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.

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.

 

Executive Order Suspending Entry of Certain Immigrants

The spread of the Coronavirus (COVID-19) continues to have devastating impacts on immigration to the United States. On April 22, 2020, President Donald Trump signed a new executive order that restricts certain immigrants from entering the United States for 60 days, with some exceptions. The full order can be read here.

The Executive Order states that its aim is to suspend entry of certain immigrants to the United States due to the negative impact that foreign workers can have on the labor market during the Coronavirus pandemic.  President Donald Trump states, “I have determined that, without intervention, the United States faces a potentially protracted economic recovery with persistently high unemployment if labor supply outpaces labor demand.”

Pursuant to the order, suspension and limitation on entry applies to immigrants who are:

  • are outside the United States on the effective date of this proclamation;
  • do not have an immigrant visa that is valid on the effective date of this proclamation; and
  • do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

The order does not apply to “lawful permanent residents, spouses of United States citizens, immigrants entering pursuant to the EB-5 Immigrant Investor Program, or any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications.” There are other immigrants who are exempt from the order; a full list can be found here.

Although the Executive Order expires in 60 days, the President can extend its application if necessary.

There has been a lot of criticism of the new order by immigration advocates.  According to Omar Jadwat, director of the Immigrants’ Rights Project at the ACLU, “While the order is limited in scope, President Trump’s transparent attempt to distract from his own failures with this unwarranted suspension will cause real pain for families and employers across the country.”

There are many prospective immigrants outside the United States who have been waiting for years to obtain their visas and enter the country. They will be unable to do so for the next 60 days, or possibly longer.

Throughout his tenure, President Trump has taken many steps to limit immigration to the United States, resulting in damaging consequences for immigrants and their families. While all efforts must be taken to combat the spread of the Coronavirus, a valid question is whether this order is aimed to do so or is rather an attempt to further the anti-immigration agenda of the Trump Administration.

States Ask Supreme Court to Put “Public Charge” Rules on Hold

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.”

In January 2020, the Supreme Court issued an order that allowed U.S. immigration officials to put the new rules into effect while it is still being challenged in the courts.

In February 2020, USCIS and the U.S. Department of State began to require applicants to follow the new public charge rules.

On April 13, 2020, officials representing New York, along with Vermont and Connecticut, asked the Supreme Court to put the public charge rules on hold until the Coronavirus emergency is over.

In their request, the state officials argued that the public charge rule has the effect of discouraging noncitizens from seeking health care, including testing and treatment for the Coronavirus.  Leaving the public charge rule in place at this time “makes it more likely that immigrants will suffer serious illness if infected and spread the virus inadvertently to others—risks that are heightened because immigrants make up a large proportion of the essential workers who continue to interact with the public.”

On April 24, 2020, the Supreme Court denied the requests, but indicated that the petitioners could file motions in the federal district court.  It appears that officials representing the state challengers likely will file a motion in district court.

Immigrant Detainees Battling Coronavirus

Over the past few weeks, Coronavirus (or COVID-19) has wreaked havoc all throughout the United States. One highly vulnerable population at this time includes immigrants who are currently being held in detention.

While Attorney General William Barr has ordered the release of medically vulnerable federal inmates, there has yet to be a nationwide effort by Immigration and Customs Enforcement (ICE) to do the same for the more than 34,000 immigrant detainees around the country. Sixty percent of these detainees do not have criminal records and are only detained for immigration violations.

The Trump Administration is putting immigrant detainees at great risk by not mandating their release. According to Amnesty International, “ICE and its detention facilities have failed to adequately provide soap and sanitizer or introduce social distancing. Nor has it halted the unnecessary transfers of people between facilities in the interest of public health, routinely transporting thousands in and out of facilities.”

ICE has also continued to understate the number of detainees who have been exposed to or contracted COVID-19. Amnesty International has received reports of “suspected COVID-19 cases and lockdowns in multiple ICE facilities, where lawyers said ICE officials refused to comment on the health situations.”

The American Civil Liberties Union (ACLU) of Michigan has filed a federal lawsuit this week, demanding the release of immigrant detainees in Calhoun, Monroe, and St. Clair County Jail. Senior Staff Attorney, Miriam Aukerman, has said that “social distancing and strict hygiene are virtually impossible in a detention setting.”

One of the detainees who provided testimony for the lawsuit is Gener Alejandro Chinchilla-Flores, a 36-year-old Costa Rican national who has been detained at Monroe County Jail since Feb. 25, 2020. He has reported “numerous inmates are coughing and have reported an infestation of maggots.”

Jose Nicolas Chavez-Vargas, a 50-year-old Mexican national who has been detained at the Monroe County Jail since February 20, 2020, also provided testimony, stating, “Everyone sleeps in dormitories that house approximately 100 people, with about 50-60 bunk beds per dormitory. The beds are only 3 to 4 feet apart from each other. People continue to eat their meals communally, multiple times per day.”

While ICE continues to hold immigrants in detention, other county jails including Wayne have released all prisoners without felony cases and who do not pose a risk to public safety.

While it is clear that immigrant detention could lead to the deaths of many detainees due to the spread of COVID-19, it remains to be seen what measures ICE will take, if any, to protect the health and safety of this vulnerable population.