On January 8, 2021, the United States Supreme Court granted certiorari in Sanchez v. Wolf, a case that addresses whether a grant of Temporary Protected Status (TPS) authorizes eligible non-citizens to apply for lawful permanent residence. A copy of the Petition for Writ of Certiorari can be found here.
Currently, there is a split among the U.S. Circuit Courts regarding this issue. The Sixth and Ninth Circuit have held that a grant of TPS counts as an admission for adjustment of status eligibility. The Eleventh Circuit, however, has held that TPS does not constitute an admission. Sanchez v. Wolf stems from the Third Circuit, which joined the Eleventh Circuit in holding that TPS does not constitute an admission for adjustment of status purposes.
Temporary Protected Status (TPS) is a temporary form of immigration status granted to nationals of certain countries that have been deemed unsafe for return due to armed conflict, environmental disaster, or other extraordinary conditions. United States Citizenship and Immigration Services (USCIS) can grant TPS to eligible nationals already in the United States, which allows them to remain in the country as well as obtain work and travel authorization.
Sanchez v. Wolf raises the question of whether a TPS recipient can apply for adjustment of status. To be eligible for adjustment of status, the applicant must show that they were inspected and admitted or paroled into the United States under Section 245 of the Immigration and Nationality Act (INA). The petitioners in this case argue that an immigrant who has not been admitted and inspected or paroled into the United States should nonetheless be eligible to adjust status if they have been granted TPS.
This U.S. Supreme Court decision will have great consequences for TPS recipients. If the Supreme Court sides with the Eleventh and Third Circuit, TPS recipients who entered the United States unlawfully would not be eligible to apply for lawful permanent residence. Many TPS recipients have been residing in the U.S. for decades, and an unfavorable decision could force them back to their home countries. The case is currently pending, and oral arguments will be heard by the Supreme Court in the coming months.
Since the start of the COVID-19 pandemic, United States Citizenship and Immigration Services (USCIS) has experienced long delays in scheduling biometrics appointments at Application Support Centers (ASC) around the country. USCIS temporarily suspended in-person services between March and June of 2020 to ensure the safety of employees and applicants amid the spread of COVID-19.
As a result of the pandemic, USCIS cancelled roughly 280,000 biometrics appointments. In July of 2020, USCIS offices began reopening with limited capacity after taking safety precautions including installing protective screens and ensuring compliance with social distancing guidelines. From July to September of 2020, Application Support Centers were operating at or below 50% capacity. By October 2020, operating capacity increased to 65% of pre-COVID levels.
To avoid further delays in the capture of biometrics, USCIS has began reusing previously captured biometrics when possible to conduct background checks on applicants. As of December 29, 2020, USCIS has not rescheduled all previously cancelled biometrics appointments. USCIS is currently scheduling approximately 10,400 appointments per day, while over 1 million applicants are still waiting for biometrics appointments.
USCIS is currently scheduling biometrics appointments based on the type of benefit being sought and generally on a first-in, first-out basis. Wait times vary among USCIS offices around the country. USCIS is also no longer processing walk-in appointments for biometrics collection. How the spread of COVID-19 unfolds in the coming months will determine if USCIS delays will continue or whether Application Support Centers can increase their operating capacity throughout the country.
Throughout his campaign and following his victory in the presidential election, Joe Biden has promised immigration reform. Over the last month, our office has published several posts regarding the President-elect’s promise for change within immigration. This week, President-elect Biden stated that although he hopes to reverse the damage caused by the Trump Administration, he is aiming for a slow approach in order to avoid a rush of “2 million people on our border.”
President-elect Joe Biden has previously stated that he plans to eliminate the “Remain in Mexico” policy set by the Trump Administration, which requires Central American migrants to remain in Mexico while their asylum claims are processed. However, during a press conference in Wilmington, Delaware this week, Biden stated, “The last thing we need is to say we’re going to stop immediately the, you know, the access to asylum the way it’s being run now and end up with 2 million people on our border.”
In regards to fulfilling his immigration reform promises, Biden also revealed that this will take time, stating, “It’s a matter of setting up the guardrails.” While Biden’s promises for reform have been a source of hope for many immigrants, his recent statements show that change will not be swift.
Immigrant advocates have been pushing President-elect Biden to implement broad changes to the immigration system, one that the Trump Administration has centered around detention and deportation over the last four years. In regards to Biden’s recent comments, Kennji Kizuka, a senior researcher and policy analyst Human Rights First, stated, “There needs to be some sense of urgency. There are a lot of refugees who are in danger in Mexico and who can be processed safely.”
While the future remains to be seen, it is vital for President-elect Joe Biden to fulfill his promises for reforming immigration in an effective manner that will ensure the safety and rights of immigrants.
On December 4, 2020, Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York ordered full reinstatement of the Deferred Action for Childhood Arrivals (DACA) program. A copy of the order can be found here. This order is a victory for DACA recipients and DACA-eligible youth as it reverses the Trump Administration’s efforts to end the DACA program over the last three years.
Former President Barack Obama implemented the DACA program in 2012. The program shields immigrants who were brought unlawfully to the United States as children from deportation and offers them work permits. To receive DACA, applicants must demonstrate various requirements including continuous residence in the U.S., enrollment or graduation from high school, and lack of felony conviction. A full list of eligibility requirements may be found here.
In his recent decision, Judge Garaufis ordered the Department of Homeland Security (DHS) to announce that it was accepting new DACA applications. The Trump Administration in recent years limited the DACA program to renewals and the issuance of DACA grants and work permits to one year. In response to this order, DHS posted an announcement on December 7, 2020, stating that it would begin accepting first-time requests for DACA, applications for advance parole, as well as extension of one year grants of status and work permits to two years.
According to National Public Radio, “DACA currently protects about 640,000 undocumented young immigrants. As of July, an estimated 300,000 young people living in the U.S. are eligible for the program and still waiting for a chance to apply. That includes 55,000 who have aged into eligibility over the last three years.”
While this order marks a victory for the DACA program, this is not the end of the road. DACA faces a legal challenge in a different case that will be heard in Texas later this month, asking for the program to be deemed unlawful. This litigation may prove futile however, as President-elect Joe Biden has already pledged to fully restore the DACA program. While the future remains to be seen, it appears to be brighter once Joe Biden takes office in January.
When Joe Biden is sworn in as the 46th president of the United States on January 20, 2021, he will face many challenges: the Coronavirus pandemic, global climate change, and economic instability are probably the top concerns on his agenda. But it’s worth considering how immigration policies and laws might change under the Biden Administration.
We don’t yet know which political party will control the Senate. Georgia has a special election on January 5, 2021 that will determine the winners of the state’s two Senate seats. Both Democratic candidates would need to win in order for the Senate to end up with 50 Senators affiliated with the Democratic Party, and 50 Republicans. In that scenario, Vice President-Elect Kamala Harris would be the tie-breaker, giving Democrats control of the Senate. But if either one or two Republican candidates in Georgia win their Senate races, then Republicans will retain control of the Senate.
Control of the Senate will determine how much Biden will be able to accomplish on immigration and many other issues.
In any event, perhaps one of the first immigration issues Joe Biden will address will simply be to get the U.S. consulates around the world to return to work and begin issuing visas again. Under the Trump Administration, the processing of visas slowed down to a crawl, especially for applicants in Africa, Asia, and South America. Applicants in Haiti, for example, received 67 percent fewer immigrant visas between 2016 and 2019 than previously. Applicants in Iran experienced a drop of nearly 80 percent. And that time period, of course, was before the Coronavirus pandemic.
For applicants applying for permanent residence within the United States, Joe Biden will need to undo many of Trump’s policies that slowed down USCIS in the processing of applications.
Biden will also face a crisis at the U.S.-Mexico border created by Trump, whose punishing policies turned away thousands of Central American asylum applicants. Many of those persons are in dangerous conditions in Mexico, waiting for an opportunity to simply ask for asylum in the United States.
DACA is another issue that Biden likely will try to address. A lasting solution – a path to permanent residence and citizenship – would require the approval of Congress. In the meantime, Biden might try to undo Trump’s damage to the DACA program, perhaps by returning renewals to two-year periods (rather than one) and allowing applications from persons who have never had DACA in the past.
And there are yet more immigration issues for Biden: What to do with Trump’s unfinished border wall? How to undo Trump’s “Muslim ban”? How to return the refugee resettlement program to normal levels after Trump severely cut it back?
Joe Biden will need to face all of these immigration issues, and more, in 2021 and beyond.
On November 24, 2020, the U.S. Court of Appeals for the Sixth Circuit issued a decision in the case of Hernandez-Serrano v. Barr, rejecting a challenge to Matter of Castro-Tum and concluding that Immigration Judges and the Board of Immigration Appeals (BIA) do not have the general authority to administratively close cases. The full decision can be found here.
In 2018, former Attorney General Jeff Sessions certified Matter of Castro-Tum to himself in an unprecedented move, ruling that “[I]mmigration Judges and the Board [BIA] do not have the general authority to suspend indefinitely immigration proceedings by administrative closure.” This decision was met with widespread criticism from immigration attorneys and advocates as it stripped immigration judges from their ability to exercise jurisdiction in adjudicating cases.
Administrative closure is a procedural tool that allows an immigration case to be put on hold indefinitely and for removal proceedings to be delayed. This allowed “individuals the opportunity to pursue more promising forms of relief, eliminated unnecessary costs associated with remaining in active removal proceedings, and allowed judges to prioritize other cases.”
The recent Sixth Circuit decision sets up a circuit split as both the Fourth and Seventh Circuit have concluded that Immigration Judges and the Board of Immigration Appeals (BIA) do have the authority to administratively close cases. The Fourth Circuit decision, Zuniga Romero v. Barr, can be found here. The Seventh Circuit decision, Meza Morales vs. Barr, can be found here.
While this recent decision rejected a challenge to Matter of Castro-Tum, the Court in footnote one suggested that a noncitizen subject to a final order of removal can apply for adjustment of status directly with the United States Citizenship and Immigration Services (USCIS) even if not an arriving alien. How USCIS will respond to this recent decision remains to be seen.
The Trump Administration has changed the naturalization test, making it more difficult to pass, changing answers to previous questions in politically questionable ways, and increasing the burden on applicants.
Trump also changed how USCIS decides whether to approve or deny a naturalization application, again further restricting the ability of persons to become U.S. citizens.
Such changes come as no surprise from Mr. Trump, who will need to vacate the White House on January 20, 2021. We eagerly await his departure.
The changes to the naturalization test will affect all persons whose naturalization applications are filed with USCIS on or after December 1, 2020. The changes will not affect persons whose applications were filed before December 1, 2020.
The new test has 128 questions (instead of 100) to study. At the naturalization interview, the officer will ask a total of 20 questions chosen at random (instead of 10), and the applicant must answer at least 12 correctly (instead of 6). And, apparently, the USCIS officer will not stop the questioning once the applicant obtains a sufficient number of correct answers, but instead is supposed to go through all 20 questions.
The new list of questions includes some insidious changes. For example, the question “Who does a U.S. Senator represent?” which had the correct answer of “all people of the state,” has been replaced with the following answer: “citizens of their state.” This change tracks the Trump Administration’s assault on noncitizens. Trump is trying to exclude undocumented persons from the 2020 census count, despite the fact that the census is to count all persons in the United States, regardless of status.
Another example of Trump’s politicization of the naturalization process is a new question: “Why is the Electoral College important?” One of the authorized answers is: “It provides a compromise between the popular election of the president and congressional selection.” This answer makes no sense, and appears to be an attempt to inject politics into the naturalization process.
In addition to changes in the naturalization test, USCIS recently updated its policies to include a very long list of reasons to deny an application based on the applicant’s immigration history, including innocent errors committed by U.S. immigration officials in approving an applicant’s previous application, even if that U.S. government error occurred many decades ago.
The naturalization changes fit into a pattern we have grown accustomed to seeing from the Trump Administration: change as many things as possible to make things more difficult for noncitizens.
We look forward to a brighter future beginning January 20, 2021.
Joe Biden’s monumental presidential win has ushered in a new era of hope for immigrants. President-elect Joe Biden has already planned sweeping changes to immigration for his first weeks in office. This will mark a vast shift from the Trump administration’s efforts to eliminate immigration to the United States over the last four years.
CBS news obtained an advance look into the changes that President-elect Joe Biden hopes to enact next year. These changes include fully restoring Deferred Action for Childhood Arrivals (DACA), which the Trump administration tried to end. Currently, the United States Citizenship and Immigration Services (USCIS) is only accepting renewals for DACA, while the new changes would allow for first time applications.
The Biden administration also plans to rescind the Muslim Travel Ban that President Trump put into place, severely limiting immigration to the United States for citizens of several predominantly Muslim countries. Many immigrants from these countries have been stuck overseas for several years due to this ban.
Additional changes include implementing “a 100-day freeze on deportations while looking at ways to deprioritize the removals of undocumented immigrants who aren’t violent criminals.” This would be drastically different from President Trump’s designation of all undocumented immigrants as priorities for removal.
The Biden Administration also plans to undo the damage wrought by President Trump on migrants seeking asylum at the southern border by withdrawing agreements with Guatemala, El Salvador, and Honduras, which allowed the U.S. to send back asylum seekers to these countries.
While these proposed changes by the Biden administration are encouraging, we must wait until next year to see what unfolds. Regardless, it is time for positive change and a chance to undo the damage that has been done by the Trump administration to immigration.
The amount of deaths of immigrant detainees in Immigration and Customs Enforcement (ICE) custody has been on the rise over the past several years. A recent CNN report revealed that 21 people died in ICE custody this year, double the number of deaths in 2019. Immigrant advocates believe that this rise in deaths is due to worsening conditions in detention centers, lack of adequate medical care, as well as mishandling of COVID-19 by ICE.
According to the CNN Report, “More than a third of the people who died in ICE custody this year had tested positive for Covid-19 – including a 56-year-old man from the Marshall Islands, who died in a Louisiana hospital, and a 61-year-old man from Mexico, who died in a Georgia hospital last week.”
When questioned about this rising death count, ICE responded by detailing their efforts to combat the spread of COVID-19 in detention centers and stated that the total number of detainees has decreased during the pandemic.
While there has been an increase in detainee deaths this year, past years have also revealed alarming numbers. BuzzFeed News filed a Freedom of Information Act (FOIA) Request in 2019, requesting records pertaining to 25 deaths of detainees in ICE Custody. Over 5,000 pages of documents were released, revealing “that ICE’s own investigators raised serious concerns about the agency’s care of the people it detains, with one employee describing the treatment leading up to one death as ‘a bit scary.’”
In addition, “in multiple instances, guards who were supposed to observe detainees placed in solitary confinement for extra monitoring falsified records to hide apparent dereliction of duty. In at least two cases — at Eloy Detention Center in Arizona and Adelanto Detention Facility in California — people died while they were not being watched but should have been.”
Overall, these deaths of detainees in ICE custody reveal disturbing details of inadequate treatment and denial of basic human rights to immigrants. As immigrant advocates continue to speak out, it remains to be seen whether ICE will take the necessary steps to prevent more deaths of detainees in the future.
On October 20, 2020, the Trump Administration announced a new rule that would further bar certain immigrants from obtaining asylum. This new rule set forth by the Department of Justice (DOJ) and the Department of Homeland Security (DHS) will go into effect on November 20, 2020. A copy of the rule can be found here.
This rule will prevent certain immigrants from obtaining asylum based on their criminal history. A DOJ Press Release lists these categories of immigrants including those who are convicted of any federal or state felony, alien smuggling, illegal reentry, gang activity, drunk driving, drug crimes, domestic violence, and other offenses relating to false identification.
The rule also bars immigrants who have committed certain domestic violence offenses even if they have not been convicted.
According to the DOJ, “To ensure that criminal aliens cannot obtain this discretionary benefit, the Attorney General and Secretary of Homeland Security have exercised their regulatory authority to limit eligibility for asylum for aliens who have engaged in specified categories of criminal behavior.”
Immigrant advocates have expressed outrage over this new rule. Human Rights First asserts that this new rule will “disparately impact particularly vulnerable populations, including LGBTQ asylum seekers and asylum seekers from Africa, the Caribbean, Central America, and other regions who are routinely criminalized because of their identities, racially disparate policing practices, or in connection with experiences of trafficking and domestic violence.”
The publication of this rule comes as no surprise given the Trump Administration’s efforts to end immigration to the United States. Whether this rule will be successfully challenged in federal court in the future remains to be seen.