New Articles
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Today
USCIS Policy Memo: Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (Feb. 22, 2018)

USCIS, Feb. 22, 2018 - "This policy memorandum (PM) establishes U.S. Citizenship and Immigration Services (USCIS) policy relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites."

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February 22
Class Action Filed Against Feds Over Adjustment of Status Via TPS - Moreno v. Nielson

AIC, Feb. 22, 2018 - "Today, the American Immigration Council, the Northwest Immigrant Rights Project, and several Temporary Protected Status holders filed a class action lawsuit against officials at the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Homeland Security (DHS) in a federal district court in New York, challenging the government’s unlawful practice of depriving certain Temporary Protected Status (TPS) holders with close family relationships or employment in the United States from becoming lawful permanent residents. In particular, USCIS is denying the adjustment applications of TPS holders who, in accord with the Immigration and Nationality Act, have been “inspected and admitted” for purposes of adjustment of status because, prior to their receipt of TPS, they entered the United States without inspection. 

The lawsuit alleges that Defendants’ policy:

Violates the Immigration and Nationality Act (INA) and Administrative Procedure Act (APA) because it refuses to recognize that TPS holders have been “inspected and admitted” for the purposes of adjudicating adjustment of status applications; and Causes Defendants to fail to perform a non-discretionary duty (finding that TPS holders have been inspected and admitted when adjudicating adjustment of status applications).

This lawsuit also asks the court to:

Declare Defendants’ policy (and any adjustment of status decisions based on the policy) unlawful and order them to stop applying the policy; Find that class members have been “inspected and admitted” for the purposes of their adjustment applications; and Order Defendants to reopen class members’ adjustment applications that were denied based on the old policy and allow those class members the opportunity to have their applications reconsidered with the law properly applied.

USCIS’s interpretation of the TPS and adjustment of status statutes is a longstanding problem. Currently, USCIS applies its unlawful policy to TPS holders living everywhere in the country except for within the jurisdictions of the U.S. Courts of Appeals which have ruled on the issue, the Sixth, Ninth and Eleventh Circuits. Thus, the proposed class would include individuals living within the jurisdictions of the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and Tenth Circuits.

The case has been filed in the U.S. District Court for the Eastern District of New York. A motion for class certification and supporting exhibits were filed with the complaint."

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Trump Administration Ratchets up Pressure on “Sanctuary” Jurisdictions

Muzaffar Chishti and Jessica Bolter, MPI, Feb. 22, 2018 - "As President Donald Trump and his administration continue to publicly excoriate cities and states that limit cooperation with federal immigration authorities—so-called sanctuary cities—the Justice Department has been steadily building a case to turn those words into concrete penalties. After federal court rulings appeared to deal a blow to initial efforts to punish noncompliant jurisdictions, via an executive order the President signed early in his term, the administration has moved in recent months to place new demands on these states and localities. By February 23, nearly two dozen cities, counties, and states must turn over all formal and informal documents relating to rules of communication between their employees and the Department of Homeland Security (DHS)—or risk a Justice Department subpoena. [More...]"

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It's Official: America is No Longer a "Nation of Immigrants"

Ryan Deveraux, The Intercept, Feb. 22, 2018 - "The lead U.S. agency tasked with granting citizenship to would-be Americans is making a major change to its mission statement, removing a passage that describes the United States as a nation of immigrants. In an email sent to staff members Thursday and shared with The Intercept, U.S. Citizenship and Immigration Services Director L. Francis Cissna announced the agency’s new mission statement.

It reads:

U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.

USCIS’s previous mission statement, still [but no longer] available on the agency’s website Thursday, read:

USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system."

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February 21
Melania, and Donald, Have Some Explaining to Do

Chain migrationWorking without a permit?  Please read this and this from the Washington Post and decide for yourself.

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Class Action Challenges Trump, Sessions Attack on Refugee Children

NYCLU, Feb. 20, 2018 - "The New York Civil Liberties Union today announced a class action lawsuit against the Office of Refugee Resettlement (ORR) for trapping immigrant children in prolonged detention. Though the agency is obligated to promptly reunify children with their families, the release of children who have been held in restrictive detention has nearly ground to a halt under a new policy that requires sign-off by the ORR director, a Trump administration appointee. The lead plaintiff in the class action is a 17-year-old boy, LVM, who was taken from his home on Long Island in July 2017 as part of the Trump administration’s crackdown on purported MS-13 gang members. LVM, who has no criminal record and no gang involvement, has been detained and separated from his mother for over seven months, though an immigration judge, local ORR supervisor, and every caretaker in the facilities where he is housed have concluded that he poses no danger. The NYCLU believes that more than 40 children would qualify as part of the class of immigrant teens detained indefinitely.  “The Trump Administration is trapping children, many of whom came to New York to escape trauma and violence, in purgatory, separating them from their families and upending their lives,” said Donna Lieberman, executive director of the New York Civil Liberties Union. “It is bad enough to arrest kids based on flimsy evidence, but it’s hard to fathom the cruelty of keeping them locked up even after the government’s own judges and caseworkers have said they should go home.” "

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Akin Gump Secures Asylum For US Military Interpreter - Law360

Nicole Narea, Law360, Feb. 20, 2018 - "Afghan native Abdul Samey Honaryar should not have spent a year detained in the custody of the same government he served as a war zone translator, his Akin Gump Strauss Hauer & Feld LLP attorneys told Law360.

Abdul Samey Honaryar, second from left, stand with his Akin Gump attorneys, from left, Lauren Connell, Natasha Burnett, and Dean Chapman.

They argued that Honaryar had a compelling life story and a compelling, black-letter-law asylum case: the Taliban, an Islamic fundamentalist group that maintains strongholds in Afghanistan, had marked him a traitor for his work as a U.S. military translator, targeting him and his family, so he fled to the U.S., whose soldiers he had supported in conflict. Seemingly, the U.S. immigration system should have welcomed him, they said.Instead, when he arrived in the U.S. in early 2015, he had to plead his case to an unyielding immigration judge and was stuck in immigration detention. It was only after two years with Akin Gump's pro bono counsel that he was able to secure asylum in November."

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CA11 on Divisibility, AggFel - Cintron v. U.S. Atty. Gen.

Cintron v. U.S. Atty. Gen. - "Natalia Cintron petitions for review of a Board of Immigration Appeals (“BIA”) decision denying her application for cancellation of removal from the United States and ordering that removal. The BIA concluded that Cintron failed to prove that she had not been convicted of an aggravated felony, which rendered her ineligible for cancellation of removal. In short, the BIA determined that the Florida narcotics statute under which Cintron had been convicted was divisible into separate offenses and, because the record of her conviction was inconclusive regarding which offense she had committed, she could not demonstrate her eligibility for cancellation of removal.

We disagree with the BIA’s conclusion. Because the Florida statute under which Cintron was convicted was indivisible and categorically overbroad, a conviction under that statute cannot qualify as an aggravated felony. Cintron’s narcotics conviction therefore does not disqualify her from cancellation of removal. We grant her petition and remand to the BIA to reconsider her application."

[Hats off to Humberto J. Corrales and an army of amici!]

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BALCA Holds That Foreign Language Requirement Did Not Need To Be Listed In The Advertisements

Cora-Ann Pestaina, Feb. 20, 2018 - "Despite the fact that the PERM regulations took effect on March 28, 2005, almost 13 years ago, PERM practitioners continue to struggle with the Department of Labor (DOL) regarding what must be listed in PERM advertisements. Issues surrounding this ongoing battle were discussed in my blogs hereherehere and here. As they say, the struggle is real!

An employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. When a DOL Certifying Officer (CO) chooses to deny a PERM application due to lack of information in the advertisements, there are a few typical sources of authority that could be cited to justify that denial. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.” Based on this authority, a CO could find that an employer failed to inform US workers of conditions of employment that might have made the position more attractive to them, such as a work from home benefit. Under 20 C.F.R. §656.24(b)(2), the CO must make a determination as to whether there “is in the United States a worker who is able, willing, qualified and available for and at the place of the job opportunity.” Based on this authority, the CO can hold that this decision is impossible to make since the employer failed to provide US workers with a sufficient understanding of the job opportunity thus rendering them incapable of making an informed decision as to whether they would qualify for the offered position. Accordingly, the CO cannot make a determination as to whether or not qualified US workers exist. Another favorite source of authority is 20 C.F.R. §656.10(c)(8), which requires an employer to attest that “the job opportunity has been and is clearly open to any US worker.” The CO will cite this regulation to make the point that, since the employer neglected to sufficiently inform US workers about the job opportunity, then it was clearly not open to all US workers.

Most recently, in Matter of Unicolors, Inc. 2013-PER-00065 (Jan. 26, 2018) the Employer advertised for a permanent position classified under the occupational title of “Sales Representative, Wholesale and Manufacture.” The PERM was audited. The CO then denied the PERM under 20 C.F.R. §§656.24(b)(2)(ii) and 656.10(c)(8) and (9), finding that because the Employer failed to include “must be able to read, write, and speak the Korean language” in its Sunday print advertisements and in its job order, the Employer had not provided U.S. applicants with a sufficient understanding of the job opportunity to make an informed decision as to whether they would qualify for the position. The Employer’s newspaper advertisements had simply stated, “Sales Representative. Apply by mail only to Unicolors, Inc.” In its request for reconsideration the Employer argued that the Preamble to the Final Rule of 20 C.F.R. Parts 655 and 656 gives the Employer the flexibility to draft appropriate advertisements that comply and that lengthy, detailed advertisements are not required by the regulation. The Employer argued that its advertisements sufficiently apprised the potentially qualified applicants of the job. The case was appealed to the Board of Alien Labor Certification Appeals (BALCA).

In describing its responsibility in adjudicating the appeal, BALCA cited a prior case which states, “When the CO relies on §656.10(c)(8) as a basis for denying an application due to deficiencies in an employer’s recruitment advertising, the Board must determine whether any discrepancies between the job requirements listed in the Form 9089 and the Employer’s recruitment advertisements ‘so misinformed potential job applicants about the [position] that this aspect of recruitment undermines the attestation that the job opportunity is clearly open to any U.S. worker.’” Enterprise Software Solutions, Inc., 2012-PER-02118 (Nov. 16, 2016) (citing Cosmos Foundation, Inc., 2012-PER-01637, slip op. at 7 (Aug. 4, 2016)).

BALCA found that its recent panels, in applying this §656.10(c)(8) analysis, reversed PERM denials when the Employer’s advertisements merely omitted information. BALCA referred to Cosmos Foundation, Inc., where the Employer advertised for the position of Social Studies Department Chair asking simply for 24 months of experience. On the PERM application, the Employer indicated that it would accept 24 months experience in the offered position or as a “Teacher in Social Studies [or any subfield of social sciences] at the middle or high school levels.” The CO reasoned that the Employer had not provided U.S. workers with a sufficient understanding of the job opportunity to make an informed decision as to whether they would qualify for the position. However, BALCA pointed out that the Employer’s advertisements did not actually misinform US workers about the job opportunity or deter qualified candidates from applying. A US worker with relevant teaching experience would still apply for the position whether or not that worker had experience as a Social Studies Department Chair or as a “Teacher in Social Studies [or any subfield of social sciences] at the middle or high school levels.” BALCA found that the Employer’s omission of the acceptable alternate job experience in its advertisements did not “chill” potentially qualified candidates’ interest in the job opportunity.

BALCA also referred to DNG Technologies, Inc. 2012-PER-01647 (Feb. 25, 2016) where the CO denied the PERM application finding that the Employer’s advertisement on its website failed to apprise interested applicants of the geographic area of employment. The CO argued that §656.10(c)(8) requires website advertisements to comply with the criteria set forth in §656.17(f), including §656.17(f)(4), which mandates that advertisements must “[i]indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” But BALCA pointed out that the Board has ruled §656.17(f) applies only to advertisements placed in newspapers of general circulation or professional journals. Symantec Corp., 2011-PER-1856 (July 30, 2014) (en banc) (which I previously blogged about here). Because §656.17(f)(4) does not govern the additional forms of professional recruitment, it does not necessarily follow that omitting the area of geographic employment from an employer’s website advertisement establishes that the job was not clearly open to US workers. BALCA stated that the relevant inquiry under §656.10(c)(8) is whether the Employer’s website advertisement so misinformed, or so failed to inform, potential applicants about the job opportunity that the recruitment did not support the Employer’s attestation that the job opportunity was clearly open to any US worker. BALCA found that interested applicants were not misinformed about the location of the offered position, they simply were not informed about the geographic area of employment and although a statement of the location of the employment might have been useful information for job seekers, its omission did not support a determination that the job opportunity was not clearly open to US workers.

Based on these two cases, BALCA found that the Employer in Unicolors merely omitted the information that the qualified candidate must be able to read, write, and speak the Korean language. The Employer, while it could have been more specific in its advertisements, did not overstate or mischaracterize the job requirements and the regulations do not require that the Employer enumerate every job requirement in its advertisements.  Killing any potential argument that Korean speakers who were out there just dying for a job where they could utilize their Korean were deterred from applying for the offered position simply because the Employer failed to inform them that applicants for the Sales Representative position needed to be fluent in Korean, BALCA pointed out that the regulations do not require that employers craft their advertisements to foreclose all possible reasons why a qualified applicant may not apply for a certain job. A US worker with the ability to read, write and speak Korean would still apply for the job if they were interested in a position as a Sales Representative!

It can become truly exhausting to always prepare PERM applications defensively; to always try to stay one step ahead of the DOL and to imagine new reasons for denial. It is therefore quite encouraging to read these types of BALCA decisions which reward employers for their good faith recruitment and where the US worker is not painted as so easily “deterred’, “confused” and “adversely affected.” Having said that, PERM practitioners know well that in trying to ensure a smooth PERM process, the best course of action is to include as much relevant information in the advertisements as possible and to endeavor to keep advertisements identical across the board. But for the times when that is not the case, these decisions provide some hope."

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BIA on Credibility, Border & Airport Interviews: Matter of J-C-H-F-, 27 I&N Dec. 211 (BIA 2018)

Matter of J-C-H-F-, 27 I&N Dec. 211 (BIA 2018) - When deciding whether to consider a border or airport interview in making a credibility determination, an Immigration Judge should assess the accuracy and reliability of the interview based on the totality of the circumstances, rather than relying on any one factor among a list or mandated set of inquiries.

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February 19
How ICE Works to Strip Citizenship from Naturalized Americans

Eoin Higgins, The Intercept, Feb. 14, 2018 - "FOR 10 YEARS, U.S. Immigration and Customs Enforcement’s investigative office has worked to keep its internal handbook out of American courts. The handbook could have been used in court to show how ICE’s push to lead on denaturalization cases stands in contrast to the language of federal law governing the process, an immigration lawyer said. “We could have used it as an exhibit in a motion to dismiss” in previous denaturalization cases, said Philip Smith, an immigration attorney from Portland, Oregon, noting the contrast.

The handbook, which was issued on January 15, 2008, and published Wednesday by the independent media outlet Unicorn Riot, makes clear that the priority for ICE’s investigative division, Homeland Security Investigations, or HSI, in denaturalization proceedings is to use the most efficient means possible to fulfill a single-minded goal: leveraging the bureaucratic process to strip citizenship from naturalized Americans.

“It’s a manual for the worst outcome” with respect to investigation targets, said Alaska immigration lawyer Margaret Stock in an interview on Tuesday. That’s not unique to ICE, Stock added — it’s how the entire U.S. justice system operates. “Their objective is to inflict the most pain as possible, as efficiently as possible,” Stock said. “They feel they’re doing their job correctly if the government wins — not if justice is done.”

The 20-page manual instructs agents on the particulars of denaturalization investigations.

... DENATURALIZATION PROCEEDINGS USUALLY target false statements made by applicants on the forms they must fill out as part of their naturalization requirements, and those false statements aren’t always material to the application’s approval. That, however, won’t stop the government from pursuing charges on the basis of those false statements.

“What the government wanted was for any lie or misrepresentation to be enough to denaturalize you,” said immigration attorney Kathrin Mautino. Mautino, who runs her own specialized law firm in San Diego, California, said, “If they could prove you lied about anything, that could be enough.”

Pursuing immigration fraud isn’t new. The use of denaturalization as a tactic, however, wasn’t given much attention before September 11, 2001. After the terror attacks, said Smith, “the government began looking at and re-evaluating any and all tactics from a national security strategy.” One component was denaturalization, a tactic that has been used aggressively over the past two decades.

That changed for naturalized citizens in criminal cases when the Supreme Court, in June 2017, ruled that a simple misstatement on naturalization paperwork was, in and of itself, not enough to strip citizenship at the criminal level. Justice Elena Kagan, writing for the majority, said that the law allows the government to strip “a person of citizenship not when she committed any illegal act during the naturalization process, but only when that act played some role in her naturalization.”

Yet the different standard of proof for civil cases had meant that ICE has merely changed its tactics, not its approach. “The standard is lower on civil cases, so there is more of an emphasis on pursuing those cases,” said Laura Rótolo, an immigration specialist with the American Civil Liberties Union of Massachusetts."

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The Prosecutor's Role in the Current Immigration Landscape

Hillary Blout, Rose Cahn, and Miriam Aroni Krinsky, Criminal Justice magazine, Winter 2018 - "The United States Supreme Court has held that criminal defense counsel is constitutionally obligated to advise noncitizen defendants about the immigration consequences of guilty pleas and to defend against these consequences. (Padilla v. Kentucky, 559 U.S. 356 (2010).) But what is the role of the prosecutor when a noncitizen defendant faces the possibility of deportation? As criminal courts increasingly become the gateway to federal immigration enforcement, this question is particularly timely.

Entire communities are impacted when a noncitizen defendant is subject to deportation. Current immigration enforcement efforts are expanding, causing increased anxiety and mounting distrust of law enforcement within the immigration community. Moreover, noncitizens in the criminal justice system are now facing penalties that may not have been contemplated or considered in determining the appropriate consequences for the underlying criminal offense. Prosecutors need to be acutely aware of all of these issues and concerns.

This article seeks to present the various types of immigration penalties that flow from certain criminal convictions; explore the ways in which federal immigration policies and consequences raise community trust and safety concerns; and provide suggestions for prosecutors interested in engaging in this issue moving forward."

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Amicus Brief Filed in CA6 Iraqi Habeas Litigation - Hamama v. Homan

Paul W. Schmidt (Immigration Judge, 2003 - 2016, BIA Board Member and Board Chairman, 1995-2003; acting General Counsel of legacy INS, 1979 -1981 and again from 1986 to 1987, and Deputy General Counsel of INS from 1978 to 1987) posted a link to this CA6 amicus brief filed by former federal immigration executives on his fabulous "must-read" website, www.immigrationcourtside.com.

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Unpub. BIA Victory re Ineffective Assistance, Equitable Tolling (Feb. 12, 2018)

CLINIC Training and Legal Support Senior Attorney Michelle N. Mendez writes: "The ASAP team of Swapna Reddy, Dorothy Tegeler, and  Liz Willis has done it again. With just a few days before her check-in with Atlanta ICE ERO, a mother reached out to us via our Facebook group. Taylor, Lee & Associates had represented her and accepted an order of removal without fighting her case. Many of us are familiar with this law firm having heard about or helped the families targeted in January 2016 by the Obama Administration who were also represented by this firm in the same manner. By “representation” I mean that the law firm did not defend her against removal before the IJ instead accepting an order of removal in exchange for seeking a stay of removal and promising an EAD.

When we learned her case involved the same “salvo conducto” practice by this law firm and that the mother had not actually consent to this practice, we knew we had to help this mother. But time was not on our side as her imminent check-in with Atlanta ICE EOR was supposed to be her last. After strategically considering our options, we rushed to prepare an untimely BIA appeal….a two-year untimely appeal. We prepared a stay of removal application and recruited a local advocate, Keith Farmer, to attend the Atlanta ICE ERO check-in with her and submit the stay. Keith handled the situation like a professional, and the mother was ultimately never detained at her subsequent check-ins at which Shana Tabak artfully accompanied her.

The BIA accepted the Notice to Appeal and issued a briefing schedule. We followed this with an emergency motion for a stay of removal with the BIA. While the Notice to Appeal was pending and we awaited the briefing schedule, we complied with the Lozada procedures and obtained a psych evaluation of the client thanks to Craig Katz, Elizabeth Singer, and Varsha Subramaniam. We reached out to Trina Realmuto and Kristin Macleod-Ball, who provided strategic advice and an amicus brief in support of our untimely appeal. Katie Shephard provided an invaluable declaration given her work on the cases of the families represented by this law firm and targeted in January 2016 by the Obama Administration who were taken to Dilley.Laura Lichter also pitched in with strategic feedback and sample filings given her tireless work on the January 2016 cases, and her input was essential. And, last but not least, we reached out to Bradley Jenkins and Lory Rosenberg for their wisdom, who helped us to frame arguments in the most compelling way. 

The BIA dismissed the appeal as untimely instructing us to file a Motion to Reconsider and Remand on the question of timeliness. As was done in five nearly identical cases involving this law firm, we asked the BIA to accept this late-filed appeal on certification, or in the alternative, equitably toll the notice of appeal deadline and remand the case for further proceedings before the Immigration Judge. The BIA decision is [linked here.] Huge thanks to ASAP volunteer law student Mayu Arimoto for her assistance with this briefing. Of course, and as always, thanks to Ben Winograd for his filing assistance with the BIA.

The moral of this story is that defending the rights of immigrants is tough work. We battle inhumane policies, cowardly or openly authoritarian leaders, greedy representatives who fill their coffers with private prison money, negative public opinion, intentional and unintentional media misinformation, notarios/unauthorized practitioners of law, and even other attorneys who abandon their duty to zealously represent their vulnerable clients. But when competent and caring advocates join forces, we can do anything."

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Matter of Castro-Tum (Administrative Closure) BIA Amicus Briefs

1.  Here's the "Gang of 14" brief from former IJs and retired BIA Board members, about which  Paul W. Schmidt writes: "Thanks again to all my retired colleagues. What a great opportunity to “reunite online” in support of a critically important cause affecting the American Justice System!  Special thanks to Judge Jeffrey Chase for spearheading the effort and getting all of us together!  “Super Special Thanks” to the amazing Steven H. Schulman, Partner at Akin Gump DC and to Akin Gump for donating your valuable time and expertise and making this happen!"

2.  Here's the brief from law clinics and non-profits.

See generally, Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018)

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And You Thought H-2Bs Could Not Get More Complicated - USCIS Policy Memo re Guam

USCIS, Feb. 15, 2018 - "This policy memorandum (PM) provides guidance regarding the filing and adjudication of H-2B nonimmigrant petitions that fall under section 1049 of the National Defense Authorization Act for Fiscal Year 2018 (NDAA). This PM pertains to certain H-2B petitions requesting start dates on or after April 11, 2018, and before October 1, 2023, for an otherwise qualified H-2B worker to perform service or labor on Guam pursuant to any agreement entered into by a prime contractor or subcontractor calling for services or labor required for performance of a contract or subcontract for construction, repairs, renovations, or facility services that is directly connected to, or directly associated with, the military realignment occurring on Guam. Under the NDAA, an employer’s need for these specific types of service or labor is not required to be temporary in nature if the employment start date is on or before September 30, 2023."

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USCIS Policy Memo: Signatures on Paper Applications, Petitions, Requests, and Other Documents Filed with USCIS

USCIS, Feb. 15, 2018 - "This policy memorandum (PM) finalizes the interim memorandum under the same title issued by U.S. Citizenship and Immigration Services (USCIS) on June 7, 2016. It provides the current USCIS policy regarding the signature requirement for applications, petitions, requests, and other documents that require a signature prior to filing with USCIS. This PM does not address electronic signatures for any document filed electronically with USCIS. USCIS will address the requirements for electronic signatures in future guidance."

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BIA Amicus Invitation - Removability and Aggravated Felony Definitions (Due Mar. 16, 2018)

Amicus Invitation No. 18-02-14

AMICUS INVITATION (REMOVABILITY & AGGRAVATED FELONY DEFINITIONS),

DUE March 16, 2018

FEBRUARY 14, 2018

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUES PRESENTED:

(1) Whether DHS can establish removability by charging an alien as an aggravated felon under two separate aggravated felony definitions, neither of which would independently be a categorical match to the statute of conviction, if all means of violating the statute fall within at least one of the charged aggravated felony definitions.

(2) Whether all means of violating New York Penal Law § 155.05 would meet the definition of an aggravated felony as defined in either section 101(a)(43)(G) OR section 101(a)(43)(M) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G), (M), and if so, under which definition of aggravated felony would each subsection of NYPL § 155.05(02) fall.

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CA4 on Honduras, MS-13, Nexus - Salgado-Sosa v. Sessions

Salgado-Sosa v. Sessions, Feb. 13, 2018 - "Reynaldo Salgado-Sosa, a native and citizen of Honduras, seeks asylum, withholding of removal, and protection under the Convention Against Torture. If he is returned to Honduras, he fears, he will face persecution at the hands of the gang MS-13, which has repeatedly attacked his family for resisting extortion demands. The agency proceedings focused on whether Salgado-Sosa could show, for purposes of both his asylum and withholding of removal claims, a nexus between MS-13’s threats and membership in a cognizable “particular social group” – here, Salgado-Sosa’s family. The Board of Immigration Appeals found that Salgado-Sosa could not establish the requisite nexus, and denied withholding of removal on that ground. The Board separately found that Salgado-Sosa’s asylum application was untimely, and that there was insufficient evidence to justify protection under the Convention Against Torture. We conclude that the Board erred in holding that Salgado-Sosa did not meet the nexus requirement. The record compels the conclusion that at least one central reason for Salgado-Sosa’s persecution is membership in his family, a protected social group under the Immigration and Nationality Act. Accordingly, we vacate the denial of withholding of removal, and remand for further proceedings on that claim. On the asylum claim, we separately remand for consideration of whether our recent decision in Zambrano v. Sessions, 878 F.3d 84 (4th Cir. 2017), affects Salgado-Sosa’s argument that a statutory “changed circumstances” exception allows consideration of his untimely application."

[Hats off to Alfred Lincoln "Rob" Robertson, Jr.!  And click here to listen to his baseball "strike zone" analogy at oral argument.  Brilliant.]

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Sincerely,
Daniel M. Kowalski
Editor
dkowalski@david-ware.com

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