Trump Administration Announces New Bars to Asylum

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.

U.S. Ban on Communist Party Members

On October 2, 2020, United States Citizenship and Immigration Services (USCIS) issued a policy alert regarding inadmissibility based on membership or affiliation with the Communist Party or any other totalitarian party.  A copy of the policy alert can be found here.  While this new alert does not change existing immigration law, it requires U.S. immigration officers to exert stricter enforcement when determining whether an applicant for an immigration benefit such as a visa or lawful permanent residence is inadmissible based on this ground.

While the policy alert did not mention the Chinese Communist Party (CCP) by name, experts believe that this move is being imposed as “top Trump administration officials ramp up criticism of the CCP for its role in covering up the coronavirus outbreak.”

The inadmissibility ground for membership or affiliation with a Communist Party or other totalitarian party was created by Congress to ensure the safety and security of the United States and dates back to the 1950s.  However, there are certain exceptions for involuntary membership, past membership, and for immigrants who are close family members of U.S. citizens or lawful permanent residents who do not pose a threat to the security of the United States.

According to the Migration Policy Institute, “There were 2.5 million Chinese immigrants in the United States in 2018, or about 5.5 per cent of its total foreign-born population.”  Moreover, “Almost all Chinese government officials are members of the Communist Party, as are most executives of state-owned enterprises and officials at public institutions.”

In response to this policy alert, “Hu Xijin, editor-in-chief of Chinese tabloid newspaper Global Times, took a positive view of the rule change, saying the immigration restriction would help “keep more talents in China.”

While it is clear that this policy alert is part of the Trump Administration’s continued effort to eliminate immigration to the U.S., it remains to be seen how much of an impact this new guidance will have on immigrants in the future.

Trump Administration: “We Need To Take Away Children”

New information disclosed by U.S. government officials establish that in 2018 the Trump Administration actively pursued the separation of families arriving along the southern border of the United States, and that the goal of the policy was to deter people from entering the United States.

Michael E. Horowitz, the Inspector General of the U.S. Department of Justice, is in charge of a draft report on the policy, which the Trump Administration abandoned after worldwide condemnation.

“We need to take away children,” then-Attorney General Jeff Sessions told U.S. attorneys working in locations near the U.S.-Mexico border.

The Trump Administration separated at least 5,000 families before a federal court ordered an end to the policy and the reunification of the separated families.

The draft report states that “The department’s single-minded focus on increasing prosecutions came at the expense of careful and effective implementation of the policy, especially with regard to prosecution of family-unit adults and the resulting child separations.”

In the draft report, which has not been released publicly, U.S. government officials noted that in a meeting about the policy, President Trump “ranted” and was on a “tirade,” and was “demanding as many prosecutions as possible.”

The draft report also includes details about U.S. immigration officials “taking breastfeeding defendant moms away from their infants.”

Mr. Horowitz concludes in the draft that senior U.S. officials, including then-Attorney General Jeff Sessions, were aware that “the prosecution of these family-unit adults would result in children being separated from families.”

Federal Court Blocks USCIS Fee Increase

On September 29, 2020, a federal court in San Francisco temporarily blocked the United States Citizenship and Immigration Services (USCIS) planned fee increase that was set to take effect on October 2, 2020.  U.S. District Judge Jeffrey S. White of the Northern District of California issued a preliminary nationwide injunction that prevents USCIS from raising fees while the lawsuit challenging the fee rule continues.  A copy of the decision can be found here. 

In his decision, U.S. District Judge White criticizes the proposed fee increase, stating, “If it takes effect, it will prevent vulnerable and low-income applicants from applying for immigration benefits, block access to humanitarian protections, and will expose populations to further danger.”

USCIS issued a pointed response to the injunction, declaring, “In a fee-funded agency such as USCIS, this increase is necessary to continue operations in any long-term, meaningful way to ensure cost recovery.  This decision barring USCIS from enacting its mandatory fee increase is unprecedented and harmful to the American people.”

USCIS published its fee increase rule on July 31, 2020.  A previous blog post regarding this rule can be found here on our website.  The rule would drastically increase the fees for many applications for immigration benefits. For example, “The rule would increase the cost to become a U.S. citizen by more than 80%, rising from $640 to $1,160 (for online filings, although a separate $85 biometrics fee would be eliminated). The United States would also become one of the few countries in the world to charge an individual for applying for asylum ($50).”

This injunction brings temporary relief to immigrants who can continue to file for immigration benefits using the current fee schedule.  Although this injunction may be overturned in the future, this decision is still a win for immigrants against the Trump Administration and its continued effort to restrict immigration to the United States and naturalization.

Federal Court Rules Trump Administration Can End Temporary Protected Status (TPS)

On September 14, 2020, the United States Court of Appeals for the Ninth Circuit ruled that the Trump Administration is within its authority to end Temporary Protected Status (TPS) for hundreds of thousands of immigrants in the United States.  A copy of the decision can be found here.  This decision affects citizens from El Salvador, Haiti, Nicaragua, and Sudan.

TPS is a form of relief granted to immigrants in the United States who are citizens of certain countries that the Department of Homeland Security has deemed unable to handle the return of its citizens adequately due to natural disasters, armed conflict, or other extraordinary conditions.  A grant of TPS allows the beneficiary to live and work with authorization in the United States and without fear of deportation.  A grant of TPS must be renewed during designated periods as well.

According to National Public Radio, “The Trump administration terminated TPS designations of El Salvador, Haiti, Nicaragua and Sudan in 2017 and 2018. (It later ended TPS for Honduras and Nepal, and a separate case brought last year by citizens of those countries is ongoing).”

Several TPS beneficiaries filed a lawsuit in federal court challenging the Trump’s Administration’s decision.  A district court had issued a preliminary injunction, preventing the termination of the TPS program, but this week’s decision lifts the injunction, allowing for immigrants from the affected countries to be subject to removal as early as next year.

According to the New York Times, “The Trump administration has argued that the emergency conditions that existed when people were invited to come to the United States — earthquakes, hurricanes, civil war — had occurred long ago.”

However, most TPS holders have been living in the United States for a decade or longer.  The plaintiffs in this case argued that the Trump Administration’s decision to end TPS was fueled by “animus toward ‘non-white, non-European immigrants.’”

The plaintiffs in this case plan to appeal the decision of the 9th Circuit.  Immigrant advocates have been critical of this decision, which will potentially expose many individuals with TPS to removal from the United States, where they have established familial, economic, and social ties.

As the Trump Administration continues its effort to end legal immigration to the United States, its decision to end Temporary Protected Status is another measure that will cause severe consequences for over 400,000 immigrants in the United States.

Trump Administration’s Effort to Expand Biometric Data Collection

The Trump Administration is currently working on a proposal that would greatly expand the collection of biometric data from individuals seeking immigration benefits.  The U.S. Department of Homeland Security confirmed this week that a draft policy was in progress, which would allow the government “to request biometrics from immigrants with green cards or work permits at any point until they become a U.S. citizen, in what amounts to continuous vetting.”

Currently, United States Citizenship and Immigration Services (USCIS) requires that applicants for immigration benefits provide fingerprints, photographs, and signatures.  The new policy would extend biometric collection to “include DNA, eye scans, voice prints and photographs for facial recognition” as well as the collection of DNA from U.S. citizen sponsors and children under 14 years of age.

In addition, per CNN.com, “The proposed rule will allow the agency to collect DNA to verify a genetic relationship, where establishing a genetic or familial relationship is an eligibility requirement for the immigration benefit.”

This proposed policy is part of the administration’s continued effort to promote extreme vetting of immigrants.  In January of this year, we published a blog post regarding collection of DNA from individuals seeking entry at the border. A copy of this post can be found here.

This new policy has already received criticism from immigration advocates.  Andrea Flores, deputy director of immigration policy for the American Civil Liberties Union (ACLU), said, “Collecting a massive database of genetic blueprints won’t make us safer — it will simply make it easier for the government to surveil and target our communities and to bring us closer to a dystopian nightmare.”

The proposed rule will undergo further review before implementation but is considered a top priority at this time by the Trump Administration.

 

USCIS Will Accept Advance Parole Requests from DACA Recipients

On August 24, 2020, USCIS announced some updated procedures regarding DACA recipients.  The most important change in USCIS policy is that USCIS will accept requests for advance parole from DACA recipients.

You may access the full policy memo here.

But USCIS cautioned that advance parole requests will need to establish “exceptional circumstances” in order to be approved.  In the past, under President Obama, USCIS routinely approved DACA recipients’ advance parole applications that requested travel permission for educational and employment purposes, or to visit an ill grandparent.  It appears that now, USCIS would not approve those applications.

USCIS provided a few examples of travel that might be approved:

  • to support national security or military interests
  • to further U.S. federal law enforcement interests
  • to get life-sustaining medical treatment that is not available in the United States
  • to support the immediate safety, well-being, or care of an immediate relative, especially minor children

Please note that this list does not include all potential reasons to request advance parole.

In the new memo, USCIS also repeated the position from July 2020 that they will reject all initial DACA requests from persons who never previously had DACA.  But now USCIS also states that if, in the future, they begin to accept first-time applications for DACA, then a prior rejected application would not cause a problem for a future applicant.  USCIS also repeated the announcement last month that it will grant DACA renewals for one year at a time, rather than two years at a time.

Changes to Employment Authorization Requirements for Asylum Seekers

Last month, the Trump Administration issued two new rules that would further restrict eligibility criteria for asylum seekers requesting employment authorization.  The first rule issued on June 19, 2020, “Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications,” will take effect on August 21, 2020.  The final rule can be found here.  The second rule, “Asylum Application, Interview, and Employment Authorization for Applicants,” issued on June 26, 2020, will take effect on August 25, 2020 and can be found here.

Both rules will make it significantly harder for asylum seekers to obtain employment authorization in the United States, which has been a goal of the Trump Administration for some time.  While asylum seekers will still be eligible for employment authorization, many changes will take place in the process.

First, the new rules mandate that an asylum applicant must wait 365 days after filing an asylum application before applying for employment authorization.  This is a significant change from the old rules, which allowed asylum applicants to wait 150 days to apply for employment authorization and another 30 days for adjudication of the application.

Moreover, under the new rules, after an application for employment authorization is submitted, a United States Citizenship and Immigration Services (USCIS) Officer will determine whether there is an unresolved “applicant-caused delay” when the application was filed and whether the application should be denied on that basis.

Examples of “applicant-caused delay” include: “amending an asylum application that causes a delay in adjudication; an unexcused failure to appear at an asylum interview or decision pick-up; failure to appear at a biometrics appointment; not filing supplemental documentation to the asylum office within 14 days of an interview, a request to transfer asylum offices or to reschedule an asylum interview, a request to provide additional evidence, or a failure to provide an interpreter.”

The new regulations also limit validity of an employment authorization document to a maximum of two years and prevent asylum seekers from receiving employment authorization if they attempt to enter the United States without inspection on or after August 25, 2020 (subject to certain exceptions).

The effects of these new rules will no doubt cause devastating consequences for asylum seekers who will now have to wait more time before obtaining employment authorization.  The additional restrictions also make it easier for USCIS to deny employment authorization applications on many grounds.  While unfortunate, these new regulations are not surprising given this administration’s constant efforts to eliminate immigration to the United States.

USCIS Fee Adjustments To Take Effect On October 2, 2020

On August 3, 2020, the Department of Homeland Security (DHS) published a final rule regarding fee adjustments for applications filed with United States Citizenship and Immigration Services (USCIS). A copy of the complete final rule can be found here. The final rule will take effect on October 2, 2020.

According to the news release, “USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the cost of providing adjudication and naturalization services. DHS is adjusting USCIS fees by a weighted average increase of 20% to help recover its operational costs. Current fees would leave the agency underfunded by about $1 billion per year.”

The new rule includes new fee increases, removal of certain fee exemptions, as well as changes to fee waivers and premium processing requirements. Some key aspects of the rule are listed below:

The new USCIS fees will undoubtedly impose hardships on immigrants and businesses. For example, USCIS is increasing “the cost of the application (N-400) to become a U.S. citizen by more than 80%, rising from $640 to $1,160 (for online filings, although a separate $85 biometrics fee would be eliminated).”

In addition, although there is a $10 decrease for adjustment of status applications, a separate fee will now be required for applications for employment authorization and advance parole (fees which were previously included with the adjustment of status application).

As the Trump administration continues to restrict immigration to the United States, this new rule is an additional measure that makes it more complicated and expensive for immigrants to pursue adjustment of status, citizenship, as well as other legal status within the country.

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.