News from the Courts

Posted on: June 29th, 2018
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BIA Determines Forced Labor Constitutes Material Support

A decision from August 2016 from an Immigration Judge granted the request of the respondent, a native and citizen of El Salvador, for deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This decision was subsequently appealed by the Department of Homeland Security (DHS), which yielded a cross-appeal from the respondent challenging the Immigration Judge’s denial of her applications for Temporary Protected Status, cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. §1229b(b) (2012), asylum, withholding of removal, and protection under the Convention Against Torture. The Board of Immigration Appeals dismissed the cross-appeal and remanded the case to the Immigration Judge.

The respondent claimed to have entered the United States in 1991 without inspection and was granted Temporary Protected Status. She then left the country an advance parole, returning to seek admission on March 7, 2004. DHS initiated removal proceedings against her, charging her removable as an alien without a valid entry document. During the proceedings before the IJ, the respondent applied for cancellation of removal. DHS argued the respondent demonstrated her ineligibility for this relief in her own testimony, in which she stated that in 1990 she was kidnapped by guerillas in El Salvador who coerced her into undergoing weapons training and performing forced labor including cooking, cleaning, and doing laundry. In December 2011, the Immigration judge determined that the respondent was removable, but granted her application for cancellation of removal, a decision which DHS then appealed. A January 2014 Board of Immigration Appeals decision found the respondent was ineligible for cancellation, due to the military-type weapons training she received in 1990 from what was determined to be a terrorist organization. The BIA thus sustained the DHS appeal, remanding the record to the IJ to consider the respondent’s prospective eligibility for any other relief or protection.

On remand, the respondent applied for asylum, withholding of removal, and protection under the Convention Against Torture, and DHS conceded that she is free to seek asylum, though the weapons training she received disqualified her from establishing eligibility for cancellation of removal. Utilizing the respondent’s credible testimony and all documents she submitted at her cancellation of removal hearing, the IJ concluded in her August 2016 decision that the respondent was ineligible for the asylum and withholding of removal she sought as the result of the material support bar. However, citing the gruesome atrocities the respondent witnessed and was subjected to, including being forced to watch as her husband dig his own grave before being murdered, the IJ granted the request of the respondent for deferral of removal pursuant to the Conventions Against Torture.

The respondent argued that the material support bar was improperly applied to her, claiming that any material support she supplied to the Salvadorian guerillas was not important enough to justify consideration, and even if it were applicable, she was warranted a duress exemption. However, precedential decisions determined that the duress exemption cannot be applied to support provided to terrorist organizations. Furthermore, the BIA concluded that the term “material support” is not quantitative, meaning that the degree to which support was provided is irrelevant to its application. The material support bar is applied based upon whether or not support was provided, regardless of the extent to which the support is provided. The BIA also referenced several nonprecedential cases in which “material support” included both voluntary and involuntary aid, including fundraising, making payments, performing physical labor, and providing food and shelter.

In several nonprecedential decisions, some of which have been reviewed by the Federal courts of appeals, we have found that “material support” includes activities, both voluntary and involuntary, such as fundraising, making payments of money, providing food and shelter, and performing physical labor. While not an exhaustive list, the BIA found the list to be indicative of a type of behavior which can be considered to fall into the category of “material support,” and the aid provided by the respondent to fall within that category. For these reasons, the BIA dismissed the cross-appeal put forth by the respondent.

The BIA then assessed the claim of DHS that the respondent failed to sufficiently demonstrate the more likely than not torture which the respondent would receive in the event of relocating back to El Salvador. The BIA could not properly address DHS’ claim, because the Immigration Judge granted Convention Against Torture with inadequate factual support for this finding. The BIA concluded that this warranted remand to the IJ to produce such support and analyze the totality of evidence before producing a new decision.

For more information, view the full case.

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Supreme Court Justice Finds Place and Time Necessary for Removal Rule

Supreme Court Justice Sotomayor delivered an opinion stemming from the case of Pereira v Sessions. Nonpermanent residents, such as the petitioner in Pereira v. Sessions, who are subject to removal proceedings and have accrued 10 years of continual presence within the United States may be eligible for cancellation of removal. Under what is known as the “stop-time rule,” stipulates that the period of continuous presence within the country is determined to have ended once a person is presented with a notice to appear. The Government is required to serve noncitizens who are in removal proceedings with written notice which specifically informs them of the time and place at which the removal will be held, among other details. The intersection between these two requirements was an area of ambivalence; the conundrum was whether the stop-time rule would go into effect if a noncitizen is served by the Government with a notice to appear which does not contain the time or place of the removal proceedings. Sotomayor’s opinion indicated this was not the case; a notice to appear that does not contain information indicating the time and place of the removal proceedings is not fundamentally a notice to appear, which therefore would not initiate the stop-time rule.

For more information, view the full case.

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Maryland Senator Successfully Mandates Public Access to Information Surrounding Travel Ban

U.S. Senator Chris Van Hollen of Maryland announced his successful securement of language which will ensure that the public will have access to information regarding the embattled travel ban introduced by Donald Trump. Van Hollen, who has long been critical of the constitutionality and legality of the travel ban, secured the language as part of the Fiscal Year 2019 State, Foreign Operations, and Related Programs Appropriations Act, and specifically it will guarantee that the public has access to the number of visa waivers granted to citizens of the countries which have been banned, information that has previously been withheld by the Trump administration along with general administrative details of the travel ban as a whole.

Below is the text of the amendment:

Visa Applicants.— Not later than 90 days after the date of the enactment of this Act, and every 90 days until September 30, 2019, the Secretary of State, in coordination with the relevant heads of Federal agencies, shall submit a report to the appropriate congressional committees that describes the implementation of Presidential Proclamation 9645 (“Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”), including the following information for each designated country: (1) the total number of new visa applicants per month, disaggregated by country and visa category; (2) the total number of visa applicants approved and rejected each month, disaggregated by country and visa category; (3) the total number of pending visa applicants, disaggregated by country and visa category; (4) the total number of visa applicants denied a waiver and granted a waiver under section 3(c) of Presidential Proclamation 9645, disaggregated by country and visa category; and, (5) the complete reports submitted to the President every 180 days under section 4 of Presidential Proclamation 9645.  For the purposes of such report, the term “designated country” refers to the Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Such report shall be submitted in unclassified form, and shall be made publicly available online.

For more information, view the announcement from Senator Van Hollen.

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