American Immigration Council
Established in 1987, the American Immigration Council, a 501(c)(3) nonprofit, works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council’s legal department contributes to this mission through impact litigation to protect and defend the rights of immigrants, the filing of amicus briefs to educate the courts about immigration law and immigrants’ rights, and technical assistance provided to immigration attorneys.
THE CASE
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Moreno v. Nielsen, No. 1:18-cv-01135 (E.D.N.Y.), challenges a U.S. Citizenship and Immigration Services’ (USCIS) policy that unlawfully blocks otherwise eligible noncitizens with Temporary Protected Status (TPS) from gaining lawful permanent (LPR) status.
The case was filed on behalf of a class of TPS holders who, but for this policy, are eligible to become lawful permanent residents because of a close family relationship with a U.S. citizen or through their U.S. employer. TPS provides a temporary haven for noncitizens living in the United States when natural disasters or civil strife in their home countries render it unsafe for them to return. While holding TPS, a noncitizen is in a lawful, though non-permanent status; authorized to work; and protected from deportation. Most TPS holders have held this status for upwards of two decades and consequently have established deep roots in the United States. However, DHS is terminating TPS for six countries over the next 18 months and TPS holders from those countries will lose their protected status and eligibility to work and will become subject to deportation unless they can gain LPR status. Hundreds, if not thousands, of TPS holders are blocked from becoming LPRs solely due to USCIS’s unlawful policy.
This policy states that TPS holders who entered the United States without inspection cannot demonstrate that they were “inspected and admitted or paroled” into the United States, a requirement to adjust to LPR status. However, as the Sixth and Ninth Circuits have both held, the plain language of the TPS statute itself deems a grant of TPS to be an inspection and admission for purposes of adjustment of status. The Eleventh Circuit has held the opposite. USCIS applies the Sixth and Ninth Circuit decisions to TPS holders living within those jurisdictions but refuses to do so for TPS holders living within the jurisdictions of the nine courts of appeals that have not ruled on the issue.
As a result, whether these TPS holders will be able to remain with family and community depends on the arbitrariness of where they reside. The suit seeks to overturn the policy as applied in the jurisdiction of the nine courts of appeals that have not ruled on the issue.
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Under the law, an asylum-seeker must apply for asylum within one year of arrival in the United States. Failure to apply on time generally results in losing the opportunity to seek asylum, with the resulting risk of erroneous deportation to the country from which the person fled. However, Department of Homeland Security (DHS) agents do not provide notice of the one-year filing deadline to individuals who, upon apprehension, express a fear of persecution. Too many individuals miss the one-year filing deadline simply because they were never informed about it.
Additionally, individuals who attempt to file timely applications regularly are prevented from doing so due to agency-imposed obstacles. Asylum-seekers who are not in removal proceedings must file their applications with U.S. Citizenship and Immigration Services (USCIS), a component of DHS; those in removal proceedings must file with the immigration court (which falls within the Department of Justice's Executive Office for Immigration Review, or EOIR). Because there is no consistent nationwide guidance, both USCIS and EOIR often reject applications, each claiming that the other agency has jurisdiction. The applicant is left in a "catch 22," unable to file with either. Even where it is clear that an individual is in removal proceedings, EOIR policies-which, at the time that the suit was filed, included a requirement that an applicant file an asylum application in open court-often prevent timely filing. Because all immigration courts are extremely backlogged, the initial hearing in many cases does not take place until more than a year after the asylum seeker arrived in the United States. Without the systemic relief sought in this lawsuit, thousands of asylum-seekers are at risk of being returned to the countries from which they fled without ever having their asylum claims considered.
Filed in June 2016, Mendez-Rojas v. Johnson, No. 16-01024 (W.D. Wash.), seeks timely notice of the one-year filing deadline and a mechanism—to be applied uniformly across the country-that guarantees an asylum seeker the opportunity to file an application within one year of entry. Since the lawsuit was filed, the immigration courts have announced they will take steps to resolve some of the issues raised in the lawsuit by accepting asylum applications by mail or at the court window (as opposed to only accepting them at a hearing in open court). However, the remaining claims in the suit remain unresolved.
Defendants are the Attorney General, EOIR, DHS, and its components, USCIS and U.S. Customs and Border Protection. In addition to the Council and NIPNLG, Plaintiffs are represented by the Northwest Immigrant Rights Project and a small immigration law firm, Dobrin & Han.
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Each year, the government initiates deportation proceedings against thousands of children, but does not guarantee that those children have legal representation. Like adults, children who cannot afford to hire an attorney or find pro bono counsel are forced to navigate the complex and adversarial immigration system on their own, even though the government is always represented by a trained attorney. Although this is a longstanding problem, the number of children affected by it has grown significantly as increasing numbers of children flee violence in Central America and are placed into the deportation process upon their arrival in the United States.
To address this problem, in July 2014, we and our partners (the ACLU, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates) filed a nationwide class action lawsuit on behalf of children who are challenging the federal government’s failure to provide them with legal representation as it carries out removal proceedings against them. The complaint charges the Department of Justice, Department of Homeland Security, U.S. Immigration and Customs Enforcement, Department of Health and Human Services, Executive Office for Immigration Review, and Office of Refugee Resettlement with violating the U.S. Constitution’s Fifth Amendment Due Process Clause and the Immigration and Nationality Act’s requirement of a “full and fair hearing” before an immigration judge. It seeks to require the government to provide legal representation to all children in deportation proceedings.
CASE UPDATES SINCE GRANT YEAR
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Moreno v. Nielsen
In another grant funded case, decision is pending on motions for class certification and a preliminary injunction in a case challenging a Homeland Security policy that blocks otherwise eligible noncitizens holding temporary protected status from becoming lawful permanent citizens (green card) through sponsorship by a United States citizen family member.
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Mendez-Rojas v. Johnson
Discussing settlement after a nationwide class was certified and summary judgment was granted to resolve a claim that the Department of Homeland Security failed to give asylum seekers notice of the one-year statute of limitations to file an asylum claim.
American Immigration Council notified the Foundation in 2022 that the case ended and there are no further updates since 2020.
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F.L.B. v. Barr
Challenged the federal government’s failure to provide thousands of immigrant children nationwide with counsel when trying to deport them in immigration court.
While the case was ultimately dismissed on jurisdictional grounds, the fight to ensure that children are not forced into immigration court without the assistance of counsel continues. Supported with the information obtained in F.L.B. about the government’s treatment of unrepresented children in immigration court, the litigation partners continue to raise the issue in individual children’s cases.
GRANT AMOUNT
$30,000 (2019)
$25,000 (2017)
$13,000 (2015)