Judge Permanently Blocks DHS Policy Shift on Student Visas

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

Background

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

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

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

DHS Policy Shift in 2018

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

Federal Court Decision

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

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

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

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

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

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

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

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

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

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

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

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.

Plan Ahead for Immigration Enforcement

A lot of our attention in recent weeks has been focused on the Executive Order signed on January 27, 2017, regarding the ban on persons from certain countries.

But it is important to understand two other Executive Orders (here,  and here) signed two days earlier, on January 25, 2017.

For reasons not entirely clear, but probably as a result of these Executive Orders from January 25, it appears that U.S. immigration officials are increasing their activities in search of persons unlawfully in the United States.

It is also quite possible that U.S. immigration officials might be increasing efforts to locate permanent residents who have criminal convictions that might make them subject to deportation.

Before discussing the two Executive Orders signed on January 25, 2017, I want to provide the following suggestions for people to do immediately:

Permanent residents. Carry your green card with you at all times. Keep a photocopy of your green card in a safe place at home.

Lawfully present nonimmigrants (students, visitors, employees, and others whose authorization to be in the US has not expired). Carry with you at all times your EAD, I-94 card, passport with entry stamp, or other proof of lawful presence. Carry the original with you and keep a photocopy in a safe place at home.

Persons unlawfully present in the United States for more than 2 years. Keep with you at all times evidence that you have been present for at least 2 years. Such evidence might include utility bills with your name going back 2 years, pay stubs with your name going back 2 years, or other documentation going back at least 2 years. Keep a photocopy at home. Have a plan in place with your loved ones for what happens if you don’t come home one day. Do not presume you will be allowed to make a phone call.

Persons unlawfully present in the United States for less than 2 years. Have a plan in place with your loved ones for what happens if you don’t come home one day, e.g. who picks up the kids from daycare, etc. Do not presume you will be allowed to make a phone call.

On January 25, 2017, an Executive Order titled “Enhancing Public Safety in the Interior of the United States” was signed.  This Executive Order (EO), among other things, makes it a priority of U.S. immigration officials to seek the removal of non-citizens who are deportable under existing immigration laws, for such things as certain criminal convictions, espionage, terrorism, misrepresentations to U.S. immigration officials.

More importantly, the EO also makes a priority for removal any persons unlawfully in the United States who:

  • have been convicted of any criminal offense;
  • have been charged with any criminal offense, where such charge has not been resolved;
  • have committed acts that constitute a chargeable criminal offense;
  • have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • have abused any program related to receipt of public benefits;
  • are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
  • in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Considering all of these different priorities for enforcement, it appears that, in effect, all persons unlawfully present in the United States could be included as a priority for removal.

 Also on January 25, 2017, another EO, titled “Border Security and Immigration Enforcement Improvements,” was signed.  This EO discusses the construction of “the Wall” along the U.S.-Mexican border.  But it also does much more.  The EO:

  • orders the construction of new detention facilities near the U.S.-Mexican border
  • directs asylum officers and immigration judges to handle cases at those detention facilities
  • directs the hire of 5,000 new Border Patrol agents
  • empowers state and local law enforcement officials to “perform the functions of an immigration officer … to the extent permitted by law.”
  • directs DHS to take action to apply “expedited removal” to the maximum extent permitted by statute: to any individual who has not been “admitted or paroled” who cannot prove she or he has been continuously present in the United States for 2 years. 

As a result of this final point, I suggest that persons present in the United States without permission who have been in the United States for at least 2 years, carry with them documents to prove their presence in the United States for at least 2 years, as described above.

Thank you for your time.

The “Travel Ban” Executive Order: Today’s Decision by the Ninth Circuit, and Beyond

On January 27, 2017, the President issued an Executive Order (EO) titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”  The EO does many things, including suspending entry to the United States of persons from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  The EO also suspends the entry of all refugees to the United States.

On February 3, 2017, a federal judge in Seattle issued a temporary restraining order (TRO) of the EO, with nationwide coverage.  As its name suggests, the TRO is temporary, not permanent.  The case remains pending in the Seattle court.

The federal government appealed the TRO to the Ninth Circuit Court of Appeals.  A three-judge panel heard the appeal.  One of the judges was appointed by President Jimmy Carter, a Democrat.  One of the judges was appointed by President George W. Bush, a Republican.  And one of the judges was appointed by President Barack Obama, a Democrat.

Today, the 9th Circuit issued a unanimous decision, rejecting the federal government’s arguments, and leaving the TRO in place.

The 9th Circuit concluded that it has jurisdiction, or legal authority, to hear the appeal.

The 9th Circuit concluded that the states of Washington and Minnesota have “standing” in this case.  This means that the 9th Circuit concluded that the states basically have a legal basis to present their claim, because the travel ban harms interests that are important to the states, especially the abilities of certain persons to enter the United States to teach and do research in state universities.

The 9th Circuit concluded that the courts have the authority to review the legality of the EO.

The 9th Circuit stated that in order for the federal government to win the appeal, it must show (mainly) two things:  (1) that the federal government is likely to succeed in the main arguments of the case when it returns to the district court for further review; and (2) that the federal government will be “irreparably injured” if the TRO remains in place.

The 9th Circuit spent most of the decision on whether the federal government is likely to succeed on the merits of the case, and focused on the Due Process Clause of the Constitution.  The Due Process Clause states that the government may not deprive individuals of their life, liberty, or property, without due process of law.  The 9th Circuit stated that the government can’t take away these rights without giving affected persons “the opportunity to present reasons not to proceed with the deprivation and have them considered.”

The federal government agrees that the EO does not provide affected persons with any opportunity to contest the ban.  The federal government’s argument is that the persons affected by the EO don’t have any rights under the Due Process Clause of the Constitution.

The 9th Circuit rejected the federal government’s argument. The 9th Circuit stated that the Due Process Clause is not limited to U.S. citizens.  Citing a 2001 case from the U.S. Supreme Court, Zadvydas v. Davis, 533 U.S. 678, 693 (2001), the 9th Circuit stated that the Due Process Clause “applies to all persons within the United States, including aliens, regardless of whether their presence here is lawful, unlawful, temporary, or permanent.”  The 9th Circuit further stated that these rights “also apply to certain aliens attempting to reenter the United States after traveling abroad,” citing another case from the U.S. Supreme Court, Landon v. Plasencia, 459 U.S. 21, 33-34 (1982).

The 9th Circuit summarized the arguments of Washington and Minnesota regarding the assertion that the EO discriminates on persons on the basis of religion, in violation of the First Amendment of the Constitution, which prohibits any law respecting an establishment of relation.  The 9th Circuit decided not to base today’s decision on the religious discrimination argument.

The 9th Circuit, in a unanimous decision, denied the federal government’s request to suspend the TRO.  This means that the judge’s order suspending the EO remains in place for now.

It is unclear what the White House will do now.  The White House could decide to appeal this decision to the U.S. Supreme Court.  At this time, the Supreme Court has 8 justices.  If the Supreme Court ends up in a 4-4 tie, then the 9th Circuit’s decision will remain in place, which would mean that the EO would remain suspended.

It is important to remember that today’s 9th Circuit decision is only about whether the TRO – the temporary restraining order – should remain in place.  The case, at some point, will likely return to the federal district court in Seattle for a more thorough set of arguments about the legality of the EO.

Executive Order – Restrictions on Entries

On Friday, January 27, 2017, President Trump signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”

Sadly, the Executive Order does the following things, effective immediately:

  1. The Executive Order places a ban on entry of Syrian refugees indefinitely. The Order does not give any date on which this ban might be lifted.  The Order states that the ban will remain in place until “sufficient changes have been made … to ensure that admission of Syrian refugees is consistent with the national interest.”
  1. The Executive Order suspends the admission of all refugees around the world for at least 120 days.
  1. The Executive Order reduces the number of refugees to be admitted to the United States in this fiscal year (October 1, 2016 to September 30, 2017) from 110,000 down to 50,000 persons. This is the lowest level in about a decade.
  1. The Executive Order bans the entry of all persons who are from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, for at least 90 days. This list of countries may be found in a list here.  The U.S. Government could update this list of countries at any time.
  1. Persons who are not U.S. Citizens, including Lawful Permanent Residents of the United States (green-card holders), who have ties to Iraq, Iran, Libya, Somalia, Sudan, Syria, or Yemen, should not depart the United States at this time, not even to travel to Canada or other countries. If you leave the United States, you might not be allowed to enter the United States.
  1. S. Citizens with ties to these countries will not be refused entry, but should expect long delays upon return to the United States, including the possibility of extensive questioning, searches of luggage, searches of computers and phones, and body searches, and other intrusive acts by U.S. immigration officials.
  1. The Executive Order states that “The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.” Although the Executive Order does not contain the words “Islam” or “Muslim,” it appears that this language in the Executive Order expresses a prejudiced and ignorant view towards persons of the Muslim faith. 
  1. The Executive Order requires in-person interviews for most non-immigrant visa applicants, regardless of their country of origin. This will likely slow down the issuance of all visas at many U.S. Consulates throughout the world, because of the hugely increased workload resulting from the requirement of in-person interviews.