Thursday, September 29, 2011

Asylum Victory: Gang-Related Violence

Paul S. Haar writes: "I thought that you and my colleagues would appreciate the recent (redacted) decision of Immigration Judge John Milo Bryant of the U.S. Immigration Court at Arlington, Virginia in which he applied the recent Fourth Circuit case of Crespin-Valladares in holding that family members of an individual who was the subject of gang-related violence constitute a protected social group meriting a grant of asylum for our client.  A hard-fought case and well-deserved victory."
Paul S. Haar, Esq.
Law Offices of Paul S. Haar
1150 Connecticut Ave., N.W.
Ninth Floor
Washington, D.C. 20036
Tel.: 202/862-4328

Fax: 202/862-4397



Monday, September 26, 2011

Breaking News: TRO Issued In H-2B Prevailing Wage Hike Lawsuit

"Based on the facts set forth in the motion, the complaint, supporting declarations and the memoranda, plaintiffs have sufficiently established that they meet the requirements for a temporary restraining order. Plaintiffs have demonstrated a substantial likelihood of success on the merits that neither defendant is authorized by statute to issue either the Final Wage Rule titled 'Wage Methodology for the Temporary non-Agricultural Employment H-2B Program" (76 Fed. Reg. 3452 (Jan. 19,2011)) or the Final Expediting Rule titled "Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Amendment of Effective Date" (76 Fed. Reg. 45,667) (Aug. 1,2011 )), these rules are inconsistent with and prohibited by the Immigration and Nationality Act, these rules fail to comply with the Regulatory Flexibility Act, and these rules are arbitrary and capricious. Moreover, plaintiffs will be imminently and irreparably harmed if these ruled were to go into effect, in that certain plaintiff small businesses will be unable to continue employing H-2B employees and, as a result, will be unable to complete existing contracts, which then are likely to be taken over by competitors located in low-cost labor markets. This, in turn, will imperil the continued viability of plaintiff small businesses and create an economic impact on small entities that could exceed $100 million for the fourth quarter of 2011. In contrast, defendants will suffer no harm as a result of this Temporary Restraining Order. Thus, the public interest favors the issuance of a Temporary Restraining Order to maintain the status quo until a preliminary injunction hearing is conducted, and this Temporary Restraining Order is granted with notice in order to avoid further harm to the plaintiffs."

Bayou Lawn & Landscape Services, et al., v. Solis, CASE NO.: 3:11cv445/MCRIEMT, UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF FLORIDA, PENSACOLA DIVISION, Sept. 26, 2011.

BIB - Daily Edition Gets An Upgrade

Dear BIB - Daily Edition Readers,

Over the past six years you have elevated BIBDE from an obscure blog to a recognized "voice" in the immigration news world.  Now, I am pleased to announce that on Monday, October 3, 2011, BIBDE will "upgrade" and migrate to a new and much more powerful platform: the LexisNexis Immigration Law Community.  As you know, LexisNexis Matthew Bender has always been the sole sponsor of BIBDE, so "sponsorship" remains unchanged.  And whereas before I labored alone, now I will be joined by several skilled technical and legal professionals from LexisNexis and beyond.

The new Community features a variety of content and resources including all of the BIB - Daily Edition content.  The site will feature blogs, podcasts, and commentary from leading immigration law professionals alongside LexisNexis resources such as Immigration Law & Procedure, Bender's Immigration Bulletin and the entire lineup of LexisNexis Matthew Bender immigration publications.

With the launch of this new resource, we will be transitioning users of BIBDE to the LexisNexis Immigration Law Community where you will be able to view all of the same content and more.  BIBDE will redirect to the LexisNexis Immigration Law Community beginning on October 3, 2011.  On that Monday  you will also begin receiving Daily Email Newsletter Alerts from the Immigration Law Community.

The Alerts will contain the same BIB Daily content that you’ve been receiving with the opportunity to include additional content from the Immigration Law Community.

To add additional content to your Daily Newsletter Alert, you will first need to activate your Immigration Law Community account by resetting your password on the following page:  Please use the email address that is associated with your BIB -Daily Edition subscription.

Once you’ve entered your email address and clicked on the “Recover Password” button, you’ll receive a confirmation via email within 15 minutes.  The email confirmation will provide instruction on resetting your password and will direct you back to the Immigration Law Community where you can sign in using your email address and newly established password.

Once you have signed into the Immigration Law Community, you can navigate to the Newsletter page and add additional content to your alert from the Immigration Law Community as well as the other 17 LexisNexis Community sites.

(During this transition, should you have technical questions or problems, please write to Tracie Morris or Gregg Lawson:

We are excited to bring this new experience to you and we look forward to hearing your feedback.  Change can bring challenges, and the new platform is a work in progress, so please let me know how the transition is working for you, and how we can make your ILC experience more rewarding.

Many thanks,

Daniel M. Kowalski

Wednesday, September 14, 2011

Asylum Victory in Chicago: trafficking; Congo, Belgium

Ashley Huebner writes: "On August 9th, 2011, the National Immigrant Justice Center and pro bono attorneys from the Chicago office of McDermott Will & Emery LLP obtained asylum for a woman from the Democratic Republic of the Congo based on the harm that she suffered as a victim of sex trafficking.  This decision was unique in that the majority of the harm that the client suffered occurred in Belgium, where the client was trafficked, and not in the DRC itself.  However, the judge found that this harm was a direct and inevitable consequence of having been trafficked from the DRC and therefore constituted persecution of the client in the DRC.  The judge further held that the client had been targeted for sex trafficking because of her membership in the particular social group of “young Congolese women who have participated in prostitution.”  Finally, the judge found that even if DHS had rebutted the presumption of future persecution, the client was still eligible for asylum because she would suffer “other serious harm” if she were returned to the DRC.  A redacted copy of the decision is attached."  Matter of X-, Aug. 9, 2011.

Ashley Huebner
Supervising Attorney, Asylum Project
National Immigrant Justice Center (NIJC)
A Heartland Alliance Partner
T: 312-660-1303
F: 312-660-1506

Tuesday, September 13, 2011

Unpub. BIA mandatory detention victory in Va.

Thomas K. Ragland writes: "Attached is a BIA decision I just received in a hard-fought case.  DHS charged my client, who was convicted in Virginia of misdemeanor attempted sexual battery, with aggravated felony “sexual abuse of a minor” – and insisted he was subject to mandatory detention.  I challenged the aggfel charge in Immigration Court, the IJ agreed and ordered release on $10K bond.  DHS appealed to the BIA and invoked the automatic stay at 8 CFR 1003.19(i)(2), ensuring he would not be released.  I filed a habeas petition in ED Va. and, one week later, DHS relented and withdrew the automatic stay.  My client was released but DHS aggressively litigated the BIA appeal.  Nearly a year and a half later, the BIA has dismissed DHS’s appeal, agreeing that the conviction is not an aggfel under proper application of the modified categorical approach and controlling Fourth Circuit law.  The BIA also agreed that DHS failed to prove my client is a danger to the community or a flight risk."  Matter of X-, Sept. 8, 2011.

Saturday, September 10, 2011

Unpub. BIA late-filed asylum victory: changed/extraordinary circumstances

"[W]e disagree with the Immigration Judge's determination that, since the respondent had already submitted an asylum application in [date] based upon a fear of persecution on account of his sexual orientation, his discovery of his HIV positive status in [date] could not qualify as a change in the respondent's circumstances that materially affected his eligibility for asylum (I.J. at 7-8). We find that it is a changed circumstance materially affecting his asylum eligibility. We therefore conclude that despite his arrival in the United States in 1998, the respondent should have been permitted to apply for due to his discovery of his HIV status."

Matter of X-, July 14, 2011.  [Hats off to Paul O'Dwyer!]

Monday, September 5, 2011

Another Padilla habeas victory in Texas

Marfa superstar Steve Spurgin writes: "Attached is the first published Padilla decision out of Texas' 11th Court of Appeals.  These Eastland justices understand Padilla and correctly reversed the trial court, mandating ICE's release from detention for my young LPR client - detained for over 18 months - with no other criminal history."

The Court said: "When the deportation consequence is clear, as it is in this case, the duty to give correct advice is equally clear. Padilla, 130 S.Ct. at 1483. Inasmuch as counsel did not give Salazar correct advice, we hold that Salazar has satisfied the first prong of Strickland. ... We hold that Salazar established that he was prejudiced because he would have gone to trial given the correct information about his deportation status and because a decision to reject the plea bargain in favor of a trial would have been rational under the circumstances. Consequently, we hold that Salazar satisfied the second prong of Strickland. ... [C]ounsel's duty to give correct legal advice where the consequences of a guilty plea with respect to deportation are clear carries with it the obligation to investigate what the deportation consequences to the client would be given the client's individual circumstances. ... We reverse the trial court's order denying the writ, vacate the Orders of Deferred Adjudication and Placement on Community Supervision, and remand this cause to the trial court for further proceedings so that Salazar may answer the indictment."- Salazar v. State, Aug. 31, 2011.

Friday, September 2, 2011

AAO Extreme Hardship Victory; Violence In Mexico A Factor

"According to Mr. Y, he does not know much about Mexico and when he has traveled there, he has both witnessed and personally experienced violence. The AAO takes administrative notice that the U.S. Department of State urges U.S. citizens to defer non-essential travel to parts of Mexico, including Sinaloa, where the applicant and Mr. Y contend they would live, due to ongoing violence and persistent security concerns. The U.S. Department of State recognizes that one of Mexico's most powerful transnational criminal organizations (TCOs) is based. in the state of Sinaloa. U.S. Department of State, Travel Warning, Mexico, dated April 22, 2011. Considering all of these factors cumulatively, the AAO finds that the hardship Mr. Y would experience if he had to move to Mexico is extreme, going well beyond those hardships ordinarily associated with inadmissibility or exclusion. The AAO therefore finds that the evidence of hardship, considered in the aggregate and in light of the Cervantes-Gonzalez factors cited above, supports a finding that Mr. Y faces extreme hardship if the applicant is refused admission."  Matter of X-, Aug. 10, 2011. [Hats off to Philip Hornik!]