Attorney General Places New Limits on Judges’ Authority

Yesterday, Attorney General Sessions issued his decision in a case involving an unaccompanied minor who failed to attend his removal hearing. In Matter of Castro-Tum, 27 I & N Dec. 271 (May 17, 2018), the Attorney General ruled that an Immigration Judge has no regulatory or legal authority to grant “administrative closure.” Administrative closure does not dismiss the case, but rather moves it to a suspended status. For the court, it allowed the judge to count the case as finished on his or her docket. For the party – either DHS or the responding individual – a motion could later be filed to recalendar the case, should new developments suggest that the case could be resolved.  For example, DHS sometimes requested administrative closure if they determined that they wanted to grant prosecutorial discretion (a right to live here but not a grant of legal status). Safe Passage Project regularly sought administrative closure for young people who were granted special immigrant juvenile findings in immigration court, but when the visa petition for Special Immigrant Juvenile Status (form I-360) would still be pending for many months before the USCIS.

It was already quite distressing that the Attorney General took this case as the focus of his decision to visit the authority of immigration judges to grant “administrative closure,” because the young person was pro se, and the case reflected a very unusual use of administrative closure. There were 12 amici briefs filed in this case, and we are grateful to the law firm of Simpson Thacher and especially to Sara Clingan, who was the primary author on the brief.  It does appear that the Attorney General evaluated the thoughtful arguments presented in the brief regarding the administrative law problems inherent in eliminating Administrative Closure without engaging in procedural compliance with the APA to modify the practice through rulemaking. He does discuss the power of the Attorney General to reverse the BIA and to control the operations of the individual immigration judges. With this case, he also vacates all the other BIA decisions that allowed judges to grant administrative closure over the objections of DHS.

The only good news in the case is that the Attorney General did not retroactively rescind the administrative closure of prior cases. He will, however, allow the cases to be re-calendared upon motion of the parties. If DHS decides to reactivate all of these cases, it is likely to swamp the immigration courts. But the Attorney General does not (or should not) control the decisions of the DHS, and it is too early to tell what their responses will be.

One of the disturbing issues presented in this case that was not properly identified by the Attorney General as under review, is the definition of who is an “unaccompanied alien child” (UC).  In a footnote, the Attorney General asserts that turning 18 ends the designation of UC protection, and that an issued legal guardianship by a brother-in-law (the young person’s sponsor once out of ORR custody) might similarly end the designation. “It is unclear whether the respondent’s brother-in-law was his legal guardian, such that the respondent would have ceased to qualify as an unaccompanied alien when his brother-in-law assumed custody on August 20, 2014. At a minimum, however, the respondent ceased to qualify as an unaccompanied alien child on January 10, 2015, his eighteenth birthday, two days after his first hearing date.”

This footnote is particularly concerning, and we should prepare for additional arguments – both by the USCIS Asylum Office and now the DHS – that a young person is no longer entitled to the UC protection which is important in seeking jurisdiction before the Asylum Office to hear claims.

As a long time reader of BIA and Attorney General decisions, this particular case is a departure from prior cases in tone. The Attorney General and his delegates want to specifically reject several 9th Circuit Court of Appeals cases that had relied in part on administrative closure to expand due process protections for people in removal. While the agency usually follows the doctrine of nonacquiescence and does not apply a single circuit law across the country, the Attorney General notes that he has the authority to force the 9th Circuit to reexamine its decisions as this is the final agency pronouncement on the role of administrative closure. Now the immigration judge will have to use continuances, which will be difficult as the management of the court – at the request of the Attorney General – has also instituted performance measures that punish judges who grant numerous continuances.

There are four other significant cases that were certified to the Attorney General.  We did not independently prepare a brief, but we did join in our nonprofit capacity (and I joined some in my law professor capacity).  These cases could also have deep and significant impact on our work. The Attorney General is also challenging the authority to grant continuances – the only option we have if DHS has not ruled on a child’s visa petition for status.  He is also reviewing the case law on people who are victims of private crime, e.g., domestic abuse, as qualifying for asylum. Yesterday, Jane Fonda and Professor Karen Musalo, one of the nation’s leading advocates for women in the asylum field had an Op-Ed in the New York Times discussing that issue.

Lenni Benson is the Founder and Senior Advisor on Policy and Law at Safe Passage Project. She is also Professor of Law at New York Law School.

Safe Passage Project Proud Recipient of $480,000 Grant from Keith Haring Foundation

March 28, 2018

Gui Stampur, Deputy Executive Director

New York, NY – Safe Passage Project, a New York-based legal services organization, announced today that it has been awarded a $480,000 grant by the Keith Haring Foundation. This generous grant, which will be allocated in two yearly installments of $240,000, will provide Safe Passage Project with general operating support to provide legal defense of children being targeted for deportation.

“Safe Passage Project is deeply grateful to receive this support from the Keith Haring Foundation,” said Safe Passage Project’s Executive Director, Rich Leimsider. “These funds will allow us to expand our legal and social services to some of the most vulnerable children in New York.”

Last year, more than 40,000 children travelling alone were apprehended at the US Southern Border. Despite their impoverished economic status, these children are not provided with a court-appointed lawyer. According to data from Syracuse University’s TRAC Program, without legal representation, immigrant children have only a 17% chance of success in court, despite eligibility for relief under United States immigration law.

To address the needs of these vulnerable children, Safe Passage Project specializes in recruiting, training and mentoring pro bono attorneys to become adept in representing immigrant youth in Family Court, Immigration Court, and with the United States Citizenship and Immigration Services. Since its founding, the small nonprofit has taken on full representation of over 1,000 unaccompanied immigrant children, and has maintained a success rate of over 80%. The funds provided by the Keith Haring Foundation will enable Safe Passage Project to accelerate its growth and to overcome the increasing obstacles in US immigration law. With this grant, Safe Passage Project plans to take on full legal representation of an additional 200 children over the course of 2018 and 2019.

“The significance of this cannot be overstated. With these funds, the Keith Haring Foundation has ensured that Safe Passage Project will be able to fight for more children than ever in the years to come. Every new case that we are able to take on brings us closer to our vision of a world where no child faces Immigration Court alone,” continued Leimsider.

“We are so very proud to renew and increase our investment in Safe Passage Project,” said Julia Gruen, Executive Director of the Keith Haring Foundation.  “Haring believed in giving children opportunities to live their lives creatively and without fear.  We continue to celebrate his legacy through this meaningful and urgent partnership.”

Before his death from AIDS-related complications in 1990, Keith Haring established his foundation to ensure that the causes he cared about continued to receive support. The Keith Haring Foundation focuses on giving to organizations that assist marginalized children and organizations involved in education, research and care related to HIV and AIDS.


To download a PDF version of this press release, click here.

NPR Features Safe Passage Founder Lenni Benson

NPR recently aired a piece highlighting the plight of migrant teens in detention centers. They spoke with immigration advocates, including Safe Passage Project Founder, Lenni Benson to explore the challenges that these teens face.

You can listen to the piece and see the full transcript here.


Pod Save the People Features Safe Passage Supervising Attorney, Stephanie Gibbs

This week, Crooked’s ‘Pod Save the People’ featured Stephanie Gibbs, Supervising Attorney at Safe Passage Project, to talk about some of the current issues that immigrant youth are facing. Hosted by DeRay Mckesson, this weekly podcast delves into social, political, and cultural issues with local and national experts, leaders and influencers. Stephanie joined Mckesson on the show along with Irma Solis at NYCLU to highlight some of the ways in which the DOJ, ICE and local police are putting immigrant children at greater risk of deportation. Stephanie shed light on the challenges presented by the current administration, including Attorney General Jeff Sessions’ efforts to restrict immigration judges’ ability to  administratively close cases.
You can listen to the full segment here, beginning at 39:00.

Safe Passage Founder Lenni Benson Wins 2018 Candlelight Award

Lenni Benson, Safe Passage Project’s Founder, Director and Senior Advisor is the recipient of the 2018 Candlelight Award. Presented at the James Jay Dudley Luce Foundation 2018 Annual Gala, Professor Benson was honored with this prestigious award for her leadership in supporting immigrant youth in New York City. The award acknowledges Professor Benson for her extensive contributions to the field of immigration law as well as her incredible efforts to provide legal relief to immigrant youth.

Safe Passage Project couldn’t be more proud to congratulate Lenni Benson on this exciting and well-deserved award!

Fragomen Worldwide Tackles the Diversity Visa and Supporting “America First”

Safe Passage Project applauds the recent article co-authored by Austin T. Fragomen, Jr. and Safe Passage Project’s Vice President of the Board, Careen Shannon, taking on the recently hot topic of the diversity visa and the small yet unique role it plays in our immigration system. Both are partners at Fragomen, Del Rey, Bernsen and Loewy, LLP, seasoned immigration attorneys, and members of the Safe Passage Project community. See below for an excerpt of the article, and read the full piece here.

Supporting “America First” Through Diversity in Immigration
A small, largely overlooked source of immigrants to the United States—the diversity visa (DV) lottery program—has unexpectedly been in the news in recent months. After a 2017 terrorist attack in New York City on Halloween was attributed to an Uzbek national who had immigrated to the United States in 2010 after being selected in the DV lottery, President Donald J. Trump called for an end to that program. A second, unsuccessful terrorist incident in New York in December 2017 was attributed to a person who came to the United States through “chain migration,” stemming from a relative who had immigrated thanks to the visa lottery program.

In January 2018, President Trump reiterated his desire to terminate the DV lottery. Along with construction of a wall along the U.S.-Mexico border, Mr. Trump said that eliminating the program would be a precondition for signing legislation to protect the young people who had been shielded from deportation under the Obama-era Deferred Action for Childhood Arrivals (DACA) program.

A lottery is probably a crazy way to run an immigration program. But dismissing the virtues of diversity in immigration is short-sighted and could have harmful long-term effects on America’s competitive position in the global economy.

Read the full article here.


UNHCR Nansen Refugee Award – Call for Nominations

Know a hero helping refugees? Nominate them for the 2018 Nansen Award.

The UNHCR Nansen Refugee Award is presented every year to an individual or organisation who has dedicated their time going above and beyond the call of duty to help people forcibly displaced from their homes.

The Award is named after Fridtjof Nansen, courageous Norwegian explorer and humanitarian who served as the first High Commissioner for Refugees for the League of Nations.

Through its recipients, the Nansen Refugee Award aims to showcase Nansen’s values of perseverance and commitment in the face of adversity.


Safe Passage Founder Lenni Benson Comments on ICE Arrests


Undocumented immigrant Fabiano de Oliveira was arrested while applying for a green card, says his wife Karah de Oliveira.

“It’s cold,” their attorney Jeffrey B. Rubin told The Boston Herald in a Tuesday report. “It’s callous. It’s heartless. It’s non-compassionate. It’s un-American — there is no need for it.”

The couple showed up at U.S. Citizenship and Immigration Services in Lawrence, Massachusetts on Jan. 9 to prove that their marriage was lawful, so Fabiano de Oliveira could apply for a green card. Instead, agents with U.S. Immigration and Customs Enforcement arrested him.

The couple has a 5-year-old son.

“I cried for a good five days after,” Karah de Oliveira told the Herald. “But I can’t do that in front of my son because I don’t want him to realize anything is wrong. My husband is in prison. He does not belong in there. My son is without a father.”

Rubin said Fabiano de Oliveira came to the United States illegally from Brazil in 2005, but doesn’t have a much of a criminal record. It only includes a driving without a license charge that even the FBI fingerprint check didn’t discover, he said.

De Oliveira was denied bond Tuesday in immigration court, and is set for a hearing in U.S. District Court on Feb. 7.

Immigration lawyer Zoila Gomez told the Herald that two undocumented clients with American husbands were also recently arrested at that same immigration office.

“The agency does not target those who may be seeking immigration benefits,” said ICE Enforcement and Removal Operations Deputy Field Office Director Todd Lyons in a statement obtained by Law&Crime. “Any suggestion to the contrary is baseless and without merit. ICE may work with USCIS on certain cases, which may include unexecuted final orders of removal, as determined on a case by case basis.”

He said that people targeted in recent arrests ignored orders of removal issued by federal immigration judges.

“As ICE Deputy Director Thomas Homan has made clear, ICE does not exempt classes or categories of removable aliens from potential enforcement,” Lyons said. “All of those in violation of the immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States.”

De Oliveira was arrested by immigration officials in Jan. 2005, but he later ignored a judge’s deportation order, an agency spokesman told Law&Crime. Authorities want to keep him in custody until he’s removed.

That deportation order complicates things for de Oliveira. Immigrants have an easier time getting green cards if they entered the country “with inspection.” That means they had to enter the country legally. Those who entered without inspection face extra barriers.

“If a person has never been in removal proceedings and marries a U.S. citizen, they can likely seek to file for a green card through the marriage if the individual entered with inspection, even if he worked without permission or overstayed the period of his authorized stay,” Professor Lenni Benson, who teaches immigration law at New York Law School, told Law&Crime in an email. “But if a person has any arrests, prior marriages, entry without inspection, they really should seek legal counsel before entering into the adjustment of status process. Many people will find they have to reopen old deportation cases or have to process for their green cards overseas. Sadly, since 1996, we have had a law that is triggered if you travel outside the country and that requires that person to secure a waiver to return.”

Benson described this as “punishment” for overstaying visas or for coming to the country illegally. Most people face a ten-year ban from returning to the United States, and they can’t get the waiver if they lack a spouse or parent who is a citizen or lawful permanent resident harmed by the immigrant’s absence.

“We have 11.5 million undocumented people in our country largely because if people tried to go home to pick up a visa, they would be subject to a bar,” she said.

Benson explained that people are usually arrested at U.S. Citizenship and Immigration Services offices only if that individual faces a final order of removal, or if they were convicted of an offense that could spark removal.

“For example, two shoplifting convictions make you deportable,” she said. “So you go in to apply for citizenship and you can end up arrested and detained.”

Policy Announcements at USCIS and ICE: Affirmative Asylum and Courthouse Arrests

It has been a week of policy announcements throughout multiple branches of our Department of Homeland Security. First, USCIS has greeted us with a new policy regarding the processing of affirmative asylum applications.  Gone is the bulletin and in its place is a three tiered priority system, which classifies applicant rescheduled interviews as a first priority, applications pending 21 days or less as second, and all other pending applications as third.  With respect to third priority applications, interviews will be scheduled starting with the most recently filed applications first. More details can be found at

Meanwhile, not to be overshadowed by its benefit granting agency counterpart, our friends at enforcement only seem to be gaining enthusiasm over their newfound freedoms.  ICE’s newly released policy directive concerning enforcement actions inside federal, state and local courthouses serves as a reminder of how eager they are to greet our local community residents.   Everything you need to know can be found below:

Link to FAQs:

Link to Website:

Safe Passage Attorney of the Month

We are proud to feature Kristin Pezzuti as our current Safe Passage Project Attorney of the Month. Kristin is a defense litigation attorney at Wilson Elser where she specializes in representing physicians and other health care providers in medical malpractice matters.  Kristin learned about Safe Passage through her firm’s pro bono program, and began working on her own Safe Passage case in 2015.  Kristin explained that while she had worked on several other pro bono projects in the past, her Safe Passage case was the first pro bono case of “magnitude,” where she worked on it from start until finish.

Kristin’s case was a bit unusual in that she had three sibling clients at the same time.  “Working with three clients was challenging but three times as rewarding,” Kristin explained.  “Each client has a distinct personality and had their own experiences that influenced how we prepared their asylum applications.”  Kristin recalled that the eldest brother experienced a lot more direct threats whereas the youngest brother did not have as many memories of the experience. Kristin made sure she met with each client individually as well as together.  “Preparation was key to consistency and that we all had clear understanding of what actually happened,” said Kristin.  “Additionally, affidavits from mental health professionals were important.  They explained that due to my clients’ ages and experiences, their memories may be vague, but, this has to do with age and trauma, not credibility.”  Ultimately, Kristin was able to obtain asylum relief for all three of her clients.

Pro bono is an important part of Kristin’s practice and she feels that the assistance she received from Safe Passage mentor attorneys greatly helped her and her clients prepare for the asylum interviews.  “If I ever had a question there was always a Safe Passage Project attorney available for guidance,” Kristin recalled.  “They are all extremely knowledgeable and really passionate about their work.”

Kristin believes that once attorneys start taking pro bono cases “they get hooked” and will want to take more.  Kristin recommends taking a case with Safe Passage because attorneys have “a lot of independence and ability to be creative while still always having someone available for guidance if you have an issue to discuss.”  Kristin also wants attorneys to remember that there is a great need for pro bono in the community, and if an attorney is hesitant to take on an entire case, there are many non-profit projects with other types of pro bono opportunities.  For example, in addition to her pro bono work with Safe Passage, Kristin currently volunteers with New Sanctuary Coalition of NYC where she advocates for immigrant rights.

We thank Kristin for her dedication and commitment to pro bono projects.  We look forward to working with you on additional Safe Passage cases in the very near future. Thank you!

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