General Background for Asylum

Asylum refers to the process of applying for protection in order to avoid harm in one’s country of origin. Asylum (or refugee law) provides protection against human rights violations, namely being harmed in your country of origin based on one of the following protected grounds:

• race,
• religion,
• nationality,
• political opinion or
• membership in a particular social group.

Notably, asylum is not for other reasons someone might be harmed in their country, such as general violence. The particular social group ground for asylum has broadened the number of individuals eligible for asylum since it encompasses a number of groups that are harmed in their countries for reasons that are not encompassed by the other stated grounds (race, religion, nationality, political opinion).

An asylum seeker is one who applies for asylum either at a port-of-entry into the U.S., or when already within the U.S. In contrast, a refugee refers to a person who has already met the legal requirements for resettlement outside their country, as determined by the United Nations.

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The Department of Homeland Security (DHS) divides immigration related functions between three separate departments: ICE (Immigration and Customs Enforcement) for enforcing immigration laws, CBP (Customs and Border Protection) for controlling the inspection and admission of foreign nationals into our country at our land ports of entry and at airports. Additionally, CBP is responsible for patrolling and enforcing our borders; and USCIS (United States Citizenship and Immigration Services) for granting immigration benefits. Separating the benefits branch from the law enforcement branches of DHS was logical and good policy, since these are separate functions and separate roles that are best performed by specialization. Why USCIS of course has always had the ability to and role of identifying foreign nationals that are deportable for serious or public security offenses, this was secondary to their role of analyzing and simply granting or denying a benefit.

Now, based on USCIS’ July 5, 2018 memorandum, starting on October 1, 2018, USCIS will begin placing a much larger number of individuals in immigration court for deportation proceedings. The new USCIS NTA policy can be found in its entirety here. 

THE BIGGEST AND MOST IMPORTANT CHANGE TO THE POLICY

The new policy states that USCIS officers must issue NTA (notices to appear in immigration court) in all cases where a benefit is denied and the individual is not lawfully present at the time of the decision. This is a big departure from past policy.

Previously, if a person had no criminal history or serious immigration violations such as fraud, prior deportation orders or a ground of deportability, USCIS would not place them in immigration court if they denied their benefits application. This was good policy for several reasons. First, many people choose to leave the country on their own if their application is denied. Therefore, it is a tremendous waste of resources to place such individuals in immigration court. Second, the courts are already immensely over-burdened so to add a large new group of individuals, who have never been deportation priorities in the past is only going to exacerbate the resources issues occurring in the immigration court system.

USCIS HAS ALSO BROADENED THE DEFINITION OF UNLAWFUL PRESENCE FOR STUDENTS AND EXCHANGE VISITORS

USCIS has simultaneously broadened the definition of “unlawful presence”, now applying this concept to students who violate their status, even though they were never given a finite end date on their permitted stay in the U.S. Students and exchange visitors are granted a term of stay for the “duration of their status, or “D/S””. Even with minor violations of their status, they were not previously deemed “unlawfully present”. But now, USCIS is applying this concept to them if they violate their status, even for minor reasons such as falling below the required course load. This rule in conjunction with the new NTA rule will further clog the courts with individuals who should not be there.

Sadly, these new policies are a continuation of the illogical, inefficient and inhuman immigration policy of the Trump administration. IF you have questions about how these new rules may effect your situation, give us a call at (303) 872-6985, or email us through our contact forms on our website.

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Last week Trump sent his “term sheet” to congressional republicans containing what he wants in exchange for a “DREAM Act” that would provide an eventual path to citizenship for Dreamers. In contrast to his earlier statements (“I will sign any Dream Act legislation that is put on my desk”), Trump is now attempting to extract an enormously steep price for a path to citizenship for Dreamers. The price is so steep that many Dreamers themselves have already come out against his proposed framework. Rather than being satisfied with an enormous amount of money for his wall, Trump is now demanding massive changes to our entire immigration system. The most striking changes are:

The elimination of all family preference immigration categories AND the right of U.S. citizens to petition for their parents

Currently, the family immigration system is broken into two categories for family members:

(1) The first category is immediate relatives (“IRs”) consisting of spouses, minor children (under 21) and parents of U.S. citizens. There are neither quotas nor wait lists for IR’s (except for the time required to process the applications) since these relationships are so close.

(2) The second category is broadly titled the “preference categories” consisting of adult children and siblings of U.S. citizens, and spouses, minor children and unmarried adult children of lawful permanent residents (LPR’s or green card holders). For preference categories, there are usually very long waiting periods to immigrate to the U.S. (as long as 20 years) because the U.S. only lets in a fixed number of immigrants in these categories each year.

The White House plan proposes to eliminate the immediate relative sub-category of parents of U.S. citizens and eliminate all preference categories. This is a monumental change to our existing immigration system. Ironically, the White House titles this section “Protect the Nuclear Family”, yet the proposal drastically reduces the family members that can immigrate to the U.S., only preserving spouses and minor children of citizens. The elimination of parents is particularly bizarre and heartless. Is the U.S. ready to step this afar away from a valued practical and cultural norm of taking care of your parents as they age? The elimination of the preference categories would also be extremely detrimental and very short-sighted, particularly because it is moving forward without any real discussion or research conducted by the White House or Congress into the issues.

The elimination of the diversity lottery program:

The diversity lottery allows 50,000 new immigrants into the country each year from traditionally underrepresented parts of the world. Applicants must meet minimum education or work experience requirements to qualify for the lottery. The lottery is based on the principle that diversity is a source of strength, an idea which use to be a widely shared and valued principle in this country.

The use of “expedited removals” to deport visa overstays:

With this change, any person who overstays their visa would become subject to deportation without the due process right of first seeing an immigration judge. Such a measure would be particularly harsh and have a huge adverse effect on many U.S. citizens since many of these individuals only overstay their visas because they are in a relationship or marry a U.S. citizen. Many others also have an understandable reason for overstaying their visa such as a legitimate claim to asylum or eligibility for a U visa based on being the victim of a serious crime. If these individuals are deported, they will be subject to the deportation bar and face substantial hurdles to returning to this country, despite the fact that they may have a lawful path to obtain their green card. Quite simply, this punishment would severely outweigh the crime in most cases and adversely affect the rights of many U.S. citizen and resident family members.

Is it worth it?

It is truly sad and amoral to use the lives of the Dreamers in an attempt to change our immigration system in such a profound and negative way. These are young people who did not understand that they were were not Americans until they were teenagers. Many were brought here in the arms of their parents. Now Trump dangles their lives in front of the Democrats mercilessly to see how much he can extract for their protection. This starting point is certainly not a positive sign in these negotiations, but perhaps some rational members of his own party can convince Trump to back off from these demands, and merely take the King’s ransom that he is requesting for his wall in exchange for protecting the Dreamers.

Photo by Feifei Peng on Unsplash

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In light of the tragic attack in New York City this week by Sayfullo Saipov, Trump has called for the end of the Diversity Visa program (the immigration program that allowed Saipov to immigrate to the U.S).

In typical Trump fashion, Trump continues to lead through fear, which has the terrible effect of undermining any rational, fact-driven policy discussion on a particular issue.  These types of fear-driven, simplified positions are particularly frustrating because they completely ignore the benefits of a particular policy or system.

How it Started

As a starting point, let’s take a look at the Diversity Visa Program. The program came into effect under the George H.W. Bush (Bush Sr.) administration as part of the Immigration Act of 1990. The program is a lottery system that allocates up to 50,000 visas annually to people from countries that are underrepresented in the U.S. (countries that have historically low rates of immigration to the U.S.). To qualify for the lottery, a person must have either a high school education or two years of work experience in a technical field. Because many of these individuals come from less developed countries, these educational/experience requirements are actually quite substantial and analogous to individuals with college degrees in developed countries.

The Value of Diversity

The stated goal of the program is to create more diversity in our immigration system. This goal is really quite noble since it recognizes the fact that a culturally diverse immigration population has benefited this country greatly, and really is (or was) a founding principle of this country. The number, like all numerical limits in our immigration system, was determined by a policy discussion about how many new immigrants are beneficial to this country each year.

There has been criticism of the program in the past, based on its somewhat random nature, and arguments that these visas should be allocated to other categories within our immigration system.

For more information on the Diversity Lottery system, see below:

https://www.washingtonpost.com/news/morning-mix/wp/2017/11/01/extreme-right-gins-up-a-culprit-for-n-y-terror-attack-chuck-schumer/?utm_term=.167e8834ac92

https://www.uscis.gov/greencard/diversity-visa

Photo by Cory Schadt

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On Sunday, September 24^th, Trump issued his third and most severe travel ban, this time calling for an indefinite ban on entry into the United States of foreign nationals from designated countries. Rather than a 90-day ban, like the previous versions, Trump has put an indefinite ban in place again on foreign nationals from countries that purportedly do not meet U.S. standards for vetting travelers.  The nations from the original ban are included in this new proclamation and are affected in the following ways:

• Iran: Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they are subject to enhanced screening.
• Libya: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
• Somalia: Suspends the entry of immigrants, and requires enhanced screening of all nonimmigrants.
• Syria: Suspends the entry of all immigrants and nonimmigrants.
• Yemen: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
• Iraq: Requires enhanced screening of all individuals seeking to enter the United States.

A notable exception is that Nationals of Sudan, who were impacted by earlier versions of the travel ban, are not included in the proclamation. Nonetheless, the new ban has added additional countries to the list. These countries are affected in the following ways:

• Chad: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
• North Korea: Suspends the entry of all immigrants and nonimmigrants.
• Venezuela: Suspends the entry of certain government officials and their family members on business or tourist visas (B-1/B-2).

The indefinite ban immediately impacts nationals of Iran, Libya, Somalia, Syria, and Yemen with no bona fide relationship to a U.S. person or entity, and will take effect for all other impacted nationals of those countries, as well as nationals of Chad, North Korea, and Venezuela, on October 18, 2017.

Trump’s insistence on imposing travel bans is similar to his infatuation with building a wall on our Southern border. Both policies have been thoroughly criticized by security experts, including former top DHS and DOS leaders, who have pointed out that there are far better ways to improve border security than through these divisive, symbolic acts. Yet Trump seems hell bent on delivering these acts to appease his far-right supporters (who appear to want a white, Christian ethno-state). Trump also seems to have zero understanding and respect for the principles this country was founded upon and the role of the President as a unifier rather than a divider.

Jason Blackeye

The post Trump Issues a New Indefinite Travel Ban on both Previously Designated and New Countries appeared first on Shaftel Law.

Before our discussion below of recently proposed immigration bills, it is worth reviewing the process of how a bill (a proposed new law) becomes law. The fact of the matter is that, for better or for worse, our country’s founders made it very difficult to change the law (with few exceptions). Bills hit Congress all the time, but in reality only 4% of those bills become law[1] and those bills that do become law are usually substantially different from the original draft. Bills have to be introduced, sent to committees and subcommittees, debated, amended, voted on in the House of Representatives, win a majority of votes to go to Senate, repeat the whole process over again and, if approved by both houses, they must be signed into law by the president (if vetoed, 2/3 of both houses are needed to override the veto).

Since Trump took office, immigrant communities and those who have a close relationship with these communities must temper both our fear and our hope when it comes to new proposed immigration laws. In light of this reality, let’s turn to the bills gaining the most attention in the immigration debate, but let us remember that each of these bills still have a long road ahead of them to become actual law.

The Unlikely Bad News: The RAISE Act

The infamous RAISE Act (Reforming American Immigration for Strong Employment Act) would highly favor immigration for young professionals between the ages of 26-30, holding doctorates, Nobel Prizes or Olympic medals [2]. Of course, less impressive individuals could also gain entrance depending on their capacity to gain 30 points in the proposed point-based merit system based on: the possession of university degrees, fluency in English, placement in the higher income brackets, etc. Investment too, over $1.35 million, would gain favor in a visa application. Family visas apart from immediate family of US citizens, asylum and refugee visas and other categories lacking “merit” would substantially suffer. The green card lottery promoting diversity immigration would be slashed and total legal immigration would be cut by a projected 41% on the first year [3]. Though the bill has the support of President Trump, it hasn’t gained much traction in either house, nor is it in the least bit impressive in the eyes of our leading economists (or really anyone with a general understanding of economics).

The Unlikely Good News: the DREAM Act of 2017

The DREAM ACT of 2017 is a bill with bi-partisan sponsorship that would pave a path towards citizenship for those undocumented immigrants who arrived as children. It would expand the scope of the DACA criteria, making those who entered before their 18^th birthday eligible and providing a “hardship waiver” to those falling outside the general eligibility but facing extraordinary challenges. The process would still be long, requiring its beneficiaries to hold Conditional Permanency Residency Status for eight years, and then applying for Legal Permanent Residency, but it would provide a track for many who are currently unprotected [4]. Remember, DACA is simply “deferred action” in regards to potential deportation (though it does grant the ability to work, go to school and even join the military). Also remember that DACA is an executive order, and that means it can disappear if the president decides to make it disappear.

The Real Concern: DACA

This is the exception to the “laws are difficult to change” statement mentioned above because DACA was created with an executive order, which is unilateral action by our President. As such, it can also disappear with unilateral action from Trump. The possibility that nearly 800,000 young people protected under DACA could lose protection with the stroke of a pen is a real reason for concern. Though Trump initially showed a degree of sympathy for “DREAMERS”, Texas has recently threatened to file a lawsuit if the Trump administration does not phase DACA out by September 5^th[5]. In light of this, the Trump administration has not clarified whether or not DACA will continue.

Regardless of DACA’s fate, the current political climate threatening the fate of millions of immigrants has also created a force of passionate advocates who will continue to fight for the basic rights of immigrants.

[1] https://www.washingtonpost.com/news/wonk/wp/2014/01/16/almost-none-of-the-bills-introduced-into-congress-ever-becomes-a-law/?utm_term=.c8b85452a

[2] http://time.com/4885453/donald-trump-legal-immigration-bill/

[3] https://medium.com/@UNITEDWEDREAM/lawmakers-just-introduced-a-dream-act-bill-what-does-it-means-for-you-4aa09e193b6f

[4] https://medium.com/@UNITEDWEDREAM/lawmakers-just-introduced-a-dream-act-bill-what-does-it-means-for-you-4aa09e193b6f

[5] http://www.washingtontimes.com/news/2017/aug/14/daca-faces-challenges-trump-courts/

Photo Credit: Seven SeasEdutech Flickr via Compfight cc

The post Proposed Immigration Bills: The Good, the Bad and the Ugly appeared first on Shaftel Law.

Changing Trends in Immigration

Our tumultuous political climate has once again brought immigration to its forefront. The heated issue, however, involves a myriad of misconceptions further complicating a very important, and very personal, discussion. The following data, largely gathered by the Pew Institute, provides relevant information challenging various notions that have colored the immigration debate for the last few decades:

• There are far more documented immigrants than undocumented (74.5% to 25.5% respectively)
• Most undocumented immigrants have been here for over a decade. 65.7% have lived here for 10 years or more, compared to 14.3% who have lived here less than five years.
• Mexican immigrants make up the majority immigrant population, but their numbers are declining, especially amongst new arrivals.
• Many unauthorized immigrants entered legally, but overstayed their visas. A 2006 Pew estimate calculates that as many as 45% of undocumented immigrants entered legally, but overstayed their visas.
• 61% of undocumented immigrants live in metropolitan areas, but the majority live in the suburbs.
• The majority of undocumented immigrants work in construction and service. Only 4% of undocumented immigrants work in agriculture.
• One-third of undocumented immigrants live with at least one U.S. citizen child.

These realities, among many others still unconsidered by most, heavily impact groups within an already vulnerable population given our unstable immigration policies. Many may find themselves separated from their children. Others may find their industries lacking in available labor. Whatever the case may be, the group we are mainly referring to is a group that has become integrated into our society by living and working here for a decade or more, by having American children, contributing to all sectors of the economy, and needless to say, it is a group that would suffer great losses if removed from its home country, just like any other sector of our population.

For the full NPR article detailing this data, click here.

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“Christians in the Middle East have been executed in large numbers. We cannot allow this horror to continue!” President Trump tweeted this January. Indeed, his initial commitment to the Middle eastern Christians and their unwavering support for his campaign, particularly the Chaldean community in Detroit, played a significant role in his victories in certain Michigan counties. This prominent community never thought that members of their community would be adversely affected by Mr. Trump’s immigration policies.

Iraqi Chaldean Christians Came to the U.S. as Asylum Seekers

Chaldeans are Christians from Iraq. They are Eastern Rite Catholics descending from the ancient Assyrians of modern-day Northern Iraq. Since the last century, they have come in masses to Detroit and nearby suburbs, forming what is now the largest Chaldean community in the world. Most came here legally as refugees, but many had greencards revoked due to criminal convictions. They were allowed to stay because the Iraqi government refused to grant them travel documents to return. However, after the notorious travel ban, Iraq began to accept these deportees in exchange for being taken off the list of countries affected by the travel ban. Deportation, in the case of this particular group, would likely result in torture and even execution. Men like Usama Hamama, 54, who arrived when he was 11 but had his green card revoked after flashing a gun, are being arrested in their family homes. These men, despite reforming their lives following their criminal convictions, must now say goodbye to their families and likely endure inhuman conditions in a country they left long ago.

Travel Ban No Longer Protects Christians from the Middle East

The original travel ban included an “implicit exception” for persecuted Christians and other religious minorities in danger; however, after the lawsuit accusing Trump’s executive order of discrimination, Mr. Trump removed this exception.

Currently, 114 Iraqis in Detroit and 85 Iraqis from across the nation (belonging to other religious minorities), have been arrested and await deportation.

Here is the full New York Times article on this issue.

Photo Credit: Custody of the Holy Land – Photo Service (CPS) Flickr via Compfight cc

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Let’s be clear on the scope and effect of today’s opinion. The opinion only addresses two issues:

(1) Will the Supreme Court listen to and make a final decision on Trump’s travel ban? A: Yes.

Today’s opinion answered this question in the affirmative (which means they granted “certiorari”). The Supreme Court only listens to cases it has an interest in. It is not required to make final decisions on cases. If the Supreme Court declines to hear a case, the lower court’s opinion becomes the final word. This process of formally accepting or rejecting a case is called granting or denying “certiorari” (aside: Courts/lawyers like Latin, it makes them feel more sophisticated).

(2) During the period before a final decision is made, will the Court allow the travel ban to take effect? A: Yes, part of the ban can take effect now.

The Court disagreed with the lower federal courts that banned all of the travel ban, and have now allowed parts of the travel ban to take effect until a final decision is made. This phase of litigation is titled the “preliminary injunction phase”. A preliminary injunction halts the implementation of a law because the legality of the law has been challenged in the Courts. Courts will not automatically grant a preliminary injunction, instead they consider the harm if a law is implemented or not implemented, and they weigh each parties’ likelihood of ultimate success.

Two Sections of the Ban Now Go Into Effect in a Limited Way.

The Supreme has allowed two sections of the travel ban to take effect until a final decision is made. Section 2(c) of the travel ban suspends entry of immigrants from 6 countries (Iran, Libya, Somalia, Sudan Syria and Yemen) for 90 days. The Supreme Court held that the government can suspend these entries for now for nationals from these countries who “lack any bona fide relationship with a person or entity of the United States.”

Similarly, section 6(a) halts the admission of any refugees into the country for 120 days. The Court ruled that this section can be implemented for now against any refugee who “lacks a bona fide relationship with a person or entity of the United States.”

The rest of the injunction, halting implementation of the travel ban, remains in effect.

This development is concerning because it may foreshadow a final decision by the Supreme Court to allow the travel ban to be implemented more fully.

Interestingly, the Court specifically asked both parties to brief (formally explain in writing) why section 2(c), restricting the entry of certain foreign nationals, did not become “moot” (which means no longer at issue) on June 14, 2017, 90 days after its implementation date. This raises a very logical question. If the stated purpose of the temporary ban is to have time to review and implement new procedures, hasn’t the government already had this time? While the ban was not in place, what if any relationship was there between allowing entry of these foreign nationals and the government’s ability to review and implement new procedures?

In summary, this is a somewhat small victory for Trump for now, but it is still deeply concerning for those of us who believe that all of the travel ban is an affront to the values this country was founded on.

For those who enjoy legal opinions and want the news directly from the source, Here is the full opinion by the Supreme Court on the Travel Ban.

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The piece throws a few numbers around that put Trump’s plan into perspective. For starters, it mentions that for nearly $20 billion (what the U.S. spends annually on immigration enforcement), we are hitting record numbers of U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents and our highest yet number of people deported (more than 400,000 annually) in American history—not to mention hundreds of miles of fencing along our southern border, drones and technology, detention beds and more.

But Trump wants more. Billions more, in fact, in order to:

• Add 15,000 enforcement agents
• Build a border wall covering the whole southwest border
• Increase detention rates (potentially to 80,000 per day)
• Increase federal prosecutions of those entering the U.S. illegally

However, the cost is not just monetary. Excessive at best, Trump’s plan “will deprive thousands of people of due process and humanitarian protections” and fails to provide “any indication of how it was determined that the wall, the detention beds, or the extra agents are even necessary, or how the Administration will decide when the border is reasonably secure,” according to AILA.

Another Brick in the Wall

Border fencing thus far spans 653 miles of our southwest border. But for Trump, that’s not enough. He wants a wall covering all 2,000 miles, despite the fact that CBP is already patrolling every mile of the U.S. border on a daily basis and that head of the Border Patrol Union Brandon Judd (who also supports Trump) recently said, “We do not need a wall along the entire 2,000 miles of border,” during a recent NPR interview.

So what do we stand to gain with the additional construction? The only thing for certain is a big, multibillion-dollar bill. After crunching some numbers, the Department of Homeland Security (DHS) originally estimated that each additional mile of fencing would cost $16 million, bringing the total cost to somewhere between $15 and $25 billion. Recent data shows that the actual cost could hover around $67 billion, instead.

Agents of Change

Trump aims to hire 15,000 more Border Patrol and ICE agents and officers despite significant issues that arose in 2016 when the government doubled the number of ICE agents from 10,000 to 21,000.

Rapidly hiring a mass number of agents proved to be problematic in the past for a few reasons. Not only were the new hires rushed through training and prematurely forced into the field, some didn’t go through proper screening and failed to complete a background check.

What’s worrisome, according to James Tomsheck, the former head of internal affairs at CBP, is that CBP is now considering weakening or skipping one of its screening staples: mandatory polygraph testing. He told NPR during a recent interview that polygraph testing helped, “weed out candidates who had criminal backgrounds and some would-be agents who were members of drug cartels that wanted to infiltrate CBP as spies.” How does lightening up on these requirements make any sense? About the matter, Tomsheck said it’s “beyond my comprehension.”

Simply put, Trump’s plan includes issuing an ICE badge and gun to new ICE immigration enforcement officers without having to undergo a polygraph test. That’s assuming the CBP can find enough candidates. The CBP has had a two-pronged thorn in its side for years when it comes to hiring: Low morale and the failure to find folks who can pass a polygraph. Lucky for them, the latter just might go away.

Shift in Resources

Trump’s plan also calls for an increase in criminal prosecutions for those crossing the border without inspection. What does that mean in the bigger picture of this country’s criminal landscape? When you aim to increase resources on nonviolent, low-level immigration law offenses instead of the nation’s violent crime prosecutions, you decrease the overall safety of those living in the United States. Just consider the number of prosecutions in FY 2016, as demonstrated in the following graph published by AILA:

Does it make sense to increase illegal border prosecutions? Probably not. Throw in the fact that previous measures taken to deter border crossings (a la Operation Streamline) have instead, according to AILA:

• Clogged up the federal courts and wasted precious government resources with little evidence that the program is achieving its goals.
• Resulted in group hearings that violate fundamental due process.
• Wrongfully prosecuted Asylum seekers.

Even if Trump could prove that his bullet-riddled plan to divert millions of dollars from the prosecution of high to low-level crimes would work on the immigration front, are we willing to risk what it means for our country as a whole?
 
 
 
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