Visa Lawyer Blog

Articles Posted in Deportation & Removal

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Supreme Court Dismisses One of Two Travel Ban Cases

On October 10, 2017, in a one-page order, the U.S. Supreme Court dismissed the Maryland case, Trump, President of U.S., Et Al. v. Int’l Refugee Assistance, Et Al.,  which sought to block a key provision of Executive Order No. 13,780 temporarily suspending the entry of aliens outlined under Section 2(c). The Supreme Court has dismissed the case because the provision at issue expired on September 24, 2017 and no longer presents a “live case or controversy” for the court to resolve. Accordingly, the Supreme Court vacated the judgment and sent the case back to the lower courts to dismiss the case as moot.

However, the Supreme Court did not act to remove the case, Trump, President of U.S., Et Al. v. Hawaii, Et Al., from its docket, in which the state of Hawaii joined by other states, called on the court to issue an injunction, stopping the federal government from enforcing a travel ban on individuals from six Muslim majority countries as well as refugees. The travel ban at issue, in that case, began on June 29, 2017 and expired on September 27, 2017. The refugee provision of the act however will not expire until October 24, 2017. Given the Supreme Court’s dismissal of the Maryland case, it is likely that the Court will also dismiss the Hawaii case once the refugee provision has expired.

On September 24, 2017, the President revised Executive Order No. 13,780 for a third time adding Chad, North Korea, and Venezuela to its travel ban, and removing Sudan. The third revision of the travel ban will go into effect on October 18, 2017. The Supreme Court did not address the administration’s newly revised travel ban in its order.

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In a continuing saga, the President is maintaining his hardline stance on immigration, this time expanding into the realm of legal immigration. Earlier this month, the Department of State released an amended version of the Foreign Affairs Manual (FAM) used by governmental agencies and other federal agencies as a manual, which directs and codifies information that must be carried out by respective agencies “in accordance with statutory, executive and Department mandates.”

The new amended version of the manual expands the definition of misrepresentation, the types of activities that may support a presumption of fraud, and establishes changes to existing policies that federal agents must follow in making assessments of fraud or material representation.

The manual sets out a list of activities which may support a presumption of fraud or material representation by an individual applying for any immigration benefit:

  • Engaging in unauthorized employment;
  • Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
  • A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

Old Rule: Previously, the rules set out by the Foreign Affairs Manual and USCIS imposed a presumption of fraud on persons who entered the United States with a non-immigrant visa type (e.g. as a tourist, business visitor, student, trainee etc.) and subsequently married a U.S. Citizen and applied for adjustment of status within the first 30 days of entering the United States.

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President Trump and Democratic leaders met on Thursday in an unexpected meeting to negotiate the future of the now defunct Deferred Action for Childhood Arrivals (DACA) program, a program that allowed undocumented immigrants, who came to the United States as children, the opportunity to apply for employment authorization and obtain “deferred status” to shield them from deportation. During the meeting, the President made clear that any legislation that would protect Dreamers from deportation would need to make important concessions that would fall in line with the President’s hard line stance on immigration, such as enhancing border security along the Southwestern border, and funding the construction of a wall between U.S. and Mexico.

A day after the meeting, the President denied reports that the he had struck a deal with Democratic leaders, Nancy Pelosi and Chuck Schumer, that would exclude the construction of a border wall between the United States and Mexico, after the duo released the following statement implying that such a deal had been made, “We had a very productive meeting at the White House with the President. The discussion focused on DACA. We agreed to enshrine the protections of DACA into law quickly, and to work out a package of border security, excluding the wall, that’s acceptable to both sides.”

According to the Trump administration, the President stated during the meeting that he would only support legislation to protect Dreamers from deportation, if that legislation included “massive” border security enhancements.” After the meeting, the President tweeted, “No deal was made last night on DACA. Massive border security would have to be agreed to in exchange for consent. Would be subject to vote.”

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In early August of this year, reports began to emerge indicating that Immigration and Customs Enforcement (ICE) was planning a large-scale nationwide immigration operation, to crack down on undocumented criminals and gang members. The coordinated effort which purported to detain criminals and gang members, known within the agency as “Operation Maga,” was set to begin on September 17th and was expected to continue over a five-day period.

Thanks to an internal memo circulated within the agency, details quickly came to light of the operation. According to an internal memo, ICE had been planning to conduct the nationwide immigration raids since at least mid-August of this year. In addition, law enforcement officials reported that the immigration raids were expected to target 8,400 undocumented immigrations, which according to the internal memo would make Operation Maga, “the largest operation of its kind in the history of ICE.” Officials familiar with the operation reported that while the agency instructed officials to target only persons of interest, including gang members or perpetrators of serious crimes, DACA recipients not suspected of crimes, could inevitably have been detained in the frenzy.

When news outlets began to question ICE regarding the rumored raids, the agency had reported that it was “not able to speculate about potential future targeted enforcement actions.”

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Given the recent termination of the Deferred Action for Childhood Arrivals (DACA) program and the controversy surrounding the immigration system as of late, in this post we address the numerous myths surrounding the DACA program and of immigration law in general. Although there are numerous studies and empirical research debunking the common myths attributed to the immigration system, as well as detailed economic reports published by governmental agencies corroborating the positive effects of immigration, Americans continue to hold a negative perception of immigrants and are increasingly skeptical of the immigration process. In truth, much of these perceptions are perpetuated by the unwillingness of Americans to obtain readily available information on the internet, to discover that the immigration process for individuals who entered the United States illegally is riddled with obstacles. More and more we are seeing Americans rely on news stations to accurately deliver the news and do the work for them. Unfortunately, the best way to understand the immigration process itself is to go straight to the source, and not rely on such sources for information.

The public needs to know the facts to better understand that the average immigrant actually has very few immigration options available to them under the current immigration system.

MYTH #1 It is easy to get a green card under current immigration laws

Most Americans believe that it is relatively easy to get a green card. This cannot be further from the truth. Immigration laws are highly complex and are designed to make it more difficult for extended family members, low-skilled workers, and undocumented immigrants to immigrate to the United States. Under current immigration laws, there are generally only two ways to immigrate to the United States and obtain permanent residency, outside of special immigrant categories specifically reserved for special categories of individuals including: asylees, refugees, certain witnesses of crimes, victims of abuse, and individuals who may qualify for withholding of removal. It is extremely difficult for individuals to qualify for permanent residency under one of these special categories.

Outside of these special categories, foreign nationals may immigrate to the United States and obtain permanent residency, only if they have a qualifying family member (such as a US Citizen or LPR spouse, child, etc.) who may petition for them or if the beneficiary works for a U.S. employer on a valid visa who is willing to sponsor the foreign national by petitioning for their permanent residency.

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This morning, Attorney General Jeff Sessions announced that the Trump administration is ending DACA, a program that began under former President Barack Obama, which allowed undocumented immigrants who came to the United States as children, the opportunity to obtain employment authorization and be shielded from deportation. This decision comes on the heels of swirling rumors regarding the President’s intent to terminate the program. Despite the President’s seemingly sympathetic attitude toward the plight of “Dreamers,” today’s announcement means that the DACA program will be phased out.

Effective immediately, USCIS will not accept new initial requests for DACA, but will allow current DACA recipients with permits expiring between now and March 5, 2018 to apply for a final 2-year renewal of their status and obtain employment authorization.

A conflicted President Donald Trump issued a statement following the announcement in which he defended his decision stating, “in the best interests of our country, and in keeping with the obligations of my office, the Department of Homeland Security will begin an orderly transition and wind-down of DACA, one that provides minimum disruption. While new applications for work permits will not be accepted, all existing work permits will be honored until their date of expiration up to two full years from today. Furthermore, applications already in the pipeline will be processed, as will renewal applications for those facing near-term expiration. This is a gradual process, not a sudden phase out. Permits will not begin to expire for another six months, and will remain active for up to 24 months. Thus, in effect, I am not going to just cut DACA off, but rather provide a window of opportunity for Congress to finally act.”

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As early as Friday, September 1, 2017, President Donald Trump is expected to make a formal announcement regarding his decision to terminate the Deferred Action for Childhood Arrivals (DACA) program that started on November 20, 2014 under President Barack Obama. The DACA program was introduced as part of a series of executive actions, signed into law by President Obama, to shield hundreds of thousands of undocumented immigrants from deportation.

Young undocumented immigrants eligible for DACA were those who:

(1) were under the age of 31 as of June 15, 2012;

(2) came to the United States before reaching the age of 16;

(3) maintained continuous residence in the country since June 15, 2007;

(4) were physically present in the country on June 15, 2012 and at the time of making a request for consideration of deferred status;

(5) were currently in school, graduated or obtained a certificate of completion from high school, obtained a GED certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces; and

(6) had not been convicted of a felony, significant misdemeanor or three or more other misdemeanors, and did not pose a threat to national security or public safety.

Individuals who qualified for DACA were given a renewable 2-year temporary employment authorization card (EAD) and “deferred status” to shield them from deportation. It is estimated that more than 750,000 undocumented immigrants have received relief from deportation through this program.

A senior administration official has reported to Fox News as of today, August 31, 2017, that the President is expected to announce the end of the program, despite challenges from the GOP to keep the program intact. The official stated that although Trump will announce the end of the program, he will allow current DACA holders to remain in the program, and have lawful status in the United States until their employment authorization cards run their course. This means that the DACA program will not end abruptly, rather the program will be phased out, and immigrants will no longer have the option of renewing their benefits once they have expired. In recent years the number of DACA applicants has dwindled. According to USCIS statistics, in fiscal year 2016, 40,378 initial DACA applications were approved, while 83,788 renewal applications were approved that same year. This is in stark contrast to the 472,131 applications approved in 2013.

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Trump Administration ends the Central American Minors Program

On August 16, 2017, the U.S. Department of Homeland Security terminated the Central American Minors (CAM) program started under former President Barack Obama in 2014 in response to Central America’s humanitarian crisis. Beginning in 2014, the number of accompanied minors seeking asylum in the United States swelled to the thousands. Although these numbers have decreased significantly under President Trump, it is estimated that there are still over 3,000 unaccompanied minors fleeing gang violence and organized crime in Central America in the hopes of settling in the United States. In the past two years alone it is estimated that approximately 33,000 people have been brutally murdered. Unaccompanied minors fleeing the violence hail from countries like El Salvador, Guatemala, and Honduras.

The CAM program previously granted safe passage to unaccompanied minors fleeing the violence in Central America, as well as admission to the United States, so long as the unaccompanied minor could establish that they had a parent legally residing in the United States who would care for them. The creation of the CAM program was a progressive step in the country’s immigration policy given that the United States through the creation of this program recognized the importance of resolving the humanitarian crisis of unaccompanied children, and acknowledged the refugee status of individual’s fleeing the brutal violence in Central America. The Trump administration’s decision to terminate the program signals an unwillingness to recognize the legitimacy of the humanitarian crisis and an unwillingness to acknowledge that individuals fleeing Central American violence are “refugees.”

True to the ethos of the Trump administration, this decision signals a cautious administration that does not see Central American children as being in danger and by extension in need of protection from the United States.

Immigration Crackdown

On Friday August 18, 2017 ICE agents conducted a sting operation on the U.S.-Mexico Border detaining more than 400 people including individuals accused of smuggling unaccompanied minors to the United States. The operation specifically targeted undocumented parents and guardians who it is alleged paid smugglers to bring their children to the United States illegally. Some of these children were unaccompanied minors fleeing the violence in Central America. A spokesman for Immigration and Customs Enforcement stated that the operation was part of the Human Smuggling Disruption Initiative. ICE has confirmed that its focus will shift from conducting immigration raids to ending the transnational smuggling trade that is responsible for bringing many unaccompanied minors from Central America to the U.S. Mexico border.

The most recent series of immigration raids involved a four-day operation that took place at the end of July, in which 650 people were arrested, 70% of which were not a target of the raid, but were swept up in the frenzy.

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On Monday August 14, 2017, the state of California filed a lawsuit against the U.S. Department of Justice dragging the state into yet another contentious legal battle against the Trump administration. The lawsuit challenges an executive order signed by the President which seeks to withhold federal grant money to cities that refuse to cooperate with federal immigration enforcement authorities, otherwise known as “sanctuary cities,” in the apprehension and detention of undocumented immigrants living in the United States.

The President’s executive order, if enforced, would have an adverse impact on the state of California given that California has fiercely opposed cooperating with federal law enforcement in apprehension efforts of undocumented immigrants. The state of California is home to more than 2 million undocumented immigrants—more than 6% of the state’s population. As it stands, California’s refusal to comply with the President’s executive order would allow the government to withhold federal grant money to the state of California, a state that makes the greatest contribution to the U.S. economy as a whole.

As you may recall, the President signed the controversial executive order, “Enhancing Public Safety in the Interior of the United States,” on January 25, 2017. The order claims that, “sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.”

Section 9 of the order states in pertinent part:

Sec. 9.  Sanctuary Jurisdictions.  It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373. 

(a)  In furtherance of this policy, the Attorney General and the Secretary . . .  shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.  The Secretary has the authority to designate . . . a jurisdiction as a sanctuary jurisdiction.  The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

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On July 26, 2017 Congresswomen Ileana Ros-Lehtinen (R-FL) and Lucille Roybal-Allard (D-CA) introduced H.R. 3440 the House version of the Dream Act of 2017, a bill that would give young people who were brought to the United States as children, a pathway to obtain conditional legal permanent residence, provided these individuals meet certain requirements.

Under this act, certain qualifying individuals would receive cancellation of removal, and the opportunity to adjust their status to conditional permanent residence, provided the individual has been a long-term resident of the United States, entered the United States as a child, and has not been convicted of serious criminal offenses.

While this Act is still in its early stages, it has received widespread bipartisan support, signaling a serious commitment to shield DREAMers from deportation on both sides of the aisle.

Requirements:

Under this act, to qualify for conditional permanent residence an alien would be required to:

  • Have continuous physical presence in the United States (4 years before the date of the enactment of the act);
  • Have been younger than 18 years of age on the date on which the alien initially entered the United States without inspection;
  • Be admitted to an institution of higher education;
  • Earned a high school diploma, or a commensurate alternative award from a public or private high school, or obtained a GED under State law, or a high school equivalency diploma in the United States, or enrolled in secondary school, or in an education program assisting students in obtaining a regular high school diploma or equivalency, or passing a GED exam or other similar State-authorized exam;
  • The alien must have been found inadmissible under paragraph (2), (3), (6)(E), (6)(G), (8), (10) (A), (10) (C), or (10) (D) of section 212(a) of the INA;

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