These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
District Court
The Second Circuit has determined that the agency’s revocation of an I-140 based on doubts about the petitioning employer’s ability to pay and the qualifications of the beneficiary is a discretionary determination, which a federal court lacks jurisdiction to review.
The full text of Nouritajer v. Jaddou can be found here:
A district court in Minnesota has rejected the AAO’s decision in Matter of H-G-G-, which held that a grant of Temporary Protected Status (TPS) is not an admission for adjustment of status purposes. The court further held that for the purpose of the continuous maintenance of status requirements in section 245(c) of the INA, the grant of TPS constitutes a new entry, and maintenance of status should be measured starting on the date of the grant of TPS.
The case is called Hernandez de Gutierrez & Gutierrez v. Barr and can be found on PACER by looking up Case # 0:19-cv-02495-JRT-KMM in the District of Minnesota.
The Third Circuit has determined that a District Court has jurisdiction to hear the following challenges to the Migrant Protection Protocols (MPP), even if the removal proceedings of the challenging individual are ongoing:
1) Whether the MPP applies to a particular individual as a matter of statutory interpretation;
2) Whether the application of MPP to a minor violates the Flores settlement;
3) Whether the MPP violates the obligations of the nonrefoulement doctrine; and
4) Whether the MPP violates an individual’s constitutional right to due process by interfering with his relationship with counsel
The court specifically noted that Flores-related claims can be brought in any District Court, not just the Central District of CA where the agreement is monitored. The court remanded for the District Court to address the issues presented on the merits.
The full text of EOHC v. Secretary of DHS can be found here:
https://www2.ca3.uscourts.gov/opinarch/192927p.pdf
The Ninth Circuit has determined that the denial of a U visa is challengeable in federal district court under the Administrative Procedures Act. With respect to the petitioner’s claim that USCIS failed to consider all credible evidence, the Ninth Circuit held the appropriate standard of review on remand to the District Court would be whether USCIS acted in a manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. With respect to his claim that Washington’s felony harassment crime is a qualifying crime for U visa purposes, the Court left it to the District Court in the first instance to determine the appropriate standard of review. The petitioner’s challenge to USCIS’s factual finding that felony harassment was not detected by law enforcement would also be reviewed for an abuse of discretion or substantial evidence.
The full text of Perez Perez v. Wolf can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/22/18-35123.pdf
A District Court has disagreed with the Attorney General’s decision in Matter of M-S-, which found all individuals who entered the United States without inspection and subsequently were found to have a credible fear of persecution or torture to be ineligible for bond. The court made the following orders:
1. Conduct bond hearings within seven days of a bond hearing request by a class member, and release any class member whose detention time exceeds that limit;
2. Place the burden of proof on Defendant Department of Homeland Security in those bond hearings to demonstrate why the class member should not be released on bond, parole, or other conditions;
3. Record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and
4. Produce a written decision with particularized determinations of individualized findings at the conclusion of the bond hearing
The order will go into effect on 7/16/19.
The full text of Padilla v. ICE can be found here:
https://www.courthousenews.com/wp-content/uploads/2019/07/bond-asylum.pdf
The Seventh Circuit has reviewed an Administrative Procedures Act challenge to a denial of asylum by the Asylum Office. In this case, the petitioner was in valid TPS status at the time of the adjudication of his asylum application, and as such, he was not placed in removal proceedings by the Department of Homeland Security, and could not renew his asylum application before an Immigration Judge. The Seventh Circuit held that the District Court was not barred by any jurisdiction-stripping statute from taking jurisdiction over the challenge. Nevertheless, because the petitioner could ultimately seek review of his asylum application through an Immigration Court proceeding (should the Department of Homeland Security place him in removal proceedings), the decision of the asylum office is not a final agency action.
The full text of Dhakai v. Sessions can be found here:
The Ninth Circuit has determined that a District Court maintains the authority to naturalize an applicant, even if removal proceedings are pending. According to the government, 8 U.S.C. § 1429 precluded a court from considering a naturalization application when the applicant had been placed in removal proceedings. "Because the USCIS did not issue final decisions on the Yiths’ naturalization applications within 120 days after their examinations, the district court had jurisdiction to adjudicate their naturalization applications under 8 U.S.C. § 1447(b) and correctly rejected the government’s argument that the commencement of removal proceedings stripped the district court of subject matter jurisdiction." Moreover, § 1447(b) applies only to the Attorney General, and thus, the existence of an on-going removal proceeding does not strip the District Court of authority to adjudicate a naturalization application.
The court distinguished the instant scenario from one in which the agency denies a naturalization application because removal proceedings are pending. "Unlike § 1421(c), which applies when an agency denies an application, § 1447(b) applies when the government fails to make a determination within a 120-day period and gives the district court jurisdiction over the entire 'matter.' Here, the USCIS did not deny the Yiths’ naturalization applications, and so the district court’s review is not limited to the reason for the agency’s denial, but extends to the entire matter (i.e., the application for naturalization) that was pending before the agency.” "[W]e adopt the straightforward reading of the statute that the USCIS fails to make a determination under § 1447(b) when it fails to deny the applications before the statutory deadline."
The Court also considered the language in § 1429 that the government may not consider an applicant’s naturalization application “if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act.” The Yiths argued that § 1429 does not apply to them by its terms because their removal proceeding was not pursuant to a warrant of arrest. The government argued that the Court should defer to the DHS’s regulatory interpretation of “warrant,” which states that for the purposes of 8 U.S.C. § 1429, "a notice to appear issued under 8 CFR part 239 (including a charging document issued to commence proceedings under sections 236 or 242 of the Act prior to April 1, 1997) shall be regarded as a warrant of arrest.”
The Court disagreed, finding that the meaning of “warrant of arrest” in § 1429 is unambiguous. Specifically, a warrant of arrest is is a writ issued under § 1226 authorizing law enforcement personnel to arrest and detain an alien pending the results of removal proceedings. This document is distinct from a Notice to Appear. "Although the Yiths received a notice to appear, they were not subject to 'a warrant of arrest issued under the provisions' of Chapter 12 of the INA. Accordingly, their removal proceedings were not pursuant to such a warrant of arrest, and this portion of § 1429 was inapplicable to their case." "By its terms, § 1429 precludes only the executive branch from considering an applicant’s naturalization application, and only when there is pending against the applicant a removal proceeding pursuant to a warrant of arrest."
The full text of Yith v. Nielsen can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/07/16-15858.pdf
