. Amici argued that the decision, which is at odds with prior Ninth Circuit case law and decisions of five other courts of appeals, violates the Petititioner’s statutory and constitutional rights.

LAC Pursues FOIA Litigation Seeking DHS Access to Counsel Records

The LAC, with co-counsel Dorsey & Whitney, continued to pursue FOIA litigation against ICE and CBP, seeking to compel the release of records relating to noncitizens’ access to counsel in interactions with the immigration agencies.

In the suit against ICE, the court issued a Memorandum Opinion on March 5, 2014, denying ICE’s summary judgment motion in part. The court found that ICE had once again failed to demonstrate that it had conducted an adequate search for records responsive to the LAC’s FOIA request. The court granted ICE’s summary judgment motion in part regarding ICE’s withholding of eleven contested documents. The LAC appeared at a status conference on March 20 and has proposed that ICE search local offices for guidance regarding access to counsel.

In the suit against CBP, the LAC has obtained more than 300 documents since the agency withdrew its initial summary judgment motion in March 2012. The government released some of those documents in full, partially redacted some, and withheld others based on various FOIA exemptions. Following continued negotiations, the LAC dropped its challenges to the adequacy of CBP’s search and the applicability of the FOIA exemptions in all but seven documents. Following in camera review of the seven disputed documents, the Court granted CBP’s second summary judgment motion, while acknowledging that “CBP’s explanations of the applicability of the claimed exemptions are at times thin.”

Paths to Legal Status

DACA Developments

While continuing to engage in administrative advocacy and provide legal trainings and technical assistance, the LAC has sought out new ways to promote the Deferred Action for Childhood Arrivals (DACA) program. On March 21, the LAC brought together consular officers from ten countries, as well as DACA experts and U.S. government officials, to discuss steps foreign consular networks can take to encourage their nationals to apply for DACA. On March 7, Patrick Taurel, the LAC’s DACA Legal Services Fellow, spoke about available relief for youth in removal proceedings at the AILA New England Chapter conference. On February 18, the American Immigration Council and AILA jointly submitted comments to USCIS regarding the agency’s proposed modifications to the DACA application form (Form I-821D). The LAC is in the process of analyzing, publicizing, and appealing USCIS and ICE’s responses to DACA-related FOIA requests filed by the American Immigration Council in collaboration with the National Immigration Law Center.

LAC Urges Court to Rule that a TPS Recipient Who Entered Without Admission Is Eligible to Adjust Status

The LAC, with the Northwest Immigrant Rights Project, filed an amicus brief urging the federal district court in Seattle to find that a noncitizen granted Temporary Protected Status (TPS) is eligible to adjust his status to that of a lawful permanent resident (LPR) even though he originally entered the United States without being admitted or paroled. This is because the grant of TPS qualifies a noncitizen as having been “admitted” to the United States—one of the requirements for adjustment of status. In 2013, the Sixth Circuit interpreted the TPS statute in just this way, and amici argue that this interpretation—and not a contrary interpretation from the Eleventh Circuit—is in line with relevant Ninth Circuit cases. The case is Ramirez v. Dougherty, No. 13-1236-TSZ (W.D. Wash).

LAC Continues To Challenge BIA’s Restrictive Interpretation of § 212(h) Waiver

With AILA, the LAC filed an amicus brief urging the Second Circuit to join the Third, Fourth, Fifth, Seventh, and Eleventh Circuits and find that the statutory bar to the waiver in INA § 212(h) applies only to individuals who entered the United States as lawful permanent residents (LPR), not to those who subsequently adjusted to LPR status. The brief argues that the Board’s contrary interpretation in Matter of Koljenovic, 25 I&N Dec. 219 (2010), ignores the plain language of the INA, which distinguishes between applicants who entered the country as LPRs and those who gained LPR status post-entry. The case is Sampathkumar v. Holder, No. 11-4342. Subsequent to filing our brief, in cases in which we were not involved, the Ninth Circuit adopted the position we support, while the Eighth Circuit rejected it. The LAC is amicus in a pending case in the Sixth Circuit, Stanovsek v. Holder, No. 13-3279, that raises the same issue.