News from the Courts

Posted on: November 29th, 2017
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Ninth Circuit Grants Partial Stay to Travel Ban Injunction

The Ninth Circuit Court of Appeals partially granted the federal government’s request for a stay of the preliminary court’s injunction dependent on a hearing and resolution of the expedited appeal in a case challenging the third version of the President’s executive order. The Ninth Circuit exempted foreign nationals with bona fide relationship ties to the United States from this decision. The injunction is still in effect for individuals with proven, documented close relationships to individuals in the country, such as grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, and sisters-in-law.

For more information, view the order.

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District Court Judge Issues Permanent Injunction Against Executive Order Withholding Federal Funding to Sanctuary Cities

A District Court Judge in California has issued a permanent injunction Executive Order 13768, which withholds funding provided by the federal government to sanctuary cities. The judge determined that the order goes beyond the scope of power of presidential executive orders in violation of the Fifth Amendment and Tenth Amendment Constitutional rights. Specifically, the executive order was found to have outreached the authority of executive orders, depriving allocated congressional funding to the affected areas without notice or opportunity to be heard to the degree of being in violation of the Fifth Amendment right to due process. The outreach of authority of the executive order also was determined to be superseding the local jurisdiction, violating Tenth Amendment rights. The decision permanently enjoined the enforcement of the executive order to areas deemed sanctuary jurisdiction, and since the order was found to be unconstitutional, the judge issued a nationwide injunction against the travel ban executive order.

For more information, view the full case.

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Data Finds Mexican Nationals and Individuals Detained in Immigration Court are Uniquely Disadvantaged

Though it should come as no surprise that individuals who have competent legal representation in immigration cases have a higher success rate than those without, the fact that 80 percent of detained individuals facing deportation are without representation is substantially more alarming. Individuals are permitted to be represented by an attorney if they cover the cost themselves. There is no right to an attorney, however, and individuals who cannot afford or find an attorney are statistically more likely to be deported.

Individuals face many obstacles in attempting to acquire legal representation by themselves.

First and foremost, the financial burden of acquiring a competent attorney is a substantial barrier for many. Additionally, since the individual is detained, travelling to meet with a prospective attorney is impossible. Couple this with an inherent guaranteed reliance upon phones to establish connection, which are difficult to access and generally expensive in their own right, and detained immigrants seeking representation are left with very few feasible options. If individuals manage to contact and hire an attorney, visitation regulations vary from facility to facility, and most detention facilities are in remote locations far from the attorney’s office.

The Transactional Record Access Clearinghouse (TRAC) conducted a data analysis, the results of which reinforce the notion that a noncitizen’s ability to hire an attorney is correlated primarily with the nationality of the individual and whether the individual is detained. Analyzing data from over 3 million immigration cases from as early as 2001, the report found that almost 40 percent of immigrants in removal proceedings were detained. The likelihood of a detained individual receiving representation is dependent upon a number of factors. One is the location of the court handling the individual’s case. The nationality of the individual also correlates with whether a detained individual receives representation. The analysis concluded that individuals immigrating from Mexico were substantially disadvantaged in immigration court. Though these individuals have the highest detention rate at 78 percent, they received the lowest representation rate of all countries in the analysis at 33 percent.

For more information, view the full article.

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Lawsuit Filed Seeking to Reclaim Unpaid Wages for Au Pairs

Plaintiffs have filed a lawsuit seeking to reclaim unpaid minimum and overtime wages for au pairs on J-1 visas dating back to July 25, 2009. The plaintiffs claim their visa sponsors failed to pay minimum hourly wages, overtime wages, and mandatory training time. The suit also alleges that an improper credit for room and board was deducted from what wages were received. The plaintiffs are seeking twice the amount of unpaid wages owed, in addition to attorney’s fees, and costs from the visa sponsors. The visa sponsors from which the plaintiffs seek retribution are InterExchange, Cultural Care Au Pair, Au Pair in America, Go Au Pair, Au Pair Care, Inc., and Expert AuPair.

For more information, view the au pair wage action informational website.

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BIA Denies Appeal of Native of Italy Because of Aggravated Felony Conviction

Giovani Rosalia Vella, a native and citizen of Italy, was granted entry into the United States on October 8, 1967, as a lawful permanent resident. A conviction 40 years later in September 2007 for conspiracy to operate an illegal gambling business violated the terms of his stay, and in 2009 the Department of Homeland Security (DHS) issued a notice to appear in removal proceedings. In August 2009, After Vella conceded his removability, the Immigration Judge granted him an adjustment of status. In February 2013, a conviction of conspiracy to commit extortion prompted a new notice to appear, and in a July 2016 decision, the Immigration Judge determined that Vella’s conviction constituted an aggravated felony “crime of violence” under 18 U.S.C. § 16(b) (2012). That decision was vacated based on the United States Third Court of Appeals, which held jurisdiction over this case, finding that Section 16(b) was “unconstitutionally vague.” Following the decision, DHS added charges of removability, arguing the respondent’s removability was justifiable since he was an alien convicted of conspiracy to commit a felony, which was upheld by an Immigration Judge and not contested by Vella. This left the only aspect eligible for appeal whether he qualified for a waiver of inadmissibility. The Immigration Judge concluded that he failed to meet the requirements, since he was an alien lawfully admitted for permanent residence who received a criminal conviction for an aggravated felony after receiving this designation.

The respondent did not contest the criminal conviction, but rather questioned the language of the section, which stated “No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony.” The Immigration Judge interpreted this to disqualify Vella, as an alien who was previously admitted in 1967 and subsequently received an aggravated felony conviction. In contrast, Vella asserted that the language of the section, specifically the designation as “previously been admitted” to refer to the most recent instance of entry, which he asserted would be the 2009 adjustment of status.

The Board of Immigration Appeals disagreed with Vella’s interpretation. The BIA understood previous admission to refer to any incident in the past, instead of the most recent time in the past as Vella argued. Since the respondent admitted that he was admitted to the country as a lawful permanent resident in 1967 and received a conviction after the date of admission for an aggravated felony, the BIA concluded that Vella was ineligible for relief and denied the appeal.

For more information, view the full case.

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Ninth Circuit Court of Appeals Decision Provides Green Card Opportunity to Certain Temporary Protected Status Holders

A potential path to apply for adjustment of status has been provided to specific Temporary Protected Status (TPS) holders, as a result of a Court of Appeals decision. The Ninth Circuit Court of Appeals ruling on Ramirez v. Brown is particularly beneficial to TPS holders whose status expiration is predicated upon the termination of the TPS designation, such as in the case of Nicaraguans. Following the decision, individuals in the Ninth and Sixth districts who entered the country without inspection or were granted TPS afterward may now qualify for adjustment of status by submitting an immediate relative petition. This decision, however, does not affect the requirements for adjustment of status. Applicants must still prove their eligibility for adjustment of status by adhering to all eligibility criteria.

A March 31, 2017 decision from the Ninth Circuit determined that the language of INA §244(f)(4) holds that TPS is an “admission” as is required for adjustment of status eligibility. Specifically in the section regarding TPS, the Court found that the language states that TPS “shall be considered as being in and maintaining lawful status as a nonimmigrant” for the specific purposes of “adjustment of status.” Therefore, the Court determined that a grant of TPS is considered an “admission” for adjusting status. The Sixth and Ninth Circuits are the only circuit courts which currently view TPS as an admission. Individuals with TPS outside of the Sixth and Ninth districts who entered the country unlawfully and have not been granted parole must exit the United States and receive a green card through consular processing.

For more information, view the practice alert update from the Immigrant Legal Resource Center.

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