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  1. The BIA on Firm Resettlement

    One of my professional goals in life is to get a published decision from the Board of Immigration Appeals ("BIA"). It won't be easy--the Board publishes only about one case out of every 1,000 (I wrote about this problem in a blog post called, The Unbearable Lightness of BIA-ing). If the Board could publish more cases, it would provide better guidance to the nation's Immigration Judges and would probably result in more consistency across the country. Alas, it seems unlikely that the BIA will take my suggestion anytime soon.

    I did have a recent case that I thought might stand a chance of publication. As far as I know, it was an issue of first impression (meaning that there are no other published cases discussing the same topic). It is also a fairly common issue, so some guidance from the Board would have been appropriate. The bad news is that my dreams of publishing glory have been shattered, as the Board issued an unpublished decision in my case. But the good news is, we won. And perhaps our unpublished victory might be helpful to others who are in a similar situation.

    Unlike published BIA decisions, unpublished decisions are not binding on Immigration Judges. However, they are "persuasive," meaning that if you can find an unpublished case on point, you can submit it to the Judge, who will hopefully consider it. The Executive Office for Immigration Review (the office that administers the BIA and the Immigration Courts) does not release unpublished decisions, but fortunately, there is a sort-of underground network led by the legendary Dan Kowalski, where attorneys can submit their unpublished decisions and make them available to others.

    My case centered on a legal construct called "firm resettlement." An alien who has been "firmly resettled" in a third country is ineligible for asylum. See INA § 208(b)(1)(B)(2)(vi). My client's husband had been a high-ranking member of his country's government. When the government turned against him, he and the rest of the family fled to a neighboring country, which granted the family asylum--hence, they were firmly resettled in a third country. As a result of being firmly resettled, the Immigration Judge ("IJ") denied asylum, but granted Withholding of Removal as to the home country, and ordered my client and her children deported to the third country.

    During the pendency of the BIA appeal, the home government assassinated my client's husband while he was residing in the third country. After the assassination, DHS agreed that the case should be remanded to the IJ.

    On remand, we presented evidence that my client could not return to the third country, as she no longer had any status there. We also presented evidence that it was no longer safe for her in the third country.

    DHS argued that even if she could not return to the third country, she had been firmly resettled there, and that she was thus barred from asylum. The lawyer described firm resettlement as a door. Once you pass through it, you are forever barred from asylum. When you read the case law (and the primary case on this point is Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)), the government's argument is not unreasonable. Though, in fact, while Matter of A-G-G- lays out a framework for the firm resettlement analysis, it does not cover the situation in our case, where the country of firm resettlement somehow becomes unsafe.

    Ultimately, the BIA accepted one of several arguments we presented. The Board held:

    The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution.... Given respondent's situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

    (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar "aliens who had already found shelter and begun new lives in other countries." Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).

    It seems to me that the Board's emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude--like the DHS attorney and the IJ in my case--that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.

    I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced--where the country of resettlement is unsafe--is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country's Immigration Judges.

    Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can't help but think that if the BIA would publish more decisions--especially in cases where there is no existing precedent--our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as "the highest administrative body for interpreting and applying immigration laws," and if it would publish more cases.

    Originally posted on the Asylumist:

    by , 06-21-2017 at 08:10 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration Lawyers Association. Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.

    This month’s Check In With Charlie featured predictions about EB2 and EB3, which are the most popular categories for readers of this Blog. Here are some of this month’s highlights:

    Philippine EB-3: Charlie expects to aggressively move this category into mid/late 2015 before the end of the fiscal year (September 30, 2017). MU Law believes that the category will continue to be positive, although we do not expect that the significant progression will continue once the Visa Bulletin after the fiscal year, because demand for Philippine EB-3 was heavy in 2016. Having said that, we do expect continued steady movement forward.

    Worldwide EB-3: This category should continue to be effectively current, with a retrogression of only a few weeks/months.

    India EB-2: Charlie expects minimal movement forward. Charlie claims that 40 percent of the India EB-2 demand is from India EB-3 upgrades.

    India EB-3. This number will be aggressive advanced because Worldwide EB-3 demand has slowed. As a matter of process, unused Worldwide EB-3 numbers spill into the slowest EB-3 category (India).

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook and follow us on Twitter.
  3. Could Trump's Silence on Twitter in Response to Attack Against London Mosque Worshippers Hurt His Muslim Ban Case in the Supreme Court? Roger Algase

    Earlier this month, after Donald Trump unleashed a "tweetstorm" in an attempt to defend both his original seven Muslim country entry ban order and what he himself called the "watered-down" six Muslim country version, the media were full of statements by legal experts, such as law professor Josh Blackman of the University of Houston, warning that the president was undermining his own legal argument to the effect that the order was a national security measure, not motivated by "animus" toward Muslims as members of a religion or a desire to discriminate against them.

    For one of many press reports dealing with this subject, see the New York Times June 5 article:

    However, remarkably, Trump abstained from Twitter entirely and issued no personal statement when Muslims were the victims of an attack, such as the one on June 19 in Finsbury Park in London. (The US State Department did issue an official response condemning the attack.)

    The president's uncharacteristic decision to stay away from Twitter and not to issue any personal statement about the latest London attack, has, however, set off a storm of criticism against him in the press for being ready to condemn Muslims in general whenever a Muslim is the perpetrator of a terrorist attack, but remaining silent when Muslims are the victims of one.

    A June 20 article by Christian Christensen in The Guardian, for example, states as follows:

    "Donald Trump didn't send out a tweet after the terrorist attack in Finsbury Park in London that killed one and injured many more. His silence after this attack was markedly different from his immediate, fevered, tweeting after numerous other terrorist attacks in Europe - and that matters.

    For Trump, it's clear that this wasn't the right kind of attacker and these weren't the right kind of victims."

    Just in case that there could be any possible doubt as to what the author meant by the above comment, he continues:

    "In the case of Finsbury Park, Muslims injured by a white Christian man are not 'worthy' of attention because they do not serve Trump's larger project of the demonization of Muslims, refugees and immigrants...Nor do they serve the interests of portraying white Christian Europe (and by association, white Christian America) as the bastion of all that is decent and good."

    Strong and eloquent words, but what do they have to do with Trump's Muslim country entry ban executive order, affecting almost 200 million people, more than 99 percent of whom are Muslims, who, according to its terms, are barred from even applying for visas to enter the United States without any showing or reason to suspect that they might have terrorist sympathies or connections?

    At the heart of Trump's legal defense of this order, and its now withdrawn seven Muslim country predecessor, before various federal courts, has been the contention that his numerous, openly Islamophobic campaign statements, such as his December 2015 call for a worldwide ban on entry to the US by Muslims from every country (including originally US citizens as well), and his statements such as the one that Islam allegedly hates America, should be ignored for litigation purposes because they were supposedly only pre-election talk.

    According to this argument, Trump deserves to be treated as a leopard who suddenly changed its spots from the day that he took over the office of the presidency, and that none of his previous statements (which a 4th Circuit judge found to be "dripping" with "animus" and religious intolerance against Muslims) count any more.

    To the contrary, according to the arguments which Trump's Justice Department has been making before various lower federal courts and the Supreme Court, these statements should be consigned to an Orwellian "Memory Hole" as described in the famous, and all too prescient novel 1984.

    Aside from the fact that many of Trump's actions as president, including his appointment to top positions of two of America's leading Islamophobes, Michael Flynn, who has called Islam a "cancer" rather than a religion, and Stephen Bannon, who regards the Christian West as being locked in a "War of Civilizations" with the Muslim world, not to mention Trump's aforesaid "Tweetstorm" over his Muslim ban orders, show the utter meretriciousness of this legal argument (from the Latin meretrix - look it up in the dictionary), the president's studied silence in the face of a brutal terrorist attack directed against Muslims, not by them, gives the lie to any possible contention that his Muslim ban orders were motivated by anything other than hostility toward Muslims as members of a religion in general.

    Whether the Supreme Court will take note of this self-evident reality, or whether it will choose to let itself be blinded to the obvious truth by some concocted legal fiction, is something that America may be finding out shortly, with enormous potential implications for the survival of our democracy.
    Roger Algase is a New York immigration lawyer who has been helping mainly skilled and professional immigrants from diverse parts of the world, without regard to ethnicity, religion or national origin, and in the true spirit of America, receive work visas and green cards for more than 35 years. Roger's email address is

    Updated 06-21-2017 at 03:17 PM by ImmigrationLawBlogs

  4. ICE to testify at congressional hearing on MS-13

    by , 06-20-2017 at 04:02 PM (Matthew Kolken on Deportation And Removal)
    WASHINGTON – U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) Executive Associate Director (EAD) Matthew T. Albence and ICE Homeland Security Investigations (HSI) Acting EAD Derek Benner will testify Wednesday, June 21, at 10 a.m. EDT before the Senate Committee on the Judiciary at a hearing entitled, “The MS-13 Problem: Investigating Gang Membership, its Nexus to Illegal Immigration, and Federal Efforts to End the Threat.”


    Matthew Albence, ICE ERO Executive Associate Director
    Derek Benner, ICE HSI Acting Executive Associate Director
    Carla Provost, Acting Chief, U.S. Border Patrol, U.S. Customs and Border Protection
    Kenneth Blanco, Acting Assistant Attorney General, Criminal Division, U.S. Department of Justice
    Scott Lloyd, Director, Office of Refugee Resettlement, U.S. Department of Health and Human Services
    WHEN: Wednesday, June 21, 2017, at 10 a.m. EST

    WHERE: Dirksen Senate Office Building 226, Washington, D.C.

    ADDITIONAL INFORMATION: A webcast of the hearing will be available here.
  5. Trudeau tweets not the answer to Canada's refugee issues. by Nolan Rappaport

    © Greg Nash

    The day after President Donald Trump issued his first travel ban order, Canadian Prime Minister Justin Trudeau tweeted a message to aliens “fleeing persecution, terror & war.” In addition to the inappropriateness of accusing the president of the United States of religious discrimination, his tweet made a promise that Canada will not be able to keep.

    His tweet was an unqualified invitation to the 65.6 million aliens worldwide who have been displaced from their countries by conflict and persecution. Canada almost certainly will have to turn away many of the aliens who accept the invitation and come to Canada relying on it.
    Some will be disqualified by Canada’s Safe Third Country Agreement with the United States, which requires asylum seekers to apply for asylum in the United States if they enter that country before entering Canada, with some exceptions.

    Also, his invitation includes aliens who are fleeing terror and war, and despite their very real need for refuge, they are not likely to be able to establish eligibility for refugee status or asylum on that basis. According to UNHCR figures, only 22.5 million of the 65.6 million displaced persons are refugees.

    Trudeau’s tweet reminds me of President Jimmy Carter’s invitation to Cuban refugees when he was asked what the government was going to do about the Mariel Boat Lift. On April 20, 1980, Cuban President Fidel Castro announced that he would permit Cubans wishing to leave Cuba to go to the United States. Two weeks later, Carter said that the United States would "welcome the Cuban refugees with open arms and open hearts."

    Read more at --

    Published originally on The Hill.

    About the author.

    Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

    Updated 06-21-2017 at 08:19 AM by ImmigrationLawBlogs

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