LexisNexis® Legal Newsroom
The Prejudice Caused by Summary Removal After Visa Waiver Admission: What the Third Circuit Missed in Vera and Bradley

"In its decision earlier this month in the case of Vera v. Attorney General of the U.S ., the U.S. Court of Appeals for the Third Circuit held that a woman who had entered the United States at the age of 12 under the Visa Waiver Program (VWP) could be removed without a hearing before an immigration...

WHAT THE THIRD CIRCUIT MISSED IN VERA, PART TWO: A PRACTICAL EXAMPLE OF WHY ACCEPTING UNREFUTED BUT UNSUPPORTED GOVERNMENT ASSERTIONS IS PROBLEMATIC

" As explained in my previous blog post, the assertion of lack of prejudice that formed an important part of the Third Circuit’s initial decision in Vera was based on an error. It has now become apparent that the presumption of a proper waiver in the Third Circuit’s decision was also...

Opposition to Corruption as Political Opinion: Yu v. Holder and its Predecessors

" On September 7, 2012, the Court of Appeals for the Second Circuit issued a precedential opinion in Ruqiang Yu v. Holder , No. 11-2546-ag , reaffirming that opposition to corruption may under some circumstances qualify as a political opinion upon which a grant of asylum can be based under U.S....

David Isaacson Unpacks the Provisional Waiver Final Rule

"One year ago, a previous post on this blog by Cyrus Mehta and this author discussed the issuance by USCIS of a proposed rule allowing certain applicants for a waiver of the 3- or 10-year bars to obtain such a waiver on a provisional basis before departing from the United States. It has been a long...

David A. Isaacson Breaks Down 'Bessie Mae'

"In this blog post, I do not claim to provide a comprehensive summary of the bill, which is after all 844 pages long, and which has already been summarized by AIC/AILA (and others as well). Instead, I will simply highlight some of the portions of the bill that caught my attention on a first read...

CA2 Amends Shabaj v. Holder: What Happened to Footnote 4?

"[W]hile the amended Shabaj decision has deleted language which seemed to give the blessing of the Court of Appeals to a creative strategy for seeking judicial review of certain USCIS decisions, it has not precluded such a strategy. In addition, it may implicitly have acknowledged that some Visa...

Waiving Goodbye to Unappealable Decisions: Indirect AAO Jurisdiction

"While the AAO does not have jurisdiction directly over the denial of an adjustment application, the AAO does have jurisdiction over the denial of most waiver applications. And in the AAO’s view, appellate jurisdiction to determine whether someone should have been granted a waiver necessarily...

Brand X Can Be A Force For Good: David A. Isaacson on Matter of Douglas

" On October 17, 2013, its first day back to normal operations after the end of the recent federal government shutdown, the Board of Immigration Appeals (BIA) issued a precedential opinion, Matter of Douglas , 26 I&N Dec. 197 (BIA 2013) . At first glance, Matter of Douglas is about an interesting...

USCIS Liberalizes Criteria for Determining Habitual Residence in Some Hague Convention Adoption Cases

"Under the Immigration and Nationality Act (“INA”), there are three ways that adopted children can qualify as the children of a U.S. citizen parent for purposes of acquiring lawful permanent resident status, and generally derivative U.S. citizen status, through that adoptive parent....

Hizam v. Kerry: If this is the right result under current law, then the law needs to be changed

"Imagine for a moment that, since you were nine, your parents had told you that you were a U.S. citizen. And not just told you: your father filed papers with the U.S. government, and obtained official proof of your citizenship. You grew up in the United States from age nine onward as a U.S. citizen...

Mehta & Isaacson: Hidden Silver Linings in Cuellar de Osorio?

"Cuellar de Osorio does contain some seeds of hope for better outcomes in the future. ... [A] majority of the Court agrees that the meaning of §1153(h)(3) is an ambiguity subject to Chevron deference, rather than suggesting, as the Second Circuit had done in Li v. Renaud, that a narrow reading...

David A. Isaacson: Certification of State Law Questions - A New Trend in Second Cir. Immigration Cases?

"In both February and May of this year, the U.S. Court of Appeals for the Second Circuit did something that it appears not to have done in an immigration case in more than fifteen years, and that is rare for other courts to do in such cases as well. In Nguyen v. Holder , on February 14, 2014, and...

Burning Down the House: Circuits Split on Arson - Isaacson

"The lyrics of the Talking Heads song “Burning Down the House” do not mention whether the house in question was involved in commerce. According to Jones v. United States , 529 U.S. 848 (2000) , however, arson of “an owner-occupied residence not used for any commercial purpose”...

Ebola and Immigration Law

What is the law governing the arrival of citizens, green card holders, and foreigners with tourist or student visas, who might - or might not - have communicable diseases? Cyrus D. Mehta and David A. Isaacson answer those questions . It's more interesting - and more complicated - than you might think...

The Walking Dead: Why Courts Should Not Defer to BIA/AG Zombie Precedents - David A. Isaacson

"We know from fiction such as The Walking Dead and Night of the Living Dead that zombies are not, ordinarily, thought to be especially appealing or worthy beings. For the reasons explained in this blog, zombie precedents should be given no more respect. If the BIA wants courts to defer to the reasoning...

Ignoring the Elephant in the Room: An Initial Reaction to Judge Hanen's Decision Enjoining DAPA, Expanded DACA

"Judge Hanen appears to have overlooked a very important part of the legal landscape, what one might term the elephant in the room. The statutory authority for employment authorization under the INA is contained in section 274A of the INA, otherwise known as 8 U.S.C. §1324a. That section lays...

Preliminary Analysis of CA5 Oral Argument in TX v. USA (Application for Stay of Hanen Injunction)

Did you listen to all two hours and twenty minutes of the oral argument? I thought not. David A. Isaacson did, and here is his analysis . Thank you, David!

Zombie Precedents, Part II - David A. Isaacson

" In my October 2014 post The Walking Dead: Why Courts of Appeals Should Not Defer to BIA or Attorney General Precedent Decisions that Have Already Been Vacated by Another Court of Appeals , I discussed why such vacated “zombie precedents” should not be given deference under Chevron...

David A. Isaacson on Resumption of Diplomatic Relations with Cuba, Immigration Law

"[T]he resumption of diplomatic relations will not have an effect on the availability of CAA relief unless DHS wishes it to. However, natives and citizens of Cuba who are considering arriving at a U.S. airport in order to seek parole and ultimately adjustment of status under the CAA should keep...

Non-Retroactivity of BIA Precedent Decisions: De Niz Robles v. Lynch and other Recent Rulings - David A. Isaacson

David A. Isaacson, Oct. 26, 2015 - " Earlier this year, in Zombie Precedents, the Sequel , I discussed how the Second Circuit’s April 2015 decision in Lugo v. Holder exemplified a better way of dealing with precedent decisions that had been overturned by a court. As I noted in that blog post...

David A. Isaacson: How Recent Changes to the Visa Waiver Program Go Too Far

David A. Isaacson, Dec. 23, 2015 - " Section 203 of Division O of the recently enacted Consolidated Appropriations Act, 2016 , which funds the U.S. government for the remainder of the current 2016 fiscal year (through September 2016), also adds new restrictions on use of the Visa Waiver Program...

The Opportunity to Be Heard: The Proposed I-140 Regs and Mantena v. Johnson - David Isaacson

David Isaacson, Feb. 17, 2016 - " It appears from the proposed rule that in making its determination whether “petition approval was in error”, to quote again from proposed 8 CFR 204.5(e)(2)(iv), and so should no longer confer a priority date, USCIS would look to the I-140 petitioner...

Cyrus D. Mehta & David A. Isaacson - How About Porting Labor Certs?

Cyrus D. Mehta & David A. Isaacson, Mar. 1, 2016 - "It would also be highly desirable for beneficiaries of such approved I-140 petitions to exercise job portability, and not be required to re-start the labor certification process through a new employer, even though the proposed rule allows for...

David Isaacson on U.S. v. Texas

David Isaacson, Apr. 19, 2016 - ""While the discussion at oral argument of employment authorization separate from lawful status did not go so far as to address this issue of employment authorization for those subject to orders of removal, it did seem that the Solicitor General’s emphasis...

David Isaacson: An Eventful Thursday for Immigration Law at the Supreme Court: United States v. Texas, Mathis v. United States, and What’s Next

David Isaacson, June 28, 2016 - " On Thursday, June 23, the U.S. Supreme Court issued two decisions of significance to immigration law: a 4-4 affirmance without opinion in United States v. Texas , and a 5-3 decision in Mathis v. United States . The first, which was more obviously immigration-related...