In this case law update we look at an unpublished dismissal of an appeal by the Board of Immigration Appeals (BIA) regarding failure to follow the filing procedures in the Immigration Court Practice Manual (ICPM). An unpublished case means that it is not binding precedent but may be used to persuade the immigration judge or BIA in the future. The ICPM is the manual used as a floor (not a ceiling) on how the immigration courts run their day-to-day operations including filing procedures. It is designed to provide a uniform set of procedures for all immigration courts across the country.
In this case law update, we look at Guaman-Yuqui v. Lynch in which the Second Circuit joined the Fourth, Sixth and Seventh Circuits in adopting Matter of Camarillo regarding the sufficiency of an NTA (Notice to Appear). An NTA is the charging document in removal proceedings. The substance of the document is controlled by 8 U.S.C. 1229(a)(1). In specific, defense counsel across the country has argued that 8 U.S.C. 1229(a)(1)(G)(i) directs the Department of Homeland Security to indicate on the NTA at issuance the date and time the alien must appear for his or her first master calendar hearing in removal proceedings. Camarillo holds that the NTA does not need to contain the exact date and time of the alien's first hearing.
In The News this week is the report from Transactional Access Records Clearinghouse (TRAC) indicating a continued growth in the current immigration court backlog. This growth is both in the number of cases and the number of days per case. Notably, the Cleveland immigration court continues to be one of the longest delayed courts. According to TRAC the average number of days from commencement of proceedings to resolution in Cleveland is 775 days. The data used by TRAC is current through April 2015.
In this edition of Case Law Update, we discuss Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) and 212(h) waivers. This case resolves a nationwide question as to whether or not an individual who entered the United States, adjusted their status to lawful permanent resident and then was convicted of an aggravated felony is eligible for a 212(h) waiver in removal proceedings. The BIA held that an alien is eligible for the 212(h) waiver and withdrew the prior decisions of Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012) and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010).
On April 10, 2015, Attorney General Eric Holder ordered Matter of Silva-Trevino, 24 I&N Dec. 287 (AG 2008), a usual crimmigration case, vacated. Silva-Trevino provided immigration judges a methodology for determining whether or not a conviction was for a crime involving moral turpitude (CMT). Several circuit courts declined to follow the case causing the Attorney General to revisit the matter and the analysis.
Regarding H-1B visas, USCIS announced today it received 233,000 visa petitions far exceeding the statutory and numerical cap of 65,000 for Fiscal Year (FY) 2016. USCIS issued the receipt notices for those H-1B visa petitions selected through the lottery for processing. This lottery does include the advanced degree exemption however USCIS has not yet released the actual number of advanced degree petitions it received. USCIS will now reject any more filings made for the FY 2016 cap. USCIS will continue to accept cap exempt filings and transfers and other non-cap related filings.
The Administrative Appeals Office (AAO) issued a decision regarding H-1B visas titled Matter of Simeio Solutions, LLC. This AAO held that a change in the place of employment for a beneficiary of an H-1B visa can constitute a material change in the employment and thus require the filing of a new Labor Condition Application (LCA) and an amended or new H-1B visa petition.
On April 7, 2015, USCIS announced that the numerical cap for H-1B visas for Fiscal Year 2016 is exhausted. USCIS is permitted to grant 65,000 bachelor's degree cap subject cases and 20,000 masters cap cases each year. As a rule, if more visa petitions are filed then visas exist, USCIS institutes a lottery to select visa petitions for adjudication. USCIS then accepts H-1B visa petitions for the lottery for five business days and then rejects all cases thereafter. USCIS has enough visa petitions to institute the lottery but will not yet announce the date of that lottery. Therefore employers and employees alike are still in a holding pattern wating to see if their cases will be selected and processed.
In the news, 109 law professors filed an amicus brief in the Texas v. United States litigation. This case centers around the President's authority to institute an expanded version of Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA). Law professors from around the country signed on to this "friend of the court" brief arguing that the President does indeed have the authority to institute and administer these actions. We previously featured a blog on the Texas v. United States case and now I am proud to be one of the law professors signing on to this amicus brief.
In this edition of Case Law Update, we discuss Matter of Cerda Reyes, 26 I&N Dec. 528 (BIA 2015). This case has an interesting history and deals with an ever troubling and frustrating issue for aliens who are detained by the DHS and are seeking bond redetermininations from immigration judges. After arrest, aliens file motions for bond redetermination with an immigration judge as ICE has a tendency to set bond a bit too high or even refuse to issue a bond. Aliens generally file these motions in the court which has control over the jail or detention center where the alien is held. Sometimes ICE will transfer the alien to another state or region before the IJ can hear the motion. Most of the time IJ's will dismiss the motion for lack of jurisdition (or power to hear the request).