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  1. In Muslim Ban Case, Sessions Follows Trump's Lead in Making Ethnic Attacks Relating to a Federal Judge. Roger Algase

    During his presidential campaign, Donald Trump earned notoriety by attacking the ethnic background of the federal judge presiding in the lawsuit against Trump personally over the operations of Trump University, a lawsuit which has been since been settled on Trump's agreement to pay the plaintiffs $25 million.

    For those who may have forgotten, Trump called the judge in that case, Gonzalo Curiel, who had issued a ruling unfavorable to Trump, a "hater" who was incapable of reaching a fair decision because of his Mexican "heritage" and Trump's plan to build a wall against Mexico. For Trump's exact quoted words, see

    http://www.cnn.com/2016/06/03/politi...p-tapper-lead/

    Judge Curiel, who was born in Indiana of Mexican immigrant parents, is now the presiding judge in a lawsuit against the DHS by a Mexican citizen who claims that he was wrongfully deported to Mexico despite having DACA protection.

    http://latimes.com/local/lanow/la-me...420-story.html

    Though Trump himself has not issued any further attacks on Judge Curiel in this latest case, Trump's Attorney General, Jeff Sessions, is now apparently following in Trump's footsteps by issuing a slur directed against another federal judge, sitting in Hawaii, who issued an injunction against enforcing the latest version of Trump's ban on entry to the US by citizens of six (originally seven) almost 100 percent Muslim countries.

    Sessions did not attack the ethnicity of the (white) judge himself in this case, but instead, issued a transparent attack against the ethnicity of the entire state of Hawaii. Specifically, Sessions said:

    "I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly clearly his statutory and Constitutional power."


    http://www.cnn.com/2017/04/20/politi...yze/index.html

    For anyone who is familiar with the history of how Southern Senators were active in helping to delay Hawaii's statehood application in the 1950's because of that state's large non-white population, the disparaging reference to Hawaii as only "an island in the Pacific" (a mainly non-white area of the world, as Sessions clearly intends everyone hearing about his remark to keep in mind) by the Attorney General who, as everyone knows, was a Senator from Alabama for many years before assuming his current position, speaks volumes about the real intention of his comment.

    It also tells us a great deal, not only about the history of racial attitudes toward Hawaii by American politicians, especially those from a part of the country where white supremacist segregation laws were still in effect, but about the real reasons for the Trump administration's Muslim ban executive orders today.

    See the following brief but succinct summary of the sorry history of attempts by Southern Senators in particular to prevent Hawaii from becoming a state, which Sessions' statement cannot help but recall:

    http://onlinelibrary.wiley.com/doi/1...300.x/abstract

    As the brief filed by the ABA in the 4th Circuit Federal Court of Appeals referred to in my April 20 Immigration Daily comment, together with a similar one which the ABA is filing with the 9th Circuit Appeals Court (which covers Hawaii) both make clear, there are strong Constitutional arguments, based on both freedom of religion and equal protection of the law for Muslim U.S. citizens and permanent residents (and other Americans who have connections with Muslim immigrants, students and visitors) against upholding the president's latest Muslim ban executive order.

    Anyone who cares about preserving the rule of law in America would hope that Jeff Sessions, the nation's highest law enforcement officer, will henceforth direct his efforts to trying to answer these Constitutional (and statutory) arguments as best he can, rather than engaging in thinly coded racial invective against the people of an entire US state.

    The fact that Sessions resorted to this kind of invective might, conceivably, indicate that he does not see his legal arguments in favor of upholding the president's latest Muslim ban executive order as being very strong.

    In any event, the American people are entitled to decisions in immigration cases, as in every other type of case, based on the law, not on disparaging comments about the ethnic background of an individual judge, as in the case of Donald Trump's attack against Judge Curiel, or about the ethnicity of the people of an entire U.S. state, as in the case of Jeff Sessions' comment quoted above.
    _______________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants receive work visas and green cards without regard to ethnicity, religion or nationality. Roger's email address is algaselex@gmail.com

    Updated 04-22-2017 at 09:43 AM by ImmigrationLawBlogs

  2. Expediting a Case in Immigration Court

    For the last few years, the "hot topic" in asylum has been the backlog--the very long delays caused by too many applicants and too few adjudicators. I recently wrote about the backlog at the Asylum Office and what can be done to expedite a case. One commenter suggested that I write a post about expediting cases in Immigration Court, and since I aim to please, here it is.
    Courts are still wrapping up the last of Justice Marshall's immigration cases.
    The first thing to note is that the backlog in Immigration Court is huge. According to recent data, there are over 542,000 cases pending in court (not all of these cases are asylum). The average wait time for a case in Immigration Court is 677 days. The slowest court is Colorado, where wait times average 994 days. That's a long time, especially if you are separated from family members while your case is pending. For what it's worth, I have previously written about some ideas for reducing the wait time in Immigration Court (you will be shocked to learn that EOIR has not yet contacted me to implement these ideas!).


    Second, advancing a case is not easy. The Immigration Court Practice Manual, page 101, specifically notes that, "Motions to advance are disfavored." The motion should "completely articulate the reasons for the request and the adverse consequences if the hearing date is not advanced." Health problems or separation from family may good reasons to advance. I discuss these and other possible reasons here (the post relates to affirmative asylum cases, but the same logic applies).


    Third, expediting a case in Immigration Court is not as straightforward as expediting a case at the Asylum Office. There are different approaches that you can take, depending on the posture of your case. For advancing a case (and for the case itself), it is very helpful to have the assistance of an attorney. Indeed, according to TRAC Immigration, 91% of unrepresented asylum applicants in Immigration Court have their cases denied (whether they get other relief, like Withholding of Removal, I do not know). If you can afford a lawyer (or find one for free), it will be to your benefit in expediting and winning your asylum case in court.


    OK, before we get to the various approaches for advancing a court case, let's start with a bit of background. A case commences in Immigration Court when the Notice to Appear--or NTA--is filed with the court. The NTA lists the reasons why the U.S. government believes it can deport (or, in the more bowdlerized parlance of our time, "remove") someone from the United States. After the court receives the NTA, it schedules the alien for an initial hearing, called a Master Calendar Hearing ("MCH"). At the MCH, the alien--hopefully with the help of an attorney--tells the Immigration Judge ("IJ") whether the allegations in the NTA are admitted or denied, and whether the alien agrees that he can be deported. In most asylum cases, the alien admits that he is deportable, and then informs the Judge that his defense to deportation is his claim for asylum. The IJ then schedules the alien for a Merits Hearing (also called an Individual Hearing), where the alien can present his application for asylum, and either receive asylum (or some other relief) or be ordered deported from the United States. Depending where in this process your case is, the procedures to expedite vary.


    If you have the NTA, but the MCH is not yet scheduled
    : In some cases, the alien receives an NTA, but then waits many months before the MCH is scheduled. In this case, the delay usually lies with DHS (Department of Homeland Security), which issues the NTAs and files them with the Court, rather than with the Court itself. The Immigration Court has an automated number that you can call to check whether your case is scheduled for a hearing date. The phone number is 1-800-898-7180. Follow the prompts and enter your nine-digit Alien number (also called an "A number"). The system will tell you whether your case is scheduled and the date of the next hearing.


    If the system indicates that your "A-number was not found," this probably means that the NTA has not yet been submitted to the Court. Contact the local DHS/ICE Office of the Chief Counsel and talk to the attorney on duty. Perhaps that person can help get the NTA filed with the Court, so the case can begin.


    If your A-number is in the system, but there is no MCH scheduled, contact the Immigration Court directly to ask the clerk for an update. If the Court has the case, it may be possible to file a motion (a formal request) to schedule the case. However, if an IJ is not yet assigned to the case, such a request may disappear into the void once it is filed. Most lawyers (including me) would generally not file a motion until a Judge is assigned, as it is probably a waste of time, but maybe it is possible to try this, if your lawyer is willing.


    While you are waiting for the Court to docket your case (i.e., give you a court date), you can gather evidence and complete your affidavit. That way, once the case is on the schedule, you will be ready to file your documents and ask to expedite.


    If the MCH is scheduled
    : Sometimes, MCHs are scheduled months--or even years--in the future. If your case is assigned to an IJ and you have a MCH date, there are a couple options for expediting.


    First, you can file a motion to advance the date of the MCH. If the MCH is sooner, the final (Merits) hearing will be sooner as well. Whether the IJ will grant the motion and give you an earlier appointment is anyone's guess. Some IJs (and their clerks) are good about this; others, not so much.


    Second, you can request to do the MCH in writing (in lieu of attending the hearing in-person). Check the Immigration Court Practice Manual, pages 70 to 72, for information about filing written pleadings. If the Judge allows this, you can avoid attending the MCH and go directly to the Merits Hearing. Just be sure that your affidavit and all supporting documents are submitted, so you are ready to go if and when the IJ schedules you for a final hearing.


    Many attorney, including me, do not like filing motions to advance the MCH or motions for a written MCH. The reason is because they often do not work, and so what happens is this: You prepare and file the motion, call the Court several times, and ultimately have to attend the MCH anyway. When lawyers spend time doing extra work, it is fair for them to charge the client additional money. So don't be surprised if your lawyer tells you that filing a motion will cost extra.


    At the MCH
    : Typically, when you go to the MCH, the IJ gives you the first date available on her calendar for a Merits Hearing. But there are a few things you can do to try to get the earliest possible date.


    One thing is to complete the entire case (the affidavit and all supporting documents) and give them to the IJ at the MCH. That way, if there happens to be an early opening, you can take the date (and sometimes, IJs do have early dates--for example, if another case has been cancelled). Many lawyers (again, including me) don't love this because it requires us to do all the work in advance, and it often does not help. Don't be surprised if the lawyer wants to charge extra for getting the work done early (many lawyers--and other humans--prefer to put off until tomorrow what we do not need to do today).


    Second, you (or your lawyer) can try to talk to the DHS attorney prior to the MCH to see whether any issues in the case can be narrowed (usually, it is not possible to talk to DHS about the substance of the case prior to the MCH, as they have not yet reviewed the file). If that happens, maybe you will need less time to present the case, and you can tell the IJ that you expect a relatively short Merits Hearing. It may be easier for the IJ to find a one-hour opening on his calendar than a three hour opening (normally IJs reserve a three-hour time slot for asylum cases), and so you may end up with an earlier date. Even if you cannot talk with the DHS attorney, you can tell the IJ that you expect to complete the case in an hour and try to convince him to give you an earlier date, if he has one.


    Third, if you have a compelling reason for seeking an earlier Merits Hearing, tell the IJ. If you have evidence demonstrating the need for an earlier date, give it to the IJ. Maybe the Judge will not have an earlier date available immediately, but at least he can keep the situation in mind and accommodate you if an earlier date opens up.


    Finally, if you simply arrive early at the MCH and get in line, you may end up with an earlier Merits Hearing date than if you show up late to the MCH since IJs usually give out their earlier dates first.


    After the MCH, but before the Merits Hearing
    : Waiting times between the MCH and the Merits Hearing are very variable, depending on the Immigration Judge's schedule. Assuming that the IJ has given you the first available Merits Hearing date (which is normal - see the previous section), there is not much point in requesting an earlier date immediately after the MCH. Maybe if you wait a few months and if luck is on your side, a spot will open up and your request will be granted. Or--if the Judge has an effective clerk--you can file a motion to advance, and the clerk will save it until a spot opens up for you.


    Another possibility is to talk to the DHS attorney to see whether issues can be narrowed, which might make it more likely that the case can be advance (see the previous section).


    Some words of caution
    : Keep in mind that the Immigration Court system is a mess. Judges come and go. Priorities shift, which sometimes causes cases to be moved. It is quite common for court dates to change. Even if you do nothing, a far-off date may be rescheduled to an earlier day, or an upcoming hearing might be delayed. If you successfully advance your court date, it is possible that the Court will later rescheduled your case to a more distant date (this happened to us once). It is difficult to remain patient (and sane) through it all, but maybe being aware of this reality will somehow help.


    Also, remember to make sure that your biometrics (fingerprints) are up to date. If not, you may arrive at the Merits Hearing only to have it delayed because the background checks were not complete.


    Finally, do not give up. Immigration Judges are human. If they see a compelling reason to expedite a case, most of them will try to help. Explain your situation to the Judge, or let your lawyer explain, and maybe you will end up with an earlier date.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. USCIS Will Issue Redesigned Green Cards and EADs

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC
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    USCIS announced a redesign to the Permanent Resident card (also known as a Green Card) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. USCIS will begin issuing the new cards on May 1, 2017.

    The redesigns use enhanced graphics and fraud-resistant security features to create cards that are more tamper-resistant than the ones currently in use. The new Permanent Resident cards and EADs will:
    1. Display the individual’s photos on both sides;

    2. Show a unique graphic image and color palette:
    a. Green Cards will have an image of the Statue of Liberty and a predominately green palette;
    b. EAD cards will have an image of a bald eagle and a predominately red palette;
    3. Have embedded holographic images;

    4. No longer display the individual’s signature; and

    5. Also, Permanent Resident cards will no longer have an optical stripe on the back.

    Some Permanent Resident cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted.
  4. Federal Court Temporarily Blocks Deportation of Four Children and their Mothers

    by , 04-20-2017 at 09:02 AM (Matthew Kolken on Deportation And Removal)
    Via Amnesty International:

    A judge today temporarily blocked the federal government from deporting four families who fled violence to seek asylum in the United States. The government was cleared to move forward with the deportations after the U.S. Supreme Court earlier this week refused to hear a case on the matter. With today’s order, the four children and their mothers will not be deported while they continue fighting to get asylum in the U.S.

    While pressing the Department of Homeland Security to stop detaining families when they come to the U.S. seeking asylum, Amnesty International recently launched a campaign to release the four families, who have been held for more than 500 days at Berks County Residential Center in Pennsylvania.


    “It’s immoral and unlawful to lock up mothers and their young children and then deport them without ever giving their asylum claims a full hearing, but that’s what the U.S. government is trying to do to these four families and countless others,” said Margaret Huang, executive director of Amnesty International USA. “These families have come to this country fleeing unimaginable violence, and under longstanding international agreements the U.S. has to respect their human rights while hearing their cases. This ruling is obviously a huge relief for these four families in the short term, but the Department of Homeland Security must immediately change its policies and stop detaining families seeking asylum.”

    Click here to view the class action complaint that argues:

    In defiance of common sense, clear Congressional intent, applicable case law, and even a mere scintilla of human decency, Defendants, without justification and or authorization, continue to illegally and indefinitely detain SIJ children up to and until the point at which Defendants can ship the kids back "home"-places Defendants previously determined would not be in the children's best interest to be returned to.

    Hats off to Bridget Cambria, Carol Anne Mauer Donohoe, Jackie Kline, and Michael Edelman, and everyone else that has tirelessly worked to fight for these mothers and children.
  5. ABA Files Federal Circuit Court Brief Supporting Lower Court Rulings Against 6 Country Muslim Ban. Roger Algase

    On April 19, the American Bar Association filed an amicus brief with the U.S. 4th Circuit Court of Appeals asking that Court to uphold the decision of a Federal District Court in Maryland staying enforcement of Donald Trump's revised executive order banning travel to the US by citizens of six overwhelmingly Muslim countries.

    For the ABA announcment and a link to the full brief, see:

    http://www.americanbar.org/news/aban...appealsco.html

    The announcement states that a brief will also be filed with the 9th Circuit Court of Appeals urging that Court to uphold a similar order by a Federal District Judge in Hawaii.

    The ABA's 4th Circuit brief makes the following arguments against Trump's executive order imposing the ban:

    1) The EO violates the Establishment Clause of the First Amendment,

    2) The EO violates the equal protection guarantee of the Fifth Amendment,

    3) The EO violates federal immigration laws, including the Immigration and Nationality Act of 1965.

    The ABA brief also argues that the federal courts have jurisdiction to review the president's executive order because its history shows that the order is not "facially legitimate and in good faith", according to the standard enunciated in the two landmark Supreme Court cases of Kleindienst v. Mandel (1972) and Kerry v. Din (2015).

    It is impossible to overestimate the significance of this litigation over Trump's latest Muslim ban executive order.

    If this executive order is upheld, and especially if the courts decide that the presidential order cannot be reviewed by the judiciary, Donald Trump will be free, like a monarch more than the president of a constitutional democracy, to issue future executive orders without restraint banning immigration, not only from additional Muslim countries, as is the obvious intention based on the language of the EO itself and its predecessor seven country ban, but from any country or area of the world which Trump and his top immigration advisers, Jeff Sessions, Stephen Bannon, Stephen Miller and Kris Kobach, regard as "detrimental" to US interests.

    One does not have to have unusually prescient powers to guess which countries and areas of the world those might just possibly happen to be, given the admiration that some of these top advisers, if not Trump himself, have shown for the infamous northern Europeans only Immigration Act of 1924.

    (However, there is certainly no reason to expect a travel ban against citizens of Russia or of at least one other Eastern European country that comes to mind, while Donald Trump is the president.)

    More details about the ABA's arguments, as well as some thoughts about how the newest Supreme Court Justice, Neil Gorsuch, might react based on his opinion in a 2016 10th Circuit deportation case, if the Muslim country ban issue ever goes to the Supreme Court, will be discussed in my forthcoming detailed analysis of the ABA's brief.
    ______________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping mainly skilled and professional immigrants receive work permits and green cards for more than 35 years, without regard to ethnicity, religion or national origin. Roger's email address is algaselex@gmail.com



    Updated 04-20-2017 at 12:34 PM by ImmigrationLawBlogs

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