Ivanov v. Holder - Excellent First Circuit Asylum Decision

In a recent decision, the First Circuit reversed a BIA decision and remanded for further proceedings.  The Court found that the IJ and BIA had erred in finding that the Petitioner's persecution was not "on account of" of his Pentecostal faith.  It was a terrific outcome.  The only disappointing aspect of the case was the  vigorous dissent written by Judge Kayatta, the newest member of the Court.  The dissent found that substantial evidence showed that Petitioner was not persecuted on account of his religion.  The case can be found here: Ivanov v. Holder

Congratulations to Randy Olen and Bob Watt for their terrific work.   

December 2013 Visa Bulletin - EB-2 Retrogression for India

DOS Visa Bulletin for December 2013. The family categories have all moved slightly forward, but India visa preference categories. Employment-based second preference for India retrogresses from 6/15/08 to 11/15/04.

Claros Cantarero v Holder -- new First Circuit gang-related social group case.

New First Circuit case -- no surprise -- a compelling gang related asylum case denied:  Claros Cantarero v Holder,   http://media.ca1.uscourts.gov/pdf.opinions/12-1624P-01A.pdf .  The First Circuit declined to follow the 6th and 7th Circuits in finding that gang members, or former gang members, can constitute a social group.

Interesting (in a bad way) 10th Circuit case

The 10th Circuit just published a case which can be found at Purba v. Holder where it held a removal order is final despite the fact that the BIA remanded to the IJ regarding voluntary departure.  Petitioner waited for the final ruling by IJ before filing the Petition for Review.  The Circuit said it had no jurisdiction.  What would happen if the BIA denied an adjustment and remanded to the IJ for consideration of a CAT application that had not previously been reached?  Should respondent wait until the end, or file with the Circuit despite the ongoing litigation?   

Shutdown over, EOIR and DOL still recovering

As we all know, the government shutdown ended two weeks ago, and the debt crisis was averted.  The immigration courts across the country are still recovering.  http://www.justice.gov/eoir/press/2013/FundingLapseFilingChanges10252013.htm

I know that locally, the Boston Court is still in the process of rescheduling everyone who missed a hearing, filing all the submissions that came in during the shutdown, and scheduling hearings for the all the new Notices to Appear that were filed.  

Users of DOL's iCERT and PERM portals are reporting difficulties getting on the system.  In addition, some LCA's filed before the shutdown have not yet been certified. 

 

Government Shutdown and Immigration

We are about a week into the shutdown, and its certainly having an effect on certain aspects of our practice.  Up until now, USCIS has not been significantly affected due to the fact that they are primarily funded by the fees that they collect.  Interviews have been proceeding as scheduled and the local Information Room is open.  This is the good news.  EOIR - the Executive Office for Immigration Review -- which is the division of the Department of Justice which contains the Immigration Courts and the Board of Immigration Appeals (BIA) -- has severely curtailed its activities.  The Boston Immigration Court has only been opened for detained matters.  All other cases will be continued.  The BIA is also working on detained matters.  Backlogs have already been enormous, and they will only increase.

Victory in First Circuit for Kerry Doyle of Graves & Doyle

My law partner, Kerry Doyle, had a recent victory in the First Circuit in a very complicated case on Motions to Reopen.  In Boleiro v Holder, linked here, the First Circuit joined nine other circuits in finding that the post departure bar conflicts with the statute, and concluded that individuals who have departed the United States are not precluded from filing a motion to reopen in their removal proceedings.   This is a terrific victory.

Immigration Lawyer Margaret Stock named MacArthur Fellow

Preeminent immigration attorney Margaret Stock was awarded a MacArthur Fellowship earlier this week.  One article is here.  Attorney Stock is not only known for being a great immigration lawyer and great teacher (she teaches at West Point), she is also known within the immigration law community for being extremely generous with her time and knowledge. 

Attorney Stock also created the Military Accessions Vital to the National Interest (MAVNI) program along with the Department of Defense and DHS, which allows the U.S. armed forces to attract and retain foreign nationals with language, medical, and other skills critical to military readiness and national security, and she has created a volunteer program with AILA to assist military families with immigration issues.  The Fellowship is well deserved, and it is great that the MacArthur Foundation recognizes the value of her work.

DOMA mostly dead -- DHS and DOJ have acted quickly -- Same Sex Immigration Petitions Can Go Forward!

On June 25, 2013, the Supreme Court dealt DOMA (the Defense of Marriage Act) a death blow.  In United States v. Windsor, the U.S. Supreme Court held  that Section 3 of DOMA is unconstitutional under the Due Process Clause of the Fifth Amendment.  DHS announced that it would start adjudicating marriage petitions filed by same sex couples and approved its first case within a week following the case.  Earlier this week the BIA held that DOMA is no longer an impediment to I-130 petitions filed by same-sex couples who were lawfully married.  Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013).

This is fantastic news, and Windsor is a terrific decision.  I am sure that there will still be knots to work out, but this a great beginning.  

H-1B cap reached for FY 2014 -- That was fast

USCIS announced that it is no longer accepting H-1B applications for fiscal year 2014 which begins on October 1, 2013.  This is a sure sign that we are in economic recovery and that  comprehensive immigration reform is necessary.   Link to USCIS press release

H-1B cap season is upon us

Beginning April 1, 2013, USCIS will begin accepting H-1B applications for FY2014, which begins on October 1. 2013.  Many observers are predicting that the visas will immediately run out.  Even USCIS indicates that the visas will go quickly.  USCIS News release 03/15/2013 

This certainly argues for an increase in the cap, and is sign of an improving economy.

First Circuit on Modified Categoreical Approach

Great First Circuit case on modified categorical approach.  Congratulations to Justin Conlon.   http://www.ca1.uscourts.gov/pdf.opinions/12-1349P-01A.pdf