News

West Tennessee Legal Services Seeking Volunteers for Obion County Clinic

The Pro Bono Project at West Tennessee Legal Services has scheduled a Free Legal Clinic on Oct. 5 from 10 a.m. to 2 p.m. at the Troy United Methodist Church. The clinic will be held in the church’s Activities Building located at 226 W. Westbrook St., Troy, Tennessee, 38260. All lawyers are invited to help at this counsel and advice-only clinic. To volunteer or for more information contact Ginny Brimm, 731-426-1308, or go online here.
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AG Sessions Continues his Assault on Independence of Immigration Judges

After directing the Board of Immigration Appeals (“BIA”) to refer its decision in the Matter of Castro-Tumfor his review, Attorney General (“AG”) Jeff Sessions subsequently issued a decision significantly restricting the authority of the BIA and immigration judges with regard to their ability to administratively close cases. 27 I&N Dec. 271 (A.G. 2018). In doing so, AG Sessions curtailed a long-standing practice among immigration judges of placing a case in inactive status in order to temporarily suspend removal proceedings. The purpose of such administrative closure was to promote efficiency and due process by enabling respondents to pursue other options (e.g. a path to lawfully remain in the U.S. through an application with the USCIS and/or to allow Immigration and Customs Enforcement (“ICE”) attorneys to exercise prosecutorial discretion with regard to the removal proceeding.  

As brief background, Matter of Castro-Tuminvolved an unrepresented 17-year-old minor, a citizen of Guatemala, who entered the U.S. without inspection in June 2014 and was immediately apprehended by the U.S. Border Patrol. The Department of Homeland Security (“DHS”) commenced removal proceedings but released Respondent into the custody of his brother-in-law. Several court hearings were scheduled; however, Respondent failed to appear at any of them. Expressing concern over the adequacy of the hearing notices, Immigration Judge (“IJ”) Stephen Morley refused to proceed in absentia. Instead, he administratively closed the case pending further evidence from the government with regard to the reliability of the address provided for the respondent.

DHS appealed, and AG Sessions subsequently certified the case to himself for review, purportedly to address the approximately 700,000 case backlog in immigration courts. In justifying his authority to do so, AG Sessions pointed to two different provisions of the Immigration and Nationality Act (“INA”)First, citing 8 U.S.C. § 1103(a)(1), he states “[t]he Attorney General enjoys broad powers with respect to ‘the administration and enforcement of [the INA itself] and all other laws relating to the immigration and naturalization of aliens.’” Second, citing 8 U.S.C. § 1103(g)(2), AG Sessions noted the law grants the Attorney General the authority to “‘establish such regulations,… issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out’ the duty to oversee all law related to the immigration and naturalization of aliens.” This authority includes the power to certify Board decisions for his review under 8 C.F.R. § 1003.1(h)(1). AG Sessions also pointed out that between the choices of rulemaking and adjudication, adjudication is far more efficient. Finally, citing 8 U.S.C. § 1103(a)(1), AG Sessions stated “Congress has provided that ‘determination[s] and ruling[s] by the Attorney General with respect to all questions of law,’ i.e., all questions of law arising under the INA and ‘all other laws relating to the immigration and naturalization of aliens,’ ‘shall be controlling.’” 27 I&N Dec. 271 (A.G. 2018).

In the Castro-Tumopinion, issued on May 13, 2018, AG Sessions affirmed the BIA decision finding that DHS had demonstrated the address was reliable, and remanded the case to Judge Morley with a directive Respondent be removed in absentia if he did not appear at the hearing. But going beyond this specific case, AG Sessions broadly held: 

[I]mmigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. Accordingly, immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. Where a case had been administratively closed without such authority, the immigration judge or the Board, as appropriate, shall recalendar the case on the motion of either party. 

27 I&N Dec. 271, 272 (A.G. 2018). As mentioned previously, in practical terms one of the primary results of this decision is to prohibit an IJ from administratively closing a case in order to allow respondent time to pursue an application with USCIS that could result in relief from removal and the ability to remain lawfully in the U.S. 

Once Matter of Castro-Tumwas remanded, Judge Morley requested briefs on due process concerns, following which he was replaced with an Assistant Chief Immigration Judge. That judge ultimately ordered removal of Respondent in absentia. In addition to replacing Judge Morley, AG Sessions reassigned over 80 of his cases. This caused an outcry among immigration judges, who subsequently filed a formal labor grievance over the incident. 

The handling of Matter of Castro-Tumillustrates the significant power the Attorney General wields over what is supposed to be an impartial judicial process; this is by virtue of the fact that immigration judges fall under the purview of the executive branch rather than the judicial branch. While the potential conflict of interest created by the unique structure of the immigration court system has long been criticized (resulting in creation of the Executive Office for Immigration Review in the 1980s), Matter of Castro-Tumhighlights the ability of an administration to further its own immigration policies using its position of power over immigration judges. Further, President Trump has made no secret of his opinion regarding the due process rights of undocumented immigrants, tweeting in June 2018 “[w]hen somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.” 

Pursuant to AG Sessions’ decision in Matter of Castro-Tum, cases that have already been administratively closed will remain so unless and until DHS or the respondent moves to recalendar them. To put this in context, there are currently over 350,000 administratively closed cases. Of note, according to guidance issued by ICE in June 2018, DHS does intend to recalendar these cases unless closure was authorized by a regulation or judicially approved settlement agreement. This is not just lip service; according to a recent AILA Practice Pointer, in FY2018 ICE has already acted to recalendar almost 8,000 administratively closed cases. AILA Doc. No. 18082835 (August 28, 2018).Presumably, this will exacerbate the backlog rather than address it as AG Sessions contended when justifying his decision in Matter of Castro-Tum.

The recent AILA Practice Pointer also provides helpful guidance with regard to challenging the Castro-Tumdecision by opposing the recalendaring of an administratively closed case or pursuing administrative closure of an active case, as well as suggesting alternative and/or additional solutions that might apply. AILA Doc. No. 18082835 (August 28, 2018). The guidance includes the procedure for making and preserving a challenge, potential arguments to make, and additional resources to consult for further assistance.

The Castro-Tumdecision is just one of a number of recent administrative actions taken by AG Sessions in his quest to enforce the immigration policies of the Trump administration. While he is certainly not the first Attorney General to utilize the power of that position, he arguably has taken advantage of that power to a greater extent than previous Attorneys General. Further, he has done so quickly and effectively. As the nation’s top law enforcement officer, he is well-positioned to continue to do so unless action is taken to restore the independence of the immigration court system. Many argue that federal legislation overhauling the system is the only way to achieve this goal.


Research for this article was conducted by Andrew Hale, an associate at Kramer Rayson LLP. He earned his J.D. from the University of Tennessee in 2018. 

Kate Tucker is a partner at Kramer Rayson LLP in Knoxville, Tennessee. She earned her J.D. from William and Mary College of Law in 2001, and she is admitted to the state bar of Tennessee and the U.S. District Court, Eastern District of Tennessee. Her practice focuses primarily on business immigration.

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ICE Raids Continue Throughout United States

Since U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations’ (HSI) raid at Southeastern Provisions in Bean Station, TN, ICE/HSI has continued to conduct raids.
 
Most recently, ICE/HSI struck again in late August 2018 when it raided Load Trail LLC in Sumner, Texas. During this raid, HSI arrested about 160 out of 700 employees in the workforce on federal immigration violations - unlawfully working in the United States with undocumented status. The investigation began when HSI received information that the company may have knowingly hired undocumented workers, and that many of the workers employed at Load Trail were using fraudulent identification documents. 
 
This isn’t the first time Load Trail has been in trouble with ICE. In 2014, Load Trail was fined $445,000 for employing more than 170 unauthorized immigrants. Being a repeat offender means it is likely that Load Trail will be facing substantial penalties. It would not be a surprise to see some company officials facing jail time and the company paying over $1 million in penalties. Much will depend on whether testimony and company records, which were confiscated in the raid pursuant to a criminal search warrant, establish the company had direct or constructive knowledge of their employees’ undocumented status. 
 
Earlier in August 2018, in a multi-state operation, covering Nebraska and Minnesota, ICE/HSI raided over 15 workplaces serving a series of criminal search warrants and criminal arrest warrants. The raids were the result of a 15-month investigation into companies allegedly knowingly hiring undocumented workers, who were using fraudulent identification belonging to U.S. citizens. 
 
As a result of these raids, 17 individuals were arrested for an alleged criminal conspiracy to exploit illegal alien laborers for profit, fraud, wire fraud and money laundering in Nebraska and Minnesota. HSI believes the alleged conspirators colluded to create an illegal alien workforce in their respective businesses. In addition to these arrest warrants, authorities also identified 133 employees who were subject to arrest for immigration violations and were unlawfully working at these businesses. These individuals had been illegally residing and working in the United States and may also have been exploited as part of this alleged criminal conspiracy. 
 
According to ICE, by colluding to create an illegal alien workforce in their respective businesses, the 17 individuals defrauded the U.S. government and created an unfair advantage over their competition businesses. Additionally, authorities suspect the undocumented workers who were knowingly hired as part of this alleged conspiracy were exploited by the conspirators through force, coercion, or threat of arrest and/or deportation. Specifically, these undocumented workers were allegedly required to cash their paychecks at an illegal remittance business for a fee, have tax money deducted from their pay even though this money was never paid to the government, and were coerced to remain quiet about this criminal activity.
 
“The job magnet in the United States is primarily what draws illegal aliens across our borders,” said Special Agent in Charge Tracy J. Cormier, HSI St. Paul, which oversees Nebraska and Minnesota. “This HSI-led criminal investigation has shown that these targeted businesses were knowingly hiring illegal workers to unlawfully line their own pockets by cheating the workers, cheating the taxpayers, and cheating their business competitors.”
 
On June 19, 2018, ICE raided Fresh Mark, a large meat supplier with facilities in Salem, Massillon and Canton, Ohio. Although ICE raided four of Fresh Mark’s facilities with federal criminal search warrants, only the Salem facility was the site of arrests. The detained 146 workers are suspected of using stolen/fraudulent identification to gain employment and/or reentry into the United States after deportation.  
Steve Francis, Special Agent in charge of ICE's Homeland Security Investigations Michigan/Ohio unit, said the raid was the result of more than a year-long investigation into Fresh Mark and its employees, and whether the company knowingly hired and harbored undocumented workers. "It's important that companies know not to willingly participate in the hiring of illegal aliens," said Francis.
 
Fresh Mark, a family-owned company, which employs more than 1,000 employees, sells meat products, such as bacon, deli ham, lunch meats and sausages to restaurants, delis, grocers and stadiums nationwide. The company said it participates in E-Verify, a federal program to ensure employees have proper documentation and conducts an annual internal audit of its I-9 forms. It should be noted if an employee engages in identity theft, E-Verify may not be able to detect the theft and will issue work-authorized verification. 
 
On Tuesday, June 5, 2018, approximately 200 ICE agents swarmed Corso’s Flower and Garden Center in Sandusky, Ohio and Castalia, Ohio and detained approximately 114 workers suspected of being in the country without proper work authorization. The workers are expected to be placed into deportation proceedings and many are expected to be criminally charged with identity theft and tax evasion.
 
This raid was unlike the previous raid in Bean Station because ICE initially served Notices of Inspection weeks before and had been auditing the 313 I-9 forms supplied by Corso’s. Before the service of the Notices of Inspection, ICE had been receiving tips into Corso’s Flower and Garden Center and began an investigation in October 2017. A triggering event was the arrest and indictment of Martha Buendia-Chavarria, who was charged with operating a document mill. 
 
During the ICE audit, according to ICE, they found 123 I-9 forms which were suspicious due to use of duplicate Social Security numbers and identification belonging to other people. Presumably, these identification documents were produced by Ms. Buendia-Chavarria. Thus, when the ICE agents raided the facilities, they had a list of names they had targeted for detention.
 
It is clear that employer raids will be a frequent tool of ICE. Every employer should be vigilant in their immigration compliance. I would advise employers to meet with their immigration counsel, or obtain immigration counsel, to conduct an internal I-9 audit and draft or review an immigration compliance policy. Though it should be noted, Fresh Mark said it conducts annual I-9 audits.

Bruce E. Buchanan is a founding partner at Sebelist Buchanan Law PLLC with offices in Nashville and Atlanta, where he represents employers and individuals in immigration law, with a special emphasis on employer immigration compliance, and employers in employment/labor law matters. Mr. Buchanan received his law degree from the Vanderbilt University School of Law in 1982.
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USCIS Field Office Opens in Nashville

U.S. Citizenship and Immigration Services’ (USCIS) new Nashville Field Office began adjudicating cases and conducting interviews as of May 21, 2018, relieving some of the pressure on Middle and East Tennessee applicants who would have otherwise had to drive hours to Memphis, TN. The Memphis Field Office had previously handled all interviews and will continue to handle applicants or petitioners who have already been interviewed or scheduled for an interview in Memphis.
 
The Nashville Field Office is located at 340 Plus Park Boulevard, Nashville, TN 37217 and is open 7:15 am to 3:00 pm Monday through Friday. Daniel W. Andrade is the Field Office Director and the office is part of the Southeast Region under District Director Cindy Gomez.
 
Applicants, petitioners, or attorneys who want to visit the Field Office or speak to an immigration services officer must either have an appointment scheduled by USCIS or make an InfoPass appointment via USCIS’ website. 
 
The Nashville Field Office serves the following Tennessee counties:
 
Middle District of Tennessee Counties:
 
CANNON, CHEATHAM, CLAY, CUMBERLAND, DAVIDSON, DEKALB, DICKSON, FENTRESS, GILES, HICKMAN, HOUSTON, HUMPHREYS, JACKSON, LAWRENCE, LEWIS, MACON, MARSHALL, MAURY, MONTGOMERY, OVERTON, PICKETT, PUTNAM, ROBERTSON, RUTHERFORD, SMITH, STEWART, SUMNER, TROUSDALE, WAYNE, WHITE, WILLIAMSON, and WILSON.
 
Eastern District of Tennessee Counties:
 
ANDERSON, BEDFORD, BLEDSOE, BLOUNT, BRADLEY, CAMPBELL, CARTER, CLAIBORNE, COCKE, COFFEE, FRANKLIN, GRAINGER, GREENE, GRUNDY, HAMBLEN, HAMILTON, HANCOCK, HAWKINS, JEFFERSON, JOHNSON, KNOX, LINCOLN, LOUDON, MARION, MCMINN, MEIGS, MONROE, MOORE, MORGAN, POLK, RHEA, ROANE, SCOTT, SEQUATCHIE, SEVIER, SULLIVAN, UNICOI, UNION, VAN BUREN, WARREN, and WASHINGTON.

Terry Olsen, founded Olsen Law Firm in September 2003, and practices Immigration & Nationality Law exclusively. Terry has served, and continues to serve, the international community and his clients’ interests in the United States and internationally. Terry is an alumnus of William and Mary Law School, Southern Illinois University, and the University of Tennessee at Chattanooga.

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Letter from the Editor

I would like to thank Kate Tucker and Terry Olsen for writing their articles for this issue. I’m always looking for writers and articles on a variety of topics, including family-based immigration issues, employer-based immigration issues, crimimigration, and immigration court/custody issues. It’s especially great if one of your own cases is newsworthy. Please feel free to contact me, Bruce Buchanan at bbuchanan@sblimmigration.com or 615-345-0266 concerning writing an article.

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DOJ Gets November Deadline to Respond to Alabama Immigrant Census Lawsuit

The federal government has until Nov. 13 to respond to Alabama's lawsuit seeking to exclude immigrants living in the country illegally from U.S. Census counts, The Associated Press reports. A federal judge granted the extension after lawyers said the Department of Justice components needed additional time to finish "evaluating the arguments that the government will make in this matter." Alabama Attorney General Steve Marshall filed the lawsuit against the federal government in June. Marshall argues the immigrants should not be included in census counts used to distribute congressional district.
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Attorney Volunteers Needed for ‘Become a Citizen’ Workshop

The Tennessee Immigrant and Refugee Rights Coalition, Hillcrest United Methodist Church and the Nashville Mayor’s Office of New Americans are seeking attorney volunteers for their “Become a Citizen Now!” workshop, held on Sept. 22 in honor of National Citizenship Day. Local families who are legal permanent residents will receive assistance in applying for naturalization at the event, which will take place from 9 a.m. – 4 p.m. Interested attorneys should complete this form to take part.
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ICE Detainees Up 300 Percent in Knox County With New Contract

The number of U.S. Immigration and Customs Enforcement detainees in the Knox County jail increased 300 percent in August after a new county-federal contract took effect Aug. 1, Knoxnews reports. The contract pays the county $67 per ICE detainee per day, where previously, there was no payment. Proponents of the changes say the new agreement will speed up the deportation process and help cover the costs, while immigrant activists are concerned the agreement provides financial incentives for immigration crackdowns.
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Government Denying Passports to Americans With U.S. Birth Certificates

The U.S. government is denying passports to American citizens with Hispanic names who reside near the Mexico border, The Washington Post reports. The Trump administration is accusing hundreds of such individuals of using fraudulent birth certificates since they were babies. In some cases, passport applicants with U.S. birth certificates are being jailed and entered into deportation proceedings. The Department of Justice said it has not changed any policies, and added that the border “happens to be an area of the country where there has been a significant incidence of citizenship fraud.”
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DOJ to Appeal Injunction Barring Separation of Immigrant Families

The Department of Justice plans to appeal a federal judge’s injunction barring the separation of immigrant families, The ABA Journal reports. The government takes issue with the “scope and application” of the injunction in its notice of appeal to the 9th U.S. Circuit Court of Appeals. The injunction was issued in June in response to the DOJ’s zero-tolerance policy that subjected illegal immigrants to criminal prosecution and separated them from their children.
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Grainger County Slaughterhouse Subject to ICE Raid Fined $41K

The owner of the Grainger County slaughterhouse who was subject to a massive immigration raid in April has been fined more than $41,000 for dirty, unsafe working conditions, Knoxnews reports. After the raid, inspectors found 27 violations, 23 of them deemed “serious.” The owner, James Brantley, agreed last week to plead guilty to federal charges of tax evasion and hiring unauthorized workers. Court records show Brantley dodged nearly $1.3 million in federal payroll taxes over the past decade.
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East Tennessee Meatpacking Plant Owner Admits Tax Evasion

The owner of the East Tennessee Southeastern Provision meatpacking plant, James Brantley, agreed to plead guilty to federal charges of tax evasion, wire fraud and employing unauthorized immigrants, the Knoxville News Sentinel reports. In April, I.C.E. agents and I.R.S. investigators conducted the nation’s largest single immigration crackdown in more than 10 years at the plant; they rounded up 97 people on illegal entry charges. This action sparked statewide protests and unsuccessful attempts to toughen punishments for employers who knowingly hire undocumented workers. Brantley’s hiring of undocumented workers allowed him to pocket millions of dollars by ignoring safety regulations, violating federal wage and hour laws and avoiding unemployment and workers’ comp premiums. He will enter a formal plea in court on Sept. 12.

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Put TBA UPS to Work

Have you enrolled in TBA’s UPS account for members? Visit UPS's TBA page and save up to 34 percent on UPS’s broad portfolio. Shipping services include next day air, international, ground and express.
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Law Office Management Tips on Shipping

If your law office uses shipping services, your TBA membership team can help you compare those costs to TBA’s UPS member benefit. Your firm office manager can work directly with TBA staff and UPS services to enroll or transfer shipping accounts. Members can save up to 34 percent on UPS’s broad portfolio of shipping services, including next day air, international, ground and express.
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Protestors Arrested After Blocking Entrance to CoreCivic HQ

Multiple protestors have been arrested in Nashville after blockading the entrance to the headquarters of private prison operator CoreCivic, The Tennessean reports. The protestors, who set up tents at the facility, were demonstrating against the company’s practices, including its contracts with Immigrations and Customs Enforcement. In a statement, CoreCivic said that the company “plays a valued but limited role in America’s immigration system” and claimed that the activists had reached “misguided conclusions” due to inaccurate information shared by special interest groups.
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Federal Judge: Trump Must Fully Restore DACA

A federal judge today ruled that the Trump administration must fully restore the Deferred Action for Childhood Arrivals (DACA) program, The Hill reports. In his opinion, Judge John Bates of the D.C. Circuit Court of Appeals said the Trump White House had failed to provide justification for its proposal to end the program. The judge agreed to delay the ruling by 20 days to allow the administration to to determine whether it will appeal the court's decision.
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Trump Administration: ACLU Should Find Deported Parents

The Trump administration believes that immigration advocacy groups should bear responsibility for finding parents who were separated from their children and deported, USA Today reports. A court document filed yesterday by the Department of Justice says that the government would turn over whatever identifying information it could on the parents who were deported, but that the ACLU should work to find the parents from there. ACLU attorneys argue the administration is shirking its duties, and claim that the information shared on the deported parents is often incomplete.
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Knoxville Family Defense Workshop

 
Earlier this month the TBA YLD held a successful family defense workshop in Knoxville. Pro bono attorneys at the workshop offered family preparation plans and powers of attorney to the immigrant community in the Knoxville area. Thanks to the Tennessee Immigrant and Refugee Rights Coalition and TBA YLD, the workshop had a tremendous turnout.    
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Destination CLE Survey

Let's take a trip! The TBA CLE Committee would like your feedback on destination CLE events. Taking a moment to complete this brief survey will greatly assist us in developing the best CLE experience for you. Please complete this survey by Aug. 10. We greatly appreciate your help with this endeavor.
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Tax Law Forum 2018

The annual Tax Law Forum will be held at the Tennessee Bar Center in Nashville on Sept. 17. Sessions will focus on the new Tax Cuts and Jobs Act. Topics include the new pass-through entity tax law, an overview of the changes to international tax law, corporate and other business tax changes as well as non-profit law changes.

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U.S. Army Reverses Plan to Deport Immigrant Solider

Following a lawsuit, the Army has reversed its decision to discharge a citizenship-seeking immigrant solider, The Washington Post reports. In a federal court filing, the Army acknowledged that its plan to discharge Lucas Calixto was “improper.” Calixto previously filed a lawsuit in U.S. District Court challenging the move, claiming the Army violated its own policies by not explaining why he was discharged or given a chance to respond.
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Tennessee Immigration Judges Order Record Number of Deportations

Deportation orders in Tennessee, Arkansas and northern Mississippi have increased nearly 50 percent since 2016, The Tennessean reports. The increase can be traced to the appointment of Judge Vernon Miles, who has a track record of denying almost every asylum case, an increased number of Central American immigrants seeking asylum, and policies established by U.S. Attorney General Jeff Sessions. Tennessee’s only immigration court is in Memphis, which handles cases from four states.
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Federal Judge Temporarily Halts Deportation of Recently Reunited Families

A federal judge today temporarily halted the deportations of families that have been recently reunited, The Hill reports. Attorneys for the American Civil Liberties Union, which filed the request to halt the deportations, said the delay was necessary because of “persistent and increasing rumors that mass deportations may be carried out imminently and immediately upon reunification.” Judge Dana Sabraw gave the government one week to file a brief in opposition.
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U.S. Army Discharging Immigrant Recruits, Lawsuit Filed

Some immigrant U.S. Army reservists and recruits who enlisted with a promised path to citizenship are being discharged without explanation, the Associated Press reports. Immigration attorneys say that there have been more then 40 known cases but the exact total is unclear. Reservist Lucas Calixto, a Brazilian immigrant who says he doesn’t know why he was suddenly discharged, filed a lawsuit last week in Washington, D.C., alleging the Defense Department didn’t give him the chance to defend himself or appeal. Spokespeople for the Pentagon and the Army said that they were unable to comment on the discharges due to the pending litigation.
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