The Trump Administration’s (Bad!) Shift on “Public Charge”

The term “public charge” is used in immigration law to refer to an individual who is likely to become primarily dependent on the government for support by receipt of cash assistance or long-term care at the government’s expense.

Whether someone is likely to become a public charge is considered when a person applies for a nonimmigrant or immigrant visa to enter the United States and when they apply for adjustment of status (to obtain a green card).  An immigration officer must look at the totality of circumstances when deciding whether a person will become a public charge.  They can consider factors such as age, health, family status, assets, resources, financial status, and education and skills in their overall analysis.  Any persons who are deemed to become a public charge will not be able to obtain the immigration benefit that they are seeking.

On October 10, 2018, the Department of Homeland Security (DHS) introduced a new rule regarding public charge.  The rule will soon take effect.  The rule is likely to negatively affect many immigrants by expanding the list of publicly funded programs that officers can consider when deciding if someone will become a public charge.  Under the proposed rule, past and current use of Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance, and the Low-Income Subsidy for the Medicare Part D prescription drug benefit can be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.

The DHS proposal would also allow immigration officers to consider English proficiency as well as use of all cash aid including state and local cash assistance programs.

Under the DHS rule, consideration would be given not only to whether an applicant was so poor that they were likely to receive certain U.S. government benefits, but also to whether the applicant received these benefits already.

While the DHS proposed rule remains under development, the Department of State has already revised the Foreign Affairs Manual to tighten the public charge analysis.  U.S. consulates around the world have already been applying these new policies, which have led to an increase in visa denials.  From October 2018 through July 2019, the State Department has denied 5,343 immigrant visa applications for Mexican nationals based on public charge grounds.  That is up from only seven denials in 2016!

U.S. consulates in other countries have also begun denying more visa applicants on the public charge ground.  For example, the U.S. consulates in Bangladesh and Pakistan refused more than 2,700 applicants in the most recent fiscal year, a sharp increase over previous years.

This new change to the public charge assessment is just one of numerous actions that the Administration has taken and will continue to pursue in order to restrict immigration to the United States.  Sadly, many immigrant families are suffering the effects.

Trump’s New (Bad!) Policy on Expedited Removal

The Trump Administration recently announced a new policy regarding “expedited removal,” effective immediately, that allows U.S. immigration officials to remove people from the United States, without any hearing and without any review, unless they can prove that they have been physically present in the United States for at least two years.

It is virtually certain that lawsuits will be filed by noncitizens attempting to block this new policy, but the outcome of those lawsuits is unknown.

It is crucially important that all persons in the United States without authorization carry with them proof that they have been in the United States for at least two years.  Some examples of documents to prove physical presence include tax returns, paystubs, medical bills, utility bills, leases, or any other documents that have your name, a date, and an address in the United States.

It is also crucially important to carry, at all times, a valid form of identification, such as a valid passport, driver license, state ID card, or some other form of valid identification issued by a government office.

Please remember that if you are encountered by U.S. immigration officials, you have the right to remain silent.  Immigration officials, however, using this new policy, could conclude that you have not established your identity and that you have not established that you have been physically present in the United States.

If you choose to speak to U.S. immigration officials, you should tell the truth.  If you are able to establish your identity, and if you are able to establish by documentation that you have been physically present in the United States for at least two years, then you should not be subject to expedited removal.  You still could be subject to arrest, but you would have the right to have a hearing in Immigration Court.

Legalized Marijuana and Immigration Consequences

Several states have begun the process of legalizing the use of marijuana.  In November 2018, Michigan passed a proposal that allows marijuana to be regulated similarly to alcohol.

Possession of marijuana, however, remains a federal offense and can lead to several immigration consequences.  With immigration, it is federal law that counts.  Even if the conduct is permitted under state law, a noncitizen who admits to an immigration official that they have possessed marijuana may be denied entry to the United States, have their application for adjustment of status or naturalization denied, or even be found deportable.  This includes possession of marijuana for medical purposes.

Noncitizens may be found inadmissible if they have been convicted of or admit having committed a violation of any law relating to a controlled substance.  This includes possession of marijuana.

There is a narrow waiver for this inadmissibly ground, but only for a single offense of simple possession of 30 grams or less of marijuana, and the noncitizen must meet other strict requirements in order to qualify for this waiver.

And even a noncitizen who has been admitted to the United States, for example as a permanent resident, a visitor, or a student, may be deported for any drug-related crime, other than a single offense involving possession for personal use of 30 grams or less of marijuana.

For noncitizens, it is very important to understand the consequences of marijuana possession.  Noncitizens must be careful when asked about marijuana use by an immigration official or even a doctor at a medical visa interview.  As described above, merely admitting to the possession of marijuana can result in being inadmissible to the United States.

If you are inadmissible to the United States and you are applying for entry into the country, you will not be allowed into the country unless you qualify for a waiver and you are subsequently approved for that waiver.  If you apply for adjustment of status and are found inadmissible, your application will be denied unless you qualify and obtain a waiver approval as well.

For naturalization applicants, it is also important to understand the consequences that marijuana possession raises.  USCIS might deny the naturalization application of a permanent resident who has just one conviction for simple possession of marijuana for personal use in the last five years.

Noncitizens need to take heed when it comes to possession of marijuana.  Even if you live in a state where the use of marijuana is legalized, you could still face severe immigration consequences because possession of marijuana is still a federal offense.

How to Prepare for an ICE Raid

UPDATE: On June 22, 2019, President Trump announced that he will “hold off” on the massive deportations for two weeks.

President Trump has promised “massive” ICE raids beginning June 23, 2019, apparently focused on persons who have final orders of removal.  It generally happens, however, that whenever ICE officers go into a community searching for specific persons, ICE often arrests other persons who they find.

Here are some things to keep in mind to prepare for an ICE raid:

  • You have the right to remain silent, if you wish
  • Record details of your encounter with ICE
  • Record names of officers, if you are able to
  • Do NOT run away from ICE officers
  • Do NOT sign any document that you do not understand and that you do not wish to sign
  • Tell the ICE officer that you want to speak to an attorney
  • If you do speak to ICE, tell the truth.

If ICE comes to the door of your home:

  • Do NOT open the door
  • ICE is ONLY allowed to enter if they have a valid search or arrest warrant with the correct name and address, signed by a judge
  • Ask the ICE officer to slip the warrant under the door or to hold it up to a window so that you can read it.
  • If ICE shows you a warrant of deportation or removal, and if that document is NOT signed by a judge, then you do NOT need to open the door.
  • If ICE does not show you a warrant signed by a judge, then politely tell ICE that you are not required to open the door.

If ICE enters your home:

  • Remain calm
  • Call an attorney immediately
  • You do not need to say anything. Instead you can say that you have the right to remain silent
  • Do NOT sign any document that you do not understand and that you do not wish to sign.

Increased Scrutiny of Social Media

Freedom of speech has long been a beloved and protected value of the American people.  With the rise of social media, U.S. citizens have fostered new, online spaces where they can continue to voice their opinions, stories, and feelings freely and without fear of persecution.  However, for immigrant and non-immigrant visa applicants outside of the U.S., their voices on social media may be their demise.

As of May 31, 2019, the Department of State’s electronic visa applications now require that applicants provide their usernames from the past five years for a variety of social media websites and applications such as Instagram, Facebook, Tumblr, and Flickr to name a few.  Even if their social media accounts have been deleted, applicants are required to disclose them if the accounts existed in the past five years.  In addition to sharing their social media information, visa applicants must provide all of their email addresses and phone numbers from the past five years, as opposed to the previous norm of only providing their current contact information.  These new requirements fulfill President Donald Trump’s promises to more thoroughly screen foreigners applying to enter the U.S.

Prior to this new policy, social media vetting of visa applicants existed but on a smaller scale.  The only visa applicants required to release their social media usernames on visa applications were those who were identified for extra scrutiny, for example, people who had traveled through areas controlled by terrorist organizations.  This group of people amounted to roughly 65,000 immigrant and non-immigrant visa applicants.  The new policy will require social media information from approximately 710,000 immigrant visa applicants and 14 million non-immigrant visa applicants.  Even applicants for student and business visas will be required to provide their social media, email, and phone history.  (https://www.forbes.com/sites/lealane/2019/06/03/social-media-info-now-required-by-state-department-for-most-u-s-visa-applicants/#335703f24d31).  It is not known exactly how the Department of State will choose to utilize this information, nor is it known whether or not this extra vetting will slow down immigrant and non-immigrant visa processing times.

The American Civil Liberties Union (ACLU) has been openly opposed to social media inspection of visa applicants on behalf of the Department of State.  In March of 2018, Hina Shamsi, director of the ACLU’s National Security Project stated that the new policy “will infringe on the rights of immigrants and U.S. citizens by chilling freedom of speech and association, particularly because people will now have to wonder if what they say online will be misconstrued or misunderstood by a government official.” (https://www.aclu.org/press-releases/aclu-comment-state-department-notices-requiring-social-media-information-visa).

Unfortunately, for visa applicants, the ACLU’s fears of the suppression of freedom of speech are becoming a reality.  It is recommended that anyone considering applying for a visa or anyone who has close family members or friends applying for visas be extremely mindful of what they post on their social media accounts.  Anything a visa applicant or even an applicant’s friend or follower says online can be used against the applicant in a consulate, an embassy, or even at the airport.

Contrary to President Trump’s rhetoric citing foreigners as criminals and terrorists, there is no evidence to support his claims.  Even studies done on populations with higher percentages of documented and undocumented immigrants show no causal affect between immigration and crime. (https://www.nytimes.com/2019/05/13/upshot/illegal-immigration-crime-rates-research.html).  When it comes to terrorism, mass shooters in the U.S. are most commonly white men who were born in the U.S., not foreigners.  Visa applicants wait months and sometimes years so they can legally enter the country, yet the U.S. government insists on monitoring them like criminals, along with asylum seekers and other immigrants attempting to gain lawful status in the U.S.  In the administration’s attempt to save American lives and preserve our values, the White House is slandering one of the nation’s most crucial values of all: The First Amendment, freedom of expression.

Abandonment of Permanent Residence

Lawful permanent residence is not always “permanent.” Lawful permanent residents (LPRs) are subject to grounds of deportability that may lead to removal from the United States. One reason for deportability is something called “abandonment” of lawful permanent residence status. The issue of abandonment of lawful permanent residence arises in various situations.

An LPR may be found to have abandoned lawful permanent residence status by moving to another country, remaining outside the U.S. for a long period of time, failing to file income tax returns while outside the U.S., and/or declaring oneself a nonimmigrant on U.S. tax returns.

Many lawful permanent residents travel outside the U.S., whether for leisure, business, or visiting family and friends. Upon re-entry to the U.S., a lawful permanent resident may be stopped by Customs and Border Patrol (CBP) if CBP believes them to have abandoned their residence. If this is the case, CBP may issue a Notice to Appear (NTA) for the LPR to appear in immigration court, or they may try to get the individual to sign a statement, an I-407, indicating that they have abandoned their residence and leave the U.S.  If an LPR faces this situation and hopes to maintain their residence, it is best not to sign the I-407 but ask to be issued an NTA so that their case can be reviewed by an immigration judge.

Even if an LPR signs an I-407, they are not precluded from having their case heard before the immigration judge, but it may be harder for them to prove that they have not abandoned residence. Only an immigration judge can make a finding of abandonment. In removal proceedings, the government has the burden to prove by “clear, unequivocal, and convincing evidence” that the LPR abandoned residence.

Many LPRs believe that if their trips outside the U.S. always last less than 6 months, they will not face any issues upon their return, or that if their trip is longer than one year, they will definitely lose their lawful permanent residence status. Those beliefs are not always accurate. Each situation is evaluated on a case-by-case basis, and many factors are considered while making the determination that an LPR has abandoned residence. The main finding must be whether the LPR had an objective intention to return to the U.S. after their trip abroad.

An immigration judge can consider many factors in making his finding including whether or not the immigrant has family ties to the U.S., whether the LPR has a job in the U.S. or is working outside the U.S., whether the LPR is filing income tax returns in the U.S., whether the LPR has community ties to the U.S., whether the LPR owns property in the U.S., whether the LPR was taking care of sick family members in the U.S., or if certain situations in their country precluded them from returning to the U.S. If the immigration judge decides that the immigrant has abandoned residence, a removal order will be issued.

In addition to reentry to the United States, the issue of abandonment of lawful permanent residence can come up throughout the naturalization process. When most LPRs apply for naturalization, they must disclose all of their addresses for the last five years, employers for the last five years, trips over 24 hours for the last five years, and whether or not the LPR has ever failed to file income taxes or filed taxes as a nonresident. If an immigration officer reviewing the naturalization application believes the immigrant abandoned residence, they can issue a Notice to Appear so that the immigrant is placed in removal proceedings.

LPRs who plan to be out of the country for a long period of time such as one year or more can apply for a reentry permit. They can apply for this permit before leaving the U.S. The reentry permit along with the lawful permanent resident card should allow them to reenter the U.S. following an absence of more than one year. Obtaining a reentry permit, however, does not mean that an immigrant cannot be found to have abandoned residence. The reentry permit provides that the LPR cannot be found to have abandoned residence solely based on the time they were outside the U.S., but other factors such as those described above may be taken into consideration.

One advantage of becoming a U.S. citizen is that you do not have to worry about abandoning lawful permanent residence or being subject to any other deportability grounds. You can travel outside the country for as long as you want and not have any issue upon reentry.

If you are a lawful permanent resident who is planning to be outside the U.S. for a long period of time, call our office to speak with an attorney about maintaining your lawful permanent residence during your absence.

Federal Court Actions for Immigration Cases

There are a number of different ways in which you might need to have a federal court action in order to resolve your immigration matter.

Three Branches of Government

Many of us are probably familiar with the three branches of the federal government, as described in the Constitution.  The three branches are the Legislative (Congress), Executive (President), and Judicial (federal courts).

If you have a case in Immigration Court, you might guess that the Immigration Court is part of the Judicial branch.  After all, the judicial branch is about courts, right?

But actually, the Immigration Court system is entirely under the Executive Branch of the federal government.  If you want to appeal a decision from the Immigration Court, the appeal goes to the Board of Immigration Appeals (BIA), based in Falls Church, Virginia.  The BIA, like the Immigration Courts, is part of the Executive Branch of the federal government.

Getting from the Executive Branch to the Judicial Branch

If you wish to appeal a decision of the BIA, the appeal is called a “petition for review,” and that petition is filed with a U.S. Court of Appeals for the district in which your Immigration Court hearing took place.  For example, if your Immigration Court hearing was in the Immigration Court in Detroit, Michigan, then your petition for review of the BIA’s decision would go to the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, Ohio.  The Sixth Circuit has jurisdiction over cases that arise in the states of Michigan, Ohio, Kentucky, and Tennessee.  The Sixth Circuit, and all of the federal circuit courts of appeals, are in the Judicial Branch of the federal government.

So, as you can see, if your case is in Immigration Court, in order to get your case heard by judges in the Judicial Branch, you first need to go through two levels of process in the Executive Branch.

By the way, if you wish to appeal the decision of a U.S. circuit court of appeals, you may file a petition with the U.S. Supreme Court.  It’s quite difficult to convince the U.S. Supreme Court to agree to hear a case.  Our office was fortunate to be involved in the case of Esquivel-Quintana v. Sessions, a case in which the U.S. Supreme Court agreed with our position and ruled in our favor, by a vote of 8-0.

Other Types of Federal Court Actions

In some situations, the procedural process is different.  Perhaps you are being held in jail by U.S. immigration officials, and you believe that federal officials do not have the legal authority to keep you in jail.  You may file a petition in a U.S. district court to seek to be released from jail.  This type of petition is called a “writ of habeas corpus.”  You file this petition in a federal district court, which is part of the Judicial Branch of the federal government.

Perhaps you have filed an application with U.S. Citizenship and Immigration Services (USCIS) for permanent residence, or for naturalization.  And, perhaps USCIS is taking a really long time to make a decision about your case.  You may file a petition in a U.S. district court (part of the Judicial Branch of the federal government) to ask the court to order USCIS to make a decision on your case.  This type of petition is called a “writ of mandamus.”  If the federal court agrees with you, then the court will order USCIS to make a decision.  Please note that the federal court will not dictate what the decision of USCIS will be.  The federal court would simply order USCIS to issue a decision.  That decision could be an approval of your application, but it could also be a denial.

Obtain Good Legal Assistance

Whatever is happening with your own immigration matter, it’s probably the most important thing that is going on in your life at this time.  It is crucially important that you find an immigration lawyer whom you trust and who has a thorough knowledge of the legal issues and the ability to represent you in a way that maximizes your chance of success.

The U Visa for Victims of Crimes

Immigrants who find themselves the victims of crime often deal with long-lasting physical and mental trauma. If you are an undocumented immigrant who has been the victim of a crime, you may be eligible for a U visa. The U visa is a nonimmigrant visa available to victims of certain crimes who have suffered mental or physical abuse and who help law enforcement in the investigation and/or prosecution of the crime.

In order to be eligible for a U visa, you need to have been a victim of a qualifying crime. In addition, you need to have suffered substantial physical or mental abuse as a result of being the victim.  You also need to have information on the criminal act and have been, be, or are likely to be helpful to law enforcement during the investigation and/or prosecution.  If you are under the age of 16, or if you have a disability that affects your ability to contribute to the case, a parent, guardian, or friend who speaks on your behalf but is not part of the case can help with the investigation or prosecution on your behalf.  Being eligible for the U visa also requires that the crime of which you were a victim either happened in the U.S. or violated U.S. laws.  Lastly, you must be admissible to the U.S., meaning you are permitted by law to remain in the country.  If you are inadmissible, there is a waiver that you can apply for with the help of an immigration attorney at the same time you apply for the U visa.

If you meet the requirements described above, you can apply for the U visa both inside and outside of the U.S.  Many people apply for the U visa, but only 10,000 people are allowed to receive it each year.  If 10,000 people receive their U visas before the year is over, USCIS will place the remaining applicants on a wait list for the next year.

As a result of the limited amount of U visas available and the high number of applicants, there is a large backlog of cases.  After filing a U visa application, it currently takes about 4 years or longer to hear if you have even made the waitlist.  If you make the waitlist, you may have to wait several more years to finally receive your U visa.

There are also certain risks that U visa applicants face in light of this current administration.  In the past, U visa applicants were rarely detained by Immigration and Customs Enforcement (ICE), and if you were denied the U visa, you were usually not at risk of deportation.  However, since the 2016 election, this has been changing rapidly.

There have been incidents of ICE detaining immigrants that they knew were victims of crime before the immigrants even had the chance to apply for a U visa.  Moreover, by applying for a U visa, immigrants are informing the U.S. government of their unlawful presence in the country.  In April of 2018, ICE reported that around 122,000 U visa applications were pending.  All of these people are at risk for being placed in deportation proceedings.  If your application is pending and you are in proceedings, it is at the discretion of the immigration judge to decide whether or not he or she will delay your removal proceedings while the U visa application is pending.  Also, if you are not put into proceedings while your application is pending, you will likely be placed in proceedings if your application is denied.  This was rare in the past, but with the current administration, more and more denied applicants are being placed in removal proceedings.  If you are wondering whether applying for the U visa is worth the risk, contact an immigration attorney.  The attorney will review your case and advise you in the right direction.

If an immigrant is successful in obtaining a U visa, there are many benefits. First, if you are the victim of a crime applying for a U visa, you can petition for some of your family members to get U visas as well.  If you are under 21 years old and have a U visa, you can petition for your spouse, children, parents, and single siblings who are under 18.  If you are at least 21 years old, you can petition for your spouse and children.  Second, having a U visa is beneficial because it gives you and the family members you petition for the authorization to work in the U.S.  If you are put on the waiting list due to the 10,000 visa per year cap, you will be able to apply for your work authorization while you wait for your visa to become available.  The third reason having a U visa is an option worth considering is that after you hold your U visa for at least three years, you may become eligible to apply for a green card.

Contact our office if you have been a victim of a crime and want to know if you qualify for the U visa.  If you qualify, then our attorneys will work with you to prepare the application to show the U.S. government that you deserve a U visa.

Provisional Waivers of Unlawful Presence

If you entered the United States without inspection and have become eligible for a family-based permanent resident (green card) status, you might need to leave the United States and go to your home country for an interview at the consulate or embassy.   There are some exceptions to the requirement to leave the United States.  The officer who conducts the interview can order you to stay in your country for 3 years (if you have been in the U.S. without authorization for more than 180 days but less than a year), or 10 years (if you have been in the U.S. without authorization for more than a year).  These penalties are known as 3-year and 10-year unlawful presence bars.  If you are found inadmissible to return to the U.S., you can apply for a waiver, which is like asking for legal forgiveness.  If your application is approved, your 3-year or 10-year bar will be waived.

The law allows you to apply for a waiver after your I-130 petition is approved and before you go overseas for an interview in your home country.  Getting waivers approved is complicated, and we recommend that you have the assistance of an experienced immigration attorney to help you through the process.  If your waiver is approved, you can leave the U.S., go to the interview, and if the consular officer approves your immigrant visa, you can return to the U.S. and become a lawful permanent resident.

Now, the question is, are you eligible for a provisional unlawful presence waiver?

  • Are you at least 18 years old?
  • Are you physically present in the U.S.?
  • Do you have a qualifying immediate relative to petition for you? This would be a U.S. citizen or permanent resident who is either your spouse, your parent if you are unmarried and under 21, or your child if he or she is 21 or older.
  • Can you prove that your permanent resident or U.S. citizen spouse or parents will suffer extreme hardship if you are inadmissible to return to the U.S.?
  • Are you inadmissible on criminal, fraud, or other grounds?

If you answered yes to the first four questions and no to the last one, you probably may apply for a waiver.  If you are in removal proceedings, you can apply for the waiver only if your case has been administratively closed.  We advise you to apply as soon as possible before your case is re-calendared.

Please note that, in order to be eligible for this type of waiver, you must have a spouse or parent who is a U.S. citizen or lawful permanent resident (green card holder).

The most important aspect of the waiver is to demonstrate that your qualifying relative or relatives will suffer extreme hardship if they remain in the U.S. without you or if they follow you to your home country for the duration of the 3-year or 10-year bar.  The relative who will suffer extreme hardship does not need to be the same one who petitions for you.

The following are some examples of hardship your qualifying relative might experience if he or she stays in the U.S. without you during the 3-year or 10-year bar: He or she depends economically on your income and will not be able to provide for the household if you are overseas, he or she has a medical condition and depends on your care, he or she cares for a family member and will be unable to continue caring for that person without your support, or you are the caregiver of your qualifying relative’s child or children, and your relative cannot afford childcare if you are overseas.

In the case that your relative follows you to your country, you will need to show, for example, that your relative’s medical condition will be poorly treated or too expensive to treat in your country, your relative does not know the language of your home country, he or she is the primary caretaker of a sick family member within the U.S., your relative will not be able to work or will likely receive minimum wage in your country, he or she will be unable to continue his or her education in your country, he or she has children from a previous relationship who will not be allowed to live with you or visit due to custody issues, he or she has debt in the U.S. that cannot be paid from your country, or, last but not least, your country has a high rate of violence or is at war.  You may think of other types of financial, medical, emotional, or security-related hardship for your waiver application.

To date, our office has obtained 47 waiver approvals, including 3 applications that USCIS initially denied, but later approved on appeal.  All 47 clients received waiver approvals.  Although we cannot predict whether USCIS will approve a waiver application, we have a strong record of success.

Another New Policy: Indefinite Detention for Some Asylum Seekers

Attorney General William Barr recently issued a decision that overturns a policy that is at least 14 years old, and which threatens to keep many asylum applicants in jail while their cases are pending for months or years.

In Matter of M-S-, issued on April 16, 2019, the Attorney General decided that for persons who enter the United States without permission and who are encountered by U.S. immigration officials shortly after their entry, and who seek asylum, these persons are not eligible for bonds to be released from detention.  The only options for these persons are to remain in detention until the completion of their cases in Immigration Court (which could last for months or years), or to be released from jail on parole from U.S. immigration officials.

The Attorney General’s decision overturns a decision of the Board of Immigration Appeals from 2005.

Because the Attorney General’s decision has the potential to require the detention of so many persons, the Department of Homeland Security requested that the Attorney General delay the effective date of the decision.  The Attorney General agreed, and has delayed the effective date of the decision for 90 days, so that U.S. immigration officials may acquire more facilities to detain asylum applicants.  It appears that the new policy will go into effect on or around July 15, 2019.

The Attorney General’s decision appears to be yet another policy shift by the Trump Administration to try to discourage persons from applying for asylum and to make it as difficult as possible for those asylum applicants to navigate the legal system.  Winning asylum in the United States is difficult even under the most favorable conditions.  Those persons seeking asylum while in jail face many more obstacles.  It is much more difficult to meet with attorneys and others who wish to help the persons prepare their cases.  There is much less time to prepare cases, because detained persons are typically on court schedules that progress much more quickly that those who are not in jail.  It is much more difficult for jailed persons to communicate with family and friends to help to prepare the case and obtain documents in their home countries to help prove their asylum claims.

The Trump Administration will also further burden U.S. taxpayers by spending more money on detaining asylum applicants for months or years at a time.

As with other new policies, the Attorney General’s decision in Matter of M-S- will very likely be appealed in court.  The final outcome of the new policy is uncertain.