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.
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. 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.
The U.S. Supreme Court has eight pending immigration cases, and we are likely to see decisions on most or all of them by June 2020, when the Supreme Court ends its current session. Here is a run-down of the eight cases:
- Perhaps the most anticipated case involves the future of DACA. The Supreme Court will decide whether the Trump Administration’s decision to end DACA was legal. Based on the oral argument, held in November 2019, the Court is likely to be sharply divided on the question. If the Supreme Court decides that President Trump legally ended DACA, the next question will be exactly how the Administration will end the program. Because the future of DACA is very uncertain at this time, we suggest that all persons who currently have DACA to consider applying to renew DACA as soon as possible, before the Supreme Court issues a decision. Our reason for making this suggestion is that, if the Court rules that President Trump legally ended DACA, then there will no longer be any opportunity to renew DACA.
- In Kansas v. Garcia, the Court will decide whether states may prosecute undocumented persons who use stolen data such as Social Security numbers to obtain work, or whether such prosecutions are only permitted by federal officials. The federal I-9 form, which job applicants must complete in order to obtain employment, states that the information put on the form may only be used for federal law purposes.
- Another case before the Supreme Court focuses on whether certain noncitizens may appeal certain decisions to federal courts of appeals. Congress has enacted a law that specifically allows federal courts to review “questions of law.” But federal appeals courts generally do not have the power to review “questions of fact.” In cases before the Supreme Court this term, two noncitizens filed late motions to reopen their deportation cases. The Board of Immigration Appeals denied their motions. The question that the Supreme Court must answer is whether federal appeals courts may review the decisions of the Board of Immigration Appeals.
- In Nasrallah v. Barr, the Supreme Court will decide whether or not federal courts have authority to review certain decisions. As we just noted, generally federal appeals courts do not have the power to review “questions of fact.” But the United States has agreed to follow a document called the Convention Against Torture, and the federal government has laws that state that federal government officials may not send any persons to any countries in which they are likely to be tortured. In this case, the Supreme Court will decide whether federal appeals courts have the authority to review factual findings that resulted in denying requests for protection under the Convention Against Torture.
- The Constitution contains a right to file a habeas corpus petition, which is a challenge to being detained by any government authority. In DHS v. Thuraissigiam, a noncitizen entered the United States and asked for asylum. A federal immigration official concluded that he did not have a valid asylum claim, and ordered his deportation. He filed a habeas corpus petition in federal court, challenging his detention by federal officials as unlawful. Congress passed a law restricting the power of federal courts to hear habeas corpus cases in certain immigration matters, such as this one. The Supreme Court will decide whether Congress’s law is valid, or whether it violates the Constitution’s right to file a habeas corpus petition.
- Congress passed a law making it a crime to encourage illegal immigration for financial gain. A woman in California was convicted of helping noncitizens apply for immigration benefits that they were not entitled to receive. A federal appeals court concluded that Congress’s law violates the First Amendment because it applies too broadly, potentially making it a crime for a lawyer to advise a client to remain in the United States while her case is pending in Immigration Court. The Supreme Court will decide whether Congress’s law violates the Constitution.
- When a noncitizen applies for certain immigration benefits in Immigration Court, there is a question of whether certain criminal convictions disqualify the person from seeking the benefit. Some minor offenses, such as driving without a license, generally do not disqualify a person, while more serious offenses do. Most criminal convictions occur in state courts, while lists of disqualifying crimes are based on federal law, listing federal offenses. Sometimes, it’s unclear whether a conviction under a state law fits within the federal law definition. In this case, the Supreme Court will decide who bears the burden of this question: Is it the noncitizen’s responsibility to show that the state conviction is not a disqualifying federal crime? Or is it the federal government’s job to show that the state conviction is a disqualifying federal crime?
- Finally, the Supreme Court will decide a case that focuses on a legal distinction between being “deportable” and being “inadmissible.” A permanent resident (green-card holder) in the United States was convicted of a crime in the United States. In Immigration Court, he was in danger of losing his permanent resident status as a result of the conviction, and so he applied for a certain benefit that, if approved, would allow him to keep his green-card status. Immigration law indicates that his criminal conviction makes him “inadmissible,” and so he’s not eligible to apply for the benefit. He argues, on the other hand, that he’s not asking to be admitted to the United States – he’s already been admitted – and so he should be able to request the benefit. The Supreme Court will decide whether a permanent resident can be considered “inadmissible” when he is not seeking admission to the United States.
Decisions are expected by the end of June 2020.
BuzzFeed News recently obtained a Homeland Security memo describing allegations of inadequate medical care for immigrants in detention centers.
According to information BuzzFeed obtained from the memo, “Immigrants held in Immigration and Customs Enforcement jails around the U.S. received medical care so bad it resulted in two preventable surgeries, including an 8-year-old boy who had to have part of his forehead removed, and contributed to four deaths.”
The BuzzFeed report also stated that “three people had died in ICE lockup after receiving inadequate medical treatment or oversight, and said official reports on a fourth person’s death were ‘very misleading.’ One man died from meningitis following ‘grossly negligent’ care. Another killed himself after saying he would do exactly that months earlier.”
The whistleblower’s allegations were sent to the Department of Homeland Security’s inspector general in April of 2018 and were then forwarded to the DHS officer for Civil Rights and Liberties as well as top Immigration and Customs Enforcement (ICE) leadership in July of 2018 for further investigation.
Recently, the House Oversight and Reform Committee opened up an investigation into the medical care of immigrants in detention centers. The congressional committee issued letters demanding documents from DHS and ICE by January 10, 2020. A spokesperson for DHS recently stated that the Department has already provided the committee with more than 5,000 pages of documents relating to the medical care of immigrant detainees.
A report from USA Today has also highlighted the poor medical care provided in such facilities. In one instance, “Thomas, a diabetic, said he’s lost 20 pounds in ICE custody because of a combination of medical errors and questionable food preparation. He said he’s gone up to two weeks without receiving his diabetes medication and was fed a diet not suited for an unmedicated diabetic.”
In another incident, a female detainee “said she was diagnosed with schizoaffective disorder, a chronic mental health condition, four years ago. But after she was jailed in 2018, she asked for her medication for weeks to no avail.”
DHS asserts that they “are dedicated to providing timely and comprehensive medical care to immigrants in their custody, noting that they have access to a daily sick call and 24-hour emergency care.”
The current House investigation into the inadequate treatment of immigrant detainees will likely shed more information on the urgent situation at hand.
On December 18, 2019, the Trump administration proposed a regulation which includes new reasons to bar migrants from claiming asylum in the United States. The proposal will go through a public comment period before it is finalized. The new regulation would add further restrictions for migrants in addition to current policies enacted by the administration in recent years.
The proposed regulation is being described by the Justice Department and the Department of Homeland Security as a method to provide more resources to the asylum cases filled by non-criminal aliens.
Current laws prohibit migrants from obtaining asylum if they have committed serious crimes such as murder, rape, and drug trafficking. The new rules add some felonies and some less serious misdemeanors to the list of crimes that would disqualify asylum seekers. The additional disqualifying crimes include:
- a conviction for any felony under federal or state law
- alien smuggling or harboring
- illegal reentry to the United States
- a conviction for any law involving criminal street gang activity
- driving under the influence of an intoxicant
- a conviction for any law regarding domestic violence
- a finding that a person has engaged in domestic violence, even without a conviction
- false identification
- unlawful receipt of public benefits
- possession of a controlled substance or paraphernalia
While some of the additional disqualifying crimes are serious crimes, others are much less serious, such as using a false identification and driving under the influence. Some criminal acts would not even require a conviction in order to be barred from asylum, such as being found by an adjudicator of engaging in domestic violence.
In an immigration system that is already challenging, a small lapse of judgement could have life altering complications for asylum seekers attempting to enter the United States lawfully.
Every year, many students from all around the world seek student visas in order to enter and study in the United States for a designated period of time.
In an effort to lure foreign students who they “believed were trying to stay in the country illegally,” the Department of Homeland Security (DHS) set up a fake university in Michigan called the University of Farmington.
The fake university admitted students and collected hundreds of thousands of dollars, if not millions, in tuition but never held actual classes. In order to maintain valid student status and keep their visas, foreign students must remain enrolled in their programs while in the United States.
ICE recruited hundreds of these students to their fake university in Michigan and then arrested them for being enrolled in a fake university.
According to the Detroit Free Press, “About 600 students, mostly from India, were enrolled at the university in Farmington Hills, a majority of them in master’s degree programs in engineering or computer-related fields. The students had arrived in the U.S. legally through approved student visas and didn’t have criminal records.”
DHS argues that the students it lured had an objective of committing immigration fraud and that students should have realized no classes were actually held. The problem with this argument is that many students were apprehensive and tried to contact the university and figure out what was happening. They, however, were not told the truth by the school administrators, who were in fact undercover government agents.
As of November 2019, about 250 students have been arrested for immigration violations by ICE. Many of these students were placed in removal proceedings and granted voluntary departure.
To date, we are not aware of any lawsuits filed against the U.S. government for collecting the money or entrapping the students.
Unfortunately, many con artists make phone calls in which they impersonate officials from U.S. government agencies such as Social Security, the IRS, or the Department of Homeland Security. In these scam calls, the person on the phone usually falsely claims that you are in trouble for something, such as non-payment of taxes, or a problem with your Social Security number, or a threat that you are going to be deported from the United States.
These scam artists often try to get you to disclose highly personal and sensitive information, such as your Social Security number, and they also often try to get you to send them money, gifts cards, or other things of value.
Here are a few things to remember:
- If you receive an unexpected phone call from a person who claims to be from the IRS, Social Security, or the Department of Homeland Security, the caller is very likely to be a scam artist. You should simply hang up the phone immediately. If you are able to identify the caller’s phone number, you should block that number.
- Don’t ever give out personal information to someone you do not know. U.S. government officials would never ask you to tell them sensitive information over the phone.
- Don’t give any money or any other thing of value to someone who claims that you need to pay them to clear up your problem.
Here are a few online articles about how to avoid scams:
- Investopedia: The Most Common Social Security Scams and How to Avoid Them
- The Motley Fool: How to Avoid Social Security Scams
- Department of Homeland Security: Common Scams
Con artists make their living by scaring people and making them believe that they need to provide information and money in order to get out of trouble. Don’t let them get away with it!
On November 14, 2019, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register that instructs United States Citizenship and Immigration Services (USCIS) to raise filing fees for numerous applications for immigration benefits. A 30-day period to allow for public comment begins on November 14, 2019.
USCIS is one of the few federal agencies that are funded by customers’ application fees. USCIS states that “federal law requires USCIS to conduct biennial fee reviews and recommend necessary fee adjustments to ensure recovery of the full cost of administering the nation’s immigration laws.”
Unfortunately, this proposed plan to increase USCIS filing fees comes as no surprise given the Trump administration’s efforts to severely limit immigration. The plan includes numerous spikes in fees that will undoubtedly make it more difficult for individuals to apply for immigration benefits in the future.
For example, the cost to apply for U.S. citizenship will increase from $725 to $1,170. According to the Los Angeles Times, the new fee for naturalization “totals about a month’s worth of gross income for an immigrant making the federal minimum wage.”
While there is currently a process in place for individuals to request a fee waiver if they cannot afford the USCIS filing fees, the proposed plan “would eliminate a reduced-fee option for applications from families with income between 150% and 200% of the poverty level and almost completely eliminate waivers for everyone else.”
There is no doubt that this plan aims to reduce the amount of individuals applying for naturalization who, if approved, would gain the right to vote. Studies have shown that previous fee increases lowered naturalization rates and disproportionately affected lower income and Latino immigrants.
Under the current USCIS fee schedule, individuals applying to adjust status or become lawful permanent residents (“green card holders”) must file Form I-485, which costs $1,140, along with an $85 biometrics fee for most applicants, for a total of $1,225. Currently, applicants may also file Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document, may file them along with the I-485 at no additional cost.
The new rule will require applicants who want to concurrently file the I-765 and I-131 to pay an additional $1,075. As a result, the total cost for an I-485, I-765, and I-131 package will increase from $1,225 to $2,195, a 79 percent price hike.
The new proposed rule is likely to draw widespread rebuke from immigration attorneys and advocates throughout the country as it is clearly another targeted ploy by the current administration to hinder legal immigration.
The current presidential administration has been engaged in an unprecedented assault on the right to apply for asylum and to have adequate procedures to handle asylum claims. One particularly painful example is the decision of Attorney General William Barr in a case called Matter of L-E-A-. In this case, the Attorney General overturned the decision of the Board of Immigration Appeals (BIA) and issued his own decision to replace it.
The Attorney General’s decision makes it more difficult for certain people to apply for asylum. Asylum applicants must show that the persecution they suffered in the past, or that they fear in the future, is because of one or more of the following five reasons:
- political opinion
- membership in a particular social group
The reason of “membership in a particular social group” is complicated. One such group is family. For example, a person might be targeted by her country’s government or by gangs or rebel groups in her country because of her connection to her family. Perhaps the person’s father is involved in politics, and the government targeted her to retaliate against her father’s political activities. For years, the BIA and numerous federal courts of appeals concluded that a person like this woman is a member of the particular social group consisting of her immediate family. In other words, she would be eligible to seek asylum because she was targeted for being her father’s daughter.
In Matter of L-E-A-, the Attorney General just made it considerably more difficult for a person like this to seek asylum. The Attorney General indicated in the new opinion that if a person claims family as a particular social group, that group would be established for the asylum claim only if the group is “distinct in the society.” It is not enough, according to the Attorney General, that the family is “set apart in the eye of the persecutor.” The family must be perceived as distinct within the society. The Attorney General says that the “average family … is unlikely” to be “recognizable by society at large.”
If, at this point, you are scratching your head and wondering what the Attorney General means, you are not alone. In my view, the Attorney General is trying to close the door on many people who otherwise would have valid asylum claims.