I wanted to write a short post for people wondering about the new human trafficking law in Kansas, HB 2350. HC 2350 makes it a felony to engage in human smuggling. Many people are worried that this law is going to be applied to innoccent, every-day stuff like driving your friend to a doctor’s appointment or helping a family member go to an ICE check-in. As I read the law, I think that it is far narrower than that. And if it is interpreted as it is written, which it should be, then it should not apply to most people. This is why I think that.  What the Law Says  It’s critical to star ..read more

In a memorandum dated November 8, 2021, the Director of the Executive Office for Immigration Review, David Neal, has rescinded the agency’s formal COVID-19 guidance, leaving a number of questions unanswered on how the courts will handle COVID-19 in the coming days and months. The largest unanswered question now is whether individuals who have recently tested positive for COVID-19 will still be barred from entering the immigration courts. Policy Memo 20-13, issued in June 2020, said individuals would not be allowed in EOIR-controlled spaces if they had “a positive test for COVID-19” or a diagn ..read more

A lawsuit filed in June by a former Immigration Judge and exhibits the government has since filed raises a series of concerns about the way the government is managing the immigration courts and its FOIA obligstions. [Note: although the aim of her suit is to remedy alleged mistreatment as a judge, most of the exhibtis are filed under seal, so I don’t intend to comment on the merits] Although the suit was filed in June, the complaint has already been amended, so I’ll be referencing that. In summary, Bain says there are basically three legal issues at stake. First, she says she made FOIA request ..read more

The “rubber stamp” is a nefarious metaphor, historically used to accuse judges or legislatures of lacking any real power (or of refusing to exercise it). As it goes, the judge hasn’t made a meaningful decision at all; their signature has merely been stamped on an order or decree to provide a sheen of formality or due process. Records recently obtained through the Freedom of Information Act show that the Department of Justice, which runs the nation’s immigration courts, is issuing “rubber stamp” orders under a new system called “Case Flow Processing.” While these orders appear to be signed by ..read more

For the last four years, we’ve been using the Freedom of Information Act to request records describing the policies and procedures that govern the processing of appeals and motions to reopen at the Board of Immigration Appeals and the Immigration Courts. One resource that wasn’t previously publicly available was the BIA “Chairmans Memos” – a series of brief statements from the BIA Chairman directing BIA members and staff on how to process specific kinds of appeals. There appears to be several for each year, usually instructing staff on types of cases. When we asked for screenshots from the BI ..read more

In January 2019 we submitted a FOIA request asking for the contents of the EOIR‘s “Guidance and Publications” intranet site. The site is part of the EOIR’s intranet, which is accessible to all EOIR employees, and appeared to contain guidance for immigration judges on a host of topics. In July 2019 we received roughly 94 heavily-redacted files (posted below as “First Production”) which includes charts related to which state crimes trigger removability, guidance for IJs on how to handle certain types of relief applications, competency documents, etc.  We appealed the agency’s decision to w ..read more

Today, January 20, 2021, “Deferred Enforced Departure” or “DED” is now available for all citizens of Venezuela in the United States. This deferral will last for a period of 18 months. There are certain limited exceptions.  A grant of “DED” results in two things:  (1) individuals who apply will be eligibe for employment authorization during the 18-month period. This is based on the language of 8 CFR 274a.12(a)(11):  (2) eligible individuals will not be deported to Venezuela during this time.  DED is not an official “immigration status,” but presidents have used this power ..read more

The Immigration Courts are secretly issuing a series of “standing orders” describing their process for handling the coronavirus. Unfortunately, nobody at EOIR is actually announcing these in any formal way. Some are being added periodically to page 234 of the Immigration Court practice manual, but not all of them. And some of the orders listed there seem to have since been superseded by new orders. Most of the new orders don’t say whether they supersede the prior orders. These orders in some cases severely limit the rights of immigrants and their attorneys to object to evidence if appeari ..read more

We should have seen it coming. In 2018 the Attorney General ended the ability of immigration judges to administratively close cases, concluding they had in fact never had such authority. As shocking as that was at the time, we’re now seeing pieces of that puzzle were being laid out months before the Attorney General released that decision. And the more we learn, the more it appears the end of administrative closure was more about results (faster deportations) than about the legal principles outlined there. Administrative Closure For over 50 years when a case was pending at immigrat ..read more

Today the U.S. District Court for the District of Kansas dismissed a denaturalization case against our client. The order is here: U.S. v. Malik – Order Denying Denaturalization The court conducted a two-day bench trial in October, 2018 and we were eagerly awaiting this decision. The government filed its Complaint in 2015 alleging our client had never gotten divorced in Pakistan, even though he had a divorce decree and other records proving his divorce. Discovery involved eleven depositions (four of witnesses in Pakistan) and two separate investigations into the divorce decree itself. After ..read more