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May 25, 2024

BIA on Venue, Choice of Law: Matter of M-N-I-

Matter of M-N-I-, 28 I&N Dec. 308 (BIA 2024) Since choice of law is dependent on venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. Matter of Garcia , 28 I&N Dec. 693 (BIA 2023), followed. "In a decision dated October 24, 2023, the Immigration Judge denied...

May 24, 2024

Judge Pumps Brakes on Florida Order

FWAF v. Moody, May 23, 2024 "On May 23, 2024, we entered a Supplemental Order on the Scope of the Preliminary Injunction (the “Supplemental Order”) [ECF No. 100]. In that Supplemental Order, we clarified that the preliminary injunction in this case—like the injunction the Eleventh Circuit affirmed in Ga. Latino All. for Hum. Rts. v. Governor of Ga., 691 F.3d 1250, 1267 (11th Cir. 2012)—applies...

May 22, 2024

CA1 on Motions to Reopen: Tulung v. Garland

Tulung v. Garland "[I]n reviewing the motion to reopen, the BIA discarded evidence -- without considering its merits -- on legally unjustifiable bases. The BIA retains wide latitude to weigh such evidence but may not ignore it based on legal error. Resultingly, we grant in part the petition for review, vacate the denial of the motion to reopen, and remand for further proceedings." [Hats off to William A...

May 22, 2024

CA9 on SENTRI, APA: Jajati v. CBP

Jajati v. CBP "We have jurisdiction under 28 U.S.C. § 1291. We hold that § 701(a)(2) does not bar judicial review of Jajati’s APA claims. Although CBP has broad discretion to revoke SENTRI memberships, the APA itself recognizes that discretion can be “abuse[d].” 5 U.S.C. § 706(2)(A). And the law governing SENTRI provides meaningful standards under which courts can review whether...

May 22, 2024

USCIS Updates Guidance for Family-Based Immigrant Visas

USCIS, May 22, 2024 "Effective May 22, 2024, we are updating guidance in the USCIS Policy Manual on family-based immigrant visa petitions (including Form I-130, Petition for Alien Relative and, in limited situations, family-based Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant ), including explaining how we handle correcting approval notice errors, requests for consular processing or adjustment...

May 20, 2024

ICE "Knock and Talk" Arrests Unconstitutional: Sorto-Vasquez Kidd

ACLU SoCal, May 16, 2024 "The so-called “knock-and-talk” practice by U.S. Immigration and Customs Enforcement (ICE) is unlawful and unconstitutional, according to a federal judge who vacated the enforcement practice on Wednesday. Judge Otis D. Wright II granted the plaintiffs’ motion for summary judgment in a set of claims concerning ICE’s “knock-and-talk” practice in Kidd...

May 20, 2024

CA11 on AgFel, Controlled Substance, Defective NTA: Leger v. U.S. Atty. Gen.

Leger v. U.S. Atty. Gen. "In this case, we must decide whether a Florida conviction for lewd and lascivious battery under the 2008 version of Fla. Stat. § 800.04(4)—an offense which the Florida Supreme Court has characterized as statutory rape—constitutes the sexual abuse of a minor, and is therefore an aggravated felony under the INA. Applying the categorical approach, and building on the Supreme...

May 17, 2024

Advance Copy, EOIR Final Rule: Efficient Case and Docket Management in Immigration Proceedings

This is the text of the Efficient Case and Docket Management in Immigration Proceedings Final rule as signed by the Attorney General, but the official version of the Final rule will be as it is published in the Federal Register. "On September 8, 2023, the Department of Justice (“Department”) published a Notice of Proposed Rulemaking (“NPRM”) proposing to rescind an enjoined December 2020...

May 17, 2024

Matter of Furtado

Matter of Furtado, 28 I&N Dec. 794 (BIA 2024) (1) A petitioner seeking approval of a Form I-130 for an adopted child from a country that is a party to the Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, opened for signature May 29, 1993, S. Treaty Doc. No. 105-51, 1870 U.N.T.S. 167 (entered into force May 1, 1995; for the United States Apr. 1, 2008), should provide, regardless...

May 17, 2024

Recent Trends in Immigration Delay Cases

NILA Practice Advisory, May 17, 2024 "Noncitizens and their attorneys are experiencing record-breaking delays in the adjudication of benefit applications by U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS). As processing times for most, if not all, applications stretch into years, attorneys increasingly are challenging these delays in U.S. district courts. As a result, there have...

May 16, 2024

Proposed Asylum Bar Regs Are At Odds With International Law (And Why That Matters)

Hon. Jeffrey S. Chase, May 16, 2024 "In 2003, the Office of the U.N. High Commissioner for Refugees published Guidelines for applying the bars to asylum known internationally as the “exclusion clauses” (because they exclude an applicant from being recognized as a refugee under international law). Addressing the proper procedure for applying these bars, the UNHCR Guidelines state: Given...

May 14, 2024

Saving the Labor Certification for the Backlogged Beneficiary Even After the Job Has Changed

Cyrus D. Mehta and Kaitlyn Box, May 14, 2024 "In “What if the Job Has Changed Since the Labor Certification Was Approved Many Years Ag o” we discussed strategies for noncitizen workers who are eligible to file an I-485 adjustment of status application, but find that their job has changed since the approval of the I-140 petition, which may have been many years ago. When the essence of the job remains...

May 13, 2024

USCIS Orphan Petition Denial Arbitrary and Capricious: Blanford v. USCIS

Blanford v. USCIS "Because of a consular officer’s suspicions over a $900 payment, two children have spent the last seven years in a Liberian orphanage instead of with their adoptive parents in the United States. That’s a tragedy, one that will end today. ... [T]he Court finds no evidence whatsoever of child-buying in the record. Instead, there is nothing but speculation based on timing. That cannot...

May 13, 2024

Garland Appoints 18 New IJs, 2 New BIA Members

EOIR, May 10, 2024 "The Executive Office for Immigration Review (EOIR) today announced the appointment of 20 immigration judges—18 immigration judges who joined courts in California, Georgia, Maryland, Massachusetts, New York, Oregon, Pennsylvania, Texas, and Virginia, and two appellate immigration judges who joined the Board of Immigration Appeals. Acting Director Mary Cheng delivered remarks and Deputy...

May 12, 2024

Feds Move to Partially End Flores Agreement

DEFENDANTS’ MOTION TO TERMINATE THE FLORES SETTLEMENT AGREEMENT AS TO THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES News coverage here and here .

May 10, 2024

DHS Policy and Guidelines for the Use of Classified Information in Immigration Proceedings

DHS, May 9, 2024 "This memorandum sets forth new policy and guidelines governing our Department’s use of classified information in immigration proceedings. It supersedes the October 4, 2004 memorandum that then-Secretary Tom Ridge issued, entitled “Department of Homeland Security Guidelines for the Use of Classified Information in Immigration Proceedings”..."

May 10, 2024

Advance Copy, DOS Final Rule: Third-Party Attendance at Appointments

This document is scheduled to be published in the Federal Register on 05/13/2024 "This rule adopts as final the notice of proposed rulemaking (NPRM) published in the Federal Register on July 26, 2023. This final rule provides that private attorneys, interpreters, and other third parties may attend certain appointments at passport agencies and centers and at U.S. embassies and consulates overseas to assist the person...

May 09, 2024

Proposed Asylum Rule (Advance Copy)

This document is scheduled to be published in the Federal Register on 05/13/2024 Application of Certain Mandatory Bars in Fear Screenings "DHS proposes to allow asylum officers (“AOs”) to consider the potential applicability of certain bars to asylum and statutory withholding of removal during certain fear screenings. Specifically, under this proposed rule, AOs would be authorized to consider certain...

May 08, 2024

Visa Bulletin for June 2024

Visa Bulletin for June 2024 Notes D, E, F: D. VISA AVAILABILITY IN THE EMPLOYMENT-BASED SECOND (EB-2) PREFERENCE CATEGORY High demand in the Employment Second category will most likely necessitate retrogression of the worldwide final action date (including Mexico and Philippines) in the next month to hold number use within the maximum allowed under the Fiscal Year 2024 annual limit. This situation will be continually...

May 08, 2024

New Primary Source Documents Available on Lexis+

Lexis+ subscribers, here are some new items you will find when searching in the Immigration Law sections: EOIR SOURCES >> Board of Immigration Appeals Practice Manual thru January 2024 EOIR SOURCES >> Immigration Court Practice Manual thru October 2023 FOIA SOURCES >> Credible Fear Procedures Manual thru May 2023 FOIA SOURCES >> The UC Manual of Procedures (UC MAP) thru 2023...

May 07, 2024

CA9 on Defective NTA, Jurisdiction: Suate-Orellana v. Garland

Suate-Orellana v. Garland "Although the IJ and BIA addressed her argument that her NTA was deficient on the merits, the legal landscape has changed significantly since the BIA’s decision dismissing her appeal. See, e.g., Niz-Chavez v. Garland, 593 U.S. 155, 171–72 (2021); United States v. Bastide-Hernandez, 39 F.4th 1187, 1193 n.9 (9th Cir. 2022), cert. denied, 143 S. Ct. 755 (2023); Matter of Fernandes...

May 06, 2024

Allan E. Kaye: In Memoriam

From the NY AILA Chapter: "With heavy hearts, we announce the passing of Allen E. Kaye, a distinguished figure in the field of immigration law. Allen was a nationally recognized immigration lawyer who dedicated over five decades to the practice of law. Mr. Kaye passed away on May 1st, 2024, in Brooklyn, NY, leaving behind a legacy of dedication and advocacy. Born in Brooklyn and raised in Flushing, NY, he pursued...

May 05, 2024

Health Care for DACA: HHS Final Rule (Advance Copy)

This document is scheduled to be published in the Federal Register on 05/08/2024 "This final rule makes several clarifications and updates the definitions currently used to determine whether a consumer is eligible to enroll in a Qualified Health Plan (QHP) through an Exchange; a Basic Health Program (BHP), in States that elect to operate a BHP; and for Medicaid and Children’s Health Insurance Programs (CHIPs...

May 02, 2024

3,524,051 Cases in the Immigration Court Backlog: TRAC

TRAC, Apr. 2024 "At the end of March 2024, 3,524,051 active cases were pending before the Immigration Court."

May 01, 2024

CA6 Slams BIA re Crime of Violence, Categorical Approach: Sanchez-Perez v. Garland

Sanchez-Perez v. Garland "One day after he pleaded guilty to violating a Tennessee domestic-violence law, the federal government initiated removal proceedings against Jose Yanel Sanchez-Perez. Ultimately, an immigration judge and the Board of Immigration Appeals determined that Sanchez-Perez could not seek cancellation of removal due to this conviction. The Board of Immigration Appeals improperly determined that...