Federal Court Grants Nationwide Class Status in Suit to Protect Asylum Seekers
A U.S. District Court Judge has granted nationwide class action status to a case which seeks to protect thousands of asylum seekers on the grounds that the Department of Homeland Security (DHS) failed to properly inform them of the one-year filing deadline for asylum cases. The plaintiffs sought certification for two classes each with two subclasses for DHS’ failure to properly inform them of, as well as failing to produce a mechanism which ensured their ability to adhere to, the requirement for asylum seekers to apply one year after arrival. The defendants opposed these claims, due to their view that the plaintiffs had neither standing nor qualifications for class certification. The judge was persuaded by the plaintiffs and granted their motion for class certification.
The judge certified two classes, each with two subclasses:
Class A – “Credible Fear Class” – All individuals who have been released or will be released from DHS custody after they have been found to have credible fear of persecution without receiving notice from DHS of the one year deadline.
A.I. – all class A individuals not currently in removal proceedings who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.
A.II. – all class A individuals who are currently in removal proceedings who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.
Class B – “Other Entry Class” – All individuals who have been or will be detained upon entry and express a fear of their country of origin; are released or will be released from DHS custody without credible fear determination; are issued a Notice to Appear; and did not receive notice of the one year deadline from DHS.
B.I. – All individuals in Class B not currently in removal proceedings and who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.
B.II. – All individuals in Class B currently in removal proceedings and who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.
For more information view the full case.
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Judge Orders In-state Tuition for Some Immigrants in Georgia
Georgia courts have made a precedential rule in favor of providing in state tuition to deferred action for childhood arrivals (DACA) recipients. The Board of Regents previously denied these individuals the tuition rate because they are not U.S. citizens therefore failed to meet the requirement of legal presence. The plaintiffs argued, however, that as DACA recipients, though not citizens, they are considered to be legally present by definition. The ruling by Fulton Superior Court Chief Judge Gail Tusan hinged around the federal government’s definition of “legally present” and the Board’s implementation of this requisite of their own volition; while the Board chose to have legal presence as a requirement for in-state tuition, they cannot choose the definition of the term due to federal mandating. The judge denied the defendant’s motion to dismiss, and agreed with the plaintiffs’ claims, asserting that it is the responsibility of the Board of Regents to provide the lower tuition rate to all that adhere to this definition, not retroactively, but moving forward.
For more information, view the full case.
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BIA Says Crime of Perjury Is an Aggravated Felony
A Board of Immigration Appeals (BIA) judge found a Guatemalan native ineligible for cancellation of removal because of a conviction 23 years earlier of perjury, which legally constitutes an aggravated felony.
The respondent entered the country without inspection very early in March 1985. On June 1, 1993, he was convicted of perjury and sentenced to 2 years of incarceration. 11 years later, he was charged with inadmissibility as ab alien who was present in the U.S. without being admitted of paroled by the Department of Homeland Security, which initiated removal proceedings February 3, 2004. It was during these proceedings that the respondent applied for cancellation of removal, for which the immigration judge concluded he was ineligible due to the perjury conviction constituting an aggravated felony disqualifying such relief.
The classification of perjury as an aggravated felony was at the heart of the respondent’s denial, so the judge felt compelled to definitively reinforce this claim. The judge noted an aggravated felony, by definition, as “an offense relating to…perjury…for which the term of imprisonment is at least one year.” The judge felt compelled to compare a number of different definitions of the crime from the time when the respondent was convicted. After comparison across several definitions, the judge concluded that a fair generic definition coincided with the California state definition and that the responded was guilty of that crime, which is categorically an aggravated assault. Due to this finding, the judge found the respondent to be disqualified from receiving the aid he sought.
For more information, view the full case.
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BALCA Affirms Denial, Finds that Employer Did Not Meet its Burden in Rejecting U.S. Workers
The Board of Alien Labor Certification Appeals (BALCA) reaffirmed the order of a Certifying Officer who found that an employer failed to meet its burden when it rejected US workers for a position. Upon review, the Administrative Law Judge found that Unisoft International’s basis of rejection of U.S. applicants hinged upon the applicants’ lack of knowledge and experience with specific information systems. The Board concluded that this information is categorized on a resume not as a major requirement, which the employer can assume is not a part of the applicant’s resume through its omission such as a college degree, but rather as a subsidiary requirement, the omission of which does not explicitly indicate absence from the applicant’s repertoire. Due to this distinction, the obligation for further inquiry is placed on the employer. In the letters sent to the 20 applicants, the employer outlined the reason for rejection as the applicant’s lack of “experience with MCP and SPO for 052200,” but that the employer would be willing to grant an interview “if you have these skills yet they were not listed on you resume. Please contact us immediately to schedule an interview if you do have these qualifications” Without any further correspondence from the employer to the applicants, responsibility for follow up was unjustifiably placed upon the applicants. When the employer placed this unwarranted onus upon the applicants, the Board found that it engaged in token compliance, failing to carry its burden of proving a lack of qualified, willing, and able U.S. workers available for the position.
For more information, view the full case.
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