Top 3 immmigration decisions in 2021

Mike LaSusa from Law360 reports on the three most signifiticant immigration decisions in the federal courts. 

Mixed Results for Anti-Private Detention Suits

Immigrant advocates have closely watched the litigation over the anti-private detention laws in both states. 

California lost and Illinois won as they faced challenges to their respective laws aimed at restricting the use of privately run immigration detention facilities.

In October, a Ninth Circuit panel ruled against a California law banning private immigration detention facilities and other private prisons on the basis that it would impede the federal government’s immigration enforcement. The decision upended a lower court’s order that had kept most of the law in place as litigation proceeded. California has asked the full Ninth Circuit to reconsider the ruling.

On the other hand, an Illinois federal judge in December dismissed a suit challenging a state law that barred companies from contracting with federal agencies to hold migrants in civil immigration detention. The judge said the statute is not preempted by federal law.

Detention numbers have begun to ramp up again from a record low seen at the beginning of President Joe Biden’s administration, despite immigrant advocates’ earlier hopes that Biden would use measures to reduce the spread of COVID-19 as a jumping-off point for actions to further reduce immigration detention. They have also critiqued Biden for issuing an executive order intended to phase out the federal government’s use of private prisons in the criminal context without taking a similar step with respect to private immigration detention facilities.

Justices Revisit Deportation Notice Requirements

The U.S. Supreme Court took another step toward clarifying that notices to appear in immigration court, used to initiatite deportation proceedings, must contain all required information in one document for the notice to be valid. Their ruling said that one document is preferable to multiple documents issued separately.

The decision built on the high court’s 2018 ruling in Pereira v. Sessions  in which the high court said the government’s notices to appear must tell immigrants when and where their court hearings will be held in order to be valid under the stop-time rule, which stops the clock on accrued residency.

The Board of Immigration Appeals has acknowledged that defective notices to appear don’t trigger the stop-time rule, but it hasn’t embraced the idea that immigration judges shouldn’t order deportations for people who received a notice without a hearing date and time, said Jeremy McKinney, the president-elect of the American Immigration Lawyers Association.

Foreign Workers’ Spouses Get Automatic Work Permits

Spouses of certain foreign workers in the U.S. won a significant victory when they settled a lawsuit against U.S. Citizenship and Immigration Services over its policies for issuing employment authorizations.

Under the settlement, USCIS agreed to change its policies regarding work permits for those who are eligible for H-4 and L-2 visas based on their partners’ status as H-1B specialty workers or executives transferred to the U.S. The H-4 visas are for spouses of H-1B visa holders, and the L-2 visas are for spouses of executives holding L-1 visas.

Those who hold L-2 visas will be allowed to work in the U.S. by default, and those with H-4 visas will be eligible for an automatic extension of their current work permits for up to six months if they satisfy certain criteria, according to the settlement agreement.

MHC