Immigration News

Yesterday, Governor Newsom signed into law AB 1259 which extends California penal code § 1473.7 to trial convictions. The bill will be effective as of January 1, 2022. Prior to the signing of AB 1259, § 1473.7 allowed a person who was no longer in criminal custody to file a motion to vacate their conviction or sentence because they did not meaningfully understand the immigration consequences of a guilty plea or plea of nolo contendere. AB 1259 changes § 1473.7 so that anyone who has any conviction or sentence, whether through a plea or through trial, can file a motion to vacate under § 1473.7. This means that individuals who proceeded to trial, rather than agreeing to a plea, may now be eligible to vacate a prior conviction if they can show that they did not have the ability to meaningfully understand, defend against or knowing accept the actual or […]

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Given the crisis occurring in Afghanistan many people are seeking help and support for friends and family members. Here are two links from organizations that provide helpful information about the current situation and the different humanitarian pathways that are currently available for Afghans trying to come to the United States. Resources for Assisting Afghan Clients | AILA Legal Resources for Afghans | IRAP

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ICE has issued new guidance stating that it will exercise prosecutorial discretion in appropriate circumstances in cases that involve immigrants who have been granted, or are applying for, immigration benefits designed to help victims of crime. The policy explicitly covers U visas, T visas, VAWA and SIJS, but it is not exclusive to those types of benefits. Under the policy, ICE will, absent “exceptional circumstances,” refrain from detaining or arresting individuals who have approved or pending applications for this type of benefit. The goal of the policy is to create a more victim-centered approach to investigation and prosecution. Read full article here.

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Oakland, CA – Today, a federal district court judge in Oakland, California, approved a final settlement in the case of Vangala v. USCIS, providing relief to over sixty thousand applicants for humanitarian immigration benefits. The lawsuit, filed on November 19, 2020, against U.S. Citizenship and Immigration Services (USCIS), challenged an agency policy adopted under the Trump administration specifically targeting humanitarian benefits for survivors of domestic violence and human trafficking and asylum seekers. Under the policy, USCIS rejected applications that left any question in the application unanswered, even where the question was not applicable—for example where the applicant failed to include a response for middle name because they have no middle name. Additionally, USCIS rejected applications where the applicant wrote “none” or “not applicable” instead of “N/A.” The lawsuit was filed by Northwest Immigrant Rights Project (NWIRP), the National Immigration Litigation Alliance (NILA), and the Van Der Hout law firm, on […]

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Following the Supreme Court’s decision in Johnson v. Guzman Chavez, the Aleman Gonzalez litigation team received inquiries from practitioners as to the status of the preliminary injunction ordered by the court on June 5, 2018, and later clarified on July 20, 2018. The Aleman injunction remains intact and is the law throughout the Ninth Circuit. After 180 days in custody, the government must still provide an individualized bond hearing to noncitizens who are subject to final administrative orders of removal, are held in detention under INA § 241(a)(6), and who have live claims pending before an administrative or judicial adjudicative body. Noncitizens who fit that criteria are entitled to release from custody unless the government establishes, by clear and convincing evidence, that they are a flight risk or a danger to the community. Determining whether someone is a class member can often be tricky, and the class is not limited […]

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A federal judge issued an order blocking new applications for DACA from being approved. The order, however, does not currently effect individuals whose applications have already been approved. Judge Andrew Hannan agreed with the groups of states that sued to end DACA and stated that DACA was illegally created by the former President Obama in 2012. “He said the government could continue to receive new applications to the program, as ordered by a federal judge in a separate case, but that it could not approve them.” Read full article here.

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The Salvadoran woman, Ms. A.B., who was at the center of the Trump administration’s attack on asylum for domestic violence survivors was finally granted asylum by the Board of Immigration Appeals. After Attorney General Merrick Garland vacated Jeff Sessions’ prior decision from 2018, the government agreed to a grant of Ms. A.B.’s case. “Garland’s decision to vacate Matter of A-B- struck down Sessions’ restrictive precedent, ensuring that his ruling could no longer be used to prejudge – and wrongly deny – asylum cases. Today’s grant of asylum to Ms. A.B. ends the agonizing, years-long legal limbo she has endured at the hands of Trump’s Justice Department.” The Department of Justice and Homeland Security are currently drafting regulations providing guidelines as how to cases, like Ms. A.B.’s, should be decided in the future. Read full article here.

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On Thursday, Attorney General Garland issued a ruling that will allow immigration judges to once again postpone deportation cases when appropriate. Since at least the 1980s, immigration judges relied on their authority to administratively close cases, but it was eliminated by the Trump administration. Judges typically use this authority to postpone cases where the individual in the case has a pending application for relief before the United States Citizenship and Immigration Services, such as a U visa. “Garland in a four-page opinion said Sessions’ 2018 ruling in Matter of Castro-Tum, which has been rejected by three federal appeals courts, improperly parted from decades of practice by concluding that no federal law or regulation authorized so-called “administrative closure.” Garland said that because administrative closure does not terminate or dismiss deportation cases, it is an appropriate tool for immigration judges to manage their busy dockets.” Read full article here.

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We are thrilled to report about Vangala v. USCIS, the lawsuit brought by attorneys at Van Der Hout LLP, National Immigration Litigation Alliance (NILA), and Northwest Immigrants’ Rights Project (NWIRP), challenging the Blank Spaces policy that affected over 60,000 asylum applications and U visa petitions during the final period of the Trump administration. The parties entered into a settlement agreement, filed July 6, 2021, with the federal district court for approval. The settlement will not be final and effective until the district court approves it. In summary, the primary points of the settlement establish that: Anybody who has had their I-589 or I-918 applications (and applications/petitions related to the I-918) rejected pursuant to the No Blank Spaces rejection policy will be able to recapture the date of the original filing and this date will control for all purposes, including determining eligibility for derivative relationships, aging out, the one-year deadline for […]

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On June 14, 2021 USCIS announced that it would begin to issue employment authorization documents for individuals who have a bona fide pending U visa application. Work authorization will be issued both for principal and derivative applicants. The policy applies to all U visa applications (Form I-918) that were pending on June 14, 2021 and those that are filed on or after that date. In order to be eligible for work authorization under this policy, the applicant’s filed application must include Form I-918, Form I-918B, and a signed statement by the applicant. USCIS must also have received the biometrics from the principal applicant. USCIS will then review the applicant’s background check to determine if the individual poses a national security or public safety risk, and to analyze any other relevant discretionary factors. If USCIS finds that the U visa petition is bona fide, it will issue a 4-year employment authorization […]

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The Biden Administration announced an expansion to the Central American Minors Program which will allow many children from Central America to lawfully enter the United States and be reunited with parents. “The Central American Minors program, started by the Obama administration in 2014, applies to people under the age of 21 coming from the so-called Northern Triangle countries of Guatemala, Honduras and El Salvador, which over the past decade have sent a majority of asylum-seeking migrants to the U.S.-Mexico border.” Under the Obama administration, children were eligible for the program if they had a parent living lawfully in the U.S., such as those who were lawful permanent residents or those who had been granted temporary protection. The Biden administration, however, has expanded the program to also include children who have a parent in the United States with a pending visa application or asylum case. Read full article here.

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Borderless Magazine has published an article about the long delay in processing Freedom of Information Act (FOIA) requests. This delay has been a problem for noncitizens for many years. Individuals need access to the information in their A-files, which are a critical resource in immigration courts and can help them defend themselves against removal from the United States. The article discusses the Nightingale class action lawsuit, Nightingale v. USCIS, which was filed in 2019 to prevent future delays in FOIA request responses. Van Der Hout Partner Zachary Nightingale is the lead plaintiff in the lawsuit. In December 2020, a district court judge, William Orrick III ruled that “DHS, USCIS and ICE must adhere to the FOIA deadline; make determinations on all A-File FOIA requests in the departments’ backlog within 60 days; and provide quarterly compliance reports, with the first report due 90 days from the judge’s ruling.” In February 2021, […]

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DHS Secretary Alejandro Mayorkas has ordered ICE to sever contracts with the Bristol County Sheriff’s Office in Massachusetts and with the Irwin County Detention Center in rural Georgia. This means that immigrants will no longer be detained in these facilities. Both county jails are under federal investigation for complaints of abuses against immigrants. Silky Shah, executive director of Detention Watch Network called the closings “an important win for the immigrant rights movement.” She said, “Immigrant lives are in jeopardy anytime they are in ICE custody, and we will continue to press the Biden administration to cut detention contracts, release people from ICE custody, and shut down detention centers for good.” Read full article here.

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The state department has announced that it will now approve U.S. citizenship for children born abroad to American parents via in vitro fertilization, surrogacy and by other assisted reproductive means. This policy reverses a long-standing rule that considered children born outside the U.S. to a surrogate to be born “out of wedlock” and that required that the child born abroad have a genetic or gestational relationship to the U.S. citizen parent. The new policy is a huge victory for the many LGBTQ families who have actively fought this policy in court. Read full article here.

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USCIS recently announced that starting on May 17, 2021, biometrics will not be necessary for certain applicants who file Form I-539, Application to Extend/Change Nonimmigrant Status. This new rule applies to applicants requesting a change of status to H-4, L-2 or E-1, E-2 or E-3 nonimmigrant status. The suspension of biometrics for these applications will apply through May 17, 2023. This rule will apply to Forms I-539 in the above-mentioned categories that are pending as of May 17, 2021, and have not yet received a biometric service appointment notice or new applications submitted on or after May 17, 2021. Read full article here.

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On May 14, 2021 President Biden revoked a proclamation that was signed by then-President Trump in 2019 that “prevented immigrants from obtaining visas unless they proved they could obtain health insurance or pay for health care.” In his proclamation, President Biden noted that the Healthcare Insurance Order “does not advance the interests of the United States.” President Biden stated that his administration “is committed to expanding access to quality, affordable healthcare” and that they could “achieve that objective, however, without barring the entry of noncitizens who seek to immigrate lawfully to this country but who lack significant financial means or have not purchased health insurance coverage from a restrictive list of qualifying plans.” Read full article here.

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President Biden welcomed six recipients of the Deferred Action for Childhood Arrivals (DACA) program on Friday to the Oval Office. This is just the second known gathering of DACA recipients in the Oval Office. The Biden administration continues to signal that his immigration reform plan remains a legislative priority. Along with a plan to extend citizenship to more than 11 million undocumented immigrants, President Biden has also encouraged Congress to act to secure protections for DACA beneficiaries. Read full article here.

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On April 29, 2021, the Supreme Court issued an important decision that could allow many individuals to seek relief from removal proceedings that was previously unavailable to them. “The justices decided that federal immigration law requires authorities to include all relevant details for a notice to appear for a hearing in one document rather than sending the information across multiple documents. While a technical issue, the ruling could affect hundreds of thousands of immigration cases.” The Department of Homeland Security, for years, has issued notices to appear for individuals in removal proceedings that leave out certain information, such as the date and location of the immigration hearing. Many forms of relief require that the individual show that they have been in the United States for a certain number of years. Previously, any notice to appear issued by the government would stop the counting of that time. The Court’s decision, however, […]

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President Biden called on Congress to pass his proposal to reform the U.S. immigration system during his address to a joint-session of Congress. The president plans to push a bill his administration passed earlier this year that includes a path to citizenship for undocumented immigrants. “As part of his address Wednesday, Biden will also call for lawmakers to pass targeted, smaller portions of his immigration agenda if possible, according to the Post, which reported that he will urge the Senate to move on House-passed bills expanding a path to citizenship for ‘Dreamers,’ or those who were brought to the U.S. illegally as children, as well as one that would extend legal status to undocumented farmworkers.” Read full article here.

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On April 7, 2021, New York Times Magazine published an article that places the current Central American human rights disaster in a historical framework of decades of U.S. military intervention. It also links the civil wars in Central American countries and the U.S. sanctuary movement and ABC lawsuit in the 1980s with current ongoing lawsuits about the more recent administrations’ handling of TPS and asylum. Throughout the article, two lawsuits are discussed at length. First, in the 1980s, asylum applications from Central American countries were being almost entirely denied while asylum applications from other countries were being granted at much higher rates. Because of this “perversion of the asylum process” some churches and synagogues “decided to help Salvadorans and Guatemalans enter and remain in the United States illegally.” However, many supporters of this sanctuary movement started being criminally prosecuted for their work. “The lawsuit American Baptist Churches et al. v. […]

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USCIS has implemented a new process extending green cards during the pendency of an I-90 application. Instead of issuing extension stickers at USCIS field offices, USCIS will issue a revised receipt notice for Form I-90 that extends the validity of green card for 12 months (12 months from the expiration date on the front of the green card). This change in policy eliminates the need for permanent residents to request and appear at an InfoPass appointment to obtain an extension sticker. More importantly, the change provides permanent residents who have pending applications with documentary evidence of employment authorization, authorization to travel, and identity. The extension sticker will still be required for those who already filed their I-90 applications and who have already been scheduled for biometrics notices; these individuals will be given the sticker when they appear for their appointments. Those few permanent residents who already attended biometrics appointments before […]

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In January 2021, a 9-year-old boy was held in government custody for about nine days after being separated from his older brother while trying to enter the U.S. The 9-year-old, Vladimir Fardin, landed with his 19-year-old brother at San Francisco International Airport on January 17, 2021. After taking away their visas, U.S. immigration officers deported the 19-year-old to Haiti and put Vladimir into the custody of the U.S. Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR). Attorneys from Van Der Hout, LLP fought for Vladimir’s release and return to his family. The government claimed that they had to hold him in custody for 14 days to quarantine before he could be released. Attorneys Marc Van Der Hout and Johnny Sinodis considered this an absurd policy, since Vladimir was not intending to stay in the United States. As Marc Van Der Hout stated, “This is a 9-year-old […]

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Today, immigration advocates filed a national class action lawsuit against U.S. Citizenship and Immigration Services (USCIS) challenging a new agency policy, which has resulted in the rejection of thousands of applications filed by vulnerable immigrants. The lawsuit alleges that the agency rolled out the new rule by specifically targeting humanitarian benefits provided by Congress, including those for survivors of domestic violence and human trafficking; asylum seekers; and children who have been abandoned, abused, or neglected. Under the new policy, USCIS rejects applications that have any blank response field, even where the question is not applicable—for example where the applicant fails to include a response for middle name because they have no middle name. In many cases, USCIS’ implementation of the new rule has led to rejections even where the applicant did include responses in all of fields, as in one of the named Plaintiffs’ cases. Additionally, the rule is so […]

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DHS published a new public charge rule that dramatically changes the standard of whether an applicant for admission to the U.S. or for adjustment of status is likely to become a “public charge.” “Public charge” is not defined in the immigration law, but since 1999, the term has meant a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionaliz[ed] for long-term care at government expense.” The rule takes effect on October 15, 2019 (see below), unless lawsuits already filed enjoin its implementation. The rule is significant and is expected to result in an increase of denials for both immigrants and nonimmigrants. It is expected to deter persons from seeking benefits for which they are eligible, even if they are exempt from this public charge rule, because of the fear it could disqualify them for permanent residency or a visa. Specifically, the rule affects persons […]

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It seems like every month the Administration comes up with yet another way to restrict the ability of asylum seekers to obtain protection from persecution in order to deter the flow of refugees. On April 29, President Trump issued a memorandum ordering changes to U.S. asylum policies. The memo orders the Attorney General and the Secretary of Homeland Security to propose regulations within 90 days that would: Require asylum seekers to pay a fee to apply for protection. Require applicants to pay a fee to apply for work authorization for the first time. (Right now, asylum applicants — who must wait 180 days before qualifying for work authorization — can apply for their initial period of work authorization without paying a fee but are required to pay for subsequent renewals.) Place people who have shown a credible or reasonable fear of being persecuted or tortured into limited removal proceedings that […]

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On October 10, USCIS published a proposed rule that would expand the definition of “Inadmissibility on Public Charge Grounds,” which is intended to determine whether a foreign national is inadmissible because he or she is likely at any time to become a public charge. Having received cash benefits from the United State is currently a consideration in this equation. However, under the proposed rule, an individual having received noncash benefits, including Medicaid, Supplemental Nutrition Assistance Program (SNAP), housing vouchers, or rent subsidies could potentially be considered a “public charge.” The proposed rule cites that individuals, not their family members, who receive one or more of these benefits with a combined value of at least 15 percent of federal poverty guidelines (i.e., roughly $1,800 a year, or $150 a month) could be deemed a “public charge.” These are benefits for which foreign nationals are eligible, but now it appears they will be penalized […]

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USCIS has reminded F-1 students whose cap-subject H-1B petition remains pending that they risk accruing unlawful presence if they continued to work on or after October 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization was only valid through September 30. While USCIS regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on October 1 to have his or her F-1 status and any current employment authorization extended through September 30, the regulations do not provide for “cap-gap” work authorization beyond September 30. Clearly, the regulations contemplated that USCIS would adjudicate all affected cases before October 1 to avoid a gap in employment. But, because USCIS has not yet adjudicated all cap-subject H-1B change-of-status petitions for all F-1 students, some beneficiaries will have to stop working. Such F-1 students generally may remain in […]

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Effective October 1, USCIS began implementing its policy of referring cases to the immigration court through the issuance of a Notice to Appear (NTA) on denied status-impacting applications, thus increasing its enforcement actions to a whole host of cases that normally are not automatically referred for proceedings. Service of the NTA provides a foreign national with notice that deportation proceedings are being initiated and that they are now under the jurisdiction of the immigration courts. Although USCIS had had longstanding authority to issue “referral NTAs” to ICE, USCIS exercised this authority sparingly and only in specific situations. Not any more. In announcing the implementation of its new policy, USCIS makes clear that it will be taking an incremental approach; in other words, it will not be referring all cases to ICE. Here is a summary of how USCIS expects to implement the new policy and some procedural considerations: This initial […]

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At the same time that immigration judges are having their discretion restricted, USCIS adjudicators are having their discretion expanded. The governing regulations explicitly provide an adjudicator the discretion to deny a case outright if the record does not establish eligibility for the immigration benefit, or issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) to further develop the record. However, the previous policy directed that an adjudicator should issue an RFE unless there was “no possibility” that the deficiency could be cured by the submission of additional evidence, thereby limiting the discretion of adjudicators to an extent. Read More Immigrant Rights Organizations File Complaint With DHS Over Coercive and Illegal Tactics

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Of the more than 2,500 children who were separated from their parents due to the Trump Administration’s “zero tolerance” policy on border crossers, close to 550 children have yet to be reunified and an estimated 463 of their parents are no longer in the United States. In the wake of this disastrous policy, the American Immigration Lawyers Association (AILA) and the American Immigration Council filed a complaint with the Department of Homeland Security’s Office of the Inspector General and Office for Civil Rights and Civil Liberties. The lawsuit details coercive tactics used by government officials, including case examples and original testimony from separated parents that document a pervasive and illegal practice by DHS officials of strong-arming mothers and fathers into signing documents they may not have understood, ostensibly waiving their legal rights, including their right to be reunified with their children. These tactics, according to AILA and the Council, impeded these parents’ […]

On June 26, the Supreme Court issued its much anticipated decision, upholding President Trump’s September 24, 2017 Proclamation (“Travel Ban 3.0”), which currently excludes nationals from seven countries, stating that the proclamation was “squarely within the scope of Presidential authority under the INA.” (Trump v. Hawaii, 6/26/18). The travel ban includes restrictions against five majority-Muslim nations — Iran, Libya, Somalia, Syria, and Yemen. North Korea and Venezuela are also on the list. Three other majority-Muslim nations (Chad, Iraq, and Sudan) were removed since the policy was first implemented through Executive Order in January 2017.   The Court rejected the constitutional challenge to the ban. Applying deference to the President despite the evidence presented, the Court explained that it would “uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” The court then concluded, based on the record in the case, that the ban […]

USCIS announced that EB-5 investors filing I-829 applications and marriage-based petitioners who file I-751 applications to remove the conditions on their green cards will be able to use the receipt notice as evidence of continued status for 18 months past the expiration date on their conditional green card. This increased validity period (up from 12 months) is the result of increased processing times for these petitions.

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June 26, 2018 The processing times listed on the USCIS website now show a range of expected completion dates as opposed to a concrete date. For example, change-of-status applications (I-539) filed at the Vermont Service Center for the H-4 category show processing times of 10.5 to 13.5 months. This “cycle time” indicates that 50 percent of these cases are adjudicated within 9.5 months, and 93 percent are adjudicated within 13.5 months. Other types of applications and petitions have greater ranges, sometimes because these cases are handled by one of the numerous field offices, which vary considerably in efficiency and speed. Cycle times for naturalization applications are 10 to 19 months; employment-based green card applications have a cycle times of 8.5 to 22 months.   USCIS is currently proceeding with naturalization applications in the order that they were filed, but about 10 percent of cases (likely selected at random) are being […]

The Department of Homeland Security (DHS) is required to present an annual report of the number of foreign nationals who are admitted but overstay. Overstays are defined as (1) individuals for whom no departure has been recorded and are likely still in the U.S., and (2) individuals who have a recorded departure after their lawful period of admission expired. DHS is currently able to track overstays from all air and sea entries (excluding C and D visa holders) but does not have data for land entries from Canada and Mexico. The report for FY2016 indicated that over 98 percent of the 50,437,278 nonimmigrants admitted via air and sea ports in FY2016 departed the United States on time and abided by the terms of their admission.   However, some visa categories are more prone to overstaying than others. For example, the report notes that of the 1,457,556 foreign students expected to depart in […]

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Changes and enhancements to immigration enforcement measures continue to develop at a breathtakingly rapid pace. Currently front and center is the Administration’s separation of family members on the southern border, which has finally pushed the border wall from the spotlight. Attorney General Jeff Sessions’ “zero-tolerance” policy for illegal border crossings resulted in directing his attorneys to pursue criminal prosecutions for any individual caught crossing illegally, sparked a national uproar. The President was forced to issue a new Executive Order on June 20, which continues to produce confusion, uncertainty, and widespread criticism, never mind abhorrent conditions for those affected. The fate of some 2,300 children separated from their parents after crossing the southern border remains uncertain and bogged down in tremendous bureaucratic red tape, and 17 states have now sued the government over its family separation policy. Simply stated, the situation is a mess.   The Attorney General has also issued two precedential […]

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Due process is an essential tenant of the rule of law. In the immigration context, there are certain standards that must be met to ensure a full and fair hearing for the immigrant. The immigration laws require that “Notices to Appear” (NTAs), which are essentially the immigration version of a charging document, must contain specific things. These include: nature of proceedings, legal authority for proceedings, the charges against the immigrant, the time and place of the hearing, and a notice that the alien may be represented and that they must provide the court with their contact information. On June 21st, the Supreme Court ruled in Pereira v. Sessions that failing to meet the requirement to list the time and place of the hearing when serving an NTA invalidates it. The case has potentially far-reaching implications for removal cases.   Routinely, both Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) […]

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Van Der Hout LLP Immigration News Update is our e-newsletter, mailed out approximately six times a year, with recent immigration-related news and information. You can subscribe to the newsletter or view past issues below.