Trump Defies DACA Rulings

On July 28, 2020, the Trump Administration announced that USCIS will:

  • reject all initial DACA requests – applications by persons who have never before received DACA status.
  • reject all applications for advance parole based on DACA, unless there are exceptional circumstances.
  • approve DACA renewal applications for only one year, instead of two.

These announcements appear to directly contradict the ruling of the Supreme Court last month that the Trump Administration did not act properly when it ended DACA.

Legal challenges to the Trump Administration’s July 28 announcement are likely.  California Attorney General Xavier Becerra appeared to indicate that he would return to court, stating that DACA should be “in full effect, including for new applications.  The courts have spoken.  We know what it takes to defend DACA . . . and we’ll do it again if necessary.”

DACA enjoys overwhelming support among the American people, including among Republicans.

U.S.-Canada Asylum Treaty Found Unconstitutional

On July 22, 2020, a federal Canadian judge ruled that an asylum treaty between the United States and Canada known as the “Safe Third Country Agreement” is unconstitutional. A copy of the decision can be found here. The Safe Third Country Agreement (STCA) mandates that refugees must seek protection in the first country they arrive in. The Canadian judge deemed that the agreement with the U.S. violates Canada’s charter of human rights “because it returns asylum-seekers to the U.S., where they are ‘immediately and automatically imprisoned’ by U.S. authorities, often under inhumane conditions.”

The Safe Third Country Agreement came into effect in 2004. Since that time, many refugees have been denied entry into Canada because they arrived in the U.S. first, a designated “safe” country, where they could seek asylum. The ruling made by Federal Court Judge Ann Marie McDonald states “that the act of sending people back to the U.S., where they were at risk of imprisonment, violated their rights to life, liberty, and security.”

Canada’s Justice Department has thirty days to decide whether to appeal the decision. One of the applicants who challenged the Safe Third Country Agreement, Nedira Jemal Mustefa, was arrested after trying to enter through the Canadian Border from the U.S. She was placed in solitary confinement for one week and describes “losing 15 pounds as a result of not eating, saying that she was given pork even though she told officers she could not eat it for religious reasons.”

The Safe Third Country Agreement has raised more controversy since President Donald Trump took office and began carrying out the administration’s effort to limit asylum as well as other forms of immigration to the U.S. Moreover, “The deal has also been at the center of intense debate in Canada because a loophole allows asylum seekers who cross the border at unauthorized points of entry to proceed into Canada and file their claims.”

Overall, this new ruling further highlights how unwelcoming the U.S. has become to refugees. Unfortunately, the U.S. is becoming less and less of a haven for individuals fleeing persecution and harm in their home countries. Other countries have taken notice including Canada. Time will tell if similar decisions will follow.

Trump Announces Plan to Revoke Student Visas, then Retreats

On July 14, 2020, the Trump Administration backed down from its proposed plan to deny and rescind visas from students studying online at U.S. schools.

On July 6, 2020, ICE announced that foreign students who plan to take fully online courses will not get student visas, and online-only students already in the United States need to leave the country or risk being deported.

Analysts viewed the move as an attempt by the White House to pressure universities to reopen their campuses to in-person classes, instead of the approaches that many schools have spent months in planning to try to reduce the spread of Coronavirus.

At least three separate lawsuits seeking to block the new rules have already been filed.  On July 8, Harvard and MIT filed a lawsuit.  The following day, the State of California filed its own legal challenge.  And on July 13, a group of 17 states and the District of Columbia filed a legal complaint.

Massachusetts Attorney General Maura Healey noted that the “Trump administration didn’t even attempt to explain the basis for this senseless rule, which forces schools to choose between keeping their international students enrolled and protecting the health and safety of their campuses.”

To date, more than 200 universities have presented briefs in support of the legal challenges to the proposed restrictions.

It appears that the Trump Administration succumbed to the overwhelming criticisms and legal challenges to the new rule, abruptly abandoning its position only 8 days after announcing it.

U.S. Immigration and Customs Enforcement (ICE) “Citizens Academy”

In President Donald Trump’s continued effort to eliminate immigration to the United States, it was revealed this week that U.S. Immigration and Customs Enforcement (“ICE”) plans to hold training sessions for citizens to teach them how to arrest undocumented immigrants. To say that this program (dubbed the “Citizens Academy”) could lead to devastating consequences for immigrants is an understatement.

As reported by Newsweek, “A letter published online by The St. Louis Inter-Faith Committee on Latin America (IFCLA) appears to show ICE Chicago Field Office Director Robert Guadian inviting shareholders to participate in the course, which includes six days of training over a six-week period starting in September.” A copy of this letter can be found here.

According to Field Director Guadian, this program would be the first of its kind and would “serve as a pilot for nationwide implementation.” The planned courses would include “defensive tactics, firearms familiarization and targeted arrests.”

Understandably so, many immigrant advocates and legislators are outraged and appalled by the development of this program, which was never brought to the attention of lawmakers prior to its announcement.  Speaking with Newsweek, “Chicago Congressman Jesús ‘Chuy’ García said he was disturbed by the program, which he fears will lead to racial profiling, surveillance and potential violence.”

Sara John, the executive director of the St. Louis Inter-Faith Committee on Latin America (IFCLA) also shared her shock with Newsweek, stating, “We are outraged at the launch of yet another immoral initiative used by ICE to criminalize and destroy our families [. . .] The Citizens Academy program will train citizens to perpetuate race-based violence and further normalizes hate crimes that already devastate our neighborhoods.”

The Trump Administration’s strikes on immigration in the United States have been countless over the past three years. New policies continue to harm the lives of immigrants and their families daily. If you are in need of immigration assistance, please contact our office as we continue to advocate for the rights of immigrants throughout the country and the world.

U.S. Supreme Court Rules in Favor of Dreamers

On June 18, 2020, the U.S. Supreme Court handed a victory to DACA recipients, also known as “Dreamers,” in the case of Department of Homeland Security vs. Regents of the University of California. A full copy of the opinion can be found here. DACA, which stands for Deferred Action for Childhood Arrivals, is a policy that was created in 2012 by President Barack Obama in an effort to provide legal status for certain undocumented immigrants who arrived to the United States as children.

In his never-ending campaign to halt immigration to the United States, President Donald Trump ordered an end to DACA on September 5, 2017, thereby placing the legal status of approximately 800,000 DACA recipients in jeopardy.

Following the President’s decision to end DACA, several lawsuits were filed against the administration. Last week, the Supreme Court ruled in favor of DACA recipients, 5-4, “calling the Trump administration’s rescinding of the program ‘arbitrary and capricious;’ it’s been a cause for celebration—if a cautious one— by advocates and the ‘Dreamers.’”

Despite this most recent Supreme Court decision, the fight for DACA recipients is far from over. According to Roberto Gonzales, a professor at Harvard’s Graduate School of Education, “The courts didn’t rule on the program, but rather on how the Trump administration terminated the program. So the ball goes back to the Trump administration’s court, even to Congress, to try to do something.”

Unsurprisingly, President Trump was not happy with the Supreme Court’s decision. He sent out several tweets on Twitter attacking the decision and setting forth false information. The Department of Homeland Security (DHS) still plans to pursue ending the DACA program at the behest of President Trump.

This decision by the Supreme Court is one of the few that has ruled against President Trump in the arena of immigration. While it is certain that President Trump will continue his pursuit of ending this program as well as other forms of immigration, for now, this decision is a victory for DACA recipients who deserve the chance to lead their lives in the United States without fear of losing their legal status.

Supreme Court Will Hear Immigration Case From Michigan This Fall

 

On June 8, 2020, the U.S. Supreme Court announced that this Fall it will hear an immigration case from Michigan.  The case involves a question of national importance about which persons are eligible to apply for a benefit in Immigration Court called Cancellation of Removal.

The case is called Niz-Chavez v. Barr.  Mr. Niz-Chavez had his removal hearing in Immigration Court in Detroit, Michigan.  He is a citizen of Guatemala who entered the United States without permission in 2005.  In 2013, the Department of Homeland Security issued him a document called a “Notice to Appear,” which listed the U.S. government’s immigration charges against Mr. Niz-Chavez, but did not list the date of his hearing in Immigration Court.  Later in 2013, the Immigration Court provided Mr. Niz-Chavez with a notice indicating the date and time of his hearing.

Mr. Niz-Chavez appeared in Immigration Court and requested certain forms of relief, but he did not ask for a benefit called Cancellation of Removal, because the Immigration Judge concluded that he was not eligible.  One of the requirements of Cancellation of Removal is that the applicant needs to be present in the United States for at least 10 years.  There is an immigration statute called the “stop-time rule,” which indicates that when the applicant calculates the time in the United States, the clock stops when the applicant receives the “Notice to Appear.”  Mr. Niz-Chavez received his Notice to Appear in 2013 – 8 years after his entry to the United States – but his hearing in Immigration Court did not occur until 2017 – more than 10 years after Mr. Niz-Chavez entered the United States.

The question that the Supreme Court will address in this case is whether the U.S. government was required to provide Mr. Niz-Chavez with one single document that contained all of the required information, including the date and time of his court hearing, in order to trigger the stop-time rule, or whether the U.S. government may still trigger the stop-time rule when it provides a Notice to Appear that does not contain all of the required information.

If the Supreme Court decides that the Notice to Appear must include all information, including the date and time of the Immigration Court hearing, then the stop-time rule would not have stopped the clock in Mr. Niz-Chavez’s case, and he would be able to apply for Cancellation of Removal.  On the other hand, if the Supreme Court decides that the U.S. government’s piecemeal delivery of information to Mr. Niz-Chavez over several documents still triggered the stop-time rule, then Mr. Niz-Chavez would not be able to apply for Cancellation of Removal.

The answer to this technical question could affect the cases of thousands of persons in Immigration Courts throughout the United States.  The Supreme Court will hear this case in Fall 2020, and will likely issue a decision by June 2021.

President Trump’s Proposed Changes to Asylum Law

This week, the U.S. Departments of Homeland Security and Justice released a draft rule, proposing severe changes that would make it increasingly difficult for immigrants to seek asylum in the United States. The complete draft rule can be found here and is set to be published on June 15, 2020 and will be open for public comment.

Since President Donald Trump took office, one of the administration’s main goals has been to impose tight restrictions on the immigration system, many of which have had a devastating impact on immigrants and their families all throughout the country and abroad.

The proposed rule to the asylum system is perhaps one of this administration’s toughest yet. According to CNN, “Under one proposed change, an individual’s asylum claim could face greater scrutiny if the person traveled through at least one country while on the way to the US but didn’t seek refuge there.”

In addition, the proposed rule states that an adverse factor for asylum seekers would be if they were living unlawfully in the U.S. for more than one year prior to seeking asylum as well as “failure to file taxes or having a criminal conviction — even if it was reversed, vacated or expunged — could count against an individual’s asylum claim.”

According to Sarah Pierce, a policy analyst for the U.S. Immigration Policy Program, “A lot of these provisions have been in the works with the administration for years . . . Rather than issue them as separate regulations, the administration has lumped together a lot of different provisions in this behemoth, Frankenstein asylum regulation.”

The current administration’s efforts to cripple the legal immigration system know no bounds. This proposed rule will severely impact immigrants who fear death or serious bodily harm to themselves or their families if they were to return to their home countries.

The majority of asylum seekers travel to the United States to seek refuge from harm that their own governments cannot protect against. Once a safe haven for refugees, the United States has become an increasingly difficult place to obtain asylum. This proposed rule along with other policies and regulations that the current administration have put into place over the last three years continue to wreak havoc on immigrants and their families who merely seek a better life in the United States. As a firm, we will continue to advocate for the rights of immigrants and their families in these tough times.

USCIS Plans to Reopen June 4

USCIS has announced that they plan to reopen some field offices to the public beginning June 4, 2020.  USCIS had closed offices to the public on March 18, 2020, in response to the Coronavirus health emergency.  USCIS plans to implement procedures in an attempt to protect the health and safety of everyone.  USCIS appointment notices will contain information on safety precautions that all persons will need to follow.

Safety procedures may change as the situation develops, so you should check the USCIS website for updates.

USCIS will send you notices for interviews and biometrics appointments.  Please understand that there will very likely be significant delays in scheduling, both because of the number of applicants currently waiting for appointments, and because of the limited number of persons that USCIS will be able to accommodate because of social distancing and other safety precautions.

At this time, USCIS guidelines indicate that you may not enter a USCIS building if you have any symptoms of COVID-19, have been in close contact in the last 14 days with anyone suspected of having COVID-19, or if you have been directed to quarantine or self-isolate within the last 14 days.

You may not enter a USCIS building more than 15 minutes before your appointment.

You must wear a mask or other facial covering that covers both your mouth and nose.  If you don’t have one, USCIS might reschedule your appointment.

You are encouraged to bring your own black or blue pens to your appointment.

For those waiting for a naturalization oath ceremony, USCIS will send notices to you.  Guests are not permitted to attend, and the naturalization ceremonies will be shortened, both to minimize risks to everyone.

Please visit this USCIS page for more information regarding visitor policies.

United States Citizenship and Immigration Services (USCIS) Budget Crisis

The Coronavirus pandemic continues to affect all parts of the country including United States Citizenship and Immigration Services (USCIS). USCIS is an agency within the U.S. Department of Homeland Security, which is responsible for administering the country’s immigration system.

The pandemic has led to a large drop in the amount of applications submitted by immigrants for lawful permanent resident status, naturalization, as well as other programs. The budget that USCIS uses to operate is derived from the filing fees for these types of applications.

USCIS is now seeking $1.2 billion from Congress as well as planning to implement fee increases in order to continue its operations. Per the New York Times, USCIS “receipts could plummet by more than 60 percent by the close of the current fiscal year, which ends Sept. 30.”

A spokesman for the agency has stated that USCIS “would be unable to fund its operations in a matter of months.” In addition to the $1.2 billion dollars sought from Congress, “The agency plans to impose a 10 percent ‘surcharge’ on applications, on top of previously proposed increases, that it is expecting to implement in the coming months.”

Prior to the coronavirus pandemic, USCIS had already experienced a dramatic drop in applications due to the current admiration’s goal of decreasing immigration to the United States. Per CNN, “Between the end of fiscal years 2017 and 2019, USCIS received nearly 900,000 fewer petitions, according to Pierce, who added that the decrease was largely driven by the administration’s own decisions, such as ending Temporary Protected Status for nationals of several countries or drastically decreasing the number of refugees admitted to the United States.”

Due to the pandemic, USCIS suspended all in-person appointments and interviews on March 18, 2020. USCIS plans to reopen on June 4, 2020 at this time. However, whether the date will change remains to be seen as the coronavirus pandemic continues to plague the country.

Supreme Court Remands Free Speech Immigration Case Back to 9th Circuit

The Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator’s Office.

Back in February 2020, we discussed a case at the U.S. Supreme Court  involving a federal statute that makes it a crime to encourage or advise immigrants in the country to stay illegally.  The question, as it was presented to the Supreme Court, was whether the federal statute is unconstitutional because it tends to criminalize protected free speech.

On May 7, 2020, the U.S. Supreme Court issued a unanimous decision, concluding that the lower appeals court – the U.S. Court of Appeals for the Ninth Circuit – had impermissibly stepped in to shape the legal questions in the case.  The Supreme Court vacated the Ninth Circuit’s decision and sent the case back to the Ninth Circuit to consider the case as the parties had presented it, and not as the Ninth Circuit had redesigned the case.

The Supreme Court did not decide the question that the Ninth Circuit had crafted – whether the federal statute unconstitutionally restricts free speech.  The Supreme Court did not decide that question because it concluded that the Ninth Circuit abused its discretion by crafting the question and then answering it.

The attorneys representing the criminal defendant, Evelyn Sineneng-Smith, had presented arguments to the Ninth Circuit that Sineneng-Smith was not guilty of the crime under the federal statute.  The Ninth Circuit decided to appoint three amicus groups, or “friends of the court,” to present arguments on a question that neither Sineneng-Smith’s lawyers nor the government had raised:  whether the federal statute is “overbroad” under the First Amendment.  The Ninth Circuit then issued an opinion stating that the federal statute is overbroad, and thus invalid because it violates the Constitution.

The U.S. Supreme Court concluded that the Ninth Circuit should not have made up its own legal question on the case.  Instead, the Ninth Circuit should have decided the legal questions that the lawyers for Sineneng-Smith and the government had presented.  The U.S. Supreme Court sent the case back to the Ninth Circuit for a do-over.