Overview of Options to
Get USCIS Cases 'Unstuck'

With some case types taking exceedingly long for USCIS to adjudicate, and with other cases falling through the cracks, often attorneys get inquiries from individuals looking to get their cases "back on track," and promptly decided. This article is meant to provide the latest information about this topic.

USCIS recently updated its case processing times page, now providing more accurate ranges for specific form types. If the case is outside of the posted processing time, it is possible to report the delay to USCIS customer service by calling 1-800-375-5283. Individuals experiencing these delays may also report the delay using the USCIS tools page and making an e-request. Likewise, by contacting your congressional representative, their office can also make inquiries, on behalf of constituents, with USCIS and other governmental agencies. Attorneys have found that the effectiveness of a congressional inquiry has varied among representatives and the matters in question. Additionally, individuals can seek to resolve disputes by submitting inquiries with the USCIS Ombudsman's office, as well as, submitting letters to the USCIS Field Office Director supervising their case or the corresponding District Counsel for the respective field office.

It is critical to retain detailed records for all inquiries made with USCIS. If the matter is not promptly resolved, in certain cases it may be appropriate to escalate action and file a lawsuit in federal district court compelling USCIS to decide the case. In those cases, the previous inquiries may serve as supporting exhibits to the lawsuit and demonstrate the government's failure to act in a reasonable timeframe. When a complaint is filed in federal court, a U.S. Attorney will be assigned to the case and will likely seek to resolve the case with the attorney who filed the complaint. Rarely do "delay" lawsuits reach a trial, as frequently the mere filing of the complaint prompts USCIS to act. Furthermore, "delay" lawsuits do not create a prejudice against a foreign national's immigration case.

Of note, "delay" lawsuits do not entitle aggrieved individuals to approvals of benefits but, rather, a decision or action from the agency causing the delay. As stated early, it is important to discuss with an attorney to understand if your particular circumstance is ripe for and could benefit from federal litigation.

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Termination of 'Remain in Mexico' Policy

Supreme Court Supports Biden Administration's
Rescission of Migrant Protection Protocols (MPP)

A 5-4 Supreme Court held on June 30 that the DHS had the authority to terminate the Trump-era Migrant Protection Protocols (MPP). Under MPP, also known as the "Remain in Mexico" policy, certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings under §240 of the Immigration and Nationality Act (INA). MPP was implemented in 2019 pursuant to INA §235(b)(2)(C), which applies to noncitizens "arriving on land … from a foreign territory contiguous to the United States," and provides that the government "may return the alien to that territory pending a proceeding under section 240." After President Biden was elected, his administration announced that it would suspend the program, and the DHS Secretary issued a memorandum officially terminating it.

Texas and Missouri challenged the action terminating the program, claiming that it violated both the INA and the Administrative Procedure Act (APA). The Supreme Court ruled, however, that the government's rescission of the MPP violated neither the MPP nor the APA. Pointing to the word "may" in §235(b)(2)(C), the Court said that the provision "plainly confers a discretionary authority to return aliens to Mexico."

The Chief Justice delivered the opinion of the Court, joined by Justices Kavanaugh, Sotomayor, Kagan, and, on his last day on the Court, Justice Breyer. (Biden v. Texas, 597 U.S. ___).

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'Crimmigration' Updates

Board of Immigration Appeals
and Attorney General Decisions

The following is a summary of recent precedent setting decisions from the Board of Immigration Appeals (BIA), the appellate level immigration court. All of these cases involve the interpretation of criminal actions for immigration purposes.

In Matter of Wong, 28 I&N Dec. 518, decided on March 30, 2022, the Board held that a conviction for a violation of a state statute, even if the state considers it a violation and not a crime, is a conviction for immigration purposes where the defendant was afforded all the mandatory constitutional rights of a criminal procedure. In this matter, the respondent had argued that his conviction for the disorderly-persons offense of theft by deception in New Jersey was not a conviction for immigration purposes as he was not afforded certain rights, such as a jury trial, and that his conviction is not a crime within the meaning of the New Jersey Constitution. The Board held that as the minimum constitutional safeguards applied to the respondent's state court proceedings, his conviction was a crime for immigration purposes.

In Matter of Dingus, 28 I&N Dec. 529, decided on April 22, the Board held that a state court's nunc pro tunc (retroactive) order modifying or amending the subject matter of a criminal conviction will be given full effect for immigration purposes if it was based on a procedural or substantive defect in the criminal proceedings. If the modification of the criminal conviction was done for immigration purposes, or some other purpose unrelated to the merits of the criminal proceedings, the conviction would remain valid for immigration purposes. The Board specifically held that a Virginia state court's nunc pro tunc order, which changed the identified controlled substance relating to a distribution of a controlled substance, rendered the original conviction invalid for immigration purposes and that the modification should be given full effect for immigration purposes.

In Matter of Dang, 28 I& N Dec. 541, decided on April 28, the Board held that the definition of "physical force" relating to INA §237(a)(2)(E)(i) is controlled by the Supreme Court's decisions in Johnson v. United States, 559 U.S. 133 (2010), and Stokeling v. United States, 139 S. Ct. 544 (2019), and not the Court's definition of "physical force" in a 2014 case, United States v. Castleman. Section 237(a)(2)(E)(i) states that an alien who is convicted of a crime of domestic violence; stalking; or child abuse, neglect, or abandonment is deportable. The Board found that a Louisiana statute that prohibits and criminalizes, among other things, the mere offensive touching as a battery of domestic partners but which does not require "physical force" as federally defined is not categorically a crime of violence, and cannot be a conviction of a crime of domestic violence under §237(a)(2)(E)(i).

In Matter of B-Z-R-, 28 I&N Dec. 563, decided on May 9, the Attorney General held that the mental health of an individual who has been convicted of a particularly serious crime may be considered when determining if that individual constitutes a danger to the community. The INA states that individuals who are found to be a danger to the community after being convicted of a particularly serious crime are ineligible for asylum or withholding of removal. Matter of B-Z-R- overruled the Board's prior decision in Matter of G-G-S, 26 I&N Dec. 339 (BIA 2014), which had held that a person's mental health is not a factor to be considered in the particularly serious crime analysis.

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Justice Jackson Sworn in to Supreme Court

Hon. Ketanji Brown Jackson's
Record on Immigration Law

On June 30, 2022, Ketanji Brown Jackson was sworn in to the U.S. Supreme Court, making her the first Black woman to serve as a Justice on the Supreme Court. Justice Jackson's well-rounded legal experience makes her unquestionably qualified for her seat. With nearly a decade as a federal judge, her record may provide some indication on how she would handle immigration cases as a Supreme Court Justice.

Several times as a federal judge, Justice Jackson has issued decisions that interpreted the law favorably for immigrants. Most notably, in Make the Road New York v. McAleenan, she narrowly blocked the Trump Administration's effort to expand fast-track deportations, holding that the actions violated procedural requirements under the Administrative Procedure Act (APA). Likewise, in Kiakombua v. Wolf, Justice Jackson found that lesson plans given to asylum officers on how to conduct screening interviews were "manifestly inconsistent" with asylum law. While Justice Jackson has had several favorable decisions on asylum law, in one occasion, in Las Americas Immigrant Advocacy Center v. Wolf, she ruled in favor of government's updated policies to limit the preparation time for detained migrants seeking credible fear to one day and mandating detention.

As a "liberal-leaning Justice," her appointment does not alter the composition of the Court, as she replaces retiring liberal Justice Stephen Breyer, and six of the nine justices remain "conservative-leaning." Nevertheless, many recent Supreme Court decisions involving immigration matters have seen crossover from the Justices' traditional voting blocks.

It is worth noting that in the confirmation hearing, Senator Alex Padilla (D-CA) pointed out Justice Brown Jackson's conscious choice of language in her rulings. Rather than using the usual terms "illegal" and "aliens" commonly used in statutes and decisions, she has chosen to use the terms "undocumented" and "noncitizens."

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USCIS Will Expand Premium Processing
for Certain Previously Filed I-140 Petitions

USCIS announced an expansion of the premium processing service for certain pending Form I-140 petitions. The agency will now allow applicants who previously filed under EB-1C multinational executive and manager and EB-2 National Interest Waiver (NIW) categories to premium process their petitions. USCIS hopes that this change will help alleviate the lengthy processing delays in these immigrant visa categories.

The agency's expansion will apply in the following phases:

  • From June 1, 2022, USCIS will accept premium processing upgrade requests for EB-1C multinational executive ad manager petitions received on or before January 1, 2021.
  • From July 1, 2022, USCIS will accept premium processing upgrade requests for EB-1C multinational executive and manager petitions received on or before March 1, 2021, and EB-2 NIW petitions received on or before June 1, 2021.

While this change is favorable, the improvement is marginal. USCIS has not yet extended premium processing for initially filed Form I-140 petitions in the EB-1C and EB-2 categories. The premium processing fee will be $2,500, and the processing time will be 45 days instead of the typical 15 days available for other eligible categories.

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USCIS is Rejecting Over 90 Percent
of Afghans Seeking Humanitarian Parole

Many Afghan citizens who fear harm from the Taliban have been denied by USCIS to enter on humanitarian parole. Humanitarian parole is not meant to be a pathway to lawful permanent residence in the U.S., nor does it grant an immigration status. When granted, it allows individuals in danger to temporarily enter the United States and to be reunited with families. The application requirements require a sponsor to sign an affidavit of support (Form I-134) and provide evidence of their ability to provide financial support for the beneficiary. There is a $575 filing fee to apply.

USCIS typically receives fewer than 2,000 requests from all nationalities. Since July of 2021, over 45,000 individuals from Afghanistan applied for parole and 2,200 of them were denied, while approximately 270 were conditionally approved. The remainder remain undecided by the agency.

President Biden indicated in April that he would issue a fast-track system for up to 100,000 Ukrainians to enter on parole, in harsh contrast to Afghans, who currently have no such option. While Ukrainians are certainly deserving of humanitarian parole, it is dumbfounding that USCIS has provided such drastically different treatment to nationals of two similarly situated nations who are in crisis.

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NEWS IN BRIEF

TPS Designated for Cameroon: On April 15, 2022, DHS announced its designation for Temporary Protected Status (TPS) for Cameroon. Cameroon has been designated for an 18-month period, beginning June 7, 2022, and ending on December 7, 2023. To be eligible, Cameroonian nationals must, among other things, have been residing continuously in the United States as of April 14, 2022, and have been physically present in the U.S. since June 7, 2022.

United States Drops COVID-19 Testing Requirement: On June 12, 2022, the White House implemented a rule dropping the COVID-19 testing requirement for inbound international travels to the United States, which included U.S. citizens. Travelers entering the U.S. at the land border crossing were already exempt from this requirement.

USCIS Announced Online Filing for DACA Renewals: On April 12, 2022, USCIS announced that individuals applying for DACA renewals can now file their applications online, further expanding applications that can now be e-filed.

 

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