On July 17, 2017, the United States Citizenship and Immigration Services (USCIS) announced that Nimon Naphaeng, a native and citizen of Thailand who resided in Rhode Island, was sentenced on July 17, 2017, to 27 months in federal prison for running an immigration fraud scheme. Using both the internet and fliers posted in Thai restaurants, he had advertised himself as being able to help Thai nationals obtain employment authorization documents. In reality, Naphaeng was filing false asylum applications on behalf of these individuals without their consent or knowledge. In addition to his conviction, Naphaeng will likely face removal for his criminal conduct.
On July 11, 2017, the U.S. Department of State (DOS) released the August 2017 Visa Bulletin. The monthly Visa Bulletin contains final action dates and filing dates for the family-sponsored and employment-based immigrant visa preference categories. Three days later, on July 14, 2017, the United States Citizenship and Immigration Services (USCIS) determined that those seeking adjustment of status based on an approved family-sponsored or employment-based immigrant visa preference petition must use the final action dates from the DOS visa bulletin in August 2017. In this article, we will reproduce the family-sponsored and employment-based final action date charts for your convenience. We will also examine news and notes from the DOS visa bulletin pertaining to things that we can expect in the coming months.
On July 12, 2017, Politico reported that Homeland Security Secretary John Kelly had told thirty members of the Congressional Hispanic Caucus that, while he personally supported the Deferred Action for Childhood Arrival (DACA) program, the Trump Administration would not commit to defending it against potential legal challenges from Texas and several other states. Secretary Kelly reportedly explained that part of the reason for his reluctance in making a commitment to defending DACA was that government attorneys had suggested to him that DACA would not survive a legal challenge.
On June 26, 2017, the Supreme Court of the United States denied a petition for certiorari in an interesting case titled Mathis v. Shulkin, No. 16-667 (U.S. Jun. 26, 2017). The question before the Court was whether medical evaluators at the United States Department of Veterans Affairs (VA) are entitled to a presumption of competency to provide expert opinions on any medical issues. This presumption of competency places the burden on disabled veteran claimants to rebut the presumption of competency of specific medical evaluators in raising a claim against the VA. The United States Court of Appeals for the Federal Circuit held in an unpublished decision that the medical evaluators are entitled to a presumption of competency. That decision now stands with the Supreme Court having declined to hear the case.
On June 26, 2017, the Supreme Court of the United States denied a petition for writ of certiorari (to hear on appeal) a case titled Peruta v. California, No. 16-894 (U.S. June 26, 2017). The issue in Peruta was whether the Second Amendment to the United States Constitution includes a general right for ordinary and law-abiding citizens to carry guns outside of the home for self-defense. In Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc), in a decision that now stands, the full United States Court of Appeals for the Ninth Circuit, held that the Second Amendment does not entitle such individuals to carry handguns outside of the home for self-defense. Interestingly, the en banc Ninth Circuit thereby reversed the original decision of a three-judge panel of the Ninth Circuit in Peruta v. County San Diego, 742 F.3d 1144 (9th Cir. 2014), which had held that the Second Amendment does include within its scope the guarantee of the right to carry handgun outside of the home for self-defense. Justice Clarence Thomas filed an opinion dissenting from the denial of the petition to hear Peruta at the Supreme Court. He was joined in his dissent by Justice Neil Gorsuch. In this post, I will examine Justice Thomas’s dissent before explaining why I agree with his reasoning. The dissent only numbers eight pages and it is well worth reading in full in addition to this post.
On June 26, 2017, the Supreme Court of the United States issued a brief per curiam decision (authored by multiple justices) in Hernandez v. Mesa, 582 U.S. ___ (2017). In Hernandez, the parents of a Mexican national who was shot from across the border by a U.S. Border Patrol agent, endeavored to assert claims for damages against the agent in reliance upon the holding of the Supreme Court decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Specifically, although no Federal statute provides for a cause of action against Federal officials for violations of constitutional rights, the parents asked the Supreme Court to find that its decision in Hernandez created an implied cause of action under the Fourth Amendment against the agent. Additionally, the Court was asked by the agent to consider whether the he was entitled to qualified immunity on the claim that the shooting violated the victim’s Fifth Amendment rights. Ultimately, the Court vacated the lower court decision of the United States Court of Appeals for the Fifth Circuit and remanded the case for further consideration. This was due in part to the Court’s decision in Ziglar v. Abbasi, 582 U.S. ___ (2017), which had been issued only one week before and which also addressed Bivens.
On July 3, 2017, the Executive Office for Immigration Review announced that Katherine H. Reilly has been appointed as the new EOIR Acting Deputy Director. As EOIR Acting Deputy Director, she will supervise the EOIR’s components and assist the EOIR in formulating and administering policies and strategies.