IN CASE YOU MISSED IT … here are some of the top immigration headlines from the week of May 9, 2022:
Top Immigration Headlines
1. Attorney General Merrick Garland Overrules Matter of G-G-S-
The Immigration Courts and the Board of Immigration Appeals (BIA) are part of the Department of Justice, and as the head of Justice Department, U.S. Attorney General Merrick Garland is empowered to issue his own immigration decisions which are then binding on the Immigration Courts and BIA.
Under relevant immigration laws, individuals who have been convicted by a final judgment of a particularly serious crime, which constitutes a danger to the community of the United States, are ineligible for asylum. Previously, if a crime was not one of those specifically defined in the statutes as a “particularly serious crime,” immigration judges had to determine whether it fit that category on a case-by-case basis. If the crime indicated that the person posed a danger to the community, then the crime would be “particularly serious.” Until last week, though, a person’s mental health was not one of the factors to be considered (according to the BIA’s 2014 decision in Matter of G-G-S-).
On May 9, 2022, Attorney General Garland issued a decision in Matter of B-Z-R- holding that immigration adjudicators can now consider a respondent’s mental health in determining whether an individual “constitutes a danger to the community of the United States” and therefore was convicted of a particularly serious crime. This includes use of mental health history as a potential mitigating circumstance, such as when a person “suffered from intimate partner violence, was convicted of assaulting his or her abuser, and reliable evidence shows that the individual’s diagnosed post-traumatic stress disorder had played a substantial motivating role in the assault.”
As a result, the BIA’s decision in Matter of G-G-S- is now overruled.
2. Louisiana Federal Judge Hears Arguments Over Title 42
Last Friday, a federal court in the Western District of Louisiana heard arguments over whether the Biden Administration should end Title 42, a Trump-era restriction that was invoked at the start of the pandemic prohibiting those seeking asylum from crossing into the US as a means of curbing the spread of Covid-19. The Biden Administration announced its intention to end the policy as of May 23, 2022, and lawsuits were filed soon thereafter arguing that proper procedures were not followed and that the decision to end Title 42 was “arbitrary and capricious.”
At the end of April, Judge Summerhays issued a temporary restraining order prohibiting the Biden Administration from ending Title 42 while he considered the case.With the benefit of arguments from each side, Judge Summerhays has indicated that he will issue a decision before May 23rd.
3. The House Judiciary Committee Passes Legislation to Reform the US Immigration Court System.
On May 12, 2022, the House Judiciary Committee passed “The Real Courts, Rule of Law Act of 2022” which aims to reform the immigration court system into an independent judiciary under Article I of the US Constitution. Currently, the Immigration Courts and Board of Immigration Appeals are part of the Executive Office for Immigration Review, an agency within the Department of Justice and headed by the US Attorney General. Immigration judges are therefore often tasked with adjudicating cases in accordance with the policies and priorities set forth by the administration in office at the time, resulting in the immigration courts being used to shape immigration policy.
Introduced by Congresswomen Zoe Lofgren of California, The Real Courts, Rule of Law Act of 2022 aims to establish an independent immigration court (similar to the US Tax Court) to be comprised of separate trial, appellate division, and administrative divisions. The proposed legislation also seeks to ensure that the court has adequate resources to manage caseloads, to improve transparency and accountability by requiring publication of all court rules and procedures, and to ensure due process by preserving the privilege of (not the same as a right to) counsel and mandating legal orientation programs for individuals appearing before the Court.
Endorsed by the American Bar Association, the American Immigration Lawyers Association, the Federal Bar Association, and the National Association of Immigration Judges, this legislation will now be put on the calendar to be voted on, debated, or amended.If it passes with a simple majority, it will then move to the Senate, be assigned to another committee, and, if released, debated and voted on.If passed in the Senate, a committee from both chambers of Congress will work together to reconcile any differences between the two versions of the bill, the final version of which would then go to each chamber for a final vote and, if approved, to the President for signature.
Disclaimer: This post is for informational purposes only, and shall not be considered legal advice, or be used as a substitute for competent counsel. No attorney-client relationship exists without a signed agreement.
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