EOIR Issues Policy Memorandum Regarding Acceptance of NTAs by Immigration Courts and Use of Interactive Scheduling System

On December 21, 2018, Executive Office of Immigration Review (EOIR) Director James R. McHenry III issued PM 19-08, “Acceptance of Notices to Appear and Use of the Interactive Scheduling System,” which is intended to establish standards for the receipt of Notices to Appear (NTAs) as filed by the Department of Homeland Security (DHS). It provides in part:

[A]lthough DHS may serve an NTA to an individual with a time and date for a hearing on it, the immigration court does not actually acquire jurisdiction–and, thus, the case is not actually “scheduled” and no record of proceedings exists–until DHS files the NTA with the court. Accordingly, although an individual may believe that his or her case has been scheduled for a hearing at the time and date indicated on the NTA and may appear for that hearing, that hearing cannot occur if the NTA has not also been filed with the immigration court.

All individuals who have been served as NTA with a hearing date and time on it are encouraged to contact EOIR’s Automated Case Hotline [1-800-898-7180 (toll-free)] to confirm the time and date of any hearing listed on an NTA. If no information is found … and the scheduled hearing is less than 10 calendar days away, the individual is encouraged to contact the DHS office that issued the NTA or the relevant immigration court.

Download Memo

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Government Agencies Outline Effects of Government Shutdown On Their Operations

As of December 27, 2018, the federal government is in shutdown mode due to a stalemate regarding President Trump’s insistence that appropriations include funding for the building of a wall at the southern border of the United States. The Executive Office for Immigration Review (EOIR), U.S. Citizenship and Immigration Services (USCIS), and the Department of State (DOS) outlined the effects of the government shutdown on their operations.

EOIR: Immigration Courts
EOIR announced that during the current lapse in appropriations, detained docket cases will proceed as scheduled. Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.

USCIS: Fee-Funded Activities
The current lapse in annual appropriated funding for the federal government does not affect USCIS’ fee-funded activities. USCIS offices will remain open, and all individuals should attend interviews and appointments as scheduled. Generally, USCIS will continue to accept petitions and applications for benefit requests.

Some USCIS programs, however, will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:

• EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program): See below. The EB-5 Program will continue to operate.
• E-Verify: See below.
• Conrad 30 Waiver Program for J-1 medical doctors: This program allows J-1 doctors to apply for a waiver of the two-year foreign residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the U.S.; it is not a shutdown of the Conrad 30 program entirely.
• Non-minister religious workers: This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust to permanent resident status in the U.S. to perform religious work in a full-time, compensated position.

EB-5 Immigrant Investor Regional Center Program
The EB-5 Immigrant Investor Regional Center Program expired at the end of the day on December 21, 2018, due to a lapse in congressional authorization to continue the program. All regional center applications and individual petitions are affected. USCIS will not accept new Forms I-924, Application for Regional Center Designation Under the Immigrant Investor Program, as of December 21, 2018. Any Forms I-924 pending as of that date will be put on hold until further notice.

Regional centers should continue to submit Form I-924A, Annual Certification of Regional Center, for fiscal year 2018.

USCIS will continue to receive regional center-affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status, after the close of business on December 22, 2018. As of that date, USCIS will put unadjudicated regional center-affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time.

All Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date, will not be affected by the expiration of the program.

E-Verify and E-Verify services are currently unavailable due to a lapse in government appropriations. Employers will be unable to access their E-Verify accounts to enroll in E-Verify; create an E-Verify case; view or take action on any case; add, delete or edit any user account; reset passwords; edit company information; terminate accounts; or run reports. Employees will be unable to resolve E-Verify Tentative Nonconfirmations (TNCs).
To minimize the burden on both employers and employees, USCIS has implemented the following policies:

• The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
• The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
• USCIS will provide additional guidance regarding the “three-day rule” and the time period to resolve TNCs deadlines once operations resume.
• Important: Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
• Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Several free E-Verify resources are still available.

For information on interim cases statuses and E-Verify resources see E-Verify publications (https://www.e-verify.gov/employers/employer-resources) and Questions and Answers (https://www.e-verify.gov/about-e-verify/questions-and-answers). USCIS recommends that all employers and employees refer to the E-Verify User Manuals or Guides (https://www.e-verify.gov/employers/employer-resources?resource=27) and the E-Verify website (https://www.e-verify.gov/) for questions and answers, and encourages E-Verify Employer Agents to see the Supplement Guide for E-Verify Employer Agents (https://www.e-verify.gov/supplemental-guide-for-e-verify-employer-agents).
The lapse in government appropriations does not affect Form I-9, Employment Eligibility Verification requirements.

Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements outlined in the Handbook for Employers (M-274) (https://www.uscis.gov/i-9-central/handbook-employers-m-274) and on I-9 Central (https://www.uscis.gov/i-9-central).

myE-Verify is unavailable and employees will not be able to access their myE-Verify accounts to use Self Check, Self Lock, Case History, or Case Tracker. However, employees may visit the Resource Center (https://www.e-verify.gov/mye-verify/resource-center) and Employee Rights Toolkit (https://www.e-verify.gov/employees/employee-rights-toolkit) for information on their rights and roles in the Form I-9 and E-Verify processes.

The following webinars are cancelled: Form I-9; E-Verify Overview; E-Verify in 30; E-Verify for Web Services Users; Federal Contractor E-Verify; E-Verify for Existing Users; myE-Verify and Employee Rights. However, employers and employees may view the Form I-9 On-Demand Webinar (https://www.uscis.gov/i-9-central/learning-resources).

Form I-9, E-Verify and myE-Verify support representatives are not available to respond to inquiries.

DOS: Passport and Visa Services
At this time, scheduled passport and visa services in the United States and at U.S. Embassies and Consulates overseas will continue during the lapse in appropriations as the situation permits. The National Visa Center, National Passport Information Center, and Kentucky Consular Center will still accept telephone calls and inquiries from the public.

If you have a scheduled appointment at a DOS passport agency or center, plan on keeping your appointment. If you need to cancel your appointment, you may do so by visiting the Online Passport Appointment System or by calling 1-877-487-2778. If you have a scheduled appointment at a passport acceptance facility and need to cancel your appointment, contact the facility directly.

The Department of Labor’s (DOL’s) Office of Foreign Labor Certification (OFLC) assures employers and other interested stakeholders that the temporary lapse in appropriations for some federal government programs and activities does not directly impact the administration of OFLC programs. A full year appropriations through September 30, 2019, for all DOL program and activities was enacted by Congress on September 28, 2018. The OFLC National Processing Centers are open and the iCERT System is operating as normally scheduled.

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CBP Releases Statistics Showing Increasing in Credible Fear Claims During Fiscal Year 2018

On December 10, 2018, U.S. Customs and Border Protection (CBP) released statistics regarding claims of fear by those who are determined to be inadmissible at ports of entry, or apprehended along the border, by U.S. Border Patrol agents. In recent years, CBP has seen a significant increase in the number and percentage of aliens who seek admission or unlawfully enter the U.S. and then assert an intent to apply for asylum or a fear of persecution.

In Fiscal Year (FY) 2018, CBP law enforcement personnel on the Southwest Border reported 38,269 claims at ports of entry and another 54,690 claims between the ports, for a total of 92,959. This represents a 67 percent increase in claims in FY 2018 compared to FY 2017, and a dramatic departure from 2000-2013, when fewer than 1 percent of those encountered by CBP initiated asylum claims.

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Acting Attorney General Whitaker Orders BIA to Refer Two Cases to Him for Review of the Decisions

Acting Attorney General Matthew Whitaker has ordered the Board of Immigration Appeals (BIA or Board) to refer two cases to him for review of the Board’s decision:

• Matter of L-E-A-, in which the question is whether, and under what circumstances, an alien may establish persecution on account of membership in a “particular social group” under INA § 101(a)(42)(A) [8 USCA § 1101(a)(42)(A)] based on the alien’s membership in a family unit;
• Matter of Castillo-Perez, in which the questions are: (1) In connection with an application for cancellation of removal under INA § 240A(b) [8 USCA § 1229b(b)], what is the appropriate legal standard for determining when an individual lacks “good moral character” under 8 USCA § 1101(f)? (2) What impact should multiple convictions for driving while intoxicated or driving under the influence have in determining when an individual lacks “good moral character” under 8 USCA § 1101(f)? and (3) What impact should multiple such convictions have in determining whether to grant discretionary relief under 8 USCA § 1229b(b)?

In both cases, AG Whitaker invites the parties to the proceedings and interested amici to submit briefs on points relevant to the disposition of the case. The parties’ briefs may not exceed 15,000 words and must be filed on or before January 4, 2019. Interested amici may submit briefs not exceeding 9,000 words on or before January 18, 2019. The parties may submit reply briefs not exceeding 6,000 words on or before January 18, 2019.

All filings must be accompanied by proof of service and submitted both electronically to AGCertification@usdoj.gov, and in triplicate to United States Department of Justice, Office of the Attorney General, Room 5114, 950 Pennsylvania Avenue, NW, Washington, DC 20530. All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

Note: On December 7, 2018, President Donald Trump indicated that he intends to nominate William Barr to succeed Jeff Sessions as Attorney General. Mr. Barr served as Attorney General under former President George H.W. Bush from 1991 to 1993.

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Recent Cases United States Court of Appeals for the 7th Circuit (October 2017-December 2018. CA7)

Alvarenga-Flores v. Sessions

Citation Case Number: No. 17-2920
Decision Date: August 28, 2018
Federal District: Petition for Review, Order of Bd. of Immigration
Appeals Holding: Petition denied

Record contained sufficient evidence to support IJ’s denial of
application for asylum relief, as well as withholding of removal and CAT
relief by alien-citizen of El Salvador, even though alien asserted that
he had fear of future torture and persecution by gang members if forced
to return to El Salvador. IJ could properly find that alien was not
credible regarding his claims of future persecution, where IJ could find
that alien was not credible with respect to two alleged incidents that
formed basis of his claims for relief based on alien’s inconsistent
versions of said alleged incidents. Also, alien failed to explain said
inconsistencies when given opportunity to do so at hearing. Moreover,
alien tendered written statements in English from his parents in attempt
to corroborate alien’s version of events that he gave at hearing under
circumstances where parents could not speak English. (Partial dissent

Alvarenga-Flores, apprehended crossing the U.S. border, gave a “credible
fear” interview while he was detained, stating that he was afraid to
return to El Salvador, where he is a citizen, because after witnessing a
friend’s murder, he received threats from the gang members responsible.
Alvarenga applied for asylum, withholding of removal, and protection
under the Convention Against Torture. The IJ denied all of relief based
on an adverse credibility finding; he also found that Alvarenga’s asylum
application was time-barred. The IJ cited inconsistencies in Alvarenga’s
testimony about his escapes from gang members who attacked him in a taxi
and from gang members who approached him on a bus. Alvarenga had
submitted affidavits from his parents; both were written in English,
although neither parent speaks English. Alvarenga’s parents lacked
firsthand knowledge of the events and “restate[d] things that they can
only have heard from [Alvarenga].” The IJ further noted that Alvarenga’s
parents could have testified telephonically but did not. The BIA found
the discrepancies sufficient to sustain an adverse credibility finding,
8 U.S.C. 1229a(c)(4)(C). The BIA affirmed. The Seventh Circuit denied a
petition for review. Substantial evidence supports the decisions of the
immigration judge and the Board, and the record does not compel a
contrary conclusion.

Rivas-Pena v. Sessions

Citation Case Number: No. 18-1183
Decision Date: August 21, 2018
Petition for Review, Order of Bd. of Immigration Appeals
Holding: Petition granted

Record failed to contain sufficient evidence to support IJ’s denial of
application for relief under Convention Against Torture, where alien
(citizen of Mexico) sought deferral of his removal that was based on
state-court conviction on drug trafficking offense, where said
application was based on claim that return to Mexico would subject alien
to torture from Los Zetas drug cartel members, who considered him
responsible for loss of drugs and currency worth more than $500,000.
Alien submitted report from expert who stated that lost drug contraband
that was attributed to Los Zetas cartel at issue in alien’s state-court
conviction could be valued up to $900,000, that said cartel would hold
alien responsible for said loss, and that there was high certainty that
cartel would torture and kill alien as result of said loss. Remand was
required, because IJ, in finding that claims of potential torture were
too speculative, improperly failed to address expert’s contrary claim of
harm, and reasonable fact-finder would not dismiss as merely speculative
alien’s fear of harm under instant record.

ivas-Pena, now 44 years old, entered the U.S. as a lawful permanent
resident in 1996. He was convicted of drug-related crimes in 1997 and
2017. For the 2017 conviction for possession of cocaine with intent to
distribute, he was sentenced to eight years in prison. He was released
on parole the same day that he was sentenced because he had accumulated
substantial good-time credit during three and a half years of pretrial
detention. Charged with removability based on his convictions for a
controlled substance offense, 8 U.S.C. 1227(a)(2)(B)(i), and an
aggravated felony, section 1227(a)(2)(A)(iii), Rivas-Pena applied for
deferral of removal under the Convention Against Torture, 8 C.F.R.
1208.17 based on his fear of torture by Los Zetas cartel. Rivas-Pena
estimates that he “owes” the cartel $500,000 because of the seizure of
cartel contraband from his garage and fears that cartel members will
infer from his “lenient sentence” that he cooperated with authorities.
The IJ denied Rivas-Pena’s application, finding Rivas-Pena’s fears
“speculative” because no cartel member has attempted to harm Rivas-Pena
or his family. The Seventh Circuit granted a petition for review and
remanded because neither the immigration judge nor the BIA articulated
any basis for disagreeing with an expert opinion that corroborates
Rivas-Pena’s fear of torture.

W.G.A. v. Sessions

Case Number: No. 16-4193
Decision Date: August 21, 2018
Petition for Review, Order of Bd. of Immigration Appeals
Holding: Petition granted

Record failed to contain sufficient evidence to support IJ’s denial of
applications for asylum, withholding of removal or Convention Against
Torture relief, where alien (citizen of El Salvador) argued that return
to El Salvador would subject him to persecution and perhaps murder by
members of Mara 18 gang. Alien presented credible evidence that members
of said gang held gun to his head and demanded to know location of
alien’s brother and subsequently threatened members of alien’s family
when attempting to learn location of alien and his brother. Moreover,
alien’s membership in his nuclear family qualified as cognizable social
group under asylum statutes, such that alien was able to show that
instant persecution was motivated by his membership in his nuclear
family. Fact that alien’s parents and siblings still lived in El
Salvador did not support instant denial of asylum and withholding of
removal relief. On remand, Bd. must consider: (1) whether alien would be
able to relocate to safe region in El Salvador; and (2) whether El
Salvador government is unable or unwilling to prevent persecution of

In 2015, tattooed members of the Mara 18 gang, having previously
abducted his brother, held a gun to W.G.A.’s head and threatened to kill
him. With its rival, MS‐13, Mara 18 terrorizes the Salvadoran population
and government. The gangs have orchestrated labor strikes and plotted to
bomb government buildings. They brag about influencing elections and
controlling political campaigns. They extort millions of dollars from
businesses and are largely responsible for El Salvador’s homicide rate.
Days after the threat, W.G.A. fled to the U.S. DHS apprehended him and
began removal proceedings. W.G.A. applied for asylum, statutory
withholding of removal, and deferral of removal under the Convention
Against Torture, arguing that the gang would kill him if he returned to
El Salvador. The IJ denied his applications. The BIA dismissed an
appeal. The Seventh Circuit granted W.G.A.’s petition for review and
remanded. W.G.A. established persecution based on his membership in a
qualifying social group–family members of tattooed former Salvadoran
gang members. Country reports and news articles throughout the record
demonstrate widespread recognition that Salvadoran gangs target families
to enforce their orders and discourage defection. The IJ and BIA did not
address the extensive record, describing how corruption, judges’ refusal
to protect witness anonymity, and the police’s fear of reprisal, allow
gangs to act with impunity.

Bijan v. U.S. Citizenship & Immigration Services
Federal District: N.D. Ill., E. Div. August 20, 2018

Citation Case Number: No. 17-3545 Decision Date: August 20, 2018 Federal
District: N.D. Ill., E. Div. Holding: Affirmed Record contained
sufficient evidence to support USCIS’s decision to deny alien’s request
to become naturalized citizen, as well as Dist. Ct.’s grant of summary
judgment in favor of USCIS. Alien had stated on prior visa application
that he was not married and had no children, and although there was
triable question with respect to alien’s marital status, which would
preclude instant grant of summary judgment, Dist. Ct. could properly
grant summary judgment, where record showed that alien had lied on visa
application with respect to claim that he had no children. In this
regard, record showed that he had two children at time of visa
application, and that alien was aware of said misrepresentation. As
such, denial of alien’s naturalization application was appropriate,
since alien had intended to obtain naturalization status by denying any
prior misrepresentation to immigration officials.

Sembhi v. Sessions (7th Cir. 2018)

Citation Case Number: No. 17-2746
Decision Date: July 31, 2018 Federal
District: Petition for Review, Order of Bd. of Immigration Appeals

Holding: Petition denied Bd. did not err in denying alien’s fifth motion
to reopen removal proceedings, as well as his third motion to reconsider
denials of prior motions to reopen, where: (1) IJ had entered 2001
removal order against alien in absentia after alien had failed to appear
at removal proceeding; and (2) IJ had denied alien’s 2013 original
motion to reopen removal proceedings, after rejecting alien’s claim that
he was unaware of hearing date for original removal proceeding, or that
his original counsel was ineffective. Bd. could properly find that alien
had not established exception to chronological and numerical limits that
barred consideration of successive motions to either reopen or
reconsider, and alien otherwise had failed to comply with requirement in
instant motion to reopen that he provide notice to any of his prior
counsel whom he alleged had rendered ineffective assistance of counsel
so as to give them opportunity to respond to said allegations. Fact that
alien had filed charge with ARDC against one of his prior counsel did
not constitute requisite notice of his ineffective assistance of counsel
claim in instant proceeding.

Sembhi, a citizen of India, entered the U.S. in 1995 and overstayed his
non-immigrant visa. Two years later, after he unsuccessfully sought
asylum, Sembhi was charged as removable. Sembhi expected to obtain an
I-130 visa based on his marriage to a U.S. citizen but when Sembhi
appeared for a hearing in 2001, his counsel reported that his wife had
obtained a default divorce. Sembhi’s counsel, Burton, indicated that
Sembhi intended to explore vacating the divorce or cancellation of
removal as an allegedly battered spouse or voluntary departure. The
judge continued the matter. At the continued hearing Burton was present
but Sembhi was not. Burton stated that he had not communicated with
Sembhi in weeks despite attempts to contact him. Agreeing that Sembhi
had received notice, the judge ordered Sembhi removed. More than 10
years later, Sembhi, represented by attorney Carbide, moved to reopen,
blaming Burton for his failure to appear–an “exceptional circumstance.”
The IJ denied Sembhi’s request. The BIA dismissed an appeal. Sembhi then
acknowledged that his attorney had informed him orally of the hearing
date but stated that he misunderstood the date. Before he filed this
second motion, Sembhi had been married to another U.S. citizen for more
than 10 years; his I-130 visa petition had been approved. After five
adverse BIA decisions, Sembhi’s petition for review was denied by the
Seventh Circuit. His fifth motion was late and numerically barred, 8
U.S.C. 1229a(c)(7)(A); Sembhi is not entitled to equitable tolling of
those limitations.


Galindo v. Sessions, No. 17-1253 (7th Cir. 2018)

Citation Case Number: No. 17-1253
Decision Date: July 31, 2018
Federal District: Petition for Review, Order of Bd. of Immigration Appeals

Holding: Vacated and remanded Ct. of Appeals lacked jurisdiction to
review Bd.’s determination that alien’s drug-paraphernalia convictions
qualified as removable controlled-substance offenses under circumstances
where IJ originally found that said convictions did not qualify as
removable offenses and had terminated removal proceedings, and where Bd.
essentially reversed IJ’s order and purported to enter removal order on
its own. Bd.’s removal order was not final for purposes of conferring
jurisdiction on Ct. of Appeals to consider merits of Bd.‘s order, since
IJ never made requisite finding of removability. However, Ct. of Appeals
had jurisdiction to find that Bd. lacked authority to issue removal
order on its own, since 8 USC section 1229(a) expressly vests IJ (as
opposed to Bd.) with authority to conduct removal proceedings in first
instance. As such, remand was required to address Bd.’s jurisdictional

Galindo, a lawful permanent U.S. resident, had Kentucky convictions for
possession of drug paraphernalia and was charged with removability under
8 U.S.C. 1227(a)(2)(B)(i). The IJ applied the categorical approach,
under which an alien’s state conviction renders him removable if it
“necessarily establishe[s]” a violation of federal law and the modified
categorical approach, which applies if a divisible statute proscribes
multiple types of conduct, some of which would constitute a removable
offense. If a statute is divisible, a court may consult a limited class
of documents to determine which alternative formed the basis of the
conviction. The IJ determined that Galindo was not removable under the
categorical approach because the Kentucky statute criminalizes
paraphernalia for drugs that are not proscribed by federal law and that
the modified categorical approach does not apply because the
paraphernalia statute is not divisible, then terminated the removal
proceedings. The BIA reversed, finding no “realistic probability” that
Galindo’s conviction involved those drugs, and purported to enter a
removal order. The Seventh Circuit vacated. While courts lack
jurisdiction to review the BIA determination that the drug-paraphernalia
convictions qualify as controlled-substance offenses and may review only
a “final order of removal,” 8 U.S.C. 1252, they may vacate based on
clear legal error. In this case, the IJ never made the requisite finding
of removability; the Board lacked the authority to issue a removal


Singh v. Sessions, No. 17-2852 (7th Cir. 2018)

Citation Case Number: Nos. 17-1579 & 17-2852 Cons.
Decision Date: July 26, 2018
Federal District: Petition for Review, Order of Bd. of nImmigration Appeals

Holding: Petition denied Bd. did not err in affirming IJ’s order
removing alien on ground that alien had been convicted on state charge
of deception, where said crime qualified as crime involving moral
turpitude for which sentence was one year or longer. Fact that alien had
gone back to state court and entered into agreement with prosecutor to
vacate deception conviction in exchange for guilty plea on misdemeanor
charge of possession of drug paraphernalia did not require different
result or require that Bd. reopen removal proceedings, since alien could
not show that vacatur of deception conviction was based on substantive
or procedural defect. Also, fact that govt. had previously stated that
deception conviction did not carry possible sentence of one year or
longer did not preclude govt. from filing new charge during pendency of
original charge that essentially alleged (correctly) that deception
conviction carried possible sentence of one year and qualified as crime
involving moral turpitude.

Singh entered the U.S. in 1993. An IJ denied his applications for asylum
and withholding of removal (alleging religious persecution) and issued
an exclusion order. Before the BIA ruled, he married a U.S. citizen. In
2000, Singh obtained permanent residency. Three years later Singh was
arrested in Indiana. In 2004 he pleaded guilty to felony corrupt
business influence. An IJ found him removable, citing his conviction for
an aggravated felony related to racketeering, 8 U.S.C.
1227(a)(2)(A)(iii) and his conviction, within five years of admission,
for a crime involving moral turpitude with a possible sentence of one
year or longer. Singh was removed and later readmitted on a visitor visa
to pursue post-conviction relief. The Indiana court vacated his felony
conviction and accepted Singh’s guilty plea to the crime of deception, a
misdemeanor punishable by imprisonment “for a fixed term of not more
than one (1) year.” The BIA reopened. The government later alleged that
Singh had fraudulently procured readmission and overstayed his visa,
withdrawing the previous charge of removability, erroneously conceding
that the moral-turpitude provision no longer applied. Months later, the
government issued a new charge based on the deception conviction. The
BIA affirmed a removal order, reasoning that the misdemeanor qualifies
as a crime for which a sentence of “one year or longer” may be imposed.
Meanwhile, Singh returned to state court, which vacated the deception
conviction in exchange for a guilty plea to a different misdemeanor.

The Seventh Circuit upheld the BIA’s refusal to reopen. To warrant
reopening, Singh had to show a substantive or procedural defect in the
underlying criminal proceedings; his vacatur was based on a plea
agreement. The court rejected alternative arguments that deception does
not carry a possible sentence of “one year or longer” and that the
government’s concession was binding.


Dhakal v. Sessions (7th Cir. 2018)

Citation Case Number: No. 17-3377
Decision Date: July 13, 2018
Federal District: W.D. Wisc.

Holding: Affirmed In action by plaintiff-alien seeking review under
Administrative Procedures Act of decision of Director of Chicago Asylum
Office to deny alien’s application for asylum, Dist. Ct. did not err in
dismissing said appeal, where Director’s decision was not final order
that could be appealed. At time of instant appeal, alien remained in
lawful status in U.S. since he had applied for and received Temporary
Protected Status (TPS) offered to citizens of Nepal, and alien was
informed that denial of his application for asylum relief would not be
referred to Immigration Judge for adjudication in removal proceedings
until alien was no longer in TPS status. As such, Director’s decision
was not final because it did not represent consummation of agency’s
decision-making process, since Immigration Judge and Bd. of Appeals had
not acted on alien’s asylum application. Fact that alien had no present
ability to appeal Director’s decision did not require different result.

Dhakal, a member of the Nepali Congress political party, which is
targeted by the Maoist party, worked with the U.S. Agency for
International Development. In 2012, he received a letter from the
Maoists, ordering him to cease his activities. Weeks later, four men
stopped him, told him that the Maoist party had sent them, beat him and
smashed his motorbike, saying “next time, he will be finished.” A ranger
discovered Dhakal. A newspaper reported the attack. Dhakal continued his
activities and received more threats In 2013, Dhakal arrived in the U.S.
after the University of Rhode Island invited him to participate in a
course in nonviolent conflict resolution. Maoists went to his home and
threatened his wife, who fled with their children. Dhakal sought asylum.
While Dhakal’s application remained pending, Nepal suffered an
earthquake and was designated for Temporary Protected Status (TPS), so
that its eligible nationals would not be removed and could receive
employment authorization. Dhakal’ TPS was twice extended. Dhakal is in
lawful status and manages a Wisconsin gas station. In 2016, an asylum
officer found Dhakal not credible and that Dhakal had not shown a
reasonable possibility of future persecution. A final denial letter
stated that, because of Dhakal’s TPS status, his asylum application
would not be referred for adjudication in removal proceedings. Dhakal
filed suit under the Administrative Procedures and Declaratory Judgment
Acts, arguing that he has exhausted all administrative remedies
presently available. The Seventh Circuit affirmed dismissal. The
challenged decision is not a final agency action so Dhakal is not
entitled to relief under the APA. The statutory scheme for adjudication
of asylum claims must be allowed to take its course.


Sanchez v. Sessions No. 17-1673 (July 5, 2018) Record failed to support
Bd.’s denial of motion by alien seeking to reopen its prior decision
directing alien’s removal based on series of driving while under
influence convictions, even though alien had originally requested
discretionary cancellation of removal based on alleged hardship that his
removal would have on his children. Alien alleged in motion to
reconsider that his prior counsel was ineffective for failing to present
sufficient evidence in original removal proceeding to establish both his
good moral character in spite of his four convictions for driving under
the influence and extraordinary hardship on his children. Bd., though,
used wrong legal standard, i.e., that alien failed to show that his
prior counsel’s ineffective assistance of counsel would likely have
altered outcome of initial removal proceeding, when denying
reconsideration request, since Bd. essentially articulated standard that
counsel’s ineffective assistance of counsel “probably” altered outcome
of initial removal proceedings instead of “possibly” altered outcome of
proceedings, which was correct standard. As such, remand was required
for Bd. to re-evaluate motion to reopen removal proceedings.

In 2014, the Seventh Circuit held that the Attorney General has
authority under 8 U.S.C. 1182(d)(3)(A)(ii) to waive an alien’s
inadmissibility and to halt removal temporarily while the alien requests
a U visa. In Sanchez’s case, the Board of Immigration Appeals held that
IJs lack authority to grant such requests. The Seventh Circuit vacated
and remanded. Delegation from the Attorney General to immigration judges
is a matter of regulation; 8 C.F.R. 1003.10(a) states that
“[i]mmigration judges shall act as the Attorney General’s delegates in
the cases that come before them.” Disagreeing with the Third Circuit and
the Attorney General, the Seventh Circuit held that IJs may exercise the
Attorney General’s powers over immigration. On remand, the Board may
consider whether 6 U.S.C. 271(b) and 557 transfer to the Secretary of
Homeland Security all of the Attorney General’s discretionary powers
under the immigration laws and may also address whether the power to
grant a waiver of inadmissibility may be exercised only in favor of an
alien who has yet to enter the United States. The Board must address and
resolve those essential issues before the court can consider whether the
disposition lies within the scope of the agency’s discretion.

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Baez-Sanchez v. Sessions, No. 16-3784 (October 6, 2017) Petition for
Review, Order of Bd. of Immigration Appeals Petition granted

Bd. erred in finding that IJ lacked authority to grant alien’s request
to waive alien’s inadmissibility (and thus to temporarily halt alien’s
removal) while alien seeks U visa from Department of Homeland Security,
where Bd.’s finding was based on conclusion that 8 CFR section
1003.10(b) did not include such power when describing powers and duties
of IJ. Ct. of Appeals found that such power was theoretically included
in 8 CFR section 1003.10(a), where that section grants IJ ability to
exercise Attorney General’s powers over immigration. Remand, though, was
required for Bd. to address Attorney General’s argument that: (1)
Attorney General himself has no authority to grant waivers of
inadmissibility to aliens seeking U visas; and (2) if Attorney General
does possess such authority, it could only be used with respect to
aliens who seek such relief prior to entering U.S.

In 2014, the Seventh Circuit held that the Attorney General has
authority under 8 U.S.C. 1182(d)(3)(A)(ii) to waive an alien’s
inadmissibility and to halt removal temporarily while the alien requests
a U visa. In Sanchez’s case, the Board of Immigration Appeals held that
IJs lack authority to grant such requests. The Seventh Circuit vacated
and remanded. Delegation from the Attorney General to immigration judges
is a matter of regulation; 8 C.F.R. 1003.10(a) states that
“[i]mmigration judges shall act as the Attorney General’s delegates in
the cases that come before them.” Disagreeing with the Third Circuit and
the Attorney General, the Seventh Circuit held that IJs may exercise the
Attorney General’s powers over immigration. On remand, the Board may
consider whether 6 U.S.C. 271(b) and 557 transfer to the Secretary of
Homeland Security all of the Attorney General’s discretionary powers
under the immigration laws and may also address whether the power to
grant a waiver of inadmissibility may be exercised only in favor of an
alien who has yet to enter the United States. The Board must address and
resolve those essential issues before the court can consider whether the
disposition lies within the scope of the agency’s discretion.

Garcia v. Sessions, No. 16-3234 (October 11, 2017) Petition for Review,
Order of Bd. of Immigration Appeals Petition denied

Bd. did not err in refusing to consider alien’s appeal of his asylum
request, under circumstances where: (1) alien had been subject to prior
removal order that had been entered in absentia; (2) alien had
re-entered U.S. and sought asylum after being apprehended by Border
Patrol. Ct. of Appeals, in overruling Delgado-Arteaga, 856 F.3d 1109,
found that alien had standing to seek asylum relief, even though he was
subject to reinstatement of his prior removal order. However, alien was
barred under 8 USC section 1231(a)(5) from obtaining asylum relief due
to fact that he was subject to reinstated order of removal at time he
sought said relief. Fact that general asylum statute under 8 USC section
1158(a) provided that regardless of his status, alien could apply for
asylum relief did not require different result.

Garcia, a Honduran national, came to the U.S. in 2003. He was ordered
removed in absentia and eventually departed in 2005. Garcia claims that
he encountered persecution upon his return to Honduras because of his
unpopular political views— his opposition to deforestation. He was
kidnapped and beaten. He returned to the U.S. in 2014 and, after being
apprehended, sought asylum. The Chicago Asylum Office issued a positive
reasonable fear determination and referred his case to an Immigration
Judge for withholding‐only proceedings. Garcia then filed an asylum
application. The IJ granted Garcia statutory withholding of removal,
stating that she lacked the authority to reconsider the reinstatement of
Garcia’s removal order (8 C.F.R. 208.31(e)). The Board of Immigration
Appeals rejected Garcia’s argument that he had a statutory right to seek
asylum under 8 U.S.C. 1158(a). The BIA reasoned that it lacked authority
to declare the controlling regulations in violation of the statute, but
also noted that “several federal courts have held a person in
reinstatement proceedings is not eligible for and cannot seek asylum.”
The Seventh Circuit dismissed an appeal because asylum is a form of
discretionary relief, so Garcia lacks standing to challenge the
regulations prohibiting him from applying for it.

Rodriguez-Contreras v. Sessions, No. 17-1335 (October 12, 2017) Petition
for Review, Order of Bd. of Immigration Appeals Petition granted

Bd. erred in finding that alien (citizen of Mexico) was required to be
removed under 8 USC sections 1227(a)(2)(A)(iii) and 1229b(a)(3) without
any possibility of discretionary relief from removal due to alien’s
prior Illinois conviction for felon in possession of weapon under 720
ILCS 5/24-1.1(a), which Bd. found to be qualifying “aggravated felony.”
Said conviction did not qualify as aggravated felony, where: (1) said
conviction could be established through possession of air gun; and (2)
air gun, or any other pneumatic weapon, was not “firearm” under federal
law. As such, remand was required for Bd. to consider whether removal
proceeding should be dismissed outright, as well as any claim for
discretionary relief from removal that would allow Bd. to consider fact
that alien’s conviction actually involved weapon that would qualify as

After his conviction for a felony in Illinois, Rodriguez-Contreras, a
lawful U.S. permanent resident, was found in possession of a weapon and
was convicted under 720 ILCS 5/24–1.1(a). The Board of Immigration
Appeals concluded that he was removable as an alien convicted of an
“aggravated felony,” 8 U.S.C. 1101(a)(43); violation of 18 U.S.C.
922(g)(1), which bars anyone convicted of a felony from possessing a
firearm, is an aggravated felony. The Seventh Circuit remanded. The BIA
did not address whether the substantive elements of the state offense
match those of the federal law, which defines “firearm” as “any weapon …
designed to … expel a projectile by the action of an explosive.”
Compressed air is not an explosive, so pneumatic weapons are not
“firearms.” Illinois law defines a firearm as “any device … designed
to expel a projectile … by the action of an explosion, expansion of
gas or escape of gas.” Illinois law is broader than the federal law. The
court rejected an argument that the Illinois statute is “divisible” and
permits judges to determine which statutory provision was involved.
Illinois has a single crime of weapon possession by a felon, with
multiple ways of committing that crime. A definitional clause does not
create a separate crime. Federal law does not foreclose
Rodriguez-Contreras’ obtaining discretionary relief from removal. In
exercising discretion the BIA may consider that Rodriguez-Contreras
possessed a weapon that is subject to both state and federal

Asectic v. Sessions, No. 17-1202 (October 17, 2017) Petition for Review,
Order of Bd. of Immigration Appeals Petition denied and dismissed in

Record contained sufficient evidence to support Bd.’s removal order
under 8 USC section 1227(a)(1)(A), where record showed that alien had
failed to disclose in his successful refugee application fact that he
had served in Bosnian Serbian army during Bosnian conflict. Alien had
admitted that he willfully misrepresented his military service, and such
misrepresentation was material where truthful statement would have led
to further investigation by immigration official. Fact that individual
hired by State Department to assist alien in his refugee application
advised alien not to report said military service on refugee application
did not require different result. Also, Ct. of Appeals lacked
jurisdiction to review Bd.’s denial of alien’s discretionary request to
waive his removability under 8 USC section 1227(a)(1)(H).

Acquaah v. Sessions, No. 16-3277 (November 6, 2017) Petition for Review.
Order of Bd. of Immigration Appeals Petition granted and denied in part

Ct. of Appeals remanded to Bd. alien’s application to remove conditions
on his permanent resident status based on his marriage to U.S. citizen,
where: (1) IJ ultimately found that Dept. of Homeland Security properly
terminated alien’s permanent resident status on ground that alien’s
application constituted marriage fraud; (2) IJ rejected alien’s
application for “good faith” waiver of removal based on fact that alien
had failed to disclose in prior testimony that he had remarried original
wife at time he was still married to U.S. citizen, and that he had
subsequently fathered child in U.S. by original wife; and (3) Bd. found
that alien was statutorily ineligible for fraud waiver under 8 USC
section 1227(a)(1)(H). Bd. erred when it found that absence of specific
fraud charge precluded availability of fraud waiver and should have
considered whether charge sustained against alien, i.e., termination of
conditional resident status on basis of his marriage to U.S. citizen,
was related to fraud. Also, if sustained charge is related to fraud, Bd.
needs to consider whether severe health issues of alien’s U.S. citizen
daughter, for whom he is only surviving parent, warrants exercise of
favorable discretion.

Acquaah, now age 63, came from Ghana to the U.S. on a visitor’s visa and
obtained conditional permanent resident status based on his marriage to
a U.S. citizen. His application to remove residency conditions began
proceedings that have spanned more than 25 years and included a charge
that the marriage was entered into for the sole purpose of procuring
entry as an immigrant. While those proceedings were pending, his first
marriage ended, he remarried a U.S. citizen, and the two had a daughter.
He obtained permanent residency under a different name on the basis of
that second marriage. After discovery that he had used a new name,
Acquaah was charged as statutorily deportable, 8 U.S.C.
1182(a)(6)(C)(i), and ineligible for a fraud waiver. The Seventh Circuit
remanded. At his final hearing, Acquaah faced two charges: a 1992 charge
of deportability based on termination of his permanent resident status
and a later charge that he was deportable as an alien who by fraud or
willful misrepresentation sought to procure immigration. The IJ found
only the charge relating to the termination of conditional residency,
sustained. The Board treated the specific statutory charge that the
government decided to lodge and prove as dispositive of whether the
waiver is available, but should have considered whether the charge
sustained against Acquaah is related to fraud.

Taylor v. McCament, No. 17-1943 (November 17, 2017) N.D. Ill., E. Div.

Dist. Ct. did not err in dismissing for lack of standing
plaintiff-alien’s claim under Administrative Procedure Act seeking order
to compel U.S. Citizenship and Immigration Services (USCIS) to
immediately issue 80,000 U-visas to those, like plaintiff, who were
placed on waiting list for said visas. Record showed that relevant
agencies failed to timely create regulations to enable individuals to
apply for U-visas, which, in turn helped to cause instant backlog of
U-visa petitions. However, plaintiff lacked standing to seek requested
relief in instant case since: (1) Victims Protection Act limits number
of U-visas that may be issued each fiscal year to 10,000; and (2) even
if Dist. Ct. ordered USCIS to issue 80,000 U-visas, USCIS could not do
so because of 10,000 U-visa statutory cap.

Taylor, a citizen of Ireland, entered the U.S. in 2000 on a visitor’s
visa. In 2008, Taylor was the victim of perjury, a qualifying crime
under the Victims Protection Act., 8 U.S.C. 1101(a)(15)(U), which
created the non-immigrant U-Visa program. The Act became law in 2000,
but no regulations were issued for seven years. The issuance of U-Visas
in large numbers began in 2009. The FBI certified that Taylor had
provided the necessary assistance with the prosecution of the crime,
Taylor applied for a U-visa in 2014. U.S Citizenship and Immigration
Services (USCIS) determined that Taylor was eligible, but placed him on
a waiting list because the statute prohibits the issuance of more than
10,000 U-visas per year. USCIS granted Taylor discretionary relief that
defers removal and confers employment authorization benefits. Taylor
filed suit, alleging that USCIS’s delay in promulgating regulations
caused the backlog and asked the court to compel USCIS to immediately
issue 80,000 U-visas to those on the waiting list. The court determined
that Taylor lacked standing and dismissed his complaint. The Seventh
Circuit affirmed. The agency lacks the statutory authority to give the
relief sought. The U-visa limit was reached in 2016 and 2017. Taylor
lacks constitutional standing; a court cannot review his claims at all,
nor determine whether there was an unreasonable delay or a
non-discretionary duty under the APA to compel USCIS to issue U-visas.

Rodriguez v. Sessions, No. 17-1568 (November 22, 2017) Petition for
Review, Order of Bd. of Immigration Appeals Petition denied

Bd. did not err in affirming IJ order that found that alien (native of
Mexico) was statutorily ineligible to seek cancellation of her removal,
where alien had been convicted of violating order of protection under
Wisconsin law. Bd. could properly find that said conviction precluded
alien from seeking cancellation of removal relief under 8 USC section
1227(a)(2)(E)(ii), where record showed that: (1) alien had been enjoined
under protection order; (2) at least one part of said order involved
protection against credible threat of violence, where state court
directed alien to refrain from acts of domestic abuse; and (3) alien
pleaded no contest to having knowingly violated domestic abuse order by
remaining on premises at issue in order. Fact that alien may not have
acted violently by remaining on premises was irrelevant.

Rodriguez entered the U.S. without inspection in 1999. In 2000, her
boyfriend obtained a temporary restraining order against her, claiming
that he feared for his safety after episodes of domestic violence.
Rodriguez later testified that because she had nowhere else to go, and
because she had small children and all her belongings in their shared
apartment, she did not leave. Rodriguez pleaded no contest to knowingly
violating a TRO and to misdemeanor bail jumping. Rodriguez sought
cancellation of her removal as an alien continuously present in the U.S.
for 10 years, 8 U.S.C. 1229b(b)(1)(A) and “a person of good moral
character” during that time, indicating that removal would cause an
“exceptional and extremely unusual hardship” to her five dependent
children (including a cancer survivor) and that she had not been
convicted of certain enumerated offenses, including violation of a
protection order. The IJ decided that Rodriguez’s conviction was
determinative, reasoning that Wisconsin law requires a judge to consider
the danger posed to a victim and any pattern of abusive conduct by the
perpetrator, so a misdemeanor conviction for violating a TRO is
“categorically a removable offense.” The BIA and Seventh Circuit
rejected her appeals. It does not matter that Rodriguez may not have
acted violently by remaining on the premises; her violation of the
avoidance-of-residence provision is enough.

Calderon-Ramirez v. McCament, No. 16-4220 (December 5, 2017) N.D. Ill.,
E. Div. Affirmed

Dist. Ct. did not err in granting defendants’ motion to dismiss
plaintiff-alien’s petition for writ of mandamus requesting that Dist.
Ct. compel defendants to immediately adjudicate his pending U-visa
application under circumstances where said application had been pending
for approximately 1.5 years. Although plaintiff has right to
adjudication regarding his application for both U-visa waiting list and
for U-visa itself, plaintiff was not entitled to mandamus relief, since
plaintiff failed to set forth any facts that would differentiate himself
from other petitioners filing ahead of him whose applications had also
not been adjudicated. Moreover, plaintiff was not entitled to similar
relief under Administrative Procedure Act since instant 1.5 year delay
was not unreasonable given 150,000 increase in pending U-visa

The Victims of Trafficking and Violence Protection Act of 2000, 8 U.S.C.
1101(a)(15)(U) created a new nonimmigrant visa classification that
permits immigrants who are victims of serious crimes and who assist law
enforcement to apply for and receive a nonimmigrant visa called a
U-visa. There is a statutory cap of 10,000 U-visas each fiscal year.
Since 2009, the U-Visa backlog has increased from 21,138 to 177,340
pending applications. Calderon-Ramirez, a citizen of Guatemala, entered
the U.S. in 2002 and was the victim of an attack in 2014. He filed a
petition for U Nonimmigrant Status in February 2015 and is waiting to be
evaluated for the waiting list. In 2016, he sought a writ of mandamus,
to compel Homeland Security to adjudicate his petition. The Seventh
Circuit affirmed the dismissal of his suit. Ramirez did not set forth
any facts that differentiate himself from other petitioners waiting
ahead of him for adjudication. While there are instances when the
government can and will expedite a petition, Ramirez failed to present a
situation appropriate to warrant such an action. The court stated that
the wait Ramirez faces is not unreasonable.

Matushkina v. Nielsen, No. 17-1336 (December 7, 2017) N.D. Ill., E. Div.

Dist. Ct. did not err in dismissing plaintiffs-aliens’ action under
Administrative Procedure Act that challenged denial of one plaintiff’s
2015 immigration visa application that, in turn, was based on 2009
finding by U.S. Customs and Border Protection that said plaintiff was
inadmissible because she had attempted to enter U.S. on fraudulent
basis. While Dist. Ct. found that plaintiffs lacked standing to
challenge 2009 determination as it related to 2015 denial of plaintiff’s
immigration visa, Ct. of Appeals found that, although plaintiff had
standing to file instant claim, dismissal on the merits was appropriate,
since: (1) instant case constituted indirect challenge to visa denial
that was not subject to judicial review under Bruno, 197 F.3d 1153; and
(2) review of 2009 determination that plaintiff had committed fraud when
attempting to enter U.S. would constitute improper full-blown review of
merits of said determination, especially where stated basis for 2009
decision was bona fide and facially legitimate

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