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News Excerpts From the Dec. 1, 2013, Bender’s Immigration Bulletin

Municipalities Seek Review of Immigration Ordinances at Supreme Court | In late October, the cities of Hazleton, Pennsylvania, and Farmers Branch, Texas, filed petitions at the Supreme Court asking the Justices to review federal appellate court decisions striking down local laws targeting undocumented...

Counsel for Island Holdings Responds to DOL Position

"Neither employers nor the Department may flout a BALCA decision. We look forward to receiving your written confirmation that H-2B employers will be receiving timely notification from the NPWC that the SPWDs never became effective and were vacated on December 3, 2013; that DOL will defend BALCA’s...

CA3 on Conviction, Finality, Ozkok:Orabi v. Atty. Gen.

"We are therefore convinced that the principle announced and held in Ozkok – that “a conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived” – is “is alive and...

Does BALCA Speak For DOL? - Reflections on Island Holdings: Gary Endelman & Cyrus D. Mehta

" In the ongoing litigation over the authority of the Department of Labor (DOL) to promulgate H-2B prevailing wage methodology in the Third Circuit, Louisiana Forestry Ass’n v. Secretary of Labor , No. 12-4030, the DOL wrote a letter stating that the Board of Alien Labor Certification Appeals’...

CA3 Upholds 2011 H-2B Wage Rule: Louisiana Forestry v. DOL

"Appellants, a group of associations representing employers in non-agricultural industries, claim that the Department of Labor exceeded its authority by enacting a regulation governing the calculation of the minimum wage a U.S. employer must offer in order to recruit foreign workers under the H...

Third Circuit Upholds Labor H-2B Regulations & Confuses Agency Rulemaking Jurisdiction

"The United States Court of Appeals for the Third Circuit recently upheld the Department of Labor (DOL) promulgation of regulations governing the calculation of the minimum wage a United States employer must offer to recruit non-agricultural foreign workers under the Department of Homeland Security...

CA3 on Categorical Approach: Bautista v. Attorney General

"We will grant the petition because the New York attempted arson conviction is not an aggravated felony in respect to collateral immigration consequences under the INA. Applying the categorical approach, as we must, the New York statute under which Bautista was convicted does not match the elements...

CA3: ICE Detainers Are Not Mandatory - Galarza v. Szalczyk

"Ernesto Galarza is a U.S. citizen who was arrested for a drug offense, posted bail, and instead of being released, was held in custody by Lehigh County under an immigration detainer issued by federal immigration officials. Three days after Galarza posted bail, immigration officials learned that...

CA3 on Meaningful Consideration of Evidence by BIA: Zhu v. Attorney General

"Because the BIA’s opinion did not reflect meaningful consideration of much of the evidence that Zhu submitted in support of her motion, we will grant the petition for review, vacate the order denying the motion to reopen, and remand to the BIA for further proceedings." - Zhu v. Attorney...

Immigration Detainers are Non-Binding, Federal Appeals Court Rules

"The U.S. Court of Appeals for the Third Circuit [on Mar. 4, 2014] ruled that states and localities are not required to imprison people based on "detainer" requests from the federal Immigration and Customs Enforcement agency, ICE, recognizing that states and localities may share liability...

CA3 on the Smuggling Bar: Parra-Rojas v. Attorney General

"Petitioner Carlos Parra-Rojas was convicted of Bringing In or Harboring Aliens for Financial Gain, in violation of section 274(a)(2)(B)(ii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. Petitioner subsequently applied for adjustment of status...

Penn State Law Clinic Launches Third Circuit Immigration Blog for Practitioners

"A new blog by clinic students at Penn State Law is designed to help practitioners stay up-to-date on the latest Third Circuit immigration decisions. A collaboration between the Penn State Center for Immigrants’ Rights and the Pennsylvania Immigration Resource Center (PIRC), the blog covers...

CA3 on CIMT: Hernandez-Cruz v. Attorney General

"Hernandez-Cruz argues that his Pennsylvania conviction for child endangerment does not constitute a crime involving moral turpitude (“CIMT”) because his statute of conviction “may be violated without implicating conduct that the Board . . . has defined as - inherently base, vile...

CA3 on CIMT: Mahn v. Attorney General

"Emmanuel Mahn petitions for review of his final order of removal and contends that his Pennsylvania conviction for reckless endangerment is not a crime involving moral turpitude (“CIMT”). Applying the categorical approach, we conclude that the least culpable conduct punishable under...

CA3 Vacates H-2B Private Wage Survey Regulation: CATA III

"We therefore act now to grant plaintiffs’ vacatur request of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance. We hold both provisions to be arbitrary and capricious and in violation of the APA. We direct that private surveys no longer be used in determining the mean rate of wage for...

News Excerpts From the Jan. 1, 2015, Bender’s Immigration Bulletin

Labor Department Ends Use of Employer-Provided Wage Surveys for H-2B Program | Following a major decision from the U.S. Court of Appeals for the Third Circuit, the Department of Labor announced that it will no longer issue prevailing wage determinations for the H-2B program resulting from wage surveys...

CA3 on Religious Worker Visa Regulation: Shalom Pentecostal Church v. DHS

"The Third Circuit on Tuesday upheld a New Jersey federal judge's order striking down a regulation by the U.S. Citizenship and Immigration Service requiring religious worker visa applicants to be performing such work only while legally authorized, saying the rule exceeded the agency's authority...

CA3 on Mandatory Detention, Habeas: Chavez-Alvarez v. Warden

"Chavez-Alvarez appeals the District Court’s denial of his petition for a writ of habeas corpus. He contends that the Government is violating his right to due process by detaining him, pursuant to 8 U.S.C. §1226(c), without a bond hearing since June 5, 2012. We will reverse the District...

Double Win for Shagin, Burch: CA3 Remands Chavez-Alvarez, Orders Bond Hearing; Gov't Position 'Scarcely Passes the Laugh Test'

Tremendous victories for Valerie Burch and Craig Shagin ! Hats way off! 1. "Jose Juan Chavez-Alvarez petitions the Court for review of a decision of the Board of Immigration Appeals (BIA) [ Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014) ], which affirmed the determination of the Immigration...

CA3 Orders ICE to Find and Return Deported Mother and Daughter from Guatemala

"U.S. Court of Appeals judge has ordered* U.S. officials to intercept a mother and her 12-year-old daughter on plane Friday being deported to Guatemala and immediately return them to the United States. The 34-year-old mother, Ana, and her daughter were woken up at 3 a.m. Eastern Daylight Time...

New CA3 Standing Order: Stays of Removal Pending Disposition of Motion for Stay

Wednesday, August 5, 2015 - Standing Order Regarding Stays in Immigration Cases

News Excerpts From the Sept. 15, 2015, Bender’s Immigration Bulletin

BIA Seeks Amicus Briefs on Effect of Moncrieffe on 3rd Circuit Case | On August 26, 2015, the BIA issued a notice requesting amicus briefs regarding whether Jeune v. Attorney General of the United States , 476 F.3d 199 (3d Cir. 2007) [ enhanced opinion available to lexis.com subscribers | Lexis Advance...

CA3 on Stop-Time Rule, Chevron: Orozco-Velasquez v. Atty. Gen.

Orozco-Velasquez v. Atty. Gen., Mar. 11, 2016 - "We appointed pro bono amicus curiae counsel and directed amicus curiae and the parties to address in supplemental briefs whether (1) Camarillo is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., and (2...

CA3 Agrees With CA7, Strikes Down K-4 Visa Reg: Cen v. Atty. Gen.

Cen v. Atty. Gen., June 6, 2016 - "The Immigration and Nationality Act (INA) allows a child under the age of twenty-one whose alien parent has married a U.S. citizen abroad to obtain a temporary “K-4” visa to accompany her parent to the United States and, based on the parent’s...

Is a Special Court-Martial a 'Court' for Immigration (Removal) Purposes? - Gourzong v. Atty. Gen. (CA3)

Gourzong v. Attorney General, June 14, 2016 Majority : "We agree with the BIA that, as a general matter, convictions by special courts-martial qualify as convictions for purposes of the INA." Dissent : "Gourzong was not “convicted of an aggravated felony within the meaning...