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 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.
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.
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.
This week I had the honor of representing a client in the Immigration Court in Detroit. My client had entered the United States in the early 1990s. Although she is from a country that has a history of persecuting persons like herself, she did not apply for asylum. She ended up with a removal order from the Board of Immigration Appeals (BIA). When I met the client in 2012, we decided to ask the BIA to reopen her case so that she could apply for asylum. The BIA agreed to reopen the case, and sent the case to Detroit for a new hearing.
According to U.S. immigration law, in order to be granted asylum, a person must apply within 1 year of entering the United States, unless the person can demonstrate either extraordinary circumstances (which my client did not have), or changed circumstances (which we argued that my client did have).
At the hearing, at first, the attorney representing the Department of Homeland Security (DHS) indicated to me that he did not think that my client should get asylum, because we had not met any of the exceptions to the one-year filing deadline. I stated that I thought that my client was eligible for asylum because the conditions in her country had worsened in recent years, including from 2012 up through to today. Moreover, I had presented documents indicating that several of my client’s siblings had recently obtained refugee status. Several had recently entered the United States as refugees, and others were in the process of obtaining refugee status and later will settle as refugees in the United States.
The thing that really changed the prosecutor’s mind, though, was a Sixth Circuit case called Mandebvu v. Holder that I brought to his attention. In Mandebvu, the petitioners applied for asylum many years after they had entered the United States. The Sixth Circuit overturned the decisions of an Immigration Judge and the BIA and concluded that the petitioners in that case had met the requirement of showing changed circumstances. The Court reasoned that the petitioners could qualify for the “changed circumstances” exception to the one-year filing deadline by showing additional evidence of the type of persecution that they had already suffered, or that they would be likely to suffer upon return to their country.
Mandebvu was directly relevant to my client’s case. Although my client could have applied for asylum prior to 2012, when we submitted her asylum application, we showed that conditions in my client’s country have deteriorated in recent years, and we also showed that several of my client’s relatives left the country as refugees in recent years. Under Mandebvu, that is sufficient to show “changed circumstances.” After reading the case, the prosecutor agreed with us, and we explained the situation to the Immigration Judge, who then granted asylum to my client.
My client is now an asylee, and in one year she will be eligible to apply for permanent resident (green card) status. Later, she will be eligible to apply for U.S. citizenship. It’s great that my client has status in the United States now, after decades of uncertainty.
The Board of Immigration Appeals (BIA) recently issued a decision that has important consequences for non-citizens who are questioned by immigration officials.
In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA ruled that immigration officials who are questioning non-citizens are not required to advise them that they have the right to be represented by a lawyer, and are not required to advise non-citizens that any statements they make during the questioning may be used against them, until they begin formal court proceedings against them. Formal court proceedings begin only when immigration officials file a charging document called a Notice to Appear, Form I-862, in Immigration Court.
Matter of E-R-M-F- & A-S-M- stands for the proposition that immigration officials do not have to advise non-citizens of their rights until the officials have filed the Notice to Appear in Immigration Court.
In this case, immigration officials questioned a non-citizen who was a Lawful Permanent Resident (green-card holder). The person told the officials he had tried to help another person enter the United States illegally. Later that day, officials presented the non-citizen with the Notice to Appear, Form I-862. The officials filed the Notice to Appear in Immigration Court more than a month later. According to the BIA, the formal proceedings against the alien did not begin until immigration officials filed the Notice to Appear in Immigration Court, more than a month after they questioned the non-citizen.
As a result of this case, it appears clear that in a large majority of situations where immigration officials question non-citizens, the officials will not be required to notify non-citizens that they have a right to a lawyer and that their statements may be used against them.
For more information, see:
The U.S. Department of Homeland Security (DHS) has published a few memos in recent months on the topic of “Prosecutorial Discretion.” Some confusion may exist in your communities about what these memos mean.
On June 17, 2011, John Morton, Director of U.S. Immigration and Customs Enforcement (ICE), which is a part of DHS, issued a memo in which he provided guidance to ICE officials about how to exercise Prosecutorial Discretion.
But first, what exactly is “Prosecutorial Discretion”? As John Morton writes in his June 17 memo, “prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual.” Basically, Prosecutorial Discretion is the choice that DHS officials have in each individual case to make a decision that will result in a better result for an immigrant.
For example, an ICE official might decide to not arrest a non-citizen who appears to be in the United States without permission. An ICE attorney might decide to not put a non-citizen into Removal Proceedings in Immigration Court. DHS might decide not to deport an individual who is subject to a final order of removal from the United States.
It is important to understand that the recent memos are NOT offering an amnesty program. They do NOT provide an automatic path for a person to obtain a green card or employment authorization. It is also important to understand that there might be some dishonest people in your communities who offer to get you a green card or an employment authorization card for a substantial cost. Beware of people offering you green cards or employment cards as a result of the recent memos. They may be trying to take your money and trick you. The recent memos do NOT offer any kind of program that you can sign up for.
On August 18, 2011, Janet Napolitano, Secretary of DHS, issued a letter stating that government officials will review the cases of the approximately 300,000 people who are in removal proceedings in Immigration Courts across the country. Secretary Napolitano stated that the officials will identify certain cases that might be appropriate for Prosecutorial Discretion.
If you have questions about the legal effects of the recent memos on Prosecutorial Discretion, or about any legal aspects of your immigration case, you should contact a qualified immigration lawyer. You should NOT seek legal advice from a notario or an immigration consultant.
For more information, please view the following documents:
August 20, 2011 Consumer Advisory from the American Immigration Lawyers Association (AILA) (English and Spanish)
The Los Angeles Times reports that California officials are taking steps to possibly opt out of the U.S. government’s “Secure Communities” program, a controversial scheme whose stated purpose is to remove dangerous criminal aliens from the United States, but which has been criticized heavily for deporting many aliens who have clean criminal records.
Please click here to read the article.
Some Lawful Permanent Residents encounter problems with U.S. immigration officials at the border or at the airport when returning to the United States after a trip abroad. Perhaps you took a long trip outside the United States – perhaps one year or more. Or maybe you have spent the majority of your time outside the United States over the past several years.
Under the “Resources” section of our website, we have some brief documents that outline various aspects of Immigration Law.
If you are required to appear in Immigration Court, there are several options that might be available to you, depending on your specific situation. One option for some people is a form of relief called “Cancellation of Removal.”
Under the “Resources” section of our website, we have some brief documents that outline various aspects of Immigration Law.