fall 2014 lecture fed. agencies & courts

8/10/2019 Fall 2014 Lecture Fed. Agencies & Courts

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President Social Security Administration

Secy of DHS Attorney

GeneralSecy of Labor Secy of

Health &

Human Services

Secy of

State

Ombudsman(USCIS only)

Asst Secyfor Policy

Office of Intl

Affairs

HSI CBP USCISAAU

Field Offices

Ports of

Entry Border PatrolField

Offices

Asylum

Offices

Service

CentersApplication

Support

Centers

Special Counsel FBI EOIR

BIAChief IJ OCAHO

Immigration

JudgesALJs

BALCA ETA WHD

ORR PHS

ECA

Consular officers

Posted worldwide

PRMConsular

Affairs

DRO

National Visa

Center


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DHS - Dept. of Homeland Security

HSI - Homeland Security Investigations (formerly ICE)

DRO - Detention and Removal Office CBP - Customs and Border

Protection

USCIS - U.S. Citizenship & Immigration Services

AAU - Administrative Appeals Unit

EOIR - Executive Office for Immigration Review

BIA - Board of Immigration Appeals

OCAHO - Office of Chief Administrative Hearings Officer


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BALCA - Board of Alien Labor Certification Appeals

ETA - Employment & Training Administration

WHD - Wage & Hour Division

PHS - Public Health Service

ORR - Office of Refuge Resettlement

PRM - Bureau of Population, Refugees and Migration

ECA - Bureau of Education & Cultural Affairs


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DEPARTMENT OF HOMELAND SECURITY

Established in 2003 by Congress

Aggregation of 14 agencies, including FEMA, Coast Guard, Customs, INS,

TSA, Secret Service and others.

Responsible, inter alia,for border security, transportation security, counter

terrorism, adjudication of immigration benefits, interior enforcement of INA.


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DEPARTMENT OF LABOR

Works with USCIS in the labor certification process, certifies the availability of

American workers, WHD monitors compliance with employer sanctions under INA.


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DEPARTMENT OF STATE

Bureau of Consular Affairs - officers stationed at embassies and consulates make determinations on

issuance of visas, both immigrant and non immigrant.

Determinations made by consular officers outside of the US are not subject to judicialreview.

National Visa Center - created in 1994 to assume routine responsibilities in visa processing.

Checks visa applications for accuracy and completeness

Creates immigrant visa files and computer records

Issues notices to applicants and attorneys concerning visa processing.


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DEPARTMENT OF STATE

Bureau of Population, Refugees and Migration - Responsible for overseas refugee

programs. Serves as point of contact for UNHCR.

Bureau of Education and Cultural Affairs - involved with cultural and educational

exchange programs between the US and foreign countries. (J-1 visas)


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SOCIAL SECURITY ADMINISTRATION

Issues Social Security numbers for individuals in the United States

Issues SS# for individuals without work authorization annotating the lack of

employment authorization. E.g. non immigrant students.

May notify employers of employees who are using false or questionable

SS#s for employment purposes.

Employer is on notice that an individual may not be authorized for

employment in the US and may raise issues of employer sanctions.


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COURTS


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Why is judicial review of immigration decisions important?

Consequences of the decision on the individuals

involved.

Correct inadvertent govt mistakes.

Ensure that the executive branch is properly interpreting

and applying immigration law


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OVERVIEW OF COURTS

Prior to 1961 - no statutory provision for judicial review

Primary means of review via writ of habeas corpus (detained

cases)

Administrative Procedures Act for non detained cases.

1961-1965 - 106 of the Immigration & Nationality Act

Deportation review by Courts of Appeals

Exclusion review by means of habeas corpus


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OVERVIEW OF COURTS

1996 Illegal Immigration Reform & Immigrant Responsibility Act (IIRIRA)

established new provisions for judicial review. 242 of the INA.

Review of removal proceedings lies with Courts of Appeals.

Imposed new limitations on judicial review

non reviewability of criminal based grounds, except singlecrime involving moral turpitude

non reviewability of of discretionary determinations, except

asylum


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REAL ID ACT OF 2005 - provides that judicial review of all expulsion,

deportation and removal orders are now governed by section 242 of the INA.

All appeals go to the Circuit Courts of Appeal and 242 governs all

cases.

Congress sought to eliminate habeas corpus review, mandamus and

of the All Writs Act jurisdiction in the district courts concerning an

order of removal entered pursuant to the INA.

Congress limited review of discretionary determinations by the DHS or

the AG, such as:

AGs determination to grant relief under 212(h); 212(i);

240A; 240B; and 245, etc.

Any final removal order for criminal grounds.


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Any discretionary decision by the AG, except asylum;

Any removal decision by an IJ based upon medical grounds;

Collateral attacks on removal orders;

Injunctive relief enjoining the operation of removal

proceedings, except in limited cases; and

Prosecutorial discretion to commence proceedings, adjudicate

cases or execute removal orders pursuant to the Act.

Courts of Appeal continue to have jurisdiction to review constitutional

questions and questions of law.


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ISSUES IMPACTING REVIEW

Review of a removal order must be sought by filing a petition forreview within 30 days of the decision.

Mandatory and jurisdictional - No exceptions!

No automatic stay of removal order pending filing.


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JUDICIAL REVIEW UNDER SECTION 242 OF

THE IN A

Not a panacea to aliens subject to removal orders

No automatic stay of removal absent a court order.

No judicial review of removal orders based on grounds of inadmissibility or

removability including:

public health grounds certified by a medical officer

criminal grounds, such as aggravated felonies, drug offenses and firearms offenses;


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THE INA

No review of the denial of most types of relief granted in the discretion of the

immigration judge or immigration officer, including:

waivers of inadmissibility;

cancellation of removal,

voluntary departure

adjustment of status

Limited judicial review for determinations involving asylum or expedited removal

orders.


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THE INA Limited judicial review for determinations involving asylum or expedited removal

orders.

Asylum orders are reviewed only to determine if the denial is manifestly

contrary to law.

Court may not reverse an administrative determination concerning the

availability of corroborative evidence.

Judicial review of all questions of law and fact, including interpretation of

constitutional and statutory provisions must be consolidated in a direct appeal of a

final removal order to the court of appeals.

No habeas corpus review is permitted in any federal court. 242(b)(9) of

the INA.


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THE INA

Federal district courts have a limited role in reviewing immigration determinations,

such as:

Where there is a genuine issue of material fact concerning whether the

person appealing a removal order is a US national;

In expedited removal proceedings by habeas corpus to determine whether

the petitioner is an alien, was ordered removed in expedited proceedingsunder 235(b) of the INA and whether the petitioner can prove that s/he is a

lawful permanent resident or currently in refuge/asylee status.


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PROJECTING THE FUTURE

Legislation in the 113th Congress proposed further limitation on judicial review.

H.R. 2278 proposed significant additional restrictions on judicial review.

limit review of visa denial or revocation by DHS;

voluntary departure;

reinstatement of removal orders for aliens who illegally re-enter afterbeing removed or departed pursuant to a removal order; and

naturalization delays and/or denials.


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Legislation in the 113th Congress proposed further limitation on judicial review.

H.R. 2278 proposed significant additional restrictions on judicial review.

Section 603 would bar review of reinstated orders of removal

because of constitutional claims or questions of law.

S. 744 also proposed some limitations on judicial review for issues relating

to employer sanctions determinations and visa revocations and denials


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For the past 10 years, Congress has imposed significant restrictions on judicial

review. While neither of the proposed bills passed in the 113th Congress, there is

little reason to believe that future legislation will change this trend.

fall 2014 lecture fed. agencies & courts

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