The Assault Against Asylum: Family Groups

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:

  • race
  • religion
  • nationality
  • 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.

Trump Proposes Collecting DNA from Noncitizens

On October 22, 2019, the U.S. Department of Justice published a proposed rule in the Federal Register that would amend regulations to require DNA sampling from hundreds of thousands of noncitizens.  Specifically, this rule would require DNA collection from “individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States.”

Legal permanent residents and other immigrants entering the country legally will not be subject to this rule.  Attorney General William Barr issued the rule “with the expectation that federal authorities will gather DNA information on about 748,000 immigrants annually, including asylum-seekers presenting themselves at legal ports of entries.”

Immigrant advocates fear that this rule will have implications for U.S. family members of individuals whose fingerprints are taken.  Naureen Shah, senior advocacy and policy counsel at the ACLU, said that DNA collection is “the most intimate information that you can take from someone.  It is information you can use to find their family members, to know their histories.  And we’re going to be taking it from people against their will.”

The Justice Department hopes to send the DNA collected from noncitizens to an FBI database that contains the DNA of individuals who have been convicted of crimes in an attempt to lead to more crimes being solved.  This goal has been denounced by immigrant advocates who point to studies demonstrating that the increased flow of undocumented immigrants to the United States does not lead to a spike in crime.

This rule is subject to a 20-day comment period that is likely to see rebuke from immigrant advocates.  The Trump Administration’s efforts to harm immigrants is as active as ever, and this rule is just one of the many examples of this onslaught.

What is the REAL ID Law?

Enacted as a result of the attacks on September 11, 2001, and later approved by Congress in 2005, the REAL ID law was made to establish standards in the issuance of driver’s licenses in the United States.

The objective is to eliminate terrorism in air travel by increasing requirements to obtain official documents in order to board airplanes and to enter federal offices.

State offices that issue licenses and identification cards, such as the Secretary of State (SOS), are requiring more and more documents to prove residency.  In addition, new licenses will have more security features to prevent them from being falsified.

It has taken the federal government approximately 15 years to fully implement the law because each state has different rules.  However, all states must comply with these requirements by October 1, 2020.

This law has begun to be more restrictive for undocumented immigrants or other immigrants who cannot prove their legal stay in the country, or lack a Social Security number to obtain standard driver’s licenses.  The new standards might most affect noncitizens from certain states that previously did not require a Social Security number to obtain driver licenses, such as California, Washington, Nevada, among others.

If you do not comply with the REAL ID Act before the deadline of your state, you must show an alternative form of identification to board a domestic flight.  Your best option might be a valid passport.  Contact the nearest consulate of your country for more information on how to obtain your passport.

New Health Insurance Requirement for an Immigrant Visa

NOTE:  Federal court orders have temporarily blocked the implementation of this rule.  We will need to stay tuned to find out how the courts resolve the issue.

The Trump Administration recently announced a “presidential proclamation” that will take effect on November 3, 2019.  The proclamation requires certain people to show that they will obtain health insurance within 30 days of entering the United States, or that they have enough money to cover their health care costs.  The new requirement only affects certain persons who are applying for immigrant visas at U.S. consulates outside the United States.  Persons who obtain immigrant visas then become permanent residents upon admission to the United States.

Who is not subject to the new rule?

First, let’s talk about the persons who will not be affected by this new requirement.  The proclamation does not affect:

  • persons under age 18, unless they are accompanying a parent who is also applying for an immigrant visa and who is subject to the proclamation
  • children of U.S. citizens
  • persons adopted by U.S. citizens
  • parents of U.S. citizens, provided that the “sponsor demonstrates to the satisfaction of the consular officer” that his or her healthcare “will not impose a substantial burden” on the U.S. healthcare system
  • persons who are not applying for immigrant visas.

How do applicants meet the new requirement?

Applicants for immigrant visas who are subject to the new rule must convince the consular officer that they meet the healthcare requirement.  It is unclear whether the U.S. Department of State will establish standards based on the proclamation.

In order to meet the rule, applicants will need to show either (a) they will be covered by an approved health insurance policy within 30 days of entering the United States, or (b) they have enough money to pay for “reasonably foreseeable medical costs.”

The proclamation lists a variety of healthcare plans that would qualify, including:

  • an employer-sponsored plan
  • a family member’s plan
  • an unsubsidized plan from the individual marketplace
  • a short-term policy that is effective for at least 364 days
  • a catastrophic plan
  • a plan offered by the U.S. Armed Forces
  • a plan under the Medicare Program
  • any other plan that provides “adequate coverage” as determined by U.S. officials

We will need to wait and see how the U.S. consulates handle this new rule, beginning November 3, 2019.

Chaos at the Border: Tent Courts

In a previous blog post published on our website, we discussed the Remain in Mexico policy, formally known as the “Migrant Protection Protocols.”  This policy forces immigrants seeking asylum at the southern border to wait in Mexico until an asylum hearing is scheduled before an Immigration Judge.

The Texas Observer reports that “as of mid-September, more than 45,000 migrants have been returned to Mexico to await their court proceedings” pursuant to the Remain in Mexico Policy.

As an expansion of this policy, the Department of Homeland Security (DHS) has built what have come to be known as “tent court facilities” along several ports of entry at the southern border including in Laredo, Texas and Brownsville, Texas.  Immigration hearings are being held in these tents even though immigration judges are not physically present.  Instead, immigration judges appear via teleconference from immigration courts miles away.

This process has caused confusion among immigrants at the southern border as well as for immigration attorneys.  Lisa Koop, a lawyer at the National Immigration Justice Center, described her experience representing immigrants at these courts.  According to CNN.com, “Koop and her clients were able to briefly meet in small, air-conditioned rooms before the hearings, which began at 8:30 a.m.  During the hearings, Koop described how migrants saw the immigration judge on a screen, but not the Immigration and Customs Enforcement attorneys, adding that it was ‘often hard to hear’ them.”

Currently, approximately 19 judges from three immigration courts are holding hearings via teleconference.  They can be seen on video.  Although immigration courts are supposed to be open to the public, access to these tent facilities has become difficult because they are within Customs and Border Patrol property.  Entry is allowed on a case-by-case basis, and attorneys must file proper documentation in order to enter the facility.  If an individual is denied access to the tent facilities, they must appear at the immigration court where the immigration judge is conducting the teleconference from in order to observe hearings.

An immigration judge has criticized the presence of these tent courts.  Ashley Tabaddor, an immigration judge in California and president of the National Association of Immigration Judges, states, “We’ve seen a number of issues.  One has to do with the sheer volume of cases that judges are being assigned, just [an] unsustainable demand to handle two, three times the cases that they would otherwise be assigned.” She further adds, “The other big issue has to do with the logistical challenges that the respondents have in trying to secure counsel, which means the judges have to bear the brunt of that shortfall.”

It is clear that the creation of these tent courts by DHS poses many problems for immigrants, immigration attorneys, and immigrations judges alike.  This is yet another way in which the current administration has targeted asylum seekers in an effort to deter immigration to the United States.  Immigrants who are seeking asylum at the southern border are being forced to face more hurdles than the many obstacles that already exist solely because they fear return to their home countries.  For how long the Remain in Mexico policy will remain in effect is unknown, but for the time being, it will continue to cause difficulty for asylum seekers and those attorneys wishing to represent them.

The Importance of Renewing DACA Now

It is no longer possible to apply for DACA if you have not already been granted DACA.  You can, however, apply to renew your DACA status if you have been granted DACA in the past.  Even if you currently have DACA, and even if your current DACA status is valid until late 2020, you should consider applying to renew DACA now.

Here’s why.

The Trump Administration has been trying to end the DACA program.  DACA, or Deferred Action for Childhood Arrivals, was begun by President Obama in 2012 as a way to provide protection against removal, and employment authorization, for certain people who entered the United States before age 16 and who either have a high school degree or are studying for a high school or GED degree.

The U.S.  Supreme Court has agreed to hear arguments in case that will decide whether the DACA program survives, or whether it is ended completely.  The case is scheduled to be argued at the Supreme Court on November 12, 2019.  After the argument, the Supreme Court will consider the case, and eventually will issue a decision.  We don’t know when the Supreme Court will issue the decision, but we are almost certain that the decision will be announced between December 2019 and June 2020.

We don’t know how the Supreme Court will rule on the case.  We believe, however, that there is a significant possibility that the Supreme Court’s decision will end the DACA program.

If the Supreme Court’s decision ends the DACA program, the next question is:  What happens to the people who currently have DACA?  The answer is, We don’t know.  But we hope that the U.S.  government will allow those who currently have DACA to keep their DACA status until the expiration of their employment authorization cards.

So, what is the point of applying now to renew DACA?

If you apply now to renew DACA, before the Supreme Court issues a decision that could end the DACA program, then your application might be approved, and we hope that you would at least be able to have your renewed DACA status through the expiration of your new employment authorization card.

In other words, applying now to renew DACA might give you the opportunity to have DACA status for a bit more time.

Again, we don’t know what the Supreme Court’s decision will be, and we don’t know how the Supreme Court’s decision will affect persons who currently have DACA.  But we think it’s a good idea for you to consider applying to renew DACA now, while you still can.

We Are Here For You

In recent months we have been posting about the many ways that the Trump Administration is changing policies to make life more difficult for immigrants.  It seems like every week, and even every day, there is a new announcement of a change for the worse.  Some recent examples include many changes that are making it increasingly difficult to seek asylum, making financial support requirements more difficult for applicants for permanent resident status, the end of a humanitarian program to allow persons to be here to receive medical treatment, and the expansion of the use of “expedited removal.”

The continuous announcements of new and different ways to hurt immigrants can be exhausting and demoralizing.  If you are feeling this way, we understand.  We are in the middle of a challenging time for immigrants, not only in the United States, but in many countries around the world.  Anti-immigrant propaganda appears to be on the rise everywhere.

At our office, our commitment to you is that we will work hard with you to do whatever we can to help you in your fight.  We will never sugar-coat our assessment of your situation.  We always give you an honest assessment of your situation, and how we might be able to help.  Sometimes there is a way forward.  And, unfortunately, sometimes we need to explain that in some cases there is not a way to help you.  Our policy is to listen carefully to you, ask you questions and seek documents to get a complete and realistic view of your situation, and then explain to you how we might be able to help.  Then, we get to work to provide you with the best legal services that we can.

Although things are tough at this time, we are hopeful that the future will be brighter.

Whether your case involves an application for permanent residence, a waiver, removal of conditions on permanent residence, naturalization, asylum, removal proceedings in Immigration Court, a BIA appeal, a federal court appeal, a habeas corpus petition, or other federal court action, please understand that we are here for you.

Sudden Policy Shift on Deferred Action

USCIS recently announced that it will stop handling requests for non-military “deferred action.”  Deferred action is a form of temporary relief from deportation for immigrants facing special and often life-threatening circumstances.

It is reported that deferred action was granted for 20,000 immigrants from 2012 to 2016.  Deferred action does not confer lawful status on an immigrant and does not lead to permanent residence.  But those with deferred action will not have removal proceedings initiated against them and will be considered lawfully present in the country.  A grant of deferred action also does not excuse any past periods of unlawful presence.  Deferred action requests are handled on a case-by-case basis and can be renewed and terminated at any time.

USCIS did not give advance public notice for this change in policy.  Instead, people who have long relied on this form of immigration relief or had recently filed requests for deferred action received denial letters in the mail from USCIS, stating that the agency is no longer processing such requests.  Immigration Customs and Enforcement (ICE) will now assume responsibility of these deferred action requests even though the denial letters sent by USCIS did not state this fact.  Moreover, ICE is an enforcement agency that detains and deports countless immigrants each day.  People without lawful status in the United States will understandably be hesitant to request deferred action from the same agency that could detain and deport them.

It is important to note that this policy does not affect deferred action related to military members or DACA (Deferred Action for Childhood Arrivals).  Nevertheless, this policy will negatively affect a vulnerable population of immigrants who are unlikely to have any other form of immigration relief available to them, including children facing serious medical conditions like cancer, epilepsy, cystic fibrosis, and HIV and who cannot return to their home countries safely.  These individuals will now be at risk of facing deportation.

This sudden shift in policy is yet another targeted attack by the Trump Administration on legal immigration.  Policy changes like this continue to place vulnerable immigrants, including persons with life-threatening illnesses, at risk of deportation.  Only time will tell the lengths that this administration will go in order to unjustly limit the avenues of relief for immigrants in the United States.

Trump’s New Rule on the “Public Charge”

We recently wrote about the Trump Administration’s policy change regarding how U.S. immigration officials will determine who could be deemed “inadmissible” on “public charge” grounds.  Now that the policy shift has been published, we provide some more information here.

Please note that the rule is very long and contains lots of details and complexities.  This posting is meant to provide a general overview.  This posting is not legal advice.

Trump’s new rule is set to take effect on October 15, 2019.  Lawsuits challenging the new policy have already been filed, and more lawsuits are likely.  So, we don’t know yet whether the policy change will actually take effect on October 15, 2019 or not.  For now, it’s fair to say that it might take effect on that date, and we need to be prepared for it.

Who is affected?

Let’s discuss who is affected by the new rule, and who is not.  The new rule applies to persons who are applying for permanent resident status, otherwise known as “green card” status.  Persons apply either inside the United States or at a U.S. consulate in a country outside the United States.  The new rule also applies to persons who have a non-immigrant visa and who are seeking to extend their non-immigrant status or change it from one category to another.

The rule does not apply to persons who are already permanent residents (including permanent residents on a conditional basis who have a permanent resident card valid for two years).

It appears that the new rule could apply to permanent residents who are returning to the United States after a trip and who are deemed to be applicants for admission to the United States.  This situation could occur if a permanent resident takes a trip that lasts more than 180 days, or commits a crime either before or after taking a trip outside the United States, and certain other circumstances.

The rule also does not apply to asylees and refugees.  The rule also does not apply to U.S. citizens.

Trump’s new rule states that U.S. immigration officials will only consider public benefits received directly by the person applying for permanent resident status, or where that person is listed as a beneficiary of the public benefit.  If there are others in the household who are receiving public benefits, that will not cause a problem for the person applying for permanent resident status, unless he or she is listed as a beneficiary of the public benefit.

How does the new rule change things?

Under the new rule, a person is designated as a “public charge” if he or she receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.  If a person receives two different benefits in one month, that counts as two months.  “Public benefits” include:

  • Cash benefits for income maintenance, including any federal state, or local program such as SSI (Supplemental Security Income) and TANF (Temporary Assistance for Needy Families)
  • SNAP (Supplemental Nutrition Assistance Program) (known as “food stamps”)
  • Most forms of Medicaid
  • Section 8 Housing Assistance
  • Certain other forms of subsidized housing

The new rule will determine whether an applicant for permanent residence is likely to become a public charge at any time in the future.  At a minimum, U.S. immigration officials must consider:

  • Age: People under 18 or over 62 are considered to be more likely to become a public charge.
  • Health: People diagnosed with a medical condition likely to require extensive treatment will be considered more likely to become a public charge.
  • Education and Skills: History of employment in the last 3 years; education level, occupational skills, proficiency in English.
  • Assets, Resources, and Financial Status: U.S. immigration officials will consider:
    • the applicant’s credit history and credit score in the United States.
    • mortgages, car loans, unpaid child or spousal support, unpaid taxes, credit card debt.
    • ability to pay for medical costs associated with medical conditions.

What are the most important factors?

The new rule describes certain factors that will “weigh heavily” in the decision of whether a person is likely to become a public charge.

Heavily weighted negative factors:

  • The applicant is no a full-time student and is authorized to work, but is not able to show current employment, recent employment, or a reasonable prospect of future employment.
  • The applicant has received or been approved to receive one or more public benefits for more than 12 months in the aggregate within the most recent 36 months.
  • The applicant has been diagnosed with a medical condition that is likely to require extensive medical treatment that will interfere with the ability to provide for oneself, attend school, or attend work, and the applicant is uninsured and is not likely to obtain insurance or to pay for medical care.

Heavily weighted positive factors:

  • The applicant’s household has income and/or assets that amount to at least 250 percent of the Federal Poverty Guidelines for the household size.
  • The applicant is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for the household size.
  • The applicant has private health insurance, which does not include insurance for which the applicant “receives subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act.”

Public Charge Bonds

U.S. immigration officials may, in some cases, allow applicants to submit a public charge bond of at least $8,100, to be kept until USCIS grants a request to cancel the bond.

Bonds may be cancelled after the applicant:

  • becomes a U.S. citizen,
  • permanently departs the United States,
  • dies, or
  • completes 5 years as a permanent resident.

We are here for you.

The new rule is likely to mean significant changes to the process of applying for permanent resident status.  As noted above, lawsuits challenging the new rule might delay or even prevent implementation of the new rule.  We will continue to study the situation and we will work with you to provide high quality legal services for your immigration matter.

Welcome Gilberto!

We are lucky to have Gilberto Carranza as our new paralegal!  Gilberto earned a Bachelor’s Degree in International affairs at Universidad Autónoma de Baja California, where he graduated with honors. He is a multilingual professional with extensive knowledge of intergovernmental processes. He moved to Michigan in 2014 to work for the Mexican Consulate in Michigan, reviewing passport and visa applications and providing immigration related affairs for individuals based on their unique needs. Gilberto garnered over 5 years of experience in that field.

He is an active volunteer for Rotary Club International, collaborating on social projects since he was 16 years old. Within a few years of joining Rotary Club International, Gilberto founded a Rotaract Club in Mexicali, Baja California, Mexico and became the president of the club, Rotaract Club Mexicali Oeste.

Gilberto is fluent in Spanish, English, German, and Portuguese, and he speaks a little bit of French. His favorite hobby is traveling and he is fascinated with learning about local cultures, people, and new places. He has lived in Germany, Brazil, and Argentina. Michigan will be his permanent home since marrying a Michigander in 2018.