Senate Hires Michigan Legal Group for Refugee Lawsuit

The Tennessee Senate has hired the conservative Christian Thomas More Law Center to represent it in a federal lawsuit attempting to block refugee resettlement in the state after state Attorney General Herbert H. Slatery III declined to take the case. The House is likely to approve the hire, but nothing has been formalized yet, the Tennessean reports. The Michigan-based legal group will represent the state for free in the nation’s first lawsuit to challenge the federal government for noncompliance with the Refugee Act of 1980 based on the 10th Amendment. The move comes after lawmakers overwhelmingly approved a resolution earlier this year in support of a lawsuit.

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800+ Immigrants Mistakenly Granted Citizenship

The U.S. government has mistakenly granted citizenship to at least 858 immigrants from “special interest countries” – those with national security concerns or with high rates of immigration fraud – according to a Department of Homeland Security audit released Monday. The department’s inspector general found that the immigrants used different names or birth dates to apply for citizenship and were not caught because their fingerprints were missing from government databases. The report also found that fingerprint records are missing for as many as 315,000 immigrants with final deportation orders or who are fugitive criminals. WRCB-TV has the story from the Associated Press.

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Justice Department Made Error in Data Provided to Court

The U.S. Justice Department has told the Supreme Court that it made “several significant errors” when providing information about immigrant detentions for a 2003 case, the ABA Journal reports. The department recently reviewed statistics for an upcoming case and discovered it had underestimated the time some immigrants spend in detention. It now says the time is closer to one year rather than the five months originally claimed. The court called the five-month period a “very limited time of detention” and relied on that fact in deciding it was constitutional to deny bail to immigrants with criminal records who were being held while appealing their deportation order.

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New Entrepreneurial Visa Proposed

The U.S. Citizenship and Immigration Services proposed a new rule Friday that would allow international entrepreneurs additional years of U.S. residency to start and build their businesses, the Upstart Business Journal reports. The International Entrepreneur Rule would allow startup founders to stay in the United States for up to two years, followed by a period of up to three years if they meet “additional benchmarks.” Factors to be considered include the entrepreneur’s ownership stake and leadership role, the growth potential of the startup, success in securing competitive research grants, and investment by qualified American investors.

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Trump: Values Test, ‘Extreme Vetting’ for Immigrants

In a speech today, Republican presidential nominee Donald Trump called for “extreme vetting” of immigrants and use of a new ideological test to assess an immigrant's likely support for "American values" of tolerance, pluralism and religious freedom. It is the latest version of his position, which began with a call to temporarily bar all foreign Muslims and then morphed into a temporary ban on immigrants from areas with a history of terrorism. WRCB-TV has more from the Associated Press.

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Lawyers Donate $76,000 to Access to Justice Efforts

More than $76,000 has been donated by Tennessee attorneys to organizations that serve low-income individuals in need of legal assistance, the Administrative Office of the Courts reports. The donations come as part of the annual licensing registration process. Starting in 2015, attorneys were given the option to donate to an Access to Justice Fund when renewing their licenses. Organizations receiving funds this year are the Community Legal Center, Disability Rights Tennessee, Legal Aid of East Tennessee, Legal Aid Society, Memphis Area Legal Services, Southeast Tennessee Legal Services, Tennessee Coalition to End Domestic and Sexual Violence, Tennessee Justice Center, Tennessee Justice for Our Neighbors, Volunteer Lawyers and Professionals for the Arts, and West Tennessee Legal Services.

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DOJ Asks Court to Rehear Immigration Case

The U.S. Department of Justice yesterday asked the Supreme Court for a rehearing of a case challenging President Barack Obama’s executive actions on immigration as soon as a ninth justice is appointed. The administration said there should be a definitive decision on the merits of the executive actions instead of the 4-4 split by the high court that left an appellate court decision striking the actions in place, but did not set precedent on the issue. WRCB-TV has the Associated Press story.

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ACLU Vows to Challenge Numerous Trump Policies

The ACLU is vowing to file constitutional challenges to several of presumptive Republican presidential nominee Donald Trump’s policies if he is elected and tries to implement them. These include Trump’s call for a “total and complete” ban on Muslims entering the United States, creation of a “deportation force” to round up the undocumented, surveillance or registration of mosques and American Muslims, use of waterboarding, changes to libel laws so media outlets can be sued, bulk collection of metadata, and punishment for doctors who perform abortions. The ABA Journal looks at the ACLU's positions.

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No Refugee Resettlement Suit from State AG

Tennessee Attorney General Herbert Slatery will not sue the federal government over its refugee resettlement program, the Tennessean reports. In a letter yesterday to the clerks of the state Senate and House of Representatives, Slatery responded to a General Assembly resolution passed earlier this year that demanded legal action. The letter delegates authority to sue to the General Assembly’s staff attorneys, should lawmakers still wish to pursue legal action.

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Deadlocked High Court Halts Obama Immigration Orders

The Supreme Court today issued rulings on several pressing issues including affirmative action, discrimination and immigration. The court’s 4-4 ruling on President Obama’s executive actions on immigration means that a lower court ruling blocking the programs will remain in effect. In Tennessee, immigrant advocates expressed outrage. “This is a devastating loss, not only for affected families but for our entire state,” Tennessee Immigrant and Refugee Rights Co-Executive Director Stephanie Teatro told The Tennessean. Attorney General Herbert Slatery, however, hailed the decision, saying "this lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution." The Supreme Court also upheld the University of Texas's practice of using applicants’ race as a factor in admissions. The 4-3 ruling greenlights the limited use of affirmative action policies by schools, CNN reports. The court also ruled 7-1 in favor of a Georgia death row inmate’s discrimination claim. The ruling found, in part, that prosecutors made a “concerted effort to keep black prospective jurors off the jury.”

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Court Still to Rule on Most Controversial Cases

The U.S. Supreme Court issued five decisions Monday, including rulings (1) upholding a patent review procedure known as inter partes review, which has been used by Apple and Google to invalidate patents; (2) directing lower courts in Alabama, Louisiana and Mississippi to re-examine three convictions for evidence of racial prejudice in jury selection; and (3) directing the U.S. Labor Department to do a better job of explaining why it is changing a longstanding policy on whether certain workers deserve overtime pay. With just one week left in the court’s current term, however, the most contentious cases still need to be resolved, including regulation of Texas abortion clinics, the use of race in college admissions, the legality of the president’s immigration executive orders, and the public corruption conviction of Virginia’s former governor. WKRN looks at the remaining cases.

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Pro Bono CLE: Immigrant Children and Tennessee Family Courts

A live broadcast CLE Friday at several Baker Donelson offices will train non-immigration-law practitioners on how to aid eligible unaccompanied children with obtaining predicate state court orders for Special Immigrant Juvenile Status. Immigrant Children and Tennessee Family Courts: Challenges and Avenues for Relief is scheduled from noon - 2 p.m. EDT and approved for two hours of CLE credit. The course is free if you agree to take a case pro-bono. You may choose the location you want to attend through the online registration.

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Judge Asked to Issue Warrant in International Custody Dispute

A pair of Memphis attorneys have asked Chief U.S. District Judge Tom Varlan to issue an arrest warrant for an undocumented immigrant, who is currently missing with her son. The request is on behalf of the boy’s father. Varlan last month ordered the mother, who was living illegally in Knoxville, to return the boy to Mexico in a rare case brought under The Hague Convention of 1980 International Child Abduction Remedies Act. Read more from the Knoxville News Sentinel

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JFON to Host Seminar May 19 in Nashville

Tennessee Justice for Our Neighbors will host a seminar in Nashville for lawyers and paralegals who want to help unaccompanied immigrant children remain in the United States. The seminar is planned for May 19, 2-5 p.m. at Casa Azafran, 2195 Nolensville Pike. Online pre-registration for the course is required. The event is free, but contributions are welcome. 

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House Approves Call to Sue Over Refugee Resettlement

The state House approved a measure (SJR 0467) last night that would order Attorney General Herbert Slately to sue the federal government over a refugee resettlement program. The Senate previously approved the measure and must now sign off on a change that would allow a private law firm to sue on behalf of the state before the measure becomes law, The Associated Press reports. “The passage of this resolution, and the litigation that will follow, puts Tennessee on the wrong side of history,” said Stephanie Teatro, co-executive director of the Tennessee Immigrant and Refugee Rights Coalition. 

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Register Today for the 135th Annual TBA Convention

Join us on June 15-18 in Nashville for the 135th Annual Convention! Registration for the 2016 TBA Convention includes:

  • free access to all TBA CLE programming;
  • the Opening Reception;
  • the Bench Bar Programming and Luncheon;
  • Law School and general breakfasts;
  • the Lawyers Luncheon;
  • the Thursday evening Joint (TBA/TLAW/TABL) Reception;
  • the Thursday night dinner and entertainment at the George Jones Museum;
  • and the Friday night Dance Party.

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Fundraiser to Benefit Tennessee Justice for Our Neighbors

Bone McAllester Norton will host a fundraiser on April 21 for Tennessee Justice for Our Neighbors to support humanitarian immigration legal services for undocumented immigrants in Middle Tennessee. Funds will help protect victims of war, trafficking and abuse. The event, sponsored by Sherrard and Roe PLC, is scheduled for 5:30-7 p.m. at Bone McAllester Norton, located at Nashville City Center, 511 Union St., Suite #1600. A $50 contribution is suggested.

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Spanish for Lawyers Series Available Online

The Tennessee Bar Association and the Tennessee Foreign Language Institute offer the Spanish for Lawyers Series, which focuses on communication skills for lawyers with Spanish-speaking clients. The online CLE courses include Basic Skills and Introductions, The Law Office and Client Interview, and Criminal Law. Each course offers one hour of dual credit.

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House Committee Approves Refugee Act Lawsuit

The House State Government Committee yesterday approved a resolution (SJR 0467) that would require Attorney General Herbert Slatery to sue the federal government over refugee resettlement. The resolution includes a provision that would allow the legislature to hire outside counsel. Proponents of the measure argue “the government failed to consult with Tennessee on the continued placement of refugees,” according to The Tennessean. The Senate last month approved the resolution. It now heads to the House finance committee.

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Register for the Upcoming TBA Immigration Law Seminar

TBA Immigration Law Section CLE, which will address the latest developments in immigration law, will be April 15 at the Tennessee Bar Center in Nashville. 

Speakers include:

  • Catherine Chargualaf, Assistant Field Office Director, Immigration and Customs Enforcement and Removal Operations;
  • Lynuel Dennis, Field Office Director DHS/USCIS; and
  • Judge Rebecca Holt, Memphis Immigration Court.  

Topics include the following:

  • Nuts and Bolts of Immigration Court Practice
  • Immigration and Customs Enforcement
  • U.S. Citizenship and Immigration Services

To register today for the program, please click on the link below:

Immigration Law Seminar 2016

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DHS’s Proposed New Employment-Case Processing

*By Brittany Thomas Faith

In December 2015, the Department of Homeland Security (DHS) published a proposed regulation covering employment-based green card processing, non-immigrant work visas and employment authorization documents (EADs). DHS provided a 60-day comment period beginning on Dec. 31, 2015. The comment deadline ended on Feb. 29, 2016, and, as of the time of this writing, the final regulation has not been published.

The lengthy regulation will affect a large number of the U.S. skilled immigrant workers. DHS states that the proposed amendments would provide various benefits to participants in those programs, including: “improved processes for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers, greater stability and job flexibility for such workers, and increased transparency and consistency in the application of agency policy related to affected classifications.”

Most of the “updates” in this proposed rule are clarifications or a continuation of previously articulated guidance in agency memoranda and precedent decisions which stem from the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In codifying these memoranda and decisions, the proposed regulation would enhance uniformity within the agency and provide a primary repository of governing rules for the regulated community. In addition, the proposed regulation clarifies several interpretive questions raised by AC21 and ACWIA.

DHS intends for these changes to improve the ability of “U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs), while increasing the ability of such workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.”

There are a few announcements from DHS which will affect the employment-based permanent residence process and H-1B work visa category if this rule becomes final in its current state. Unfortunately, due to space limitations, all of these proposals cannot be addressed; however, here is a sampling of some of the proposed changes:

  1. The proposed rule makes changes to the EAD application process. The 90-day requirement for adjudicating petitions would be scrapped “in light of national security and fraud concerns.” This change is not surprising given the current delays. USCIS is softening this change by providing for the automatic extension of employment authorization for timely filed I-765 renewal applications.
  2. The proposed regulation also addresses ongoing H-1B issues, including when a position requires a license to perform the position’s duties.  The proposed rule would allow the employer to petition for an unlicensed worker, by demonstrating that the worker had applied for the appropriate license, but was unable to obtain it because the issuing authority requires a social security number or employment authorization. Also, this requirement will be deemed satisfied if the worker will be working in a state that allows workers to work under the supervision of a licensed senior or supervisory personnel.
  3. To enhance job portability for certain high-skilled nonimmigrants, DHS proposes to establish a one-time grace period of up to 60 days whenever employment ends for individuals holding E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN nonimmigrant status. There is currently no grace period. This proposal would allow these high-skilled workers flexibility to pursue new employment with another employer assuming they would still qualify for their current employer-sponsored nonimmigrant classification or another classification.

Overall, the regulation mostly turns policy into official, binding regulation and aids both employers and employees in their immigration processes. Most practitioners won’t think of this proposed regulation as earth-shattering news. Of course, this doesn’t stop media commenters from misreading the regulation and stroking anti-immigration fever. For more information on that, please see Greg Siskind’s recent blog. To read the proposed regulation in its entirety, please see the Federal Register’s website.


*Brittany Thomas Faith joined Grant, Konvalinka & Harrison PC in 2012 and focuses her practice on immigration. She received her bachelor of arts from Pennsylvania State University in 2009, and her law degree from the University of Tennessee in 2012 where she was director of the College of Law's Pro Bono Program. Before coming to GKH, Brittany worked at several immigration non-profits and created the College of Law's Immigration Alternative Spring Break Program. She may be reached at or (423) 756-8400.

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The Final STEM OPT Rule

*By Greg Siskind

The Department of Homeland Security has issued a regulation that covers one of President Obama’s more significant employment-based executive action proposals. This followed the issuance of a proposed rule in October 2015 that was responding to a federal judge’s order striking down the existing F-1 Optional Practical Training (OPT) 17-month extended EAD program for people with degrees in science, technology, engineering or math (STEM) fields because of a lack of notice and commenting opportunity in the issuance of the 2008 interim rule. The judge gave the government until February 2016 to have a replacement rule in place and, after receiving an extension, USCIS has issued its final rule. The rule makes various changes to the F-1 STEM OPT program and includes formal rulemaking for the cap-gap program, but there are very few changes from the proposed rule.

Here are the most important takeaways from the final rule:

  1. The rule is effective May 10, 2016. 17-month OPT extensions will be accepted through May 9. Applicants with cases still pending on that date will receive an RFE essentially giving the applicants a chance to amend their applications to comply with the new rules including submitting a training plan on the new Form I-983. Adjudications from May 10 onward will apply the new rules. Any 17-month EAD issued prior to May 10 will remain valid until expired or revoked.
  2. The new rule expands the 17-month extension, beyond the 12 months open to most F-1 students, to 24 months of additional OPT.
  3. Employers still have to participate in E-Verify.
  4. A double major qualifies as long as one of the majors was in a STEM field.
  5. A STEM OPT job must be for at least 20 hours per week.
  6. If a student uses the STEM OPT 24-month period and then enrolls in a new higher level STEM program, the student would be entitled to a new 24-month STEM extension (plus the 12 months of regular OPT).
  7. The rule defines which STEM categories qualify based on the Department of Education’s CIP taxonomy and includes groups containing mathematics, natural sciences, engineering/engineering technologies and computer/information systems and related fields. Health and social sciences are not included. DHS will publish a list of accepted STEM fields on the SEVIS web page at and also update the Federal Register when the list changes.
  8. Employers will need to implement formal training plans for STEM OPT employees (using form I-983). Employers must also have a process in place for evaluating the OPT employee on an annual basis to demonstrate that the student is making progress toward his training objectives. And there is a formal process for modifying the training plan that involves both the employer and student signing a modified plan and submitting it to the DSO. Existing training plans can be used as long as they conform to OPT rules.
  9. The training plan must (1) identify the goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student; (2) explain how those goals will be achieved through the work-based learning opportunity with the employer; (3) describe a performance evaluation process; and (4) describe methods of oversight and supervision.
  10. STEM OPT extensions are available to people in non-STEM programs if the F-1 student earned an earlier STEM degree from an accredited, SEVIS-enrolled U.S. institution (determined at the time the extension is filed) within the past 10 years (even in a status other than F-1). The new position must be in the same STEM-related field. For example, if a person gets an MBA after getting a STEM degree and then works for a company where the STEM background is needed, this might be eligible for STEM OPT.
  11. U.S. worker protections are now included in the program and the employer must sign an attestation covering the following: a) the employer has the resources and personnel available to provide training, b) the employer is forbidden from replacing a full- or part-time, temporary or permanent U.S. worker as a result of hiring a STEM OPT worker (unless for cause), and c) the training must be in the student’s field.
  12. Only accredited schools may participate in the STEM OPT program and DHS (through ICE) has the discretion to conduct on-site inspections at employer work sites to determine compliance. DHS will give 48 hours’ notice of a visit unless it is investigating a complaint or suspected violation.
  13. Students currently are allowed to be unemployed for 90 days during the initial 12-month OPT and up to 30 days during the STEM extension. The new rule would allow up to 60 days in the STEM extension period.
  14. The existing school reporting requirement and the cap-gap extension program remains.
  15. F-1 students currently in STEM OPT would be able to request extensions for the additional 7 months as long as they apply within 120 days of the end of their 17-month period and the employer meets the new employer requirements.
  16. The government intends for the rule to be finalized before May 10, 2016, to meet the judge’s deadline in the STEM OPT litigation. If DHS is unable to issue a final rule by then, it may end up returning applications and asking people to refile.
  17. The rule requires that the terms and conditions of an employer’s STEM practical training opportunity – including duties, hours and wages – be commensurate with similarly situated U.S. workers either in the company or, if there are no others, in the same geographic area of employment. Using Department of Labor wage data is one way to demonstrate this. Employers will be required to provide wage information to DHS in the training plan.
  18. DHS is working on a new technology that would allow students to update some of their own information themselves in SEVIS.
  19. The rule authorizes a recurring evaluation process allowing ICE to monitor student progress during the OPT period consistent with the training plan.
  20. New compliance requirements include: 1) STEM OPT employers must have an Employer ID Number; and 2) EAD applications must be submitted within 60 days of the DSO entering the student information in SEVIS (versus 30 days under the current rule).


*Greg Siskind is a founding partner of Siskind Susser PC – Immigration Lawyers and has been practicing law since 1990. He began practicing law after receiving his bachelor’s degree from Vanderbilt University in 1986 and his law degree from the University of Chicago in 1990. He is the author of several books including the annually published J-1 Visa Guidebook, the American Bar Association’s Lawyers Guide to Marketing on the Internet and SHRM’s Employer’s Immigration Compliance Desk Reference. Greg may be reached at or (901) 682-6455.

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The Scary ICE Raids

*By Marlee Deck

Beginning on Jan. 2, 2016, the U.S. Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE) began detaining undocumented immigrants through the use of selected raids. The raids target adults and children who were apprehended at the border on or after Jan. 1, 2014, have been issued final orders of removal by an immigration judge, and have no pending claim for asylum, or other humanitarian relief under U.S. state law, including appeals of immigration court decisions.

Additionally, ICE began conducting “Operation Border Guardian” on Jan. 23, 2016, by taking 336 people into custody. The focus of the latter operation is the same as the raids except it more specifically targets individuals who were unaccompanied minors when arriving after Jan. 1, 2014 but are now over 18 years of age. [i] So far the areas of focus have been Georgia, Texas, North Carolina and Louisiana -- jurisdictions with high concentrations of Central Americans. To date, Tennessee has not experienced any raids. However, DHS Secretary has stated that the department’s efforts to detain and deport immigrants who have apparently exhausted all legal remedies will continue.

On Jan. 2 and 3, 2016, 121 immigrants were rounded up and transported to Dilley Texas Detention Center. Virtually all of the detainees were women and children. Following the raids, CARA Family Detention Pro Bono Project filed emergency stays with the Board of Immigration Appeals (BIA) for 12 families who were detained during the raids. Of the 12 families for whom the CARA Project secured stays, eight of them were detained until early February and four of them remain in detention. Many of the detainees from the ICE raids were transferred to a facility in Berks County, Pennsylvania, whose license was recently revoked by the state. CARA Project Managing Attorney, Katie Shepherd, stated that ICE executed a transfer of one of the mothers knowing full well that a pro-bono attorney from out of town was on the way to meet her at Dilley Detention Center. [ii] Advocates who toured the Berks Detention Center were appalled by what they saw and learned from the detainees. Children at the center were not allowed to sleep with their parents and individuals were awoken from their sleep every 15 minutes each night with flashlights. This is actual torture. [iii]

The ICE raids have serious implications on the constitutional rights of those impacted. Immigration advocates have been expressing deep concern for the due process rights of undocumented immigrants in expedited removal proceedings, which has intensified since the raids. It is established law that immigrants within the United States have a right to due process under the Constitution, even if they are here unlawfully or temporarily immigrants also have a right, under the 4th Amendment, to be free from unreasonable searches and seizures, regardless of their immigration status. The DHS Form I-200 “Warrant for Arrest of Alien” or Form I-205 “Warrant for Removal/Deportation” authorizes the ICE agent to take into custody and/or deport the individual named on the form. However, neither of these forms give an ICE agent permission to search the individual’s home. To do so, requires consent or an order signed by a judge.

While DHS states that its target during the raids are individuals who have exhausted their legal remedies, many of the individuals who fall under this category were denied due process in their initial apprehension, detention, and/or removal proceedings, before the ICE raids. The findings of the CARA Project during their interviews with the 12 detained families adds credibility to these concerns about the due process violations of individuals who were ordered removed. In their interviews with detainees, they discovered each mother for whom the CARA Project filed an appeal had been denied due process in at least one way, including: insufficient time for attorney preparation for individuals in expedited proceedings; lack of information on what the process was and what their legal obligations and rights were; immigration officials pressuring them to sign legal documents they did not understand; and arrest and detention after they had complied with ICE Orders of Supervision and Immigration Court appearances. [iv] Reports in recent years, including one published by Human Rights Watch in 2014, reveal that immigration officials, at the border and in detention centers, actively discourage immigrants who have expressed fear of returning home from seeking relief, and fail to adequately screen for fear, during apprehension and detention. [v]

Furthermore, the huge disparity in asylum outcomes across immigration courts in the United States suggest a lack of due process in court proceedings as well. For example, in 2014, the asylum application grant rate was 1 percent in Atlanta Immigration Court while it was 84 percent in New York City Immigration Court. [vi] It begs the question whether the inconsistencies are based the merits of the cases, or rather judges’ political leanings. Of note, in a recent BIA decision, Matter of Y-S-L-C, wherein a 15-year-old Guatemalan boy was denied withholding of removal and protection under the Convention Against Torture (CAT), the BIA remanded the case for assignment to a new judge, because the original judge’s line of questioning amounted to bullying. In its decision, the BIA stated: “Courts have stressed that a respondent in immigration proceedings should expect dignity, respect, courtesy, and fairness in a hearing before an Immigration Judge. Conduct by an Immigration Judge that can be perceived as bullying or hostile can have a chilling effect on a respondent’s testimony and thereby limit his or her ability to fully develop the facts of the claim.” [vii]

Aside from the arrests during the ICE raids of individuals with final orders of deportation who were not afforded due process in their original detention and removal proceedings, there are reports of collateral arrests during the raids of individuals who had orders of supervision with ICE at the time of their arrest, which suggests that these individuals had pending cases. The Southern Poverty Law Center and the Georgia Latino Alliance for Human Rights conducted an investigation that revealed many of the raids were conducted without warrants; ICE agents entered without obtaining lawful consent and in many cases used threats, deception and aggression; ICE agents denied the women access to their attorneys until they were already at the detention facility; they were not informed of pro bono attorneys available at the detention center; the women were coerced and pressured to sign documents in English that they did not understand; many of the women who were arrested were under current orders of supervision with ICE and had complied with all with their regular ICE check-ins; ICE focused their raid efforts in jurisdictions that were known to have weak due process protections for immigrants; and ICE has refused to release children and mothers from detention. [viii]

Countless advocates, legal service providers, and politicians have criticized DHS for the recent raids and its overall policies regarding recent immigrants who are seeking humanitarian relief. Many of them have offered recommendations to improve access to justice and the due process rights of immigrants. Before the raids, on Dec. 24, 2015, a joint letter from five immigration organizations was addressed to DHS urging them to cease due process violations of immigrants and pointing out that, since the Oct. 23, 2015, deadline set by U.S. District Court Judge Dolly Gee for the federal government to comply with her order regarding the 1997 Flores Settlement Agreement, the government has instead implemented a deportation strategy that continues to violate the agreement and interfere with due process. [ix] After the raids, on Jan. 6, 2015, AILA and American Immigration Council sent a letter to DHS Secretary criticizing the raids and requesting a meeting to discuss how to guarantee due process for those fleeing extreme violence. [x] On Jan. 22, 2016, the U.S. Commission on Civil Rights also issued a letter to President Obama and DHS Secretary requesting an immediate end of the raids, stating that, “The Commission has examined the issue of access to counsel for families in detention and found that the lack of, or obstruction to access to legal counsel afforded to these refugees in their initial, underlying proceedings brings into question the enforceability of the orders of deportation upon which the present ICE raids are based.” [xi]

Democratic members of Congress, including House Whip Steny H. Hoyer, D-Md., and Rep. Luis V. Gutierrez, D-Ill., have pushed back against the raids and prior deportation strategies, such as expedited removal proceedings. Members of the Congressional Hispanic Caucus are calling on President Obama to offer affected families temporary legal protection. “We have a refugee crisis, not an immigration problem,” said Gutierrez. [xii] El Salvador and Honduras are currently designated as having Temporary Protected Status (TPS). However, this remedy is not available to recent arrivals. TPS, if it were available, would in some cases be a more appropriate form of relief than asylum. While it is true that some individuals in these regions are particularly susceptible to violence and targeted by gangs because of their membership in a particular group, many are not. The governments in these regions are so entangled with the cartels who reign, that criminal organizations have essentially become a de facto government, leaving the countries in a state very similar to civil war. It has been under these same conditions that the U.S. has extended TPS, though not because of gang violence specifically. Some claim that the influx of Central American immigrants is due to a weak border and deportation strategies. However, experts, like Marc Rosenblum with the Migration Policy Institute and Adriana Beltrán with the Washington Office on Latin America, say that the continued influx of immigrants from Central America is due to the fact that violence and corruption which has caused immigrants to flee has persisted and in some cases gotten worse. [xiii]

Despite all of this, DHS Secretary stated in a press release dated March 9, 2016, that their deportation strategy would continue. Johnson stated DHS is working closely with the Department of Justice in order to increase access to legal representation for unaccompanied children during immigration proceedings. He states that DHS requested over $17 million as part of the president’s 2017 fiscal budget to help expand legal representation for vulnerable communities, including $2 million for Justice AmeriCorps. He further stated that, in partnership with the UN High Commissioner for Refugees and non-governmental organizations in the region, they are working to expand its Refugee Admissions Program to help vulnerable individuals in Central America. It is yet to be seen whether there is actually enough political will or resources to follow through with plans to increase access to counsel. Additionally, since Johnson said that DHS is continuing with its deportation efforts based on existing priorities and strategies, it seems apparent that any increase in access to legal counsel would not prevent more individuals from being taken into custody through raids.

In the meantime, immigration attorneys can help their clients avoid being taken into custody during a raid by informing them of their constitutional rights and how to exercise them. Attorneys can even order cards from the Immigration Legal Recourse Center with a statement in Spanish and English that the client does not wish to say or sign anything and is exercising his/her 4th and 5th Amendment rights. To order, email with your name, name of the organization, your address, the number of cards, whether you would like the cards in Spanish or English only, and specify if the cards will be distributed in a different county than your address. You can also help clients by providing them with copies of all USCIS application receipt notices and immigration judges’ orders. It might even be helpful to provide them with a one pager on why they are not a priority.


*Marlee Deck of Deck Legal PLLC is a solo practitioner, who is a passionate advocate for social justice. Marlee earned her law degree from City University of New York School of Law, where she worked in the International Women's Human Rights Clinic. She was born in Mexico City to a family rich in cultural diversity and was raised in Nashville, Tennessee. Marlee may be reached at (615) 645-4708 or

[i] Statement by Secretary Jeh Johnson on Southwest Border Security, DHS (March 9, 2016).

[ii] Eight of Twelve Families Targeted by ICE Have Been Released: Remaining Mothers and Children Still Unjustly Incarcerated, AILA, AIC, CLINIC (February 9, 2016).

[iii] A Visit to Berks Family Detention Center Makes Clear Why They Lost Their License, American Immigration Council (February 22, 2016).

[iv] CARA: 33 Mothers and Children Protected from Immediate Deportation, AILA Doc No. 16011330 (January 13, 2016).

[v] You Don’t Have Any Rights Here: US Border Screening and Returns of Central Americans to Risk Serious Harm, Human Rights Watch (October 16, 2014).

[vi] FY 2014 Statistics Yearbook, Executive Office of Immigration Review, Office of Planning, Analysis, and Technology (March 2015).

[vii] Matter of Y-S-L-C, 26 I&N Dec. 688, 690 (BIA 2015) (citing Cham v. Att’y Gen. of U.S., 445 F.3d 683, 690−92 (3d Cir. 2006) (stating that such terms are “not merely advisory or aspirational” and that an alien is “entitled, as a matter of due process, to a full and fair hearing on his application”); and Wang v. Att’y Gen. of U.S., 423 F.3d 260, 271 (3d Cir. 2005)).

[viii] Families in Fear: The Atlanta Immigration Raids, Southern Poverty Law Center (January 28, 2016).

[ix] Denial of Due Process to Incarcerated Immigrant Families Worsens in Spite of Court Ruling, AILA, CLINIC, AIC, Human Rights First, RAICES, AILA Doc. No. 15122451 (December 24, 2015).

[x] After Successfully Delaying the Deportations of Four Central American Families, Groups Demand Meeting with DHS Secretary Johnson, AILA Doc No. 16010608 (January 6, 2016).

[xi] US CCR Letter to US President and DHS Secretary, AILA Doc. No. 16012215 (January 22, 2016).

[xii] Deportation Raids Continue Despite Outcry, Washington Post (January 8, 2016).

[xiii] Central American Moms and Kids Are Still Coming to the U.S. Because It’s Still Unsafe at Home, Huffington Post (December 16, 2015).

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Letter from the Editor

I would like to thank Marlee Deck, Brittany Thomas Faith and Greg Siskind for their timely and worthwhile articles in this issue. I am always looking for writers; so, if you would like to write an article, please feel free to contact me. You may have noticed Yvette Sebelist and I started our own firm, Sebelist Buchanan Law PLLC; thus, I may be contacted at or 615-345-0266. I am also “Of Counsel” to Siskind Susser on employer immigration compliance matters; thus, I still may be reached at

Bruce Buchanan

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Mid-South Immigration Advocates Receives 2 Major Grants

The Commercial Appeal highlights the work of Mid-South Immigration Advocates, a non-profit organization that received two major grants this week to continue representing children in immigration cases. Nationwide, 80 percent of the children who went to immigration court without an attorney were deported. "It's our obligation to make sure children are protected from abuse, neglect and persecution" said attorney Sally Joyner. "We legally can't turn them away."

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