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Immigration Law

News Excerpts From the July 1, 2014, Bender’s Immigration Bulletin

Supreme Court Decides CSPA Case |

On June 9, 2014, the Supreme Court issued its opinion in Scialabba v. Cuellar de Osorio, 2014 U.S. LEXIS 3991 [enhanced opinion available to subscribers]. The Court held that the BIA’s textually reasonable construction of the Child Status Protection Act’s ambiguous language was entitled to deference, meaning that an aged-out “child” cannot retain his or her priority date if a new petitioner is needed. The case is summarized below in Case Digests.

White House Orders Humanitarian Response to Unaccompanied Minors

On June 2, 2014, President Obama ordered the Federal Emergency Management Agency to oversee the federal government response to the recent surge in young and unaccompanied minors from Central America crossing the southwest border. Nearly 50,000 unaccompanied minors have been apprehended by the Border Patrol this fiscal year, almost double the figure from the prior fiscal year. Most of the minors hail from Guatemala, Honduras, and El Salvador, countries plagued by gang violence.

Under federal law, unaccompanied children from countries other than Mexico must be turned over within seventy-two hours to the Office of Refugee Resettlement in the Department of Health and Human Services, and are sheltered until they can be unified with a family member or other U.S. sponsor. Due to the surge in arrivals, however, many children are being held in temporary Border Patrol holding cells beyond seventy-two hours, and the ORR recently began housing children at military bases. Although subject to removal, unaccompanied minors are given notices to appear in immigration court instead of being subjected to expedited removal. The presidential memorandum is reprinted at Appendix A.

Process for DACA Renewal Defined: USCIS Revises Form 

On June 5, 2014, Secretary of Homeland Security Jeh Johnson announced the process by which individuals may renew enrollment in the Deferred Action for Childhood Arrivals program.

The renewal process begins by filing the new version of Form I-821D, “Consideration of Deferred Action for Childhood Arrivals”; Form I-765, “Application for Employment Authorization”; and the I-765 Worksheet. U.S. Citizenship and Immigration Services has submitted to the Federal Register an updated form to allow individuals previously enrolled in DACA to renew their deferral for two years. USCIS began accepting renewal requests on June 5. The first DACA approvals will begin to expire in September 2014. To avoid a lapse in the period of deferral and employment authorization, individuals must file renewal requests before the expiration of their current period of DACA. USCIS encourages requestors to submit their renewal requests approximately 120 days (four months) before their current period of deferred action expires.

USCIS will also continue to accept requests for DACA from individuals who have not previously sought to access the program. As of April 2014, more than 560,000 individuals have received DACA. “Despite the acrimony and partisanship that now exists in Washington, almost all of us agree that a child who crossed our border illegally with a parent, or in search of a parent or a better life, was not making an adult choice to break our laws, and should be treated differently than adult law-breakers,” said Secretary Johnson. “By the renewal of DACA, we act in accord with our values and the code of this great Nation. But, the larger task of comprehensive immigration reform still lies ahead.”

There is a filing and biometrics (fingerprints and photo) fee associated with Form I-765 totaling $465. As with initial requests, USCIS will conduct a background check when processing DACA renewals.

USCIS will be hosting national and local DACA information sessions. USCIS will provide further information on these sessions during which USCIS officials will provide additional information on the DACA process and be available to answer your questions. For information on local DACA engagements, please visit To learn more about the renewal process or requesting initial consideration of DACA, visit or call the USCIS National Customer Service Center at 1-800-375-5283.

USCIS Ombudsman Criticizes Agency Practices in Issuing Notices to Appear

On June 11, 2014, the Ombudsman for U.S. Citizenship and Immigration Services issued a long-awaited report criticizing numerous agency practices relating to the issuance of notices to appear for removal proceedings. According to the report, USCIS service centers and field offices have minimal contact with agency attorneys when drafting NTAs, and the agency does not track the number of NTAs that are rejected or lead to the termination of proceedings in immigration court due to legal insufficiency. The report also stated that when an NTA mailed by USCIS is returned as undeliverable, the agency does not notify U.S. Immigration and Customs Enforcement or the Executive Office for Immigration Review—potentially subjecting the subject of the NTA to an in absentia order of removal. At the same time, the report so faulted USCIS for refusing to issue NTAs in certain circumstances, such as cases involving noncitizens who can receive relief only in immigration court.

The report recommended that the agency provide additional guidance on the issuance of NTAs, require attorneys to review NTAs prior to issuance, and creating a working group with ICE and EOIR to resolve recurring problems with NTAs issued by USCIS officers.

The report is reprinted at Appendix B.

Florida Extends In-State Tuition Rates to Undocumented Residents

On June 9, 2013, Florida Governor Rick Scott signed H.B. 851, a bill extending in-state tuition rates to all students at public colleges and universities who attended high school in Florida for at least three years. The bill, which was approved by wide margins in the state legislature, makes Florida the eighteenth state to offer in-state tuition to students regardless of immigration status. The previous month, Scott signed a bill allowing otherwise qualified undocumented immigrants to be admitted to the Florida State Bar.

Bender's Immigration Bulletin

[This is an excerpt from the July 1, 2014, issue of Bender's Immigration Bulletin.]

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