Wednesday, July 29, 2009

Immigration Litigation News

BIA Ruling in Asylum Related to Gang Persecution in El Salvador

The Immigrant Law Center of Minnesota, through its Immigration Litigation Project, has been representing the young siblings ordered removed to El Salvador by the Board of Immigration Appeals in Matter of SEG, 24 I&N Dec. 579 (BIA 2008). The Board, while finding that the young men faced serious danger from the MS-13 gang if removed, denied their asylum claims, holding that there was no definable social group. They denied that youth who have been subjected to recruitment efforts by the gang and who have rejected or resisted membership due to their own personal, moral, and religious opposition to the gang constitute a particular social group. Working with co-counsel at the law firm of Latham & Watkins, the Immigrant Law Center filed motions to reopen and reconsider with the Board, submitted requests for certification of Matter of SEG to Attorney General Holder, and also were pursuing a petition for review at the U.S. Court of Appeals for the Eighth Circuit. The Board denied the motion to reopen in June 2009. The Eighth Circuit appeal and request for certification remained pending. On July 6, 2009, ICE agents unexpectedly arrested and detained the clients and were poised to remove them to El Salvador this week. They had not been detained at anytime prior. ICE summarily denied the requests for an administrative stay. The Eighth Circuit denied a stay. An emergency application for a stay of removal was filed with Supreme Court Justice, Alito. When he denied the application, it was refilled with Justice Stevens who in turn referred the matter to the full court. The full court requested the government's response by July 29. Late last week, ICE released the clients. Shortly afterwards, the Immigrant Law Center were contacted by DHS appellate counsel and the Solicitor General's office, offering a joint motion to reopen. A motion was filed last week and the BIA reopened the case for further consideration of the asylum claims.  For the BIA order, see Download MATTER of SEG - BIA order reopening1

No Detention Rule

Despite the fact that immigration detention conditions have been consistently criticized (see, e.g.,here), the Obama administration has announced its refusal to make legally enforceable rules for immigration detention in a letter.  Immigrant rights advocates contend that much evidence "underscore[s] the government’s failure to enforce minimum standards it set in 2000, including those concerning detainees’ access to basic health care, telephones and lawyers, even as the number of people detained has soared to more than 400,000 a year."   The letter from the Department of Homeland Security concludes “that rule-making would be laborious, time-consuming and less flexible” than the review process now in placer.

The administration’s letter responded to a 30-day deadline set by the federal district court in June. In that case, Judge Denny Chin ruled that the agency’s failure to respond to the plaintiffs’ petition for two and a half years was unreasonable.

For Nina Berstein's story in the N.Y. Times on this, click here..


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