DACA Hearings in U.S. Supreme Court

 

 

 

 

 

 

 

 

 

 

Today, November 12, 2019, the U.S. Supreme Court will hold DACA hearings on Trump administration’s decision to terminate Deferred Action for Childhood Arrivals. What’s at stake today? For over 700,000 immigrants, #DACA provides work authorization and protection from deportation in the only home they’ve ever known. The Supreme Court will now decide their future.

While the U.S. Supreme Court hears oral arguments on whether to keep DACA alive, request for renewals are being accepted by U.S. Citizenship & Immigration Services (USCIS).

Who Can Renew

You may request a renewal if you met the initial 2012 DACA guidelines and you:

  • Did not depart the United States on or after Aug. 15, 2012, without advance parole;
  • Have continuously resided in the United States since you submitted your most recent DACA request that was approved; and
  • Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

How to Renew

  • Complete and sign:
  • Follow the instructions on all three forms to submit them to USCIS. Make sure you submit the correct fees.

For more information on DACA,

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Trump immigrant health insurance rule blocked by U.S. Federal Courts

A US judge has temporarily blocked a rule proposed by President Donald Trump that would require immigrants to prove they will have health insurance within 30 days of arrival in the US, or can pay for medical care.

Judge Michael Simon, a district judge in Oregon, granted a preliminary injunction against the proposal.

Seven American citizens and an NGO had filed a lawsuit opposing the rule.

They argued it would block hundreds of thousands of legal migrants.

The lawsuit said the number of immigrants who enter the US with family-sponsored visas would drop considerably, or be eliminated altogether.

Would-be immigrants had been struggling to establish how to get the required insurance coverage. The US healthcare system is complex, and has not generally catered to people yet to arrive there.

For more information on Trump immigrant health insurance rule,

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Copyright © 2019, Law Offices of Gail S. Seeram. All Rights Reserved.

Trump Public Charge Rule blocked by 3 Federal Courts

Judge George Daniels of the Southern District of New York issued the temporary injunction on October 11, 2019 and called the proposed Trump public charge rule, “unlawful, arbitrary and capricious.” Similar rulings were issued later in the day by judges in California and Washington state.

Under the proposed Trump public charge rule, an immigrant might not be permitted entry to the U.S. or granted a green card if the individual “is likely at any time to become a public charge,” meaning they might rely on the government as their primary means of support.

According to the U.S. Citizenship and Immigration Services website, “age, health, family status, assets, resources, financial status, education and skills” will be considered when determining whether someone is likely to be considered a public charge.

The public charge test isn’t new – it has been codified in immigration law for more than 100 years. In the past, the public charge test applied only to immigrants who used cash assistance from the government, or those who needed long-term institutional care.

But the new definition of what is considered a “public charge” would have expanded to include the Supplemental Nutrition Assistance Program (SNAP) benefits, Section 8 housing, public housing, Medicaid and Medicare Part D for the first time.

Trump public charge rule will be on hold until the courts decide whether it can go into effect or not.

In a statement, American Immigration Lawyers Association executive director Benjamin Johnson welcomed the court decisions, before the rule “started hitting families, businesses, and communities across the nation,” Johnson wrote. “To quote Judge Hamilton, ‘DHS’s new definition of ‘public charge’ is likely to be outside the bounds of a reasonable interpretation of the statute.'”

For more information on Trump Public Charge Rule,

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Public Charge Rule – Q&A to Clear Confusion

The proposed rule to change the meaning of “public charge” has no impact on the rights of U.S. citizens and permanent residents. The proposed rule is not in effect, faces numerous legal challenges and there is still time to oppose and resist the change.

DHS has revised the definition of public charge in determining whether an alien can be denied a green card or permanent residency. If the proposed rule goes into effect, the U.S. government will at a minimum consider the alien’s age; health; family status; assets, resources, and financial status; and education and skills; and may consider any required affidavit of support.

The final rule defines the term public charge to mean an alien who receives one or more designated public benefits for more than 12 months, in total, within any 36-month period. The rule further defines the term public benefit to include cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and subsidized public housing.

The rule does not include, for example, consideration of emergency medical assistance, disaster relief, national school lunch programs, foster care and adoption, Head Start, or student or home mortgage loans.

Q1. Does President Trump’s new public charge apply to citizenship applicants?

A1. No. The rule impacts only applicants for permanent residence (green cards). Applicants for U.S. citizenship need not be concerned. You can naturalize even if you are receiving public benefits. That’s true assuming you were eligible to get the benefits when you applied and did not lie to get them.

Q2. I got a conditional, two-year green card through marriage. I already filed U.S. Citizenship and Citizenship Services form I-751, Petition to Remove Conditions on Residence. Am I subject to the new public charge rule?

A2. No. The rule does not apply to I-751 petitioners. That’s because you are not applying for adjustment of status to permanent residence. The law requires you to file form I-751 because you got your permanent residence within two years of your marriage. However, since you already have permanent residence, though it is conditional the rule doesn’t apply. You are just applying to remove a condition from your residence.

Q3. Does the new rule apply to green card holders applying to renew or replace their cards?

A3. No. Applying for a new card doesn’t count as applying for permanent residence.

 

Public Charge Rule Expanded to Deny Green Card Faces Legal Challenges in U.S. Courts

On Wednesday, August 14, 2019, DHS published a final rule redefining the public charge ground for denying green card issuance. Lawsuits have already been filed in multiple jurisdictions, raising questions whether the rule will go into effect October 15, 2019.

The new public charge rule removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The final rule at 8 CFR 212.21(b) defines a public benefit as:

  1. Any federal, state, local, or tribal cash assistance for income maintenance, including:
    1. Social Security Income (SSI), 42 U.S.C. 1381 et seq.;
    1. Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.;
    1. Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names);
  2. Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c;
  3. Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f;
  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
  5. Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
  6. Public housing under section 9 of the U.S. Housing Act of 1937

A sufficient affidavit of support will NOT be outcome-determinative as to whether an individual is likely at any time in the future to become a public charge. Rather, to make that assessment, USCIS adjudicators will apply a complex totality of circumstances test that weighs the alien’s age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors.

USCIS notes in the final rule that it interprets “likely at any time” to mean that it is “more likely than not” that the individual at any time in the future will receive one or more public benefits as defined by the rule.  One heavily weighted negative factor is an applicant’s receipt of specified public benefits for 12 or more months in the aggregate within any 36-month period, beginning no earlier than the 36 months prior to the application for adjustment of status or adjustment.

The public charge rule, which is vastly more restrictive than current policy, could result in significantly higher USCIS denial rates of adjustment of status applications subject to public charge determinations. Moreover, the multi-factor test will leave substantial discretion to adjudicators and could produce inconsistent and unpredictable decision-making. Additionally, the rule will prove burdensome for the public and DHS alike. It requires that adjustment applicants subject to public charge determinations prepare and submit lengthy Forms I-944, Declaration of Self-Sufficiency, with their adjustment filings. USCIS’s review of hundreds of thousands of these new forms each year will further slow the agency’s already severely delayed case processing.

For more information on public charge, 

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Asylum claim at a previous country

The Trump Administration announced rules that migrants coming from Central America who have passed through other countries en route to the U.S. border will no longer be able to make a claim for asylum beginning July 16. Immigration attorneys and experts say the rule is a violation of domestic and international asylum laws, and federal judge has sided with the administration in one of two cases brought against the new rule.

On July 15, the Trump Administration announced the change to asylum rules making it so that migrants had to have made an asylum claim at a previous country while en route to the U.S. before arriving to the southern border — anyone who hasn’t becomes ineligible for asylum in the U.S.

On July 24, a federal judge in San Francisco temporarily blocked the new Trump administration policy that sought to bar Central Americans and other migrants from requesting asylum at the southern border, saying the federal government’s frustrations with rising border crossings did not justify “shortcutting the law.”

U.S. District Judge Jon S. Tigar, who halted another version of the Trump administration’s asylum ban last year, said a “mountain” of evidence showed that migrants could not safely seek asylum in Mexico. He said the rule likely violated federal law in part by categorically denying asylum to almost anyone crossing the border. U.S. law generally allows anyone who sets foot on U.S. soil to apply for asylum.

For more information on asylum claim at a previous country, 

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Expedited Removal – Not see Judge

July 22, 2019 – The Department of Homeland Security (DHS) announced on that it would vastly expand “expedited removal,” a provision of the law that permits the agency to rapidly deport certain individuals without an opportunity to see an immigration judge. Under the expansion, DHS can rapidly deport undocumented immigrants in the United States who crossed the border without a visa and have not resided in the United States for at least two years. This amounts to a nationwide “send them back” immigration policy.

Individuals who are subject to expedited removal don’t get a chance to go in front of an immigration judge to argue against their deportation. Instead, the decision about whether some can and should be deported under expedited removal is made by a single immigration enforcement officer, with the only review coming from the officer’s supervisor. Courts are generally prohibited from reviewing a deportation order done through expedited removal (except in very narrow circumstances) and only asylum seekers have a path to avoid expedited removal.

Previously, expedited removal applied only to those encountered within 100 miles of the border and within 14 days of entering the United States. Customs and Border Protection officers were the ones making decisions about whether people qualified for expedited removal. However, under the expansion, Immigration and Customs Enforcement (ICE) also would be able to carry out expedited removal determinations inside the United States.

As a result of this new expansion, ICE officers also would act as both judge and jury. A single officer and supervisor could determine whether individuals with significant ties to the United States should go through expedited removal and be deported without judicial review.

The new policy goes into effect on Tuesday, July 23. An estimated 300,000 people in the United States could now be at risk of arrest and deportation without the opportunity to see a judge. That doesn’t even consider people who may be erroneously placed in expedited removal proceedings. Individuals will have the burden of proving to ICE they have resided in the United States for two or more years.

Because expedited removal generally does not involve the safeguard of judicial review, legal immigrants and even U.S. citizens will be at much greater risk of wrongful deportation. Because ICE is casting its net wider, it’s more likely than ever that citizens will face arrests. And with expanded expedited removal taking away judicial review in some cases, the odds that a mistaken arrest could lead to a wrongful deportation will be even higher.

Congress created expedited removal in 1996 as a way to speed up the deportation process. Although Congress permitted the government to apply expedited removal to anyone in the United States within two years of entry, it did not require that. Expedited removal was first applied to individuals who came through ports of entry, then in 2002 it was expanded to people intercepted at sea or who arrive by boat. In 2004, the Bush administration expanded expedited removal to its current extent.

Under the current system, those who arrive at the border are generally subject to expedited removal. This permits the government to deport them without due process. But if a person expresses a fear of returning to their home country or asks for asylum, they are then referred to an asylum officer. If the asylum officer determines that a person has a credible fear of persecution, they are taken out of the expedited removal process and allowed to apply for asylum in immigration court. If the officer determines otherwise, the person is subject to rapid deportation.

Now, individuals throughout the United States could be put through this process. No one should get ripped from their home without the chance to go in front of a judge and argue why they should be allowed to stay.

The American Immigration Council and the ACLU already announced that they will sue to stop the expansion.

For more information on expedited removal, 

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Trump will make Asylum Seekers Pay Fee

President Donald Trump ordered major changes to U.S. asylum policies that would charge fees to those applying for humanitarian refuge in the United States.

Trump’s directive also calls for tightening asylum rules by banning anyone who crosses the border illegally from obtaining a work permit, and giving courts a 180-day limit to adjudicate asylum claims that now routinely take years to process because of a ballooning case backlog.

The order, announced in a presidential memorandum, comes as the president seeks to mobilize his supporters with a focus on illegal immigration ahead of his 2020 reelection campaign

The surge of migrants from Central America arriving at the U.S. southern border with Mexico has frustrated the Trump administration, which has been trying various methods to stem the flow, all of them thus far unsuccessful. The proposed changes to the asylum system aim to address one of the most confounding aspects of the surge: families seeking safe passage using long-standing U.S. asylum protections.

More than 103,000 migrants crossed the U.S.-Mexico border last month, the highest level in more than a decade. About 60 percent were Central American parents traveling with children who, upon arrival on U.S. soil, have the legal right to request refuge from persecution.

Their numbers have overwhelmed the government’s ability to hold them in custody and quickly process their claims. Adults who arrive with children are typically assigned a court date and are released into the country, often reuniting with family members and taking jobs while their claims are pending.

Trump in recent weeks has increasingly mocked asylum seekers as fraudsters trying to game the system by making up stories about their hardships and fears of return to their native lands. Although homicide rates in Central America are among the highest in the world, many of those now arriving acknowledge they are fleeing poverty and hopelessness, which are not grounds for asylum protections.

The new White House measures, which call for new regulations in 90 days, follow one week after Trump issued a memorandum directing the secretaries of state and homeland security to find ways to combat visa overstays; it is another example of the administration trying to squeeze migration as it argues that the influx of undocumented people amounts to a national emergency.

The memorandum directs Attorney General William P. Barr and acting Homeland Security Secretary Kevin McAleenan to propose regulations within 90 days that would change various aspects of the way asylum cases are handled.

It calls for the United States to charge a fee for asylum applications, and it seeks to ensure that “absent exceptional circumstances,” all asylum applications will be adjudicated within 180 days of filing.

The moves would prohibit those who have entered the United States illegally from receiving provisional work permits until they have been approved for relief or protection from removal.

U.S. immigration law grants the attorney general the authority to impose fees on asylum applicants but does not require such payments, and migrants seeking refuge to avoid deportation have not been charged.

David A. Martin, a former Homeland Security deputy general counsel who helped make changes to the asylum system in the 1990s, said that he had never heard of charging a fee to applicants and that it would be a “bad idea.”

Asylum seekers are fleeing for their lives — fearing torture or death in their home countries — and often cannot afford to survive without assistance in the United States, he said.

“Genuine asylum seekers by definition leave in the most urgent of circumstances,” Martin said. “As a group, they tend to be very short on resources. If you’re going to leave the possibility of refuge for people who legally qualify truly open, you wouldn’t impose a barrier of a fee.”

Charging a fee for asylum claims would put the United States in the clear minority. A study of 147 countries found that the “vast majority” did not charge a fee to apply for asylum, according to a December 2017 report by the Law Library of Congress’ Global Legal Research Center. Some nations charged migrants fees for temporary or permanent protection visas, though migrants could apply for waivers.

But almost a decade ago, Martin said, asylum cases started to pile up again and the government failed to invest enough in the immigration courts to keep up. Now the court backlog exceeds 850,000 cases, including asylum, with approximately 400 judges to handle them.

But they said the presidential memo could cause chaos in the already overwhelmed immigration courts, intensifying pressure on immigration judges who would be subject to case-completion quotas.

“It’s not that asylum seekers don’t want other cases to be quickly adjudicated,” she said. “There’s a fine line between quick adjudication and being railroaded through the system. … It’s not like asylum seekers want to sit here in limbo forever,” she said. “But they also don’t want to be punished for seeking asylum.”

2018 Anti-Immigration Politics and Rhetoric under Trump – Family Separation, Asylum Ban, Wall

Courtesy of , Axios.com

In 2018, we saw a wave of anti-immigration policies, rules and proclamations intended to obstruct U.S. immigration.

Driving the news: The House and Senate failed to reach a compromise on immigration legislation, leaving the Trump administration to use everything within its executive power to address the issue. Many of those efforts were blocked (at least temporarily) by the courts.

AT THE BORDER:

The Justice Department and Homeland Security announced a “zero-tolerance” policy in May that resulted in the traumatic separation of thousands of migrant children from their parents at the border. In the face of global backlash, Trump signed an executive order calling for an end to family separation. But it took government agencies weeks of chaos to reunite migrant families.

Through the executive branch:

IN THE COURTS:

The Supreme Court upheld Trump’s travel banbut blocked his asylum ban for migrants who cross the border illegally. The court did not take up the DACA case —protecting thousands of immigrants who came to the U.S. as children until at least next year.

Federal judges blocked (at least temporarily) administration efforts to end:

ON THE GLOBAL STAGE:

The U.S. was one of a small number of nations to vote against the UN Compact for Migration and Compact for Refugees.

  • A wave of anti-immigration politics and rhetoric continued to sweep Europe, mirroring some of Trump’s 2016 platform.
  • Most recently, the U.S. cut a deal with a Mexico to keep migrants seeking asylum in the U.S. on Mexican soil until their applications are processed. The U.S. pledged billions of dollars in aid to Central American nations and southern Mexico.

Asylum Denials and Decisions Jump in 2018

Fiscal year 2018 broke records for the number of decisions (42,224) by immigration judges granting or denying asylum. Denials grew faster than grants, pushing denial rates up as well. The 42,224 decisions represented a 40 percent jump from decisions during FY 2017, and an 89 percent increase over the number of asylum decisions of two years ago.

In past year, 65% of cases received asylum denials.  This is the sixth year in a row that denial rates have risen. Six years ago the denial rate was just 42.0 percent. See Figure 1. (For year-by- year figures, see Appendix Table 1 at the end of this report.)

Figure 1. Immigration Court Asylum Decisions
FY 2001 – FY 2018
(Click for larger image)

What Do Immigration Court Asylum Grant and Denial Rates Really Mean?

Immigration judges’ decisions on asylum applications are not necessarily the same as the outcome of each case. A asylum denial does not automatically result in a deportation order. The individual could have qualified for some other form of relief, or was otherwise found by the immigration judge to not be deportable and was accordingly allowed to remain in the country.

Currently the government does not publish or provide public access to data that would allow complete tracking of the final outcome from all asylum cases. This occurs in part because multiple agencies are involved, often with separate tracking systems. Only a partial portrait is therefore available from Immigration Court data.

The situation is particularly confusing for unaccompanied children from Honduras, Guatemala, El Salvador and other countries that do not directly border this country. While the Immigration Court generally has jurisdiction over their cases, their actual applications for asylum are typically submitted directly to U.S. Citizenship and Immigration Services (USCIS). If asylum officers at USCIS determine they are entitled to asylum, the Immigration Court will use the USCIS decision as a basis for closing the child’s case. However, the decision to allow them to remain in the country will not be recorded as a grant of asylum in the court’s records. This is because court records only separately track asylum decisions made by immigration judges.

Table 1 compares case outcome in FY 2018 for the top four nationalities seeking asylum, and compares these with asylum grant and denial rates.

Table 1. Asylum Grant and Denial Rates and
Overall Immigration Court Case Outcomes in FY 2018
Asylum Decision Grant/Deny All Asylum Applications All Immigration Court Cases
Number Granted Number Outcome:
Can Remain in U.S.
Number Outcome:
Can Remain in U.S.
All Nationalities 42,224 35.0% 64,974 39.2% 215,569 33.2%
El Salvador 8,232 23.5% 12,073 31.1% 28,665 37.6%
Honduras 6,240 21.2% 8,745 23.9% 30,242 27.2%
Guatemala 6,052 18.8% 9,214 24.9% 37,571 26.2%
Mexico 5,379 14.5% 10,896 33.5% 65,792 24.7%

Note that for El Salvador, Honduras, and Guatemala the proportion allowed to remain in the country is higher than the asylum grant rate. As a result, the proportion of those allowed to remain in the country is somewhat higher than the simple grant and denial rate suggests.

Of course, not all individuals from these three countries apply for asylum in Immigration Court. The last two columns in Table 1 include the outcome for all Immigration Court cases. The proportion of those allowed to stay from these three countries is somewhat higher even than on those submitting asylum applications to the court.   This partially reflects the inclusion of favorable outcomes for many unaccompanied children’s cases who submit their application to USCIS rather than directly to the Immigration Court.

Judge-by-Judge Differences in Asylum Decisions

The outcome for asylum seekers continued to depend on the identity of the immigration judge (more…)