Saturday, April 30, 2011


From Action Comics #900.  News here and here.

Morton Replies to Lofgren re Secure Communities

"Dear Representative Lofgren: I write to express my regret for the confusion regarding the Secure Communities program and the issue of whether a jurisdiction may "opt out" of the program." -Letter dated April 28, 2011.

Friday, April 29, 2011

Constitutional Victory For Shackled Pregnant Mom

"The Court applies Hope, Women Prisoners at D.C., Nelson and Brawley and the undisputed facts to conclude that Defendants' shackling of Plaintiff during the final stages of her active labor and her post-partum recovery, violated the Due Process Clause of the Fourteenth Amendment, given Plaintiffs serious medical condition and the Defendants' indifference to that condition by shackling her during these time periods. The medical proof demonstrates that such shackling was medically necessary and caused unnecessary physical and mental suffering. In addition, under Boretti and Byrd, the Court concludes that Defendants' denial of the breast pump that the MGH provided for Plaintiffs medical care also constitutes deliberate indifference under the Eighth and Fourteenth Amendments as denial and interference with care prescribed by a health care provider. The Court concludes that the Defendants' shackling of Plaintiff in the final stages of her pregnancy and post-partum recovery as well as the denial of the prescribed breast pump, constitute punishment under the Due Process Clause that is also prohibited under Bell. 441 U.S. at 535. ("[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication in accordance with due process law). ... Thus, in addition to the cited judicial decisions, this Court further concludes that these medical publications, convention rules, social studies and standards also establish that the shackling of a pregnant detainee in the final stages of labor shortly before birth and during the post-partum recovery, violates the Eighth Amendment's standard of contemporary decency."

Villegas v. Metro. Govt. et al, Case 3:09-cv-00219, Document 113, Filed 04/27/11, M.D. Tenn., Nashville Dist.

Hats off to Elliott Ozment!  Here's the story in the Tennessean.

Wednesday, April 27, 2011

DHS on NSEERS (forever)

"Because the Secretary of Homeland Security’s authority under the NSEERS regulations is broader than the manual information flow based on country designation that has now ended, the underlying NSEERS regulation will remain in place in the event a special registration program is again needed."

 - Margo Schlanger, DHS Officer for Civil Rights and Civil Liberties, Apr. 27, 2011.

Wednesday, April 20, 2011

APA / Due Process Victory: Asylum Termination Challenge

"[P]laintiff alleges that defendants violated his due process rights by failing to give him specific reasons for their intent to terminate his asylum status. Plaintiff also alleges that he did not have a meaningful opportunity to present evidence in his defense because defendants did not identify the allegations against him or provide access to the evidence against him. The Court finds that these allegations are sufficient to withstand a motion to dismiss."

Courtesy of Bender's Immigration Bulletin - Daily Edition.

Tuesday, April 19, 2011

Unpub. BIA Cancellation Victory - Discretion

A rare case: three-member panel of BIA (Guendelsberger, King, Miller; signed by King) reverses IJ denial of 240A(a) cancellation on discretion: "The Immigration Judge found that the respondent was statutorily eligible for cancellation of removal, but denied it in the exercise of discretion (I.J. at 3, 11). The respondent challenges this decision on appeal and argues that the Immigration Judge failed to properly balance the positive and negative factors under Matter of Marin, 16 I&N Dec. 581 (BlA 1978), and Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998), in determining whether the respondent should be granted relief as a matter of discretion. ... While this is a very close case, upon our de novo review we find that a grant of the respondent's request for cancellation of removal is warranted in the exercise of discretion."  Matter of X-, Apr. 14, 2011.

Hats off to Jose Quintero of CCLS Miami!

Courtesy of Bender's Immigration Bulletin - Daily Edition.

Monday, April 18, 2011

AAO Hardship Victory: Nigeria

Bruce Coane writes: "In a decision released this week, by the Administrative Appeals Office of Homeland Security, a Nigerian woman represented by our law firm, won her appeal.  As a result, this mother of five who has resided in the USA for many years, can now achieve legal status. Our client had filed for her green card (lawful permanent residence status) but it was denied because she had been arrested for theft.  She filed for a waiver based on having USA citizen children, but that waiver was denied together with the green card denial.  The client had been arrested in 1988 for theft.  The immigration service denied the green card and waiver in 2008, and an appeal was filed.  In a decision issued on April 13, 2011, the Administrative Appeals Office approved the appeal and granted the waiver to our client.  The appeals office agreed that one or more of our client’s children would suffer extreme hardship if the mother was deported.  In particular, they found that one of the children had ADHD and was depressed, and would have significant “adjustment” issues if her she had to move to Nigeria with her mother.  In addition, the appeals office found it significant that there were travel warnings for USA citizens going to Nigeria.  Both of these foregoing matters weighed heavily on the decision to grant the extreme hardship waiver.  Interestingly, this decision may serve as “precedent” for citizens of Mexico who seek waivers, since there are similar travel warnings for Mexico."

Thursday, April 14, 2011

Unpub. BIA 212(c) + 212(h) victory

Unpublished BIA decision dated Apr. 11, 2011 out of Laredo remanding to allow the use of a 212(c) waiver in conjunction with a 212(h) waiver.  Hats off to Tony E. Parada of Houston, and thanks to Raed Gonzalez for bringing it to our attention.

Sunday, April 10, 2011

CSPA Victory on Priority Dates

Nancy Morawetz writes:
"Attached please find a decision of Immigration Judge Videla finding that the Child Status Protection Act allows for retention of a priority date from a labor certification application for a child who has aged out.  The judge distinguishes Matter of Wang as a case that did not involve agency delay.  Our client, Mohammed Azam, has been fighting deportation since 2003, when he was placed in removal proceedings as a result of participating in the Special Registration program.  At the time he was placed in removal proceedings, he was only 18 years old and explained, to no avail, that his father had been waiting two years for the adjudication of his labor certification.  After further agency delay and backlogs, the labor certification was granted.  Today, all of Mr. Azam’s family has legal status.   The immigration judge had previously terminated proceedings due to multiple regulatory violations when our client was arrested.  That decision was reversed by the BIA and the case was remanded for consideration of relief. Under the latest decision, the court has ordered that our client’s status be adjusted to that of a legal permanent resident.   Mr. Azam has been represented over the years by students at the NYU Immigrant Rights Clinic, including Annie Lai, Arlen Benjamin-Gomez, Jennifer Turner, Hena Mansori, Sonia Lin, Anna Purington, Kelli Barton, Roopal Patel, Benjamin Locke, Camilo Romero and Briana Beltran."

Nancy Morawetz
Professor of Clinical Law
Supervising Attorney, Immigrant Rights Clinic
NYU School of Law
245 Sullivan Street
New York, New York 10012

Friday, April 8, 2011

Asylum and “Credible Fear” Issues in U.S. Immigration Policy

Asylum and “Credible Fear” Issues in U.S. Immigration Policy

CRS, Apr. 6, 2011, R41753.

Padilla Retroactivity News

Here are three recent cases, one state, two federal, dealing with the retroactive application of Padilla v. Kentucky.

1.  Hernandez v. Florida, Third Dist. Ct. of App., Apr. 6, 2011.

2.  U.S. v. Diaz-Palmerin, N.D. Ill., E.D., Apr. 5, 2011.

3.  Zapata-Banda v. U.S., S.D. Tx., Brownsville Div., Mar. 7, 2011.

Courtesy of Bender's Immigration Bulletin - Daily Edition.

Remember: LexisONE gives you FREE caselaw going back 10 years!

Wednesday, April 6, 2011

Monday, April 4, 2011

Unpub. BIA Suppression Victory (Memphis)

Sean Lewis writes: "We just won a suppression case at the BIA which you may want to share. The case involved a racially-motivated traffic stop by a Metro Nashville Police officer in a 287(g) jurisdiction. The BIA held that indeed the suppression in immigration proceedings could be linked to the initial traffic stop, even though the Metro Police Department is a separate agency from DHS/ICE and the Sheriff acting under 287(g).  Remanded to consider whether the traffic stop was egregious under the Fourth Amendment."

 Matter of Quinteros, Mar. 31, 2011, unpub.

2011 Daniel Levy Memorial Award

Nominations due by April 15, 2011.

Padilla retroactivity brief

Jennifer Klein writes: "We just filed the attached amicus brief in Massachusetts. There is a big section on retroactivity. Some of the argument may be MA specific, but particularly the Strickland arguments can be made anywhere. If you have any questions please feel free to contact me."

Jennifer Klein
Staff Attorney, Immigration Impact Unit
Committee for Public Counsel Services
21 mcGrath Highway
Somerville, MA 02143
TEL: 617-623-0591
FAX: 617-623-0936

Friday, April 1, 2011

SEVIS on Egyptian Students with Expiring Passports

"The U.S. Citizenship and Immigration Services (USCIS) requires an F, M and J nonimmigrant who petitions for benefits to submit evidence of a valid passport, as defined on the applicable form, at the time of petition. Because of the sensitive situation in Egypt, the processing period to renew passports has increased. This broadcast message provides guidance to designated school officials to inform Egyptian students of these processing times."  SEVIS Broadcast Message 1102-01, Mar. 30, 2011.

Unpub. BIA Cancellation Victory - Houston

Another victory for the University of Houston Law School Immigration Law Clinic: "As noted by the Immigration Judge, there are significant positive equities in this case including, inter alia, long-term residence in the United States beginning when the respondent was just 5 years old and most of it as a lawful permanent resident and very strong ties to family members in the United States. ... We find this to be a very close case but upon de novo review we will not disturb the Immigration Judge's decision to exercise discretion in favor of the respondent ... . Accordingly, the DHS's appeal will be dismissed."
Matter of X-, Mar. 18, 2011.