NILA in Action
In DeCarvalho v. Garland, as part of NILA’s co-counseling program, we teamed up with Jen Klein of the Committee for Public Counsel Services on a petition for review. On November 17, 2021, the First Circuit held that an IJ erred by treating a drug distribution conviction as if it were a per se bar to withholding of removal. Although the court did not go so far as vacate former AG Ashcroft’s decision in Matter of Y-L-, which established a presumption that all drug distribution offenses are particularly serious crimes, the court indicated concern about the validity of the presumption and whether it can actually be overcome. As we said in our briefing, Matter of Y-L- is predicated on false assumptions about drug convictions from the 1980s and early 1999s. The fact that particularly serious crime analysis holds onto this outdated idea of drug crimes as a singular scourge on our country is remnant of the racialized political efforts to stall the progress of the Black community.
In James v. Garland, NILA teamed up with solo practitioner, Kira Gagarin, on her first petition for review. The case involved whether the BIA erred by failing to consider our client’s argument that notice of appeal, made while she was pro se, detained, and “during the frenzied first month of the COVID-19 outbreak,” should be treated as timely filed even though it arrived late at the BIA. On October 25, 2021, the First Circuit ruled in our favor. The court noted that “the BIA must have been aware of the coronavirus pandemic” and sent the case back to the BIA to determine whether our client’s circumstances warranted equitable tolling of the appeal deadline.
NILA, in collaboration with Perkins Coie and the National Immigrant Justice Center, filed an amicus brief with the Supreme Court in Patel v. Garland. In our brief, we explain how, if the Immigration and Nationality Act’s restriction on federal court review of certain discretionary decisions is read as stripping federal courts of jurisdiction over nondiscretionary, statutory eligibility issues, noncitizen applicants for adjustment of status who are not in removal proceedings—and thus can seek review only in U.S. district courts—will be left without a forum for review of all errors of law or fact by USCIS, no matter how egregious. Read the brief here.