New NTA Policy

October 29, 2018 § Leave a comment

In June of 2018, USCIS released a new policy on their issuance power of Notice to Appear documents. Its memo titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” effectively increases the number of NTAs that USCIS is required to issue. A Notice to Appear document is what an individual receives to inform them that removal proceedings will begin.

Following 9/11, in 2002 under the Homeland Security Act of 2002 the federal government divided legacy Immigration & Naturalization Service into three current agencies, all falling under the umbrella of the U.S. Department of Homeland Security (DHS): U.S. Citizenship & Immigration Services (USCIS), Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).  While CBP and ICE were tasked with enforcement responsibilities, USCIS has been tasked with the primary function as an immigration services entity that is separate from the enforcement components.  During the fiscal years 2013 to 2017, USCIS has only issued NTA’s in 12% of the cases, while CBP and ICE accounted for issuing 88% of the NTAs.

Previously, USCIS officers had the ability to issue (or not to issue) NTAs based off of prosecutorial discretion (when an agent can determine whether removal proceedings are necessary based off of the situation). Under the new NTA policy, officers will have much less discretion and are required to issue NTAs more frequently.  Additionally, individuals who were asked to leave were typically given the opportunity to leave by themselves. With the new policy, it will force the individuals to stay in the U.S. until removal proceedings are complete. Finally, NTAs will now be issued if a denied applicant was not lawfully present at the time of the application, if abuse of public benefits or fraud are suspected, if the applicant has been charged with a crime (a conviction is not required) or if a naturalization case is denied for lack of good character.

Experts are concerned about this policy change because of the costly and time-consuming effects. Another concern is that due to the increase in NTAs issued, the immigration court system will continue to be severely backlogged and will get little accomplished. The Department of Justice has addressed this concern by stating that they plan to release more policy changes in the future, hire more immigration judges and increase the members of the Board of Immigration Appeals. However, in May, the Attorney General Jeff Sessions announced that judges and members of the board can no longer administratively close cases to decrease the backlog, exponentially increasing the judges’ workload.  Now with the new NTA policy, the immigration court backlog will continue to grow.

In Fiscal Year 2016, Department of Homeland Security released data showing that 98.5% of denied applicants returned to their home country, leaving less than 2% of denied applicants unlawfully present in the United States. This data shows that denied applicants have a tendency to leave on their own in a timely manner without needing removal proceedings and unnecessary court appearances. Also, denied applicants will have the ability to appeal or refile their applications at the same time as their removal proceedings. If this is the case, it would be unnecessary to take time for removal proceedings if the applicant has a second chance for approval. There are also options for denied applicants to seek outside relief (such as spousal support) and it is likely that these applicants would pursue these options.

A denied applicant begins to accrue time for unlawful presence once their application is officially denied. However, if their application is denied and they receive a Notice to Appear, they are not allowed to leave the U.S. until their proceedings are complete. If the denied applicant had the opportunity to leave on their own, there would be no penalty. If the individual has accrued unlawful presence by being forced to stay in the U.S. until their proceedings are complete, they could be penalized by a three-, five-, or ten-year entry ban.

The new NTA policy is expected to affect many groups of people including families, students, employment-based nonimmigrants and visitors. Employees and students who apply for adjustment of status, change of employer and extensions are being increasingly denied. If an application is approved, there is no problem. If an applicant’s status expires in the process of review and the application ends up being denied, the applicant will receive an NTA and must appear in court. Visitors who fall ill during their time in the U.S. and must stay to seek medical care will also receive NTAs.

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House Rejects Two Immigration Bills

June 29, 2018 § Leave a comment

A bill proposed by Judiciary Committee Chairman Bob Goodlatte (R-VA), titled the “Securing America’s Future Act of 2018” failed through the House of Representatives on June 21, 2018. This Act detailed getting rid of the ability for U.S. citizens and Lawful Permanent Residents to sponsor their relatives. The elimination of this option for foreign nationals would create a temporary 5-year nonimmigrant visa for parents of U.S. citizens who meet the requirement of being able to financially support their parents (including providing health insurance). The “Securing America’s Future Act of 2018” would eliminate the Diversity Visa Program and prohibits the filing or approval of pending applications in categories that have been terminated. More about the Act can be found at https://www.congress.gov/bill/115th-congress/house-bill/4760/text.
The House voted on another immigration bill on June 22, 2018. The “Border Security and Immigration Reform Act of 2018”, supported by Speaker Paul Ryan, would allow a path for DACA recipients to obtain green cards, increase border security funding, eliminate the Diversity Visa Program and reform other immigration laws. The “Border Security and Immigration Reform Act of 2018” failed by 121 “yes” votes and 301 “no” votes. A summary has not yet been posted on Congress’ website, but you can track the action of the bill at https://www.congress.gov/bill/115th-congress/house-bill/6136.

Current Status of DACA Litigation

June 8, 2018 § Leave a comment

In September of 2017, Attorney General Jeff Sessions made an announcement that the DACA program would be terminated. Following the announcement, then-Secretary of Homeland Security Elaine Duke issued a memorandum directing Department of Homeland Security (DHS) officials to reject all initial applications received after September 5, 2017 and all renewal applications received after October 5, 2017.

Numerous lawsuits were filed almost immediately and were continued to be filed in the following weeks and months. Two courts have since enjoined, or halted, the government’s termination of DACA and required U.S. Citizenship and Immigration Services (USCIS) to continue accepting DACA applications from individuals who have previously had DACA. A third court has ordered the government to follow its original 2012 policy of not sharing DACA recipients’ private information for enforcement purposes, and a fourth court has issued an order to strike down the termination of DACA and reinstate the original program, but it “stayed” its own order for 90 days to give the government a chance to further explain its decision to terminate the DACA program.

Most recently on May 1, 2018, Texas and six other states filed a lawsuit against the federal government in the Southern District of Texas and asked the court to issue a preliminary injunction that would prevent USCIS from adjudicating DACA applications while the lawsuit is pending. The court has not released any opinions or orders on this issue since. However, on May 8, 2018, 22 individual DACA recipients, represented by the Mexican American Legal Defense and Educational Fund (MALDEF), asked the presiding Judge Hanen to add them as party defendants in this lawsuit in an effort to more adequately address the DACA recipients’ interests. The federal judge has granted this request.

The following is a summary of DACA litigation leading up to the present time.

Regents of the University of California, et al. v. Department of Homeland Security, et al.

 In early January of 2018, a federal judge in California issued a preliminary injunction, ordering the government to continue the DACA program and accept renewing applications. The government tried to skip a step and take the case straight to the U.S. Supreme Court through “cert. before judgement”. This step is rarely accepted by the Supreme Court and only is accepted “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court”. In February 2018 the Supreme Court denied the request for early review, pushing it back to the Ninth Circuit Court of Appeals in San Francisco. Meanwhile, since the federal government did not challenge this ruling, USCIS must continue to accept DACA renewal applications

Batalla Vidal, et al. v. Nielsen, et al., and State of New York, et al. v. Trump, et al.

In February of 2018, A New York district court located in Brooklyn issued a preliminary injunction similar to the one in California. It ordered that the government must continue to accept applications from those who were previously supported by DACA. The order was inspired by two pending cases. Batalla Vidal, et al. v. Nielsen, et al. was brought to a New York court by six individuals that previously benefited from DACA and the State of New York, et al. v. Trump, et al. was brought in front of the same judge by seventeen attorneys general.

The government has appealed the decision to the Second Circuit Court of Appeals. The parties have completed their briefing and are waiting for an oral argument to be scheduled.

CASA de Maryland, et al. v. Dept. of Homeland Security, et al.

On March 5th 2018, the court delivered an opinion in this case that dismissed many of the plaintiffs’ claims. However, the court did make an order regarding the protection of personal information from DACA applications in previous years. The order refers back to the 2012 DACA policies, stating that the government may not use this information for enforcement purposes unless approved by the court prior to collecting the information. This will likely only happen if an individual is involved in a serious crime or he/she poses a national security threat.

NAACP v. Trump, et al., and Trustees of Princeton, et al. v. United States of America, et al.

In late April of 2018, a D.C. federal judge ordered that the court rules in favor of the DACA recipients in both cases and reverses the termination of the program. This decision would not only include the continuing acceptances of DACA renewals, but also initial applications. However, the decision was paused for 90 days (i.e. until July 23, 2018) to allow the government time to develop a more reasonable argument to terminate DACA. While the decision is on hold, the government is still required to process the renewal applications.

Texas, et al. v. Nielsen, et al.

On May 1, 2018, seven states filed a lawsuit against the federal government in the U.S. District Court for the Southern District of Texas, challenging the 2012 DACA program. These states had threatened that three more states would file lawsuits if the DACA program did not end in September of 2017, which resulted in the government announcing the termination of September 5th. These seven states are challenging DACA because they believe it is unlawful and violates the Administrative Procedure Act and the Take Care Clause. The court has not yet made a decision, but an initial scheduling conference be held on July 31, 2018.

For more information on how to apply for DACA, refer to National Immigration Law Center’s FAQ’s and also the USCIS website.

Response Protocol for I-9 Audit and Immigration Raid

May 18, 2018 § Leave a comment

An I-9 audit (also known as an Administrative Inspection) begins when ICE gives a Notice of Inspection to a company, requesting a review of I-9 forms for every employee. This notice must given at least 3 days before the inspection takes place. ICE is only allowed to request I-9 forms and a list of current and past employees with their social security numbers.

After the inspection takes place, the company is given feedback and is allowed ten days to correct any mistakes found by ICE. If corrections are not made, fines can reach up to $1,100 per violation. If ICE has found that the company is employing an unauthorized worker and the company has not terminated or provided proper documentation, fines can reach up to $16,000 per violation.

Raids take place when ICE shows up to a company to search the premises, question workers, and review documentation without giving a notice to the employer. Raids require prior approval through a judicial search warrant. Judicial search warrants give ICE permission to search parts of the business not open to the public.

In the case of a raid, it is recommended that the employer pick a “response lead” The lead will have the responsibility of informing management and other important personnel,  The lead should also inform the ICE agent in charge of the raid that they are the point of contact during the raid.

U.S. Cracks Down on Birth Tourism Industry

May 18, 2018 § Leave a comment

Birth tourism is a developing industry in the United States that has become very appealing to pregnant women from all over the world, especially from China, Taiwan, Saudi Arabia, South Korea, Nigeria, Turkey, Russia, Brazil, and Mexico. These women come to the United States in hopes to give birth on American soil, allowing their child to be a United States citizen. However, U.S. officials have caught on to the growing industry. ICE has started raiding hotels with groups of the mothers-to-be traveling together and CBP has also tightened security at the Los Angeles airport for pregnant Chinese women.

The birth tourism industry has proven to be beneficial to the shopping and restaurant economy where the women tend to congregate (New York, California, and Florida). Also, many travel agencies, law firms and landlords benefit from the industry. When coming to America, women may be asked by landlords to pay up to six months rent upfront, making it a financially heavy choice for the woman. Not only do they have to consider rent, but there are law firms (such as Miami Mama in Florida) that focus on birth tourism specifically. The entire trip itself can take months of planning and traveling and can cost between $50,000 and $100,000.

The Trump administration is cracking down on the birth tourism industry because of their policy ideas regarding chain migration. When the American-born baby turns 21, he or she can sponsor their parent for a green card.

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