From Systems to Substance, Digital Innovation is Welcome News for Immigration

Author: on 07/21/2015


shutterstock_276868460Last week, the Office of Management and Budget released a plan for modernizing and streamlining the legal immigration system.   Much of the focus was on the potential positive impact of digital innovation.  Recommendations included the creation of a cross-agency digital services team to support the implementation of the modernized immigrant visa project.  This team would be charged with improving the visa applicant experience and increasing efficiencies in the adjudication process through digitization.  The plan rightly points out that “currently, the immigration application and adjudication process is mostly paper-based, requiring documents to change hands and locations among various federal actors at least six times for some petitions.”  Or in many cases, the same information must be sent separately, and in different formats, to several agencies, several times.  Take for example the H-1B nonimmigrant visa category for specialty occupations.  This category alone requires coordination between the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), the Department of State (DOS) and Customs and Border Protection (CBP).

The DOL piece of the puzzle, the Labor Condition Application (LCA), has had an electronic option since 2002 and is today entirely online.  An employer may submit an LCA, post notice of filing and receive approval of certification from DOL without a single piece of paper.  However, the five-page LCA, once certified, must be printed out, signed and sent to one of USCIS’s Service Centers in Vermont or California as part of the H-1B petition.  Continue reading ‘From Systems to Substance, Digital Innovation is Welcome News for Immigration’ »


Preconceived Notions Shattered by Dilley

Author: on 07/16/2015


shutterstock_276175301Recently, Rochelle G. volunteered at the Dilley facility where nearly 2,000 mothers and children are incarcerated despite their status as asylum-seekers. Brian Hoffman, lead attorney for the CARA Family Detention Pro Bono Project which brings volunteers from all over the nation to help in this remote South Texas town, asked Rochelle about her experience:

Can you describe what you saw for us?

Small round tables surrounded by four plastic chairs.  Women holding crying and coughing toddlers sat in chairs against the back wall.  A children’s room with colored pages torn out of a coloring book papering the walls, and a large screen tv affixed to the top of one of the room’s corners, playing Frozen.  Signs on the walls of the outer room cautioned children in both English and Spanish about sexual abuse with colorful illustrations informing them about which parts of their bodies were off limits to others.  At first glance, I could have been in a pediatrician’s waiting room.

The children all seemed ill enough to further that illusion.  Every child seemed to have a wheezy cough and a congested chest.  Most of the toddlers lay listlessly in their mothers’ arms, pitiful caricatures of rag dolls. Continue reading ‘Preconceived Notions Shattered by Dilley’ »


The Global Team Effort that Freed a Mother and Child

Author: on 07/09/2015


shutterstock_172985966Last Wednesday, July 3rd, a client from El Salvador won her merits hearing! I appeared with attorney Melisa Peña from Miami over video conference, while Elora Mukherjee appeared by telephone from Tokyo, Japan and John Bradley appeared, sitting next to the client, from Dilley, TX. Thank you to everyone, particularly Elora and law student Swapna Reddy who helped to prep this case remotely as part of the off-site merits team.

This was our first case where the client appeared in Dilley and was represented by counsel in Miami. We began to prep the case on Friday, June 19th, after Brian Hoffman, CARA Project lead attorney reached out to let us know the client had a merits hearing and was in need of pro bono counsel. The client is a survivor of sexual violence, born and raised in rural El Salvador. Her withholding claim was primarily based on sexual violence she suffered at the hands of her cousin, an M-18 gang leader. The client’s cousin raped her and repeatedly sexually assaulted her. He also forced her to leave her home, so he and his gang members could stay there. She had previously fled to Honduras, but her cousin followed her there and threatened her with death if she did not join his gang and become “his woman.”

Our client had two previous entries and this was her third entry to the United States. She had been apprehended by CBP both times, detained for two months and then returned to El Salvador. After the third entry, the client had a negative Reasonable Fear Interview (RFI), a favorable review from an immigration judge, and then a second RFI. Continue reading ‘The Global Team Effort that Freed a Mother and Child’ »


A Lot of Glass in Those Towers, Any Mirrors?

Author: on 07/08/2015


shutterstock_113897485Antonio Olivio of the Washington Post hit the nail on the head in his July 6th column (At Trump hotel site, immigrant workers wary) regarding the building of the new Trump luxury hotel in Washington DC.  Ever since Donald Trump made his ill-informed and untrue statements about Mexican and Latino immigrants, the spotlight has been turned onto Mr. Trump and how he earns his millions of dollars on a daily basis.  The public has since learned that Mr. Trump earns quite a lot of money on the backs of immigrant labor and even outsourced labor (see the now former Trump clothing line which was made in Mexico and China, among other countries).

As Mr. Olivio noted at the DC Trump project, many of the immigrant workers rise early and commute to the worksite in a professional manner to earn an honest living to support their spouses, children and families.  While Mr. Trump’s comments are offensive to them, the need to work and support their families is more important than pride.

However, based on Mr. Trump’s comments about Latino and Mexican immigrants as rapists and criminals, which he has voraciously defended as accurate, after reading this article it must be asked, how was Mr. Trump able to find enough professional Latino and Mexican immigrants who were not rapists and criminals to employ?  In the alternative, is Mr. Trump knowingly hiring the very criminals he ranted about to shamelessly obtain the media spotlight?

The truth is that Mr. Olivio’s article demonstrates what most Americans already know: the vast majority of Latino and Mexican immigrants are hard-working, self-sufficient proud people with a desire to earn a living and care for their own in the best country in the world.  They were not born into a wealthy family and left with a large inheritance like their employer.  Rather, they earn each dollar working for a man who values money more than the lives of his employees.

Take a look in one of your mirrors that was likely hung by an immigrant worker and that is now cleaned by an immigrant worker Mr. Trump, you might see someone who has earned a lot of money on the backs of hard working immigrants but has now lost something money cannot buy, self-respect.

Written by Matt Maiona, Member, AILA Media Advocacy Committee


LGBT Detention Must End

Author: on 07/01/2015


shutterstock_142284691On June 23, 2015, 35 members of the House of Representatives wrote to Secretary Johnson, calling on the Obama Administration to end the detention of LGBT immigrants in ICE custody, especially transgender women.[1] The letter requested the administration seek parole and alternatives to detention for LGBT immigrants, including supervised release. These alternatives to the status quo are urgently needed because of every five victims of confirmed sexual abuse in ICE detention, one victim is transgender. This is a staggering statistic of victimhood for transgender individuals, especially when only around 75 trans persons are detained by ICE each day. While it does not need reminding, ICE is authorized to detain and house up to 34,000 immigrants in any given day.

The advocacy centered on LGBT immigrants is not an attempt to prefer LGBT detainees over the detainee population as a whole. The goal is ensure their safety while in the custody of the U.S. government and to drive the conversation of whether ICE/ERO can and should do better in releasing LGBT and non-LGBT detainees through alternatives to detention, instead of locking them up in jails for prolonged periods of time.

There are many arguments to be made as to why detention should be used sparingly. This includes the high cost of detaining individuals and the barriers created through the detention system for those who seek to find and hire a lawyer. However, the simple question remains: if a person is not a threat or a priority for removal and the person is likely to show up for an immigration hearing in the future, shouldn’t they be released?

In the context of LGBT immigrants, many flee their home countries due to persecution they have suffered on account of their sexual orientation and/or gender identity. They seek asylum in the U.S. to protect them from the harms suffered in their past or what awaits them if they are forced to return to a country that persecutes LGBT persons. Knowing why these LGBT individuals are present in the U.S. makes it extremely likely they will want to pursue their case in front of an immigration judge. Should LGBT immigrants benefit from some form of an alternative to detention, these LGBT immigrants would be safer, would be able to seek the help of family/friends, and would be able to find more resources to assist them in their legal cases. Most importantly, they would want to show up and fight their case in immigration court.

While there is much work to do surrounding the issue of LGBT detention, ICE/ERO recently announced that transgender women qualify to be housed in women’s detention facilities.[2] Additionally, ICE/ERO will train its personnel to inquire about gender identity to determine how an immigrant identifies, if that person so chooses to disclose.[3] While the impact of these trans-inclusive policies and the full implementation are yet to be seen, these actions do go a long way in the goal of ICE/ERO in providing “a respectful, safe, and secure environment for all detainees, including those individuals who identify as transgender.”[4]

Written by Mike Jarecki, Member of the AILA Media Advocacy Committee and the LGBT Immigration Issues Working Group

[1] http://www.aila.org/advo-media/whats-happening-in-congress/congressional-updates/35-reps-end-detention-lgbt-immigrants

[2] http://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMemorandum.pdf

[3] Id.

[4] Id.


A Long Journey for Justice: the Continuing Fight for LGBT Immigrants

Author: on 06/30/2015


shutterstock_56068639As the nation rejoiced after the Supreme Court ruling on Obergefell v. Hodges, I recalled the celebrations at AILA’s 2013 annual conference in San Francisco on the day that the Supreme Court decided Windsor v. Connecticut.   Windsor and subsequent Department of Homeland Security (DHS) directives made it clear that U.S. Citizenship and Immigration Services (USCIS) would recognize marriages of couples of the same sex for immigration purposes.  However, while our clients no longer had to worry about physical separation and removal from their spouses or partners, they did have to suffer additional indignities  if they lived in a state that refused to recognize their marriage.  For that, we celebrate but also reflect on the bumpy path to equality.

As a measure of how far we have come, before 1990, being gay was a ground for inadmissibility.   Before Windsor, we had to either file for asylum for our gay clients or see them separated from their partners as we scrambled for other options in the non-immigrant realm.   While the US did not accord the right of marriage to same-sex couples, the absolute terror that many of our clients faced in their home countries due to their sexual orientation was real, and it was our job to help protect them.

I remember speaking at several forums about options for LGBT immigrants which seems so historical today.  I also recall that as AILA’s USCIS Liaison Committee Chair in 2010-2011, we pressed USCIS to hold marriage-based I-130 petitions for same-sex couples in abeyance as marriage was legal in certain states.  We argued that while it was inhumane to separate committed couples before they were allowed to marry in any US jurisdiction, it was draconian and bigoted to place someone married to a US citizen in removal proceedings after denying their I-130 petition.  It was essentially an immigration policy which was in the same league as the over-150-year U.S. ban on naturalization for “nonwhites.”

At the Upper Midwest chapter conference in 2011, I brought that issue to my co-panelist, a USCIS adjudicator from Minneapolis, and he had that same look of empathy we got from USCIS headquarters, but the same line that they could not issue a blanket policy of holding these cases in abeyance.   I loved doing that work because as with many of our actions, it was a fight both to keep people together and for basic justice.  It was an unconscionable form of discrimination nationwide and USCIS was caught in that web of injustice.  I was thrilled that AILA did its part to raise consciousness and move the universal arc one step closer to justice.

This spring I spoke on a panel with Ali Bushara, a Ugandan gay man who fled his country last year.  We talked about his personal journey, but also the increasing persecution of gay people in many parts of the world such as Russia, which has codified laws to bar adoptions by LGBT members of society.

As my conversation with Ali and my unmarried LGBT clients continue to teach me, the role that AILA has played in seeking justice, equality and protection for LGBT immigrants cannot be set aside after this momentous decision.  We should continue to write, speak and advocate on behalf of basic human rights and make sure that State Department reports are consistent with what we hear from our clients and colleagues.

Written by Mark Shmueli, Member of the AILA EOIR Liaison Committee and the Distance Learning Committee


A Call to Arms

Author: on 06/29/2015


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End of the day “Big Table” as volunteers discuss what they saw, learned, and felt over the course of the day in Dilley.

(With thanks to Sir Winston Churchill)

Last week, I spoke with some of our government contacts about the changes that are on the very near horizon here in Dilley. Due, I imagine, to the Congressional visit, DHS Secretary Jeh Johnson’s announcement, and the Flores litigation, the asylum office will ramp up to 23 staff members next week. This is more than twice the number of asylum staff we have ever had. They will be using conference rooms and judge’s chambers as additional office space, and the increased number of officers will allow them to start conducting as many as 50 asylum interviews per day, including now conducting interviews on Saturdays. In addition, the Miami court will add a third judge to the Dilley docket in the coming weeks. We expect to reach facility capacity of 2400 detainees any day now.

All of this means we need to step up our game in a big way.

I can tell you in no uncertain terms that we are making a huge difference in people’s lives. There is zero doubt in my mind that there are children walking the Earth today who would be dead but for what CLINIC, AILA, RAICES, and the American Immigration Council have come together as CARA to do here. I don’t tell all of you often enough how grateful I am for the opportunity to work on this project, and for making this possible. Thank you. This week I decided that, having resigned from my firm in Ohio earlier this month, I will continue working here in Dilley indefinitely, beyond my initial six month commitment. In fact, I wouldn’t be anywhere else in the world right now, and I’m hoping to meet many more of you here in the coming months.

Here in Dilley we are waging a war. It’s a war against bureaucratic indifference, against a broken immigration system that tears apart families and costs innumerable innocent lives, and against the banal cruelty of mass detention. Upon the outcome of this war depends the survival of our notion of America as a compassionate nation. Upon it depends our ability to still believe that America is a beacon of hope in a world of persecution. The whole fury and might of the bureaucratic deportation machine is being focused here in Dilley. DHS knows that they will have to overwhelm us with the sheer number of detainees and the volumes of red tape, or they will lose this war. If we succeed, if we can stand up to this oppression, then all detained families can eventually be free, and we can transition the momentum of this fight forward to combat all of the other injustices of the mass detention of immigrants and minorities. But if we fail, then America may sink into the abyss of a new Dark Age of permanent family internment camps, made more sinister by the indifference or open vitriol of an American public callous enough to let this happen.

Let us therefore brace ourselves to our duties, and so bear ourselves, that, if the CARA coalition and its pillar organizations last for a thousand years, it will still be said that “This was their finest hour.”

Please share this message, and I hope to see you in Dilley very soon.

Written by CARA Family Detention Pro Bono Project Lead Attorney Brian Hoffman

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If you are an AILA member, paralegal, or translator, who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at mtaqui@aila.org – we could really use your help.

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.


Little By Little, We Tear Down the Walls of Family Detention

Author: on 06/25/2015


shutterstock_31206451In June of 2014, the first and most remote Family Detention Center opened in Artesia.  The move was a concerted effort by the Administration to deter the influx of mothers and children and unaccompanied minors from Central America fleeing violence, persecution and despair.  The Administration’s premise: “deterrence of future economic migration.”

The response from advocates was speedy, forceful and determined.  Hundreds of immigration lawyers, professors, interpreters, social workers, experts, and willing volunteers traveled to the isolated detention center and began the fight to end family detention.  Their efforts were successful and Artesia closed in December of 2014 just six months after it opened.

The Administration however was not about to end this practice.  It set up two more detention centers in Texas – Dilley and Karnes.  Some of the women and children previously interned at Artesia were transferred to one or the other facility.  Hundreds more were placed there. Advocates mobilized and efforts increased.  The battle had just begun.  The irrational and unreasonable obstacles the Immigration and Customs Enforcement (ICE) invented to prevent these women and children from having access to counsel demonstrated the absurd efforts the agency was willing to go through to keep this profitable machinery going.  Yes – there is profit in detention.  At the cost of approximately $350 per day, per person, being paid to the Corrections Corporation of America (CCA), the enterprise of family detention is very profitable.  So, from refusing entrance to women wearing underwire bras or limiting the ability of attorneys to bring in needed electronic devices, to refusing entrance to volunteers for no good reason, ICE tried to play every trick in the book – but advocates fought back and fought hard.

Meanwhile these women and children languished in prison, slowly breaking down when the hopes of freedom seemed bleak.  Bonds were initially set unreasonably high, ranging from $15,000 to $30,000 – until again advocates pushed the agency back, successfully quashing the agency’s argument that these mothers and children were a result of “organized influx” and that “reports and rumors of successful entries could encourage further mass migration attempts.”   The children were malnourished and the women depressed, living in this horrific place called a “Family Residential Center.”  One woman attempted suicide; others went on a hunger strike.

Study after study demonstrates the long term psychological harm these young children will suffer from continued detention.  In response to the loud, clear and powerful outcries from advocates, a statement from ICE appeared in the media earlier this week noting that:  “Family residential centers are an effective and humane alternative for maintaining family unity as families go through immigration proceedings or await return to their home countries.”  AILA’s President Victor Nieblas replied quickly, “In all my 19 years of experience as an immigration attorney, I have never heard a federal agency rewrite history to this extent.”  And that is precisely what the Administration and the Agency are doing: rewriting history to justify unconscionable action against asylum seekers, against victims of persecution, defenseless children and distressed mothers.

In the words of Winston Churchill: “never, never, never give up.”  Volunteers, advocates, lawyers, experts have not given up and the walls of detention centers are coming down.  The Department of Homeland Security’s Secretary Jeh C. Johnson released a statement on June 24, 2015 in which the agency finally acknowledges that “…long-term detention is an inefficient use of our resources and should be discontinued” and that the agency will discontinue invoking general deterrence as a factor in custody determinations in all cases involving families.  That is a far cry from the agency’s initial position last year! The tide is turning, but the work is far from done.  We must continue to articulate our message to #EndFamilyDetention.  Secretary Johnson also announced the agency will  conduct interviews to determine if the families have a credible or reasonable fear of persecution, and offer “reasonable and realistic” bonds or other terms of release for those who demonstrate such fear.   These are concrete changes ICE must make in good faith.

We must remain vigilant; we must watch and make sure the changes Secretary Johnson has announced are actually implemented and followed through by ICE officers.  But these changes are not enough. We will not stop until we have put an end to family detention.  There is no justification, excuse, or reasonable argument to rationalize why children—accompanied or not accompanied by a parent—should be detained.

The war is ongoing, the battles are being won, the walls are coming down, and our mission is still clear: end family detention, once and for all.

Written by Annaluisa Padilla, AILA First Vice President

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If you are an AILA member, paralegal, or translator, who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at mtaqui@aila.org – we could really use your help.

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.


A Look Back to Artesia, and a Look into Karnes: Part 7

Author: on 06/24/2015


shutterstock_247077634As the clock ticked toward mid-June, ICE quietly hinted that the agency would be reviewing the long-term custody status of detained families at Dilley and Karnes, although ICE would not share the criteria that they intended to apply in the review process.  Yet in recent conversations with E-, she reported that officials at Karnes were telling the women that they were not going to win their appeals to the BIA and that they would be deported.  Understandably, this kind of news was beyond unsettling for E- and her fellow detainees.

On Wednesday, June 10th, I left urgent voice and email messages with ERO deportation officers at Karnes to inquire about a custody review for E- and her children.  The following morning E-‘s deportation officer returned my call with the news that ICE had indeed reviewed her custody status the previous day and was prepared to release her on condition that she post a $7,500 cash bond and that she wear an electronic ankle bracelet.  While $7,500 sounded high, and is in fact an unreachable sum for E- and her family, it was the first promising news for her freedom in almost 11 months.

We spent most of the day on Thursday trying to reach potential obligors who might be willing to assist, but to no avail.  Young support staff at my firm suggested that we could raise the money ourselves through a crowd-funding site.  We explored this, learning that the site we focused on (GoFundMe) does not make funds available for withdrawal for 5 to 7 business days.  Too long.  So, on Friday afternoon, we contacted RAICES to see if they might have any ideas.  Lo and behold, RAICES offered to front the bond money and told us that we could repay them from our GoFundMe account – and, that they would do what they could to secure E-s release before the end of the day.  Sure enough, about two hours later we received confirmation that the bond had been posted.  Things were moving quickly and in a positive direction.

Meanwhile, I received a faxed copy of E-‘s Order of Supervision from the deportation officer at Karnes.  Incredibly, the paperwork was made out in the name that a terrified E- had blurted out when she was initially arrested by the Border Patrol back in 2007 – the name of her deceased sister-in-law, BJ-E.  I then contacted the D.O. to ask if he could please amend the Order of Supervision to show E-‘s correct name.  Puzzling, he indicated that all ICE records were under the name BJ-E and that he couldn’t do anything about that.  When I explained that other government records (i.e., E-‘s deportation proceedings, the file maintained by the ICE trial attorneys, even the detainee records at Artesia and Karnes, including E-‘s ID badge) were kept under her correct name, the D.O. was unpersuaded.  I pleaded:  But how do you expect her to navigate the world outside detention if her government paperwork shows the wrong name?  An exasperated D.O. finally agreed to re-issue the Order of Supervision in E-‘s proper name, but insisted on using “aka:  BJ-E,” adding, “Look, this is the name that we have for her.  Maybe she was scared or maybe she was lying.  Either way, I don’t know why you’re being so argumentative, but I guess it’s just your profession.”  Jeez!  More than ever, I couldn’t help wondering what it must be like for these detained families to live under the yoke of jailers and government officials who simply don’t (or won’t) exercise the slightest modicum of empathy for what these women have endured.

After an urgent call to Karnes, we waited for E-‘s return call.  Finally, around 5:45 (EDT) on Friday evening she called.  She explained that something was going on, that officials at Karnes had abruptly told her to pack all her things “ahorita,” and that she and her children were then taken to a processing room, but nobody was telling her anything.  Clearly, she was nervous.  I couldn’t help wondering if she might be thinking that her appeal had been denied and that this was the end of the road, that she was being deported.  I told her that the bond had just been posted and that our friends from RAICES were going to meet her at the bus station in San Antonio that very evening, and that they would take her to a church house where she and the kids would be safe until we could get the plane tickets that would bring them to her husband / their father.  E- broke into sobs of relief and was having a tough time controlling her emotions.  “Thank you!  Thank everyone who helped us!  We can never thank everybody enough, we can never find the words … .”  She handed the phone to her 10-year old daughter, who was also overcome with emotion.  A few more quick words with E- and then the phone went dead.

Two days later, on Sunday afternoon, I spoke with E- on the phone.  She was at the church house and reported that she and the children were sleeping well and eating well and that their hosts were very kind.  In fewer than 48 hours following release from family detention she sounded like a different person.  Three days later she and the kids flew to the Washington DC area, somewhat refreshed and reunited with their husband / father – the first time that E-‘s 4-year old son met his dad.  It was a special moment for this family.

This is a triumph shared by the incredible fire brigade of over 50 volunteers who worked on E-‘s case and by their many brother and sister volunteers who embody the pro bono spirit to end family detention.  While there’s still much work to do – most importantly the need to prevail on E-‘s appeal – a heartfelt “thank you” goes out to everyone who helped to bring about E-‘s release.

Written by Frank Johnson, AILA Member and Volunteer

Please click on these links to read Part 1Part 2 Part 3 , Part 4, Part 5 , and Part 6 of Frank’s blog post.

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If you are an AILA member, paralegal, or translator, who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at mtaqui@aila.org – we could really use your help.

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.


One Less Brick in the Wall, Mata v. Lynch

Author: on 06/18/2015


shutterstock_162933683We would like to thank AILA for approaching us to give our thoughts on our recent Supreme Court win in Reyes Mata v. Lynch, 576 U.S.___ (2015).

We met Mr. Mata in October of 2012.  Probably the most outstanding thing about his situation was how typical it was.  Like so many of our clients, he is a long-time non-LPR with an assault conviction.  Never mind that his wife later swore under oath that he never struck her or that he is a single parent to three U.S. citizen kids after the same woman was imprisoned for drug trafficking.  Such people often become fodder for negligent attorneys who take their money and then when a brief or a notice of appeal does not get filed, no big deal.  The client who trusted them won’t be around long enough to sue. We took his case pro bono when we discovered his ordeal.

In Mata’s case, his prior attorney had failed to file an appellate brief—typical negligence (Justice Posner recently called the immigration bar “weak,” and he was right.).  We intervened.  By our count, we had filed a motion to reopen with the Board 105 days from the Board’s denial of the appeal.  The Board denied our motion.

On judicial review, the Fifth Circuit cited Ramos-Bonilla v. Mukasey, 543 F. 3d 216 (5th Cir. 2008) for the proposition that it cannot review the BIA’s denial of a request for equitable tolling because it’s all just “sua sponte” (since it is an untimely motion), and the courts typically refuse jurisdiction to review the Board’s use of its sua sponte power.  (Side note: in preparing our petition for certiorari we counted 16 times in the past 7 years the Fifth Circuit has denied petitions for review with the same logic; in my imagination the court has rigged some sort of Ferris Bueller-type automaton to write these opinions while the court is out joyriding in a borrowed Ferrari.).

Our petition for cert. only asked one question: do the courts have jurisdiction over equitable tolling claims like ours?  On June 15, the Court, in an 8-1 decision voiced by Justice Kagen, said the courts do indeed have jurisdiction over such claims.  In vacating the Fifth Circuit’s decision, the Court reiterated its holding in Kucana that the courts have jurisdiction to review motions to reopen, and added “[n]othing changes when the Board denied a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling.”  Slip. op. at 4.  At first glance, these words appear to expand jurisdiction only where an equitable tolling claim is at issue.  But the Court held that the appeals courts have jurisdiction over all motions to reopen, regardless of whether they are seeking equitable tolling.  Slip op. at 5 (“Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.”).

What does this mean?  While the Court pussyfoots around the big question, i.e. whether the courts can review the BIA’s sua sponte decisions for abuse of discretion, the fact remains that every time the Board invokes its sua sponte authority, it necessarily does so in a decision where it has already found that a motion is either untimely or does not meet the criteria for a motion to reopen or reconsider.  See INA § 240(c)(6-7)).  And because the Court has definitively separated the Board’s rejection of the motion for not meeting statutory criteria from its rejection for not meeting the sua sponte standard, this must mean that every decision of the Board is subject to at least some degree of abuse of discretion review.  Rather than denying jurisdiction for untimeliness, the Fifth Circuit now has to examine whether the Board abused its discretion in rejecting the motion because of its untimeliness.  What goes into this consideration? Mere review of the timeliness of the motion (hopefully taking into account equitable tolling and not just based on ineffective assistance of counsel)?  Or might there also be room to argue that the Board abuses its discretion in denying a motion, regardless of timeliness, when the error or deprivation sought to be redressed is particularly compelling?  When, for example, a client was ordered removed based on incorrect law?  The court must now establish some rule for overturning or not overturning the BIA in such situations, and an absolute prohibition would have the same result as a jurisdictional bar, potentially conflicting with Reyes Mata.

And what of Heckler v. Chaney, 470 US 821 (1985), the case so often relied upon as creating a blanket jurisdictional bar to review of the BIA’s sua sponte decisions?  Reyes Mata does not so much as cite it.  And the Court’s antipathy to judicial creation of artificial jurisdictional barriers to reviewing motions to reopen would seem to conflict with its application in immigration proceedings.

Mata v. Lynch contains at least one more gem.  Justice Kagen’s biggest beef at oral argument (one all the justices seemed to agree with) and the subject of her final thought, slip op. at 8, was that the Fifth Circuit was “wrap[ping]” its “merits decision in jurisdictional garb so that we cannot address a possible division between that court and every other.”  Slip op. at 8.  In other words, the Court is hyper-aware of the appeals courts’ (and presumably of the agencies’) attempts to construe their jurisdiction in such a way that they can avoid rendering a merits decision which would otherwise appear extremely unjust to a reviewing court.  At Gonzalez Olivieri, we represent a small army of unjustly deported clients (removed pre-Lopez v. Gonzalez, pre-Carachuri, pre-Leocal v. Ashcroft, pre-St. Cyr, pre-Judulang, you name it) who would very much like to present their merits claims to the judicial courts and are ready to go all World War Z on the sua sponte jurisdictional wall.  For those of us who labor in the Fifth Circuit, getting equitable tolling (the next big question in Mata) will be a start.  But that wall, built by Heckler, is just another review-shielding jurisdictional barrier as it relates to immigration proceedings, and we, as well, I think, as some of the Supreme Court justices, would like to see it come down.  Mata v. Lynch may hopefully represent one less brick in that wall.

Written by Raed Gonzalez, AILA Member