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.
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.
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.
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.
A recent decision by the U.S. Supreme Court makes it easier for the U.S. government to arrest and detain without bond noncitizens who have been convicted of certain crimes.
The statute that was the focus of the Supreme Court’s decision in Nielsen v. Preap is Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. Section 1226(c). The statute states that the federal government “shall take into custody” a noncitizen who has been convicted of certain crimes “when … released.”
Many U.S. district courts around the country, including the federal district court in Detroit, interpreted the “when … released” language to mean that U.S. officials needed to arrest and detain a noncitizen when he or she is released from custody as a result of the criminal conviction, or at least shortly after release from criminal custody. If there was a significant gap in time between the release of the noncitizen from criminal custody and the federal government’s arrest of the noncitizen, many federal district courts ordered the federal government to release the noncitizen, because of the government’s failure to arrest and detain the noncitizen “when … released.”
But the U.S. Supreme Court, by a 5-4 decision, concluded that the federal government may arrest and detain a noncitizen in this situation at any time, including years or even decades after release from criminal custody.
In dissent, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote that Congress “did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing.”
Unfortunately, the Supreme Court’s 5-4 decision clears the way for the federal government to detain certain noncitizens without providing them the possibility of a bond hearing.
Susan Reed, the Managing Attorney at the Michigan Immigrant Rights Center (MIRC), has prepared a 4-minute video that provides some tips on how you can prepare yourself and your family for the possibility of a visit from Immigration and Customs Enforcement (ICE). I recommend that you take four minutes to watch this video, and consider the tips that MIRC suggests.
Thanks to Susan Reed and MIRC for your efforts!