Today is officially Friday so here is my first ever Friday Facts. I know this happened early June, but I wanted to mention that I am very proud to announce that we won a hard fought battle at the Ninth Circuit (Grigoryan v Barr No.16-73652, June 2, 2020) where the panel published the decision. This case is important for many asylum seekers because it reaffirmed due process rights in deportation hearings. It put the government on notice that if they wish to allege commission of fraud then they MUST follow the proper procedures and provide sufficient foundation (basis) and explanation for their allegations rather than rely upon 3rd hand reports written by unidentified individuals, and the Court, for its part, must provide the individual seeking asylum sufficient opportunity to rebut the allegations. https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/02/16-73652.pdf
We are very happy with the Court’s decision. The government lawyers and the immigration judges have become very accustomed to using minimally reliable government reports to find fraud. Now, the government must put in the work if it wants to make such drastic accusations.
The big news yesterday was the Supreme Court DACA decision. For now, it looks like DACA will continue. I had more than a dozen calls yesterday asking if immigration will accept new applicants or is it limited to individuals who already have DACA. The short answer is: Unclear. The Supreme Court did not address new applicants. So, for sure, we can say that individuals who have DACA can continue and renew. However, since the Supreme Court was reviewing the underlying cases coming up from the federal courts, it is possible to argue that immigration should accept new applicants. Specifically, in April 2018, a federal court in Washington, DC made an expansive ruling that, because there was substantial likelihood that the manner in which the Trump administration ended the program was arbitrary and capricious, the entire September memo was illegal. The judge’s order opened the door to potentially accepting first time DACA applications as well as renewals. However, the judge put a hold on this order indefinitely, while the court reviewed arguments submitted by both parties.
When the Supreme Court agreed to hear the DACA case, all other cases and litigation were put on hold pending a decision from the Supreme Court. Now that Supreme Court has issued a decision, it is logical that those other orders will likely kick in and hopefully, immigration will start accepting new applicants.
In the meanwhile, President Trump seems inclined to fight and end DACA. The next steps is likely for the Administration to dissect the Supreme Court decision and try again, making sure this time that they hit every issue and concerns raised by the Court. We just have to wait and be ready for the fight.
To change topics, I have received news that CIS is setting up a system to have attorneys and interpreters appear telephonically for CIS interviews. As always, this is a convenient way but has issues regarding effective representation. It is hard to conduct a fully effective proceeding if you are not there in person and cannot monitor the interview in real-time.
AILA is receiving reports that a general agreement has been reached on a proposed update to Presidential Proclamation 10014. Proclamation must happen before it expires at 11:59 pm on June 22, 2020. This was the proclamation to stop certain visa holders from coming to the US because they presented a risk to the US economy during COVID. The list will likely include work visas (H-1B, H-2B, L-1, and J-1). Since President Trump had bad week with DACA case, it is highly likely he needs this proclamation to boost his voter base.
It looks like the Courts are still on tract to reopen on July 6, 2020. However, the MPP (Migrant Protection Protocols) cases have been postponed until July 20, 2020. The Justice Department said as a result of its ongoing review of conditions, and in conjunction with continued implementation of health officials’ COVID-19 guidance, DHS and DOJ are postponing both MPP hearings and in-person document service through, and including, July 17, 2020.
MPP cases are those asylum seekers who are at the border and are forced to stay in Mexico and wait for their hearings. Don’t let the name fool you, MPP doesn’t protect the migrants. They face constant danger in Mexico from the gangs and cartels that prey on immigrants. I have heard many horrors stories about the gangs kidnapping, assaulting, beating, robbing and raping migrants as they make their way to the border. I truly believe that MPP was enacted to force immigrants to give up and just go back.