Judge Blocks Dramatic Overhaul of U.S. Asylum System

January 20, 2021 § Leave a comment

January 11, 2021: A federal district court in California preliminarily enjoined the government from implementing, enforcing, or applying the December 11, 2020, final rule, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, or any related policies or procedures, including the policy memo entitled Guidance Regarding New Regulations Governing Procedures for Asylum and Withholding of Removal and Credible Fear Reviews. The rule was set to take effect today, January 11, 2021.

Read more: https://www.reuters.com/article/usa-immigration-asylum/judge-blocks-dramatic-overhaul-of-u-s-asylum-system-from-taking-effect-idUSKBN29E052?utm_source=AILA+Mailing&utm_campaign=d36f9309e6-AILA8-1-11-2021&utm_medium=email&utm_term=0_3c0e619096-d36f9309e6-290737573

DHS Releases Fiscal Year 2020 Enforcement Lifecycle Report

January 20, 2021 § Leave a comment

January 12, 2021: The U.S. Department of Homeland Security (DHS) has released its Fiscal Year 2020 Enforcement Lifecycle Report which indicates that we still have a border security crisis, a crisis that is likely to get much worse if President-elect Joe Biden keeps his campaign promise to rescind President Donald Trump’s border security measures during the first 100 days of the new administration. At a recent press conference, Biden walked back some of his promises and said that changing Trump’s policies immediately is the last thing we need because it could lead to having 2 million asylum seekers at our border. He thinks he needs probably six months to rebuild the system for processing migrants and to secure funding for more immigration judges. Though, many experts voice concern that six months still won’t suffice.

Read more: https://thehill.com/opinion/immigration/533741-biden-walking-back-immigration-promises-for-a-reason

VP-Elect Harris Teases Sweeping Immigration Reform Bill

January 20, 2021 § Leave a comment

January 12, 2021: The incoming administration will focus on decreasing wait times to obtain citizenship, granting automatic green cards to protected undocumented immigrants and adding immigration judges to decrease backlogs on court hearings, Vice President-elect Kamala Harris said on Tuesday.  Speaking with Univision’s Ilia Calderón, Harris teased a sweeping immigration reform bill that her and President-elect Joe Biden’s administration plans to introduce.

Read more: https://www.politico.com/news/2021/01/12/kamala-harris-immigration-green-cards-daca-citizenship-458455

Update on Public Charge

December 19, 2020 § 1 Comment

What is Public Charge?
Public charge is a ground of inadmissibility and is currently defined as “an alien who has received one or more public benefits, as defined in the rule, for more than 12 months within any 36-month period.” A ground of inadmissibility is a reason a person is denied a visa, permanent resident card, or admission into the United States. Immigration officers often consider whether an immigrant will become dependent upon government assistance in the future, thus making them a “public charge.” The public charge test does not apply to several classes of immigrants such as U visa holders, T visa holders, asylees, and refugees. The public charge test mainly impacts those seeking permanent resident status through family-sponsored petitions.

Why is Public Charge Controversial?
The public charge rule has sparked much controversy because it makes the green card process much harder for low-income immigrants. The public charge rule, implemented by the Trump Administration, was supposed to ensure that green cards only go to “self-sufficient” and economically independent immigrants. As a result of the rule, many immigrants have opted out of government programs and resources they so desperately need⁠—such as food stamps, SNAP, and even medical treatment during the COVID-19 pandemic for fear that they might trigger public charge.

The controversial public charge rule has undergone a complicated litigation process as it has been struck down and reimplemented multiple times throughout the past two years. Here is a summarized timeline:

  • August 14, 2019: The Department of Homeland Security (DHS) published the final public charge rule, effective 10/15/2019.
  • October 11, 2019: The Department of State (DOS) published the interim final public charge rule, effective 10/15/2019.
  • October 11-14, 2019: Multiple federal courts issued preliminary injunctions of the August DHS final rule, thus prohibiting the rule from going into effect.
  • January 27, 2020: The Supreme Court lifted the last of the remaining injunctions. DHS said the rule would take place everywhere except Illinois, effective 02/24/2020.
  • February 24, 2020: DOS and DHS final public charge rules went into effect nationwide.
  • July 29, 2020: The DHS rule was enjoined nationwide due to the declared national emergency related to the COVID-19 pandemic. The DOS rule was enjoined nationwide indefinitely.
  • August 12, 2020: The Second Circuit limited the DHS nationwide injunction to New York, Connecticut, and Vermont. Thus, the public charge rule could take effect in all but the three aforementioned states.
  • September 11, 2020: The Second Circuit granted the government’s motion to lift the DHS nationwide injunction. Thus, the public charge rule could take effect nationwide.
  • December 2, 2020: The Ninth Circuit enjoined the DHS final rule in various regions. As of now, the public charge rule cannot go into effect in California, Colorado, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Virginia, Washington D.C., and Washington State. The public charge rule remains in effect in all other states.

The outcome of the public charge rule remains uncertain due to ongoing litigation. As of now, the public charge rule cannot be implemented in 18 states and the District of Columbia. Furthermore, DOS cannot implement the public charge rule in any cases decided at embassies or consulates. President-elect Joseph Biden, who takes office in January, has expressed his desire for the public charge rule to be reversed; however, the rule has to make its way through the extensive rule-making process.

Noncitizens residing in the United States deserve the care they need during the current public health crisis. Fortunately, USCIS has announced that testing and treatment for COVID-19, including the newly approved vaccine, will not trigger public charge. Furthermore, USCIS has announced it will consider other factors related to the pandemic, such as job and income loss. However, even after the COVID-19 pandemic subsides, we must continue to ensure that all immigrants have access to adequate healthcare and the necessary economic tools to build a more prosperous life in the United States.

Latest Developments on Public Charge

September 20, 2020 § Leave a comment

On July 29, 2020, the U.S. District Court for the Southern District of New York barred the government from enforcing the USCIS Final Rule on Inadmissibility on Public Charge Grounds during the COVID-19 pandemic. The district court issued this injunction in favor of the plaintiffs due to the harsh components of the public charge rule which have prevented many immigrants from receiving proper medical care during the pandemic. Many immigrants seeking permanent resident status have avoided seeking proper medical care and have not utilized government relief during the pandemic due to the fear of triggering the inadmissibility ground of public charge.

However, the 2nd Circuit Court of Appeals then limited the scope of the district court’s national injunction to only the jurisdiction of the 2nd Circuit. Therefore, the public charge rule was only barred in the states of Vermont, Connecticut, and New York.

Most recently, on September 11, 2020, the Second Circuit Court of Appeals stayed the original district court’s nationwide injunction on the DHS public charge rule. This means that USCIS is now free to require the Form I-944, Declaration of Self-Sufficiency, in all jurisdictions once again. However, uncertainties have come to light as USCIS has still not updated its web page related to the public charge injunction. Though USCIS has not added the Form I-944 back to its forms page, green card applicants should continue to fill out the pre-injunction I-944 Form until further notice. Applicants who use the Adjustment of Status process to apply for permanent residence from within the United States will be at risk should they submit Form I-485 packets without Form I-944. For those who are applying from outside the United States using consular processing, the Department of State has announced that in light of the pending litigation, applicants who may appear to be a public charge will be refused a visa under administrative processing (instead of a straight denial) to allow additional time for further assessment pending litigation.

As of now, USCIS has not yet updated its website with instructions on how impacted applicants should proceed to comply with the Public Charge Final Rule, nor how it will handle applications that were filed without public charge documentation while the injunction was in effect.

For a full background on the inadmissibility ground of public charge, refer to earlier immigration articles and also the American Immigration Lawyers’ Association website for litigation updates.

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