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  1. PEW Research Center Report: Most immigrants arrested by ICE have prior criminal convictions, a big change from 2009

    Immigrants with past criminal convictions accounted for 74% of all arrests made by U.S. Immigration and Customs Enforcement (ICE) agents in fiscal 2017, according to data from the agency. The remainder were classified as “non-criminal” arrestees, including 16% with pending criminal charges and 11% with no known criminal convictions or charges.

    The profile of arrestees by ICE’s Enforcement and Removal Operations has changed considerably in the past eight years: In fiscal 2009, the earliest yearwith comparable data, immigrants without past criminal convictionsaccounted for the majority (61%) of those arrested by the agency.

    Overall, the number of ICE arrests decreased sharply during that span, from 297,898 in 2009 (the year President Barack Obama came into office) to 143,470 in 2017 (when President Donald Trump took office). However, last year’s total represented a 30% increase from the year before, with most of the increase coming after Trump signed an executive order to step upenforcement.

    While ICE arrests overall rose from 2016 to 2017, arrests for those withoutprior convictions drove the increase. The number of arrestees without known convictions increased 146% (up more than 22,000 arrests), compared with a12% rise among those with past criminal convictions (up nearly 11,000). Still, the bulk of those arrested in 2016 and 2017 had prior convictions.

    ICE arrests can happen in a variety of ways. The agency relies on government data bases to help track fugitives, and it can detain suspects in courthouses. But in most cases, ICE takes custody of people after local or state police have arrested them.

    Read more at http://www.pewresearch.org/fact-tank...nge-from-2009/





    Posted by Nolan Rappaport

    Updated 03-06-2018 at 09:17 PM by ImmigrationLawBlogs

  2. Much Sound and Fury: Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018)


    Attorney General Sessions' decision of March 5, 2018, vacating Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), may be motivated by any number of explanations, as Judge Paul Schmidt of Immigration Courtside thoughtfully suggests. Seehttp://immigrationcourtside.com/2018/03/06/sessions-goes-deep-to-undermine-due-process-matter-of-e-f-h-l-27-in-dec-226-a-g-2018/.

    Nevertheless, the AG’s cryptic and unreasoned ruling will predictably engender more litigation and take up more court time than arguably may be saved by denying all asylum seekers access to the due process protections codified in the statute and regulations, and reiterated in numerous currently standing BIA precedents and federal circuit court decisions.

    First, he vacated a 4 year old precedent decision of the Board of Immigration Appeals, an action that should not be taken lightly. Cf. Matter of E-F-H-L- 26 I&N Dec. 319 (BIA 2014)(remanding with instructions to honor the guarantee of a full evidentiary hearing on an asylum claim). The AG contends that “[b]ecause the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted.” Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). To the contrary, it is worth noting that, historically, many of the Board’s precedent decisions, which have been rendered moot by federal circuit court reversals or remands, have nonetheless remained in force and served as precedent in all cases other than that of the named respondent.

    Assuming the AG’s decision was more than a knee-jerk, irrational, result-oriented response to an IJ’s administrative close order, but a decision fit for an Attorney General, he is expected to have read the Board's reasoning in reaching the outcome it reached in E-F-H-L- (BIA). The Board plainly recognized the applicability of the statutory provisions that guarantee "​a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” See ​section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b) (4)(B)(2012)​(governing ​procedures in removal proceedings)​. In contrast, the AG’s opinion contains no reasoning what so ever and reveals no effort to respect the terms of the statute, much less to distinguish them in any way.

    Second, the Board's decision in E-F-H-L- also cited to governing ​"​regulations implementing these statutory provisions in the context of asylum and withholding of removal applications​,” which provide that,


    • such applications for relief filed with the Immigration Court will be decided “after an evidentiary hearing to resolve factual issues in dispute,” 8 C.F.R. § 1240.11(c)(3) (2013).
    • ​such an evidentiary hearing will entail​ the respondent “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf,” 8 C.F.R. § 1240.11(c)(3)(iii). ​
    • such regulations also apply to applications for withholding or deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ​(citation omitted).


    The Board specifically recognized that “[t]hese regulations clearly give the Immigration Judge ‘the authority . . . to properly control the scope of any evidentiary hearing,’ 8 C.F.R. § 1240.11(c)(3)(ii) . . .” and to discontinue or limit an evidentiary hearing “in the interests of efficiency, including by limiting testimony and focusing issues.” Nonetheless, the Board ruled in E-F-H-L- that, at a minimum, there must be an evidentiary hearing, which includes “an opportunity for the respondent to present evidence and witnesses in his or her own behalf.” See 8 C.F.R. § 1240.11(c)(3). In contrast, the AG’s opinion offers no colorable justification for abrogating these regulations, which remain in force, making his action in vacating the Board’s precedent in E-F-H-L-ultra vires.

    Third, the Board’s decision refers to numerous Board precedent decisions standing for the principles elucidated concerning the need for taking oral testimony and for a meaningful evidentiary hearing in adjudicating asylum applications. See e.g., Matter of Fefe,​ 20 I&N Dec. 116, 118 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987); Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010); cf. Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989) (holding that in absentia proceedings should have been reopened once the alien established reasonable cause for his failure to appear, because he retained the right to present his asylum claim at a full evidentiary hearing, regardless of whether prima facie eligibility for relief had been shown).Matter of C-B-, 25 I&N Dec. 888, 890−91 (BIA 2012); Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998). No matter what the Attorney General’s vacation of the Board’s E-F-H-L- precedent is read to mean, the AG fails to indicate that any of these other Board precedents governing evidentiary hearings are disturbed or no longer in effect and they remain in force.

    What is more, the Board’s decision recognized that numerous federal courts of appeal nationwide have endorsed and upheld the statutory and regulatory promise of a full and fair evidentiary hearing. See e.g., Litvinov v. Holder, 605 F.3d 548, 555−56 (8th Cir. 2010); Hoxha v. Gonzales, 446 F.3d 210, 214, 217−18 (1st Cir. 2006); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003). See also Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir. 2008); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14 (1st Cir. 2004); cf. Oshodi v. Holder, 729 F.3d 883, 889−93 (9th Cir. 2013) (en banc) (holding that an alien’s Fifth Amendment due process right to a full and fair hearing, which includes the opportunity to present evidence and testify on one’s behalf, was violated where the Immigration Judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the contents of his applications). Notably, the AG’s decision vacating E-F-H-L- does not trigger Brand X authority such that the rulings of these federal courts are supplanted or no longer control administrative hearings taking place within the jurisdiction of those courts. Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference where the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”)

    Accordingly, for reasons of statutory, regulatory, and administrative precedential authority, and reasons of federal acquiescence, the AG’s vacation of Matter of E-F-H-L has no impact on the right to an evidentiary hearing on an asylum application. By the AG’s own admission in the case vacated, the respondent had withdrawn his asylum application with prejudice upon remand in favor of administrative closure to permit an I-130 petition to be adjudicated. Thus, the AG’s ruling vacating E-F-H-L- cannot stand for any principled holding with respect to the right to an evidentiary hearing in asylum cases.

    In fact, the IJ’s order of administrative closure of the removal hearing, while allowing USCIS to engage in a timely adjudication of a petition that ultimately might confer lawful status on the respondent, had the mutually beneficial effect of freeing up the court’s time to attend to its heavily backlogged docket. Upon recalendaring in the instant case, the respondent may wish to challenge his previous “withdrawal with prejudice” and seek to re-raise his asylum claim on due process grounds.

    Moreover, in light of the AG’s decision, respondents in general would be well-advised to exercise their statutory and regulatory rights to a full evidentiary hearing in their asylum claims, notwithstanding the potential availability of other forms of relief. Likewise, attorneys would be well-advised to consider their obligations in relation to Matter of Lozada, before counseling respondents to withdraw viable applications. The AG’s decision sends a clear message that notwithstanding their best intentions, IJs intentions to fairly resolve removal hearings may be disrupted without notice.

    Beyond inefficiently and ineffectively usurping the IJ’s authority to control his or her docket, it is unclear just what the AG intended to accomplish. We are left, perhaps, with much “sound and fury, signifying nothing.” Shakespeare, Macbeth Act 5, scene 5.






    c. Lory D. Rosenberg

    Updated 03-06-2018 at 08:44 PM by Lrosenberg

  3. Much Sound and Fury: Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018)


    Attorney General Sessions' decision of March 5, 2018, vacating Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) be motivated by any number of explanations, as Judge Paul Schmidt of Immigration Courtside thoughtfully suggests. Seehttp://immigrationcourtside.com/2018/03/06/sessions-goes-deep-to-undermine-due-process-matter-of-e-f-h-l-27-in-dec-226-a-g-2018/.

    Nevertheless, the AG’s cryptic and unreasoned ruling will predictably engender more litigation and take up more court time than arguably may be saved by denying all asylum seekers access to the due process protections codified in the statute and regulations, and reiterated in numerous currently standing BIA precedents and federal circuit court decisions.

    First, he vacated a 4 year old precedent decision of the Board of Immigration Appeals, an action that should not be taken lightly. Cf. Matter of E-F-H-L- 26 I&N Dec. 319 (BIA 2014)(remanding with instructions to honor the guarantee of a full evidentiary hearing on an asylum claim). The AG contends that “[b]ecause the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted.” Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). To the contrary, it is worth noting that, historically, many of the Board’s precedent decisions, which have been rendered moot by federal circuit court reversals or remands, have nonetheless remained in force and served as precedent in all cases other than that of the named respondent.

    Assuming the AG’s decision was more than a knee-jerk, irrational, result-oriented response to an IJ’s administrative close order, but a decision fit for an Attorney General, he is expected to have read the Board's reasoning in reaching the outcome it reached in E-F-H-L- (BIA). The Board plainly recognized the applicability of the statutory provisions that guarantee "​a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” See ​section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b) (4)(B)(2012)​(governing ​procedures in removal proceedings)​. In contrast, the AG’s opinion contains no reasoning what so ever and reveals no effort to respect the terms of the statute, much less to distinguish them in any way.

    Second, the Board's decision in E-F-H-L- also cited to governing ​"​regulations implementing these statutory provisions in the context of asylum and withholding of removal applications​,” which provide that,


    • such applications for relief filed with the Immigration Court will be decided “after an evidentiary hearing to resolve factual issues in dispute,” 8 C.F.R. § 1240.11(c)(3) (2013).
    • ​such an evidentiary hearing will entail​ the respondent “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf,” 8 C.F.R. § 1240.11(c)(3)(iii). ​
    • such regulations also apply to applications for withholding or deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ​(citation omitted).


    The Board specifically recognized that “[t]hese regulations clearly give the Immigration Judge ‘the authority . . . to properly control the scope of any evidentiary hearing,’ 8 C.F.R. § 1240.11(c)(3)(ii) . . .” and to discontinue or limit an evidentiary hearing “in the interests of efficiency, including by limiting testimony and focusing issues.” Nonetheless, the Board ruled in E-F-H-L- that, at a minimum, there must be an evidentiary hearing, which includes “an opportunity for the respondent to present evidence and witnesses in his or her own behalf.” See 8 C.F.R. § 1240.11(c)(3). In contrast, the AG’s opinion offers no colorable justification for abrogating these regulations, which remain in force, making his action in vacating the Board’s precedent in E-F-H-L-ultra vires.

    Third, the Board’s decision refers to numerous Board precedent decisions standing for the principles elucidated concerning the need for taking oral testimony and for a meaningful evidentiary hearing in adjudicating asylum applications. See e.g., Matter of Fefe,​ 20 I&N Dec. 116, 118 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987); Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010); cf. Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989) (holding that in absentia proceedings should have been reopened once the alien established reasonable cause for his failure to appear, because he retained the right to present his asylum claim at a full evidentiary hearing, regardless of whether prima facie eligibility for relief had been shown).Matter of C-B-, 25 I&N Dec. 888, 890−91 (BIA 2012); Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998). No matter what the Attorney General’s vacation of the Board’s E-F-H-L- precedent is read to mean, the AG fails to indicate that any of these other Board precedents governing evidentiary hearings are disturbed or no longer in effect and they remain in force.

    What is more, the Board’s decision recognized that numerous federal courts of appeal nationwide have endorsed and upheld the statutory and regulatory promise of a full and fair evidentiary hearing. See e.g., Litvinov v. Holder, 605 F.3d 548, 555−56 (8th Cir. 2010); Hoxha v. Gonzales, 446 F.3d 210, 214, 217−18 (1st Cir. 2006); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003). See also Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir. 2008); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14 (1st Cir. 2004); cf. Oshodi v. Holder, 729 F.3d 883, 889−93 (9th Cir. 2013) (en banc) (holding that an alien’s Fifth Amendment due process right to a full and fair hearing, which includes the opportunity to present evidence and testify on one’s behalf, was violated where the Immigration Judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the contents of his applications). Notably, the AG’s decision vacating E-F-H-L- does not trigger Brand X authority such that the rulings of these federal courts are supplanted or no longer control administrative hearings taking place within the jurisdiction of those courts. Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference where the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”)

    Accordingly, for reasons of statutory, regulatory, and administrative precedential authority, and reasons of federal acquiescence, the AG’s vacation of Matter of E-F-H-L has no impact on the right to an evidentiary hearing on an asylum application. By the AG’s own admission in the case vacated, the respondent had withdrawn his asylum application with prejudice upon remand in favor of administrative closure to permit an I-130 petition to be adjudicated. Thus, the AG’s ruling vacating E-F-H-L- cannot stand for any principled holding with respect to the right to an evidentiary hearing in asylum cases.

    In fact, the IJ’s order of administrative closure of the removal hearing, while allowing USCIS to engage in a timely adjudication of a petition that ultimately might confer lawful status on the respondent, had the mutually beneficial effect of freeing up the court’s time to attend to its heavily backlogged docket. Upon recalendaring in the instant case, the respondent may wish to challenge his previous “withdrawal with prejudice” and seek to re-raise his asylum claim on due process grounds.

    Moreover, in light of the AG’s decision, respondents in general would be well-advised to exercise their statutory and regulatory rights to a full evidentiary hearing in their asylum claims, notwithstanding the potential availability of other forms of relief. Likewise, attorneys would be well-advised to consider their obligations in relation to Matter of Lozada, before counseling respondents to withdraw viable applications. The AG’s decision sends a clear message that notwithstanding their best intentions, IJs intentions to fairly resolve removal hearings may be disrupted without notice.

    Beyond inefficiently and ineffectively usurping the IJ’s authority to control his or her docket, it is unclear just what the AG intended to accomplish. We are left, perhaps, with much “sound and fury, signifying nothing.” Shakespeare, Macbeth Act 5, scene 5.





  4. Much Sound and Fury: Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018)


    Attorney General Sessions' decision of March 5, 2018, vacating Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) be motivated by any number of explanations, as Judge Paul Schmidt of Immigration Courtside thoughtfully suggests. Seehttp://immigrationcourtside.com/2018/03/06/sessions-goes-deep-to-undermine-due-process-matter-of-e-f-h-l-27-in-dec-226-a-g-2018/.

    Nevertheless, the AG’s cryptic and unreasoned ruling will predictably engender more litigation and take up more court time than arguably may be saved by denying all asylum seekers access to the due process protections codified in the statute and regulations, and reiterated in numerous currently standing BIA precedents and federal circuit court decisions.

    First, he vacated a 4 year old precedent decision of the Board of Immigration Appeals, an action that should not be taken lightly. Cf. Matter of E-F-H-L- 26 I&N Dec. 319 (BIA 2014)(remanding with instructions to honor the guarantee of a full evidentiary hearing on an asylum claim). The AG contends that “[b]ecause the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted.” Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). To the contrary, it is worth noting that, historically, many of the Board’s precedent decisions, which have been rendered moot by federal circuit court reversals or remands, have nonetheless remained in force and served as precedent in all cases other than that of the named respondent.

    Assuming the AG’s decision was more than a knee-jerk, irrational, result-oriented response to an IJ’s administrative close order, but a decision fit for an Attorney General, he is expected to have read the Board's reasoning in reaching the outcome it reached in E-F-H-L- (BIA). The Board plainly recognized the applicability of the statutory provisions that guarantee "​a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” See ​section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b) (4)(B)(2012)​(governing ​procedures in removal proceedings)​. In contrast, the AG’s opinion contains no reasoning what so ever and reveals no effort to respect the terms of the statute, much less to distinguish them in any way.

    Second, the Board's decision in E-F-H-L- also cited to governing ​"​regulations implementing these statutory provisions in the context of asylum and withholding of removal applications​,” which provide that,


    • such applications for relief filed with the Immigration Court will be decided “after an evidentiary hearing to resolve factual issues in dispute,” 8 C.F.R. § 1240.11(c)(3) (2013).
    • ​such an evidentiary hearing will entail​ the respondent “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf,” 8 C.F.R. § 1240.11(c)(3)(iii). ​
    • such regulations also apply to applications for withholding or deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ​(citation omitted).


    The Board specifically recognized that “[t]hese regulations clearly give the Immigration Judge ‘the authority . . . to properly control the scope of any evidentiary hearing,’ 8 C.F.R. § 1240.11(c)(3)(ii) . . .” and to discontinue or limit an evidentiary hearing “in the interests of efficiency, including by limiting testimony and focusing issues.” Nonetheless, the Board ruled in E-F-H-L- that, at a minimum, there must be an evidentiary hearing, which includes “an opportunity for the respondent to present evidence and witnesses in his or her own behalf.” See 8 C.F.R. § 1240.11(c)(3). In contrast, the AG’s opinion offers no colorable justification for abrogating these regulations, which remain in force, making his action in vacating the Board’s precedent in E-F-H-L-ultra vires.

    Third, the Board’s decision refers to numerous Board precedent decisions standing for the principles elucidated concerning the need for taking oral testimony and for a meaningful evidentiary hearing in adjudicating asylum applications. See e.g., Matter of Fefe,​ 20 I&N Dec. 116, 118 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987); Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010); cf. Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989) (holding that in absentia proceedings should have been reopened once the alien established reasonable cause for his failure to appear, because he retained the right to present his asylum claim at a full evidentiary hearing, regardless of whether prima facie eligibility for relief had been shown).Matter of C-B-, 25 I&N Dec. 888, 890−91 (BIA 2012); Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998). No matter what the Attorney General’s vacation of the Board’s E-F-H-L- precedent is read to mean, the AG fails to indicate that any of these other Board precedents governing evidentiary hearings are disturbed or no longer in effect and they remain in force.

    What is more, the Board’s decision recognized that numerous federal courts of appeal nationwide have endorsed and upheld the statutory and regulatory promise of a full and fair evidentiary hearing. See e.g., Litvinov v. Holder, 605 F.3d 548, 555−56 (8th Cir. 2010); Hoxha v. Gonzales, 446 F.3d 210, 214, 217−18 (1st Cir. 2006); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003). See also Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir. 2008); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14 (1st Cir. 2004); cf. Oshodi v. Holder, 729 F.3d 883, 889−93 (9th Cir. 2013) (en banc) (holding that an alien’s Fifth Amendment due process right to a full and fair hearing, which includes the opportunity to present evidence and testify on one’s behalf, was violated where the Immigration Judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the contents of his applications). Notably, the AG’s decision vacating E-F-H-L- does not trigger Brand X authority such that the rulings of these federal courts are supplanted or no longer control administrative hearings taking place within the jurisdiction of those courts. Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference where the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”)

    Accordingly, for reasons of statutory, regulatory, and administrative precedential authority, and reasons of federal acquiescence, the AG’s vacation of Matter of E-F-H-L has no impact on the right to an evidentiary hearing on an asylum application. By the AG’s own admission in the case vacated, the respondent had withdrawn his asylum application with prejudice upon remand in favor of administrative closure to permit an I-130 petition to be adjudicated. Thus, the AG’s ruling vacating E-F-H-L- cannot stand for any principled holding with respect to the right to an evidentiary hearing in asylum cases.

    In fact, the IJ’s order of administrative closure of the removal hearing, while allowing USCIS to engage in a timely adjudication of a petition that ultimately might confer lawful status on the respondent, had the mutually beneficial effect of freeing up the court’s time to attend to its heavily backlogged docket. Upon recalendaring in the instant case, the respondent may wish to challenge his previous “withdrawal with prejudice” and seek to re-raise his asylum claim on due process grounds.

    Moreover, in light of the AG’s decision, respondents in general would be well-advised to exercise their statutory and regulatory rights to a full evidentiary hearing in their asylum claims, notwithstanding the potential availability of other forms of relief. Likewise, attorneys would be well-advised to consider their obligations in relation to Matter of Lozada, before counseling respondents to withdraw viable applications. The AG’s decision sends a clear message that notwithstanding their best intentions, IJs intentions to fairly resolve removal hearings may be disrupted without notice.

    Beyond inefficiently and ineffectively usurping the IJ’s authority to control his or her docket, it is unclear just what the AG intended to accomplish. We are left, perhaps, with much “sound and fury, signifying nothing.” Shakespeare, Macbeth Act 5, scene 5.





  5. NLRB Says Unlawful to Threaten Deportation to Graduate Assistants

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

    In a case where immigration law and labor law overlapped, the National Labor Relations Board’s Division of Advice issued an Advice Memorandum finding on one occasion that Washington University unlawfully threatened its graduate assistants who were involved in a union organizing campaign.

    The dispute began when SEIU, Local 1 (Union) began an organizing campaign among graduate students (graduate assistants) at Washington University, many of which were foreign students. During the campaign, the University sent an email to all graduate assistants. One of the University’s statements was:

    Foreign students...I have been told that if a graduate student union is formed,
    and this union goes on strike...all foreign students will lose their visas and have
    to leave the country
    . In my opinion, this would be terrible for our students and
    our program.
    The next day, a union organizer stated unionization would not have any effect on the graduate assistant’s visa status and there was no possibility of them being deported.

    Due to the contradicting information, the graduate assistants requested another meeting with the University. At this meeting, the University stated that they did not know what would happen, but information provided by the Department of Homeland Security indicated that if the Union were to strike, student-visa holders “could lose their status and be asked to leave the country.”

    Later in the campaign, the University emailed a FAQ document addressing the foreign student visa issue. The University stated:

    Question: Could a strike potentially have an impact on my F-1 visa status?
    To obtain an answer, the University contacted an outside immigration attorney
    and ICE. The information provided to the University is set out below.
    Answer: If graduate students are required as part of their academic program
    to “work” as graduate assistants teaching classes or conducting research,
    then continuing to serve in that capacity is required in order for the student to
    maintain a “full course of study” and thus to maintain their F-1 status.

    As 8 CFR §214.2(f)(14) states: Any employment authorization, whether or
    not part of an academic program, is automatically suspended upon certification
    by the Secretary of Labor … or the Commissioner of the Immigration and
    Naturalization Service …, that a strike or other labor dispute involving a work
    stoppage of workers is in progress in the occupation at the place of employment.

    Under such circumstances, F-1 visa students could be subject to deportation
    whether they continued to “work” or not
    . If students honored the strike and
    caused the suspension of their work status under 8 CFR §214.2(f)(14), they
    could be deemed out of status for having failed to maintain a “full course of
    study.”
    Based upon this evidence, the Division of Advice concluded “the Employer violated Section 8(a)(1) of the Act by threatening that, in the event of a strike, “all foreign students will lose their visas and have to leave the country.” Furthermore, the Advice memo stated: “While a strike could potentially lead to such consequences for at least some graduate student employees, the Employer’s statement overstated the requirements of the applicable regulations and the potential effects of those regulations on the affected graduate student employees. In many strike situations, graduate student employees in fact would not lose their visas, given the time that it takes the Secretary of Labor to certify the strike after being notified by the relevant school officials. Moreover, even where the Secretary of Labor does certify a graduate student employee strike, and foreign graduate student employees do lose their student visas, individual graduate student employees may well have some basis other than their student status for lawfully remaining in the United States, despite the Employer’s blanket statement that they all would ‘have to leave the country.’”

    However, the Employer’s other statements were lawful, as they either set forth the exact language of the applicable Federal regulations or accurately conveyed the possibility that a strike “could” lead to the loss of student visas.

    For answers to many other questions related to immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
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