You Need to Carry Proof of Two Years of U.S. Residence

OK, let’s get straight to the point:  If you are in the United States without permission, you need to carry proof that you have resided in the United States for at least the most recent two years.  Here’s why.

What is “expedited removal”?

On June 25, 2020, the Supreme Court ruled that if you are a noncitizen in “expedited removal” proceedings, you don’t have a right to ask a federal judge to review your case.

If you are placed in expedited removal, you could ask for certain forms of relief, including asylum.  But you will need to convince an immigration official that you have a valid asylum claim.  If the official decides that you don’t have a valid asylum claim, then you can ask for an Immigration Judge to review that decision.  If the Immigration Judge agrees that you don’t have a valid claim, then you could be removed from the United States.

“Expedited removal” proceedings are usually very quick – a matter of days.

Which persons may be placed in “expedited removal” proceedings?

Until very recently, the only persons who could be placed in “expedited removal” proceedings were those persons who were encountered within 14 days of entry to the United States and within 100 miles of the U.S. border.

The Trump Administration has decided to apply expedited removal to all undocumented persons encountered anywhere in the United States who have resided in the United States for less than two years.  A federal district court had temporarily blocked that expanded use of expedited removal procedures.  But on June 23, 2020, a federal appeals court ended that temporary ban.  The decision of the appeals court means that, for now at least, any persons who are not able to show that they are permitted to be in the United States, and who are not able to show that they have been physically present in the United States for at least the most recent two years, could be subject to expedited removal.

Why should I carry proof of two years of U.S. residence at all times?

If you are encountered by immigration officials and you are able to show that you have been in the United States for at least the most recent two years, then you should not be placed in “expedited removal” proceedings.  At the very least, you would have some more options moving forward in the immigration system.

Which documents will help me?

Documents that show your identity, such as a valid passport or other valid ID, will help to show who you are.  Documents to show your time in the United States could include pay receipts, bills, leases, monthly bank statements, monthly mortgage statements, or any other documents that contain three important things:

  • your name
  • an address in the United States
  • a date

By carrying these documents at all times, you should have an opportunity to avoid the “expedited removal” process.

We are STILL here for you

Just a short note to let you know that we are STILL working with you on your immigration matters during the Coronavirus public health emergency.  Although we are not able to see you in person at this time, we are able to work with you by phone calls, video consultations, and communications by email, U.S. mail, and any other ways that we can get the work completed.  We are still actively working on your cases, and we continue to send in applications to USCIS and the Immigration Courts.

If you would like to contact us, please simply give us a phone call at (734) 369-3131, or send us an email to mike@mcarlinlaw.com, and we will be in touch with you right away.  It is our pleasure to continue to provide high quality legal services during this difficult time.  Thank you!

Supreme Court Hears Free Speech Immigration Case

Among the eight immigration cases pending at the U.S. Supreme Court is one involving the First Amendment.  On February 25, 2020, the Supreme Court heard oral arguments in U.S. v. Sineneng-Smith, a case involving a federal statute that makes it a crime to encourage or advise immigrants in the country to stay illegally.  The Supreme Court will decide if this federal statute is unconstitutional. A decision is expected by June 30, 2020.

The case stems from a California woman, Evelyn Sineneng-Smith, who ran an immigration consulting business serving Filipino home health care workers.  From 2001 to 2008, she collected more than $3 million from clients applying for an adjustment of their immigration status.  But the particular program Sineneng-Smith was filing under had ended in 2001, so the clients she applied for were not actually eligible.

Sineneng-Smith was convicted of mail fraud and tax violations.  She was also charged with the crime that is at issue in the case at the Supreme Court:  illegally encouraging an alien to remain in the United States.

The legal question in the case is whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain is unconstitutional.

During oral arguments, only Justice Samuel Alito seemed to believe that the government could actually punish anybody who ‘encourages’ undocumented immigration.  “If it could, after all, then political speech defending open borders or opposing deportation might be considered a federal offense.”

Representing the government, Deputy Solicitor General Eric Feigin asserted that the law covers only criminal conduct or ‘solicitation’ of a crime, not mere advocacy or expression.

Justice Sonia Sotomayor asked Feigin how “an average person” could possibly know about “all of the limitations you’re suggesting to us.”

A ruling for the First Amendment right to free speech this case would establish that the government cannot punish people for wanting to help immigrants in need.

Stayed tuned to see what the U.S. Supreme Court ultimately decides in this case.

U.S. Consulates Implementing New Public Charge Rule

On Monday, February 24, 2020, the U.S. Department of State will implement new policies related to the Trump Administration’s public charge rule.  The new policy is scheduled to go into effect worldwide on February 24, 2020.

Applicants for immigrant visas will now be required to complete an additional form, called the DS-5540.

The U.S. Department of State has also amended the sections of the Foreign Affairs Manual (FAM) relating to the public charge ground of inadmissibility.

The new form asks for the following information regarding the immigrant visa applicant:

  • Whether you currently have health insurance in the United States
  • Whether you will be covered by health insurance in the United States within 30 days of your entry to the United States with your immigrant visa
  • Members of your household and whether they are employed
  • Information regarding your federal tax returns within the last 3 years
  • Your current income
  • Whether you have a job waiting for you in the United States, the name of the employer, and the proposed yearly income
  • Your assets
  • Your debts
  • Public benefits you have received on or after February 24, 2020
  • Your education level
  • Your employment skills

There is at least one lawsuit challenging the U.S. Department of State’s implementation of the public charge rule.  For now, it is required for immigrant visa applicants.

Judge Permanently Blocks DHS Policy Shift on Student Visas

On February 6, 2020, a federal judge permanently blocked a DHS policy shift regarding persons who entered the United States on student visas and who later fell out of valid status.

Background

Many noncitizens who enter the United States on certain nonimmigrant visas – including F, J, and M student visas – are permitted to remain in the United States for the time during which they are pursuing their educations at accredited schools or engaging in authorized training after the completion of their studies.  When persons with these visas are admitted to the United States, they generally are admitted not for a specific period of time, but rather for the “duration of status.”  When DHS issues an I-94 to these persons, they generally state that they are permitted to remain through “D/S,” which stands for “duration of status.”

Noncitizens who accumulate “unlawful presence” in the United States suffer certain penalties when they depart the United States:  They are prohibited from returning to the United States for either 3 or 10 years, depending on the length of their “unlawful presence” in the United States before they departed.

For more than 20 years, DHS has maintained that persons with F, M, or J visas who fall out of valid status – who stop attending school or who stop authorized training – do not begin to accumulate unlawful presence unless or until a U.S. government official formally determines that they have lost their valid status.

DHS Policy Shift in 2018

DHS announced an abrupt change in this policy in August 2018, by stating that, effective immediately, persons with F, J, or M visas who stop going to school or who stop their training immediately begin to accumulate unlawful presence, without the requirement of any formal determination by a DHS official.

Federal Court Decision

A number of colleges, organizations, and noncitizens filed a federal lawsuit in North Carolina against DHS, asserting two main things:  (1) that DHS’s policy shift was a “rule” change that required that they give advance notice of the proposed change and give the public a chance to provide comments on the proposal, and (2) that the policy shift is unlawful because it conflicts with established immigration laws that Congress has passed.

In May 2019, the court issued a preliminary injunction against the DHS policy shift while the court considered the merits of the case.

On February 6, 2020, the court issued a final decision, agreeing with the colleges, organizations, and noncitizens that the DHS policy shift is unlawful for both reasons described above:  (1) the policy shift was a “rule” that requires the notice-and-comment procedure, and (2) the policy shift conflicts with federal immigration law.  The court permanently blocked DHS from implementing the policy shift against anyone, anywhere in the world.

We will need to wait and see if DHS appeals the court’s decision.  For now, the DHS policy is permanently blocked.

Trump Expands the Travel Ban

On January 31, 2020, President Trump added six more countries – four in Africa – to the existing travel ban implemented in 2017.  The countries added to the Travel Ban are Nigeria (Africa’s most populous nation), Sudan, Tanzania, Eritrea, Myanmar, and Kyrgyzstan.

Immigrants from Nigeria, Myanmar, Eritrea, and Kyrgyzstan will not be able to obtain immigrant visas to the United States, while immigrants from Tanzania and Sudan will not qualify for the diversity visa lottery.  According to The Hill, “Four of the six affected countries are in Africa and represent 25 percent of the continent’s population.  All six have significant Muslim populations.”

The expansion of the Travel Ban does not affect the issuance of nonimmigrant visas – visas issued for tourists, students, temporary workers, and others.

The United States argues that the travel ban is needed to ensure that countries meet security requirements for travel into the United States.  The Administration has not been able, however, to answer an important question:  If the Travel Ban is to protect U.S. citizens from potential harm, then why does the expanded Travel Ban allow for nonimmigrant visas from the banned countries?

If a person wished to inflict harm upon the United States in some way, would that person choose to apply for an immigrant visa (which involves a much more restrictive and lengthy application process), or a nonimmigrant visa, which is comparatively easier to obtain?  The Administration’s decision to continue issuing nonimmigrant visas to applicants from the newly banned countries directly contradicts the purported justification for the expansion of the Travel Ban – to protect Americans from harm.

This ban will continue to result in separation of U.S. citizens and their families.  Spouses, children, parents, and siblings of U.S. citizens are subject to the ban.  Immigrants who have been waiting months or even years to reunite with their loved ones in the United States will continue to endure longer periods of separation and devastating effects.

Immigrants subject to the ban are able to apply for waivers.  Those waivers, however, are highly discretionary and decided by the U.S. consulates.  According to the Washington Post, since the rollout of the initial travel ban, only 10 percent of waivers have been granted since 2017.

Many advocates and politicians continue to speak out against the travel ban given the administration’s unclear rationale as to why certain countries are added to the list.  Senator Kamala Harris recently stated, “Trump’s travel bans have never been rooted in national security — they’re about discriminating against people of color …They are, without a doubt, rooted in anti-immigrant, white supremacist ideologies.”

The ban is likely to have an effect on the U.S. economy.  According to the New York Times, “A year after the Trump administration announced that a major pillar of its new strategy for Africa was to counter the growing influence of China and Russia by expanding economic ties to the continent, it slammed the door shut on Nigeria, the continent’s biggest economy.”

For Now, Supreme Court Allows USCIS to Use “Public Charge” Rules

In earlier posts, we discussed the Trump Administration’s proposed new rule about denying permanent resident status to applicants who are considered likely to become a “public charge.”

That new rule was set to take effect on October 15, 2019, but courts issued orders blocking the implementation of the new rule while the cases challenging it were processed.

But on January 27, 2020, by a 5-4 vote, the Supreme Court lifted the injunction.  This means that USCIS may begin using the new rule while it is still being challenged in the courts.  There is one exception:  USCIS may not implement the new rule for green-card applicants in Illinois, because of an ongoing legal challenge in that state.

For now, we don’t know exactly if or how USCIS will begin to implement the new rule.  And it’s important to remember that lawsuits challenging the new rule are still moving forward.  The Supreme Court’s decision on January 27, 2020 simply states that USCIS may use the new rule (except in Illinois) while the lawsuits are pending.

How Will the Supreme Court Rule on DACA?

As we noted earlier, among the eight immigration cases pending at the Supreme Court is the question of whether the current administration’s attempt to end DACA was legally proper.  The Supreme Court heard oral argument on November 12, 2019.

The case focuses on two questions:  (1) Are the courts even allowed to review the government’s decision to end DACA?  (2) Did the government violate the law in the way that it went about ending DACA?

Are courts able to review the decision to end DACA?

The administration’s first argument is that the courts may not review the decision to end DACA, because that decision was within the federal government’s discretion, and so may not be second-guessed.

One weakness of the government’s argument is that the original justification that the administration provided for ending DACA is that the program was illegal, and so the administration had no choice but to end the illegal program.  Justice Ginsburg pointed out the problem:  on the one hand, the government says that it had the discretion to end the program, while on the other hand, the government says it had no discretion because the program was illegal.

Did the government attempt to end DACA in a lawful way?

Both sides agree that the current administration could end DACA if it chose to do so in a legally proper way – by providing sufficient reasoning behind the decision.

The government’s original justification for ending DACA was a brief memo that stated that the program was illegal, and so it must be ended.  Those supporting the DACA program argue that the government’s original reasons were not sufficient to justify the decision to end the program.

The government later provided an additional memo that attempted to more fully address all of the factors involved, including the reliance of about 700,000 persons who have DACA.  One question that the justices must sort out is, if the DACA program is legal (despite the current administration’s argument that it isn’t), then is the administration’s justification for ending DACA sufficient?

We expect the Supreme Court to issue a decision any time between now and the end of June 2020.

A “Safe” Third Country Agreement that is Unsafe

Beginning December 2019, the United States has begun taking Honduran and Salvadoran asylum seekers at the southern U.S. border and putting them on airplanes headed to Guatemala.  In July of 2019, the United States signed an agreement with Guatemala regarding the process.  The United States threatened to impose tariffs if Guatemala declined to sign the agreement.

According to the agreement, any person who travels through Guatemala on the journey to the United States must seek asylum in Guatemala.  Any person who does not seek asylum in Guatemala is subject to being sent to Guatemala.

Human rights migrants and activists have strongly opposed the agreement given Guatemala’s high rate of gang violence and crime rate.  Asylum seekers are likely to be placed in peril once sent to Guatemala.  Many asylum seekers who arrive at the U.S. border are escaping life-threatening situations and are now more at risk of being sent to a country in which they have never resided.

The United States is currently sending Honduran and El Salvadoran asylum seekers to Guatemala every two days via plane.  According to the Washington Post, “Many arrive with the same question: ‘Where are we?’”   Migrants have been placed on planes without knowing where they are going and without further instruction regarding what to do once they are arrive in Guatemala.

When they arrive in Guatemala City, the migrants receive little information about the asylum application process.  If they don’t immediately apply, they are told to leave Guatemala within 72 hours.

The United States has signed similar agreements with Honduras and El Salvador, but they have yet to take effect.

U.S. Starts Collecting DNA from Persons at the Borders

U.S. immigration officials have begun to collect DNA samples from persons at the borders.  Announced in October 2019, the DNA collection program is being implemented as a pilot in two locations: Detroit, Michigan and Eagle Pass, Texas.  Under the new program, persons who are in immigration custody with Customs and Border Protection (CBP) may be subject to DNA testing, which may be run through criminal databases.

The biometric information will also be stored in a profile created within in a criminal database held by the FBI.  The pilot programs at certain border locations will collect DNA from persons, whether or not they have any criminal history.  The DNA collection will include teenagers, some U.S. citizens, and some green card holders.

Opponents of the program cite serious privacy concerns, and assert that DNA collection is being transformed from a tool for criminal investigations into intrusive “population surveillance.”

CBP states that the pilot program will remain active for 90 days.  CBP will obtain DNA samples from persons between the ages of 14 and 79 crossing into Detroit, Michigan and Eagle Pass, Texas.

The program is slated to be released in five stages.  With the first stage already in progress, DNA collection is stated to be collected only from individuals with criminal charges and individuals referred for prosecution.  The DNA collection targets persons, however, U.S. citizens and green card holders may also be subject to DNA sample collection.

The following four phases will expand the resources necessary to allow for more borders to begin DNA sampling and expand collection efforts.  The entire scope of the program has not yet been decided, but it’s possible that after the fifth stage, officials will consider dramatically expanding the scope of those subject to DNA screening at the border.