Visa Lawyer Blog

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courthouse-1223279_1280The federal government has sued the state of Oklahoma in a new lawsuit seeking to block HB 4156 from taking effect, a new anti-immigration law that regulates the entry of noncitizens by detaining and fining migrants who are unlawfully present in the state.

The U.S. government filed the lawsuit in the U.S. District Court for the Western District of Oklahoma on May 21st arguing that HB 4156 is unconstitutional because the federal government maintains exclusive jurisdiction over the subject of immigration and the status of noncitizens under the supremacy clause and foreign commerce clause of the U.S. Constitution.

Oklahoma’s HB 4156 which was slated to take effect July 1st considers the unlawful presence of a noncitizen in the state to be an “impermissible occupation” and directs law enforcement officials to arrest and jail undocumented immigrants.

The law aims to protect the state’s citizens against undocumented immigrants who could “potentially harm” its residents. Under the law, a first conviction would be a misdemeanor punishable by up to a year in county jail and a $500 fine. A second conviction would rise to a felony and carry a sentence of up to two years in county jail and a $1,000 fine.

Those convicted would be required to leave the state of Oklahoma within three days of being released from county jail.

In attempting to enforce this law, the Justice Department argues that the state is circumventing established law and constitutional authority by trying to take matters into its own hands.

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The Department of Homeland Security and Justice Department recently announced a new plan to expedite immigration court proceedings for asylum seekers who have recently arrived in the United States without lawful status.

On May 16th senior administration officials from the Department of Homeland Security and Justice Department made it known to the public that a new Recent Arrivals (RA) docket process will allow undocumented immigrants to resolve their immigration cases more expeditiously – within a period of 180 days.

Under the RA Docket process, DHS will place certain noncitizen single adults on the RA Docket, and EOIR adjudicators will prioritize the adjudication of these cases.

The RA Docket will operate in five cities: Atlanta, Boston, Chicago, Los Angeles, and New York City. Immigration judges will aim to render final decisions within 180 days, although the time to make a decision in any particular case will remain subject to case-specific circumstances and procedural protections, including allowing time for noncitizens to seek representation where needed.

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Great news has come down from the U.S. Court of Appeals for the Ninth Circuit this afternoon.

Dealing a blow to the Trump administration, the court issued a majority decision denying the federal government’s motion to lift a lower court injunction that prevented the government from implementing Presidential Proclamation No. 9945, signed by the President on October 4, 2019.

The Proclamation attempted to bar certain individuals from entering the United States pursuant to an immigrant visa, unless they could demonstrate (1) that they would be covered by certain approved health insurance within 30 days of entry or (2) that they had the sufficient financial resources to cover foreseeable healthcare costs.

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Welcome back to our blog! We kick off the week by bringing you recent developments regarding the government’s controversial rule entitled, “Inadmissibility on Public Charge Grounds” which sought to expand the scope of public benefits that could render a permanent resident or immigrant visa applicant ineligible for immigration benefits.

As you know, in October of 2019, the final rule “Inadmissibility on Public Charge Grounds,” was swiftly blocked by several federal judges shortly before going into effect. By court order, the government cannot implement the final rule anywhere in the United States until a final resolution has been reached in several lawsuits brought against the government challenging the validity of the public charge rule.

On Monday, January 13, 2020, the Trump administration filed an emergency appeal with the Supreme Court of the United States, asking the court to lift the remaining lower court injunction, that is currently stopping the government from enforcing the public charge rule.

The government’s request comes just one week after a three-judge panel for the U.S. Court of Appeals for the Second Circuit, upheld a lower court injunction, preventing the government from implementing the public charge rule on a nationwide basis.

Angered by the decision, the government decided to appeal the U.S. Court of Appeals decision by bringing the matter to the Supreme Court, urging the Court to side with the President and allow the implementation of the rule while a decision in the New York lawsuit is reached on the merits.

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The Trump administration is in full gear to expedite the removal of hundreds of asylum seekers, most of which are arriving from Central America.

As early as October of 2019, the Washington Post made public the existence of a confidential pilot program coordinated by the Department of Homeland Security and Department of Justice designed to swiftly deport asylum-seekers within a matter of days.

Under the program, Prompt Asylum Claim Review, the government would take a maximum period of 10 days to consider applications for asylum from individuals arriving at the U.S./Mexico border. Those denied would be swiftly removed from the country and returned to their homeland.

As a result, asylum determinations that usually take years to be made, will now be made in a matter of days.

It is easy to see how this type of accelerated removal from the country raises serious due process concerns and delegitimizes the complex asylum process.

A recent lawsuit filed by the American Civil Liberties Union against the Department of Homeland Security reveals that asylum seekers placed in this program are given only one window of approximately 30 minutes to one hour to call family members or retain counsel, and even where detainees have successfully retained counsel, CBP has denied attorneys physical access to speak to detainees, prohibited in-person meetings, and telephonic access. Where attorneys have tried to reach clients before their credible fear interviews, or hearings before an immigration judge, CBP has forced a detainee to proceed without opportunity to counsel with their attorney.

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Today, July 16, 2019, the Department of Homeland Security and Department of Justice issued a joint interim Final Rule that has been published in the Federal Register and is effective immediately.

The interim Final Rule aims to place additional restrictions on the asylum application process and limit the eligibility of individuals seeking to apply for asylum.

What is the Rule about?

The Departments of Justice and Homeland Security are revising 8 C.F.R. § 208.13(c) and 8 C.F.R. § 1208.13(c) to add a new bar to eligibility for asylum for an alien who enters or attempts to enter the United States across the southern border, but who did not apply for protection from persecution or torture where it was available in at least one third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which he or she transited en route to the United States.

In a Nutshell:

With the passage of this rule, applicants for asylum who enter or attempt to enter the United States across the southern border, without having applied for protection in a third country outside their country of citizenship, nationality, or last lawful habitual residence, will not be eligible for asylum.

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“Fake Dates” Appear on Notices of intent to Deny

Across the nation, news outlets are reporting that dozens of individuals have received court orders from Immigration and Customs Enforcement (ICE) ordering them to appear in court by a certain date.

The problem? When these individuals showed up to court on the date indicated on the notice, they were turned away by court staffers who notified them that their names were not listed on the judge’s official dockets.

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Today, Monday June 11, 2018, in an unprecedented move, the Trump administration announced that it would be dropping asylum protection for survivors of domestic violence. The announcement was made by Attorney General Jeff Sessions this afternoon in the case Matter of A-B- 27 I&N Dec. 316 (A.G. 2018), which explained that victims of domestic violence would no longer be eligible to receive asylum in the United States.

Matter of A-B- 27 effectively reverses a decision formerly made by the Department of Justice immigration appellate court which granted asylum to a woman from the country of El Salvador on the basis of allegations of rape and abuse by her husband.

In his decision, dated June 11, 2018, the Attorney General overruled a separate but similar decision in Matter of A-R-C-G-, stating that the case was “wrongly decided” by the appellate court and should not have become precedent. The Attorney General was able to make such a binding decision on immigration courts across the country because their authority derives directly from the Department of Justice, instead of the judiciary branch.

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Various news media outlets are reporting that the Supreme Court will hold a closed-door meeting today Friday, February 16, 2018 to decide whether the Supreme Court will hear a challenge to a lower court opinion which temporarily blocked the President’s move to end the Obama era program, Deferred Action for Childhood Arrivals, making it possible for DACA recipients to apply for a renewal of their DACA benefits.

The closed-door meeting was prompted after the Justice Department formally asked the Supreme Court to review a federal judge’s January ruling, blocking the administration’s effort to end the Deferred Action for Childhood Arrivals program. The Justice Department in making such a request is seeking to bypass lower court proceedings, asking the Supreme Court for direct review, instead of appealing the lower court’s decision before a federal appellate court.

According to a law professor from the University of Texas School of Law, the court has not granted certiorari before judgment since the year 2004, and has not done so without a circuit-level ruling since 1988.

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IMPORTANT UPDATE: On February 14, 2018 USCIS announced that due to federal court orders issued on January 9, 2018 and February 13, 2018, USCIS will resume accepting requests to renew a grant of deferred action under the DACA program. Please read this post to determine whether you qualify. 

On January 13, 2018, the United States Citizenship and Immigration Services (USCIS) issued a statement for recipients of Deferred Action for Childhood Arrivals (DACA) in response to a federal court order that resurrected certain provisions of the program.

USCIS has announced that they will resume accepting requests to renew a grant of deferred action for individuals who have received benefits under the DACA program. According to the statement, the DACA policy that was in effect before the program was rescinded by the Trump administration on September 5, 2017, will continue to be implemented on the same terms as it was before. It is important to note that although USCIS will begin accepting renewal requests for individuals who have received DACA benefits in the past, USCIS will NOT be accepting initial DACA requests from individuals who have never before been granted deferred action under the DACA program.

In addition, USCIS is NOT accepting applications for advance parole from recipients of DACA. Before the program was rescinded, individuals receiving DACA benefits could apply for an advance parole document (travel permit) allowing them to safely re-enter the United States after temporary foreign travel. This will no longer be the case. Although by federal court order USCIS may consider applications for advance parole on a case-by-case basis if it so chooses, the agency has definitively decided against accepting any such requests.

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