Bender’s Immigration Bulletin – September 1, 2010

Bender’s Immigration Bulletin – September 1, 2010

TRAC: Immigration Case Backlog Continues to Rise

On August 12, 2010, the Transactional Clearing House (TRAC) at Syracuse University released its most recent report on the immigration courts. In addition to the report, TRAC also released an update to its Immigration Court Caseload Tool, which provides access to waiting times and can be sorted by court, state, hearing location and nationality. The Immigration Court Caseload Tool has been updated with data through June 21, 2010.

Overall, the number of pending cases before the Executive Office of Immigration Review’s immigration courts has increased by 2.1% in the last three months and is 33.1% higher than at the end of FY 2008. The total number of cases awaiting resolution in mid-June 2010 was 247,922, up from 228,421 such cases reported at the end of March 2010 (15 Bender’s Immigr. Bull. 506 (Apr. 1, 2010)). The average wait time for pending cases in that same time period has increased from 439 days to 459 days.

TRAC supplied the following highlights:

   Wait Times by State: Wait times continue to be longest in California, currently at 643 days, up from 627 days as of March 2010. Massachusetts average wait times inched up to 620 days from 616 days in that same period. Michigan moved up to third place, with the average time increasing from 504 days to 515 days.

   Wait Times by Nationality: Armenians had the longest wait times, averaging 958 days. Other nationalities within the top five in terms of pendency time were: Indonesian (774), Lebanese (709), Albanian (674) and Iranian (603). [Note, these results are limited to comparisons to the 50 countries with the most individuals in queue].

   Highest Growth Rates in Pending Cases : The court with the fastest buildup during the first nine months of FY 2010 was the immigration court in Harlingen, Texas, where pending cases jumped by 67 %. The other top five courts in terms of pending case growth were: Las Vegas (58%); San Antonio (55%); Chicago (39%); and Phoenix (37%). Portland just missed out being included in these ranks with a growth rate of 34%. [Results were tabulated from individual immigration courts with at least 1,000 pending cases at the end of 2009].

   Courts with Declining Case Backlogs: The court with the sharpest decline was in Oakdale, Louisiana, where the backlog was reduced by 32%. Other courts that saw a decline in their number of pending cases during FY 2010 were: Orlando (15%); Guaynabo, Puerto Rico (10%); Miami (5%); and Atlanta (5%). [Results were tabulated from individual immigration courts with at least 1,000 pending cases at the end of 2009].

In analyzing the reasons for the increase in the backlog of pending cases, TRAC noted that the backlogs are driven by numerous factors, including the number of available judges relative to the number of cases the courts receive, the complexity of the cases, and the time required to resolve them. Changes in the enforcement strategies of DHS also may increase caseloads in one region and decrease them in another. The influx of new proceedings and other matters received by the immigration courts in FY 2009 was an all-time high. While pending case backlogs continued to rise during FY 2010, the number of new proceedings filed in the Immigration Courts fell relative to FY 2009. New proceedings received by the Immigration Court were down 2% during the first nine months of 2010 (230,327) as compared with the period through June 21 in 2009 (235,760).

During this period, the number of immigration judges actually declined, and the ratio of judges to new court matters received has been declining over a much more extended period. Because the pace of hiring has not kept up with judicial turnover, positions that were vacant in 2006 remain unfilled. At the time of TRAC's report in March 2010, one out of every six judge positions was vacant. Since March, the Executive Office for Immigration Review has sworn in five new immigration judges. Thus, EOIR still has a very long way to go to fill existing judge vacancies. This should be juxtaposed against the EOIR’s hiring initiative announced in March 2010.

Another factor that may be involved in the growing number of backlogged cases is the increased time required to decide some of them because of new requirements imposed by Court of Appeals and Supreme Court decisions.


EOIR To Activate New Automated Case Information System

On August 16, 2010, EOIR announced that, effective August 23, it would launch a new upgraded automated case information system that would assist respondents and their representatives in learning the current status of the respondents’ proceedings. The EOIR indicated that the upgraded system would have comprehensive features affording respondents higher levels of security. EOIR advised that all callers would need to enter both the alien registration number of the respondent as well as the date of the respondent’s charging document. However, on August 19, 2010, perhaps in response to immediate critical comments from multiple stakeholders who had not been consulted prior to the announcement, EOIR announced a "phased rollout" of the project. In a letter dated August 18, 2010, the American Immigration Lawyers Association asked EOIR to suspend implementation of the new system “and open a dialogue with AILA and other stakeholders to determine the nature and extent of the problems the proposed changes seek to resolve, to identify solutions that provide the desired protections without the barriers inherent in the ‘charging document date’ requirement, and only implement a new system after receiving and acting on input from the affected community.” AILA InfoNet Doc. No. 10081960.

According to the August 19 press release, Phase One will be implemented effective August 30. The toll-free telephone number will remain the same: 1-800-898-7180. However, a new local number will be in service: 240-314-1500.

Phase Two will be implemented on October 4. At that time the date of the charging document will be required as well as the alien registration document. The EOIR has created a list of the most frequent charging documents with links to examples in order to assist with locating the date of the charging document. Examples provided are: Form I-862, DHS Notice to Appear; Form I-221, INS Order to Show Cause and Notice of Hearing; Form I-863, DHS Notice of Referral to IJ; and Form I-122, INS Notice to Applicant for Admission Detained for Hearing Before IJ. The EOIR indicates that with respect to Intent to Rescind letters and Form I-290C, Notice of Certification, used in NACARA proceedings, the local DHS office should be contacted concerning the location of the date of the document.


Employment Authorization for Dependents of Foreign Officials

The Department of Homeland Security published a final rule amending its regulations governing the employment authorization for dependents of foreign officials classified as A-1, A-2, G-1, G-3, and G-4 nonimmigrants. This rule expands the list of dependents eligible for employment authorization to include any individual who falls within a category of aliens designated by the Department of State as qualifying. Qualifying dependents must fall within a bilateral agreement or de facto arrangement. To apply for employment authorization documents, eligible dependents first must obtain an endorsement from State on Form I-566, Interagency Record of Request. The individual must then file Form I-566 along with an Application for Employment Authorization, Form I-765, with USCIS. The final rule is summarized at page 1242 and reprinted at Appendix B.

According to the Department of State website, the United States has bilateral work agreements with 109 countries and de facto arrangements with an additional 43. The Department of State advises that the text of each bilateral treaty is negotiated, and no two are alike. Each country listed on the Department of State’s Bilateral Treaty Countries has a link to the text of the relevant treaty.

In the case of both formal bilateral agreements and de facto reciprocity, the following three conditions must be met:

   That working family members give up only civil and administrative immunity and only for actions arising out of such employment and none other. This is in accordance with the standards of the Vienna Convention on Diplomatic Relations.

   The foreign state must afford official U.S. family members a reasonable opportunity to seek employment in the local economy of that state.

   The time for processing and approval of the request to work must not exceed a reasonable limit, bearing in mind that family members normally reside in a foreign state for only two to three years.


Virginia Attorney General on Law Enforcement Authority

Virginia Attorney General Ken Cuccinelli weighed in on the immigration debate when he issued an opinion that Virginia law enforcement officers, like Arizona police officers, may “inquire into the immigration status of persons stopped or arrested”. The opinion was prompted by Virginia Delegate Robert Marshall’s request. Marshall had asked whether the authority might also apply to state park personnel and local zoning officials. Cuccinelli included “conservation officers” but excluded zoning officials, reasoning that zoning officials lack the authority to investigate criminal violations of the law. In a statement on the opinion, Cuccinelli noted that police can arrest people for criminal violations — whether the crime is a violation of immigration laws or some other crime — but it is not advisable to arrest someone for a civil violation. Also, when police have done a lawful traffic stop, they can ask about immigration status so long as that does not prolong the length of the stop. This has been policy in Virginia since Cuccinelli issued an opinion in 2007. Cuccinelli’s most recent opinion is summarized at page 1243 and reprinted at Appendix C.


Nepal Adoption Cases

On August 6, the United States suspended processing of Nepal adoption cases based on abandonment. In a joint statement, the two departments said that the suspension was necessary to “protect the rights and interests of certain Nepali children and their families, and of U.S. prospective adoptive parents….” The State Department found that recent efforts to investigate numerous abandonment cases, including field visits to orphanages and police departments, left them concluding that documents presented to describe and prove the abandonment of children in Nepal are unreliable. The departments reported that “to the best of our knowledge, all other countries that had been processing adoption cases from Nepal have stopped accepting new cases” due to a lack of confidence in the documentary evidence and the general situation of noncooperation with investigations. Any petition filed for a child who has been presented as found abandoned and who was matched with a prospective adoptive parent prior to August 6 will continue to be adjudicated on a case-by-case basis. The FAQ on suspension of processing is summarized at page 1243 and reprinted at Appendix D.


Center for Human Rights Concerned About Violations of Settlement

The Center for Human Rights and Constitutional Law serves as class counsel for those who apply for legalization or “late amnesty” under the CSS and LULAC/Newman settlements. The Center has expressed concern that USCIS adjudicators may be violating the settlements by the misapplication of the preponderance of the evidence standard and evading regulatory procedures for termination of temporary resident status. Advocates for applicants for late amnesty are asked to email examples of such violations to Carlos Holguin.


[This is an excerpt from the September 1, 2010, issue of Bender’s Immigration Bulletin.]