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Trump’s Travel Ban 3.0 : The Latest Version, Effective 10/18/2017

internationaltravelCan someone tell me the difference between an “executive order” and a “presidential proclamation”?  I don’t think I learned that in law school, and for sure it was not on the bar exam.  Frankly, before September 24, 2017, I would likely have used the phrases interchangeably.  And yet, as of September 24, 2017, many of my colleagues are wondering about the purported difference.

The definitions of “executive orders” and a “presidential proclamations”, including their differences, is not easy to express as the U.S. Constitution does not contain any provision referring to them.  The most widely cited explanation came in 1957 from the House Committee on Government Operations, which explained the difference as follows:

Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law . . . . In the narrower sense Executive orders and proclamations are written documents denoted as such . . . . Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute. The President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority. The difference between Executive orders and proclamations is more one of form than of substance . . .[1] (Emphasis added.)

So why would the president’s first two efforts at a travel ban be in the form of “executive orders”, and his most recent effort be in the form of a “proclamation”?   Frankly, I’m not quite sure, but I suspect that whether the courts find Travel Ban 3.0 to be enforceable, either in part or in total, will turn more on its substance and not by whether it’s a presidential proclamation instead of an executive order.[2]

So, then, what’s the deal with Travel Ban 3.0?  The President’s proclamation, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats,” was issued by President Trump following a worldwide review of information sharing practices between the U.S. and nearly 200 foreign  countries.  The purported purpose was to assess whether nationals of each country seeking to enter the United States pose a national security or public safety threat to the United States. As a result of this review, eight (8) countries have been deemed to have inadequate identity management protocols, information sharing practices, and risk factors.  They are Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.  It was also determined that Iraq did not meet the baseline requirements, but nationals of Iraq will not be subject to an outright ban on travel, but rather will be subject to additional screening measures.

There are exemptions under the President’s proclamation, such as the travel restrictions do not apply to lawful permanent residents (i.e., Green Card holders) of those countries, and foreign nationals who have been granted asylum in the U.S., refugees who have been admitted to the U.S., or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture. There are other exemptions as well.

There are also waivers available if a foreign national can demonstrate that (a) denying entry to the United States would cause the foreign national undue hardship, (b) entry would not pose a threat to the national security or public safety of the United States, and (c) entry would be in the national interest.

Not surprisingly, the anti-administration forces argue that this is yet another attempt by the President to further his discriminatory and anti-immigrant policies and does nothing to strengthen our national security. I tend to agree.

The new travel ban goes (or went, depending on when you’re reading this) into effect on October 18, 2017, but the ban is effective immediately for anyone whose entry to the U.S. was previously barred by the administration’s prior travel ban (Executive Order 13780 dated March 6, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”) (i.e., nationals of Iran, Libya, Somalia, Syria and Yemen who do not have a bona fide relationship with a person or entity in the United States).

Also, until October 18, 2017, citizens of Iran, Libya, Somalia, Syria, and Yemen are exempt from the new travel ban if they have a “bona fide relationship” with a U.S. person or entity. (This is actually an issue in the courts at the moment.)

And finally, unless an exemption does apply or an individual is eligible for a waiver, the restrictions of Travel Ban 3.0 apply to individuals of the eight (8) designated countries who (a) are outside the U.S. on the applicable effective date, (b) do not have a valid visa on the applicable effective date, and (c) do not qualify for a reinstated visa or other travel document that was revoked under the President’s earlier travel ban (Executive Order 13769 dated January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”).

I have written before, and no doubt will do so again, that immigrants and refugees contribute in a positive way to our nation by strengthening our local businesses, communities, and national economy. Travel Ban 3.0 will do little more than simply harm families, negatively impact our business community, and undermine our national values.

 

[1] Staff of House Committee on Government Operations, 85th Congress, 1st Session, Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Committee Print 1957).

[2] Both executive orders and proclamations have the force of law, akin to regulations issued by federal agencies, so they are codified under Title 3 of the Code of Federal Regulations (“CFR”), the CFR being the formal collection of all of the rules and regulations issued by the executive branch and the federal agencies.  Neither executive orders nor proclamations are legislation, however.  Neither require approval from Congress, and Congress cannot overturn them. On the other hand, Congress can pass legislation that can make it difficult, or even impossible, to carry out an executive order or presidential proclamation.  Nevertheless, only a sitting President can overturn an executive order or proclamation by issuing another executive order or proclamation to that effect.

The Dreamers’ Nightmare (DACA)

On?????????????????????????????????????????????????????????????????????????????????????????????? September 5, 2017, the Trump Administration announced that it would be ending the Deferred Action for Childhood Arrivals (“DACA”) program. As if the 2016 presidential election post-mortem wasn’t bad enough, now this. This change of policy impacts almost 800,000 young people, the so-called Dreamers, who entered the United States before they were 16 years of age, generally through no fault of their own. Dreamers have temporary protection from deportation (to countries where they have had very little contact with in their lives). In many cases, these individuals also received employment authorization.

A little reminder as to what DACA is (and soon to be “was”). In June 2012, former President Obama’s then-Secretary of Homeland Security Janet Napolitano announced a program, commonly known as DACA, whereby aliens who were unlawfully present in the United States, who had been brought to the United States as children, and who met other criteria, could receive “deferred action.” These young people were basically protected, albeit temporarily, from being removed from the United States. They were able to work lawfully, attend school, and basically live their lives without the constant fear of being deported. However, unlike legislation, DACA does not provide a permanent legal status to these young people, and it needs to be renewed every two years.

Now, effective immediately, no new applications for DACA will be accepted. Current DACA beneficiaries whose status will expire before March 5, 2018 are permitted to renew their status for an additional two years if they apply by October 5, 2017. Any person for whom DACA expires as of March 6, 2018 will no longer have deferred action or employment authorization.

So how did the current state of affairs come to be? Well, then candidate Trump repeatedly pledged to end DACA (and to construct a border wall) as part of his campaign platform. Indeed, right after his inauguration, the White House prepared a draft Executive Order (which was leaked to the press) dated January 23, 2017 titled Ending Unconstitutional Executive Amnesties. The Executive Order proposed to rescind the then-proposed DAPA program immediately, which was the subject of a federal court injunction, and to also stop processing new DACA applications. So bad on top of bad.

Back in June, 2017, not seeing any movement on the President’s campaign promise, Texas and nine other states sent a letter to Attorney General Jeff Sessions stating that unless the Department of Homeland Security (“DHS”) agreed to “phase out” the program by rescinding Secretary Napolitano’s memo authorizing DACA and halting approval of any new or renewal DACA applications, they would take legal action to challenge DACA. President Trump caved to their demands.

In this regard, on September 4, 2017, Attorney General Sessions sent a letter to Acting DHS Secretary Elaine Duke stating the DACA was an “unconstitutional exercise of authority by the Executive Branch” and that legal challenges to the program would “likely” result in DACA being deemed unlawful. On September 5, 2017, Acting Secretary Duke issued a memorandum officially rescinding the program.

There’s so many ways I can go with this. For today, let’s focus on Attorney General Sessions’ statement that DACA was an “unconstitutional exercise of authority by the Executive Branch.”

President Obama’s administrative action was, at the time, the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations. According to the American Immigration Council, since 1956, there have been at least thirty-nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together.

The Immigration and Nationality Act (“INA”) and its implementing regulations are replete with examples where DHS will either refrain from an enforcement action, like electing not to serve and thereafter file a charging document (commonly known as a Notice to Appear) with the Immigration Court, as well as decisions to provide a discretionary remedy when an immigrant is already in removal proceedings, such as granting stays of removal, granting parole, or granting deferred action.

The INA itself authorizes the President’s legal authority to exercise prosecutorial discretion, including by prohibiting judicial review of three (3) types of actions involving the exercise of prosecutorial discretion (i.e., the decisions to commence removal proceedings, to adjudicate cases, and to execute removal orders).

Congress has also legislated deferred action in the INA itself as a means by which the executive branch may use, in the exercise of its prosecutorial discretion, to protect certain victims of crime, abuse, or human trafficking.

Notably, the INA also has a specific provision which recognizes the President’s authority to authorize employment for non-citizens who do not otherwise receive it automatically by virtue of their particular immigration status. It is this provision, in conjunction with other regulations, that currently confers eligibility for work authorization under DACA.

Beyond this, memoranda issued by federal agencies authorized to implement and enforce our nation’s immigration laws recognize prosecutorial discretion too, including a seminal one issued by legacy-Immigration and Naturalization Service (“INS”) Commissioner Doris Meissner in 1990 to her senior agency staff. There are earlier memoranda as well opining as to the legality of prosecutorial discretion too.

Finally, the Supreme Court held in Arizona v. United States that a “[a] principal feature of the [deportation] system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue [deportation] at all . . . .” Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).

As a result of all of the above (i.e., the INA and its implementing regulations, Supreme Court decisions, and agency memoranda), there have been at least thirty-nine (39) instances since 1956 where a president has exercised his executive authority to protect aliens, generally in the interest of simply keeping families together.

Our history is replete with examples of U.S. presidents, in the name of prosecutorial discretion, issuing directives that provided for deferred action (or whatever they may have called it at the time) to non-citizens of the United States. Since his September 5, 2017 announcement ending DACA, President Trump has made positive comments about Dreamers, and now says he will “revisit” the program if Congress does not act. Let’s see if he has the political courage to do so.

Increase in ICE Sweeps in Saratoga Springs, NY: More Proof of a Broken Immigration System

boydadimmigrationrallyI suppose I shouldn’t be surprised that U.S. Immigration and Customs Enforcement (“ICE”) has now conducted two (2) sweeps in my hometown of Saratoga Springs, New York.  “If you’re in this country illegally and you committed a crime by entering this country, you should be uncomfortable,” Acting ICE Director Thomas Homan recently told the House Appropriations Committee’s Homeland Security Subcommittee.  “You should look over your shoulder, and you need to be worried.”  Nice, right?  No, not really.  Not at all.  The result?  According to reports, twenty six (26) men have been picked up off the streets of their (and my) community and detained, initially at the Albany County Jail and thereafter at the Buffalo Federal Detention Facility in Batavia, New York.  Some of them will be placed in removal (i.e., deportation”) proceedings.  Others may already be in removal proceedings.  Yet others may have previously been removed and later came back to the United States, presumably unlawfully.  Those individuals will have their prior removal orders reinstated and will be removed again.  There may be other scenarios too.  I know.  Some were my clients.  Some are now my clients.

Public opinion is mixed as to what happened.  Some good, some not so good.  Here’s my take.

These individuals are fathers, husbands, brothers, cousins, and perhaps sons too.  Some and perhaps all of them played very important roles in our community.  In some respects, they were the backbone of our community.  That is, some, and perhaps all of them, worked for businesses that we frequent.  And some, although I am sure not all, worked for those business legally (e.g., pursuant to valid Employment Authorization Documents that our government issued to them while their applications for political asylum are being adjudicated by U.S. Citizenship and Immigration Services).  It’s ironic, isn’t it?  On the one hand, our government issues these individuals Employment Authorization Documents so they can lawfully work in the United States while they wait for USCIS to adjudicate their asylum applications.  On the other hand, ICE picks them up off the streets and then detains them.

And what about the employers who employ these workers, and particularly those who were lawfully working for them?  Summer has officially started, and opening day of the Saratoga Race Course is now only weeks away.  Employers in service-based industries, and particularly the restaurant and hospitality fields, are particularly affected.  Quite candidly, these individuals work in jobs that the very vast majority of American workers do not want. (Trust me, it’s true.)

Is the Saratoga Race Course next?  This is the time of year you see long lines in front of the race track.  These are not fans going to see the races.  That’s for next month.  No, these are lines filled with hundreds of people hoping to get summer jobs at the track.  Those jobs are for what I will call “front of the house” positions, like gate attendants who take your money, people who sell programs, and food and beverage providers.  Of course there are many more.

The “many more” include the back stretch workers who are absolutely essential and who do all of the little things to make our track experience enjoyable.  These are the trainers, exercise riders, jockeys, grooms, farriers, veterinarians, muckers, jockey agents, and all the other positions associated with horse racing.  A great many of these workers are foreign workers.  And although many of these workers are no doubt here lawfully, dare I say that some are not?  Will ICE be on the race track’s doorstep next?

There are three issues that we’re dealing with here.  On the one hand, what’s happening to the foreign workers who have been picked up?  What about their families, some of whom are U.S. citizens?  Each of their situations will be different.  Each one may (or may not) have relief to stay in the United States long-term.  Time will tell.

On the other hand, we’ve got the employers.  Track season is the biggest part of their year, and right now those in the restaurant and hospitality industry are dealing with unexpected (and unwanted) labor issues.

And on the “third” hand, we’re in a very tight labor market right now.  Saratoga Springs is fortunate to have very low unemployment.  But with that comes issues associated with hiring enough workers to fill year-round labor needs, including the bump that employers need during track season.

The solution?  How about an immigration system that works?  One that is responsive to the legitimate needs of our business community.  Unfortunately, our immigration system is broken, and it’s been broken for a very long time.  But that doesn’t mean that federal law enforcement officials should be coming into our community and creating unnecessary fear among our friends, families and neighbors.  What we need are meaningful and compassionate solutions from our “friends” in Washington, D.C.  What’s the over – under that that will happen anytime soon?

“Should I become a U.S. Citizen?” The Case for Naturalization and Trump’s Executive Order

imm_3I received a call the other day from a friend of mine in Boston who said he wanted my help in applying for citizenship. He’s been a permanent resident (i.e., Green Card holder) for many, many years, and I know for a fact that he’s an upstanding individual (and the Commonwealth of Massachusetts knows that too since he’s a restaurant owner and maintains a liquor license). I asked him why he now wanted to become a U.S. citizen? As you can imagine, he expressed concerns about just being a permanent resident under President Trump. This individual is Irish to the core and he should have nothing to worry about. His concerns, however, are well-founded.

Not everyone who is a permanent resident becomes a U.S. citizen (i.e., naturalizes), nor is there any legal requirement that one must naturalize. However, permanent residents who naturalize gain important benefits, not the least of which (these days) is security from deportation (in most cases) and the ability to travel with a U.S. passport.

Under the law, to qualify for U.S. citizenship, permanent residents must (a) be at least 18 years of age, (b) reside continuously in the United States for five years (or three years if they are spouses of U.S. citizens), (c) be of good moral character, (d) demonstrate the ability to read, write, speak, and understand English (unless they are exempt from this requirement), (e) pass an examination on U.S. government and history (unless they are exempt from this requirement), and (f) be willing and able to take the naturalization Oath of Allegiance.

Seems simple, right? Sometimes it is. Other times, however, issues arise as to whether someone is a person of good moral character (because of something he or she might have done in his or her past), continuous residency in the United States, to name just a couple.

Is it worth it? I don’t often counsel clients to become a U.S. citizen. I think that’s a very personal decision, and there are many factors that go into that decision. However, these days, I personally think there’s much more at stake for permanent residents, whether they’re from one of the seven predominantly Muslim countries designated in President’s Trump’s Executive Order of January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” or otherwise.
Few people expect to be arrested for a crime. But the risks for permanent residents who are arrested for a crime, even a seemingly minor one (like a misdemeanor under state law) are much, much higher. Permanent residence can be revoked and the individual can be deported. While there are many benefits associated with being a permanent resident, “permanent” does not necessarily mean “permanent.”

And if not for you, what about your children? We all know that kids make mistakes, and many times they’re really stupid ones. Immigrant kids are especially at risk if they make stupid mistakes. For example, with few exceptions, most convictions related to the use of illegal drugs can result in deportation of a permanent resident. So can a conviction related associated with sexual conduct by a young adult with a person who is a minor. Indeed, many immigrants who have lived in the United States with their families as permanent residents since they were very young children have been deported after being convicted of crimes they committed as youth or young adults. Becoming a U.S. citizen can protect you and your children from deportation.

We are living in an unprecedented moment in history, and it feels like the rules of engagement in the world of immigration are changing by the day. I would not normally counsel clients (or anyone for that matter) to become a U.S. citizen. However, in these uncertain times, I think it’s very much worth looking into.

Tags: President Trump, Executive Order, Refugees, Muslims, Deportation, Removal, Citizenship, Naturalization.

Trump’s Executive Actions – Travel Advisory

imm_2To say that this past weekend’s events were extraordinary would be an understatement. Here’s a recap and the very latest on President Trump’s Executive Order (“EO”) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” In sum, the EO does six (6) primary things:

1. Suspension of U.S. Refugee Admissions Program. The EO suspends the U.S. Refugee Admissions Program for 120 days.

2. Ban on Syrian Refugees. The EO halts the processing and admission of Syrian refugees indefinitely until President Trump determines that sufficient changes have been made to ensure that the admission of Syrian refugees is in the national interest.

3. Ban on Entry of Nationals of Muslim-Majority Countries. The EO bans immigrant and nonimmigrant entries, for at least 90 days, for nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Other countries may be added as well.

4. Requires In-Person Interviews for Most Nonimmigrant Visa Applicants. The EO suspends the Visa Interview Waiver Program, essentially requiring all nonimmigrant visa applicants to attend an interview unless an interview is statutorily exempt.

5. Screening of all Immigration Benefits. The EO directs federal agencies to develop screening standards and procedures for all immigration benefits to better identify fraud and detect whether a person intends to do harm in the United States.

6. Biometric-Entry Exit. The EO directs agencies to expedite the completion and implementation of a biometric (e.g., fingerprinting) entry-exit system that includes reporting requirements.

The EO was effective immediately. Chaos ensued as foreign nationals were detained at airports around the world, pulled off planes set to depart to the United States, or otherwise had their visas cancelled. Advocacy groups sued, and people all over the United States rallied in opposition to this EO. (As you will recall, there were two other EO’s issued by President Trump earlier last week.)

On Saturday, a federal judge in the Eastern District of New York issued an order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO. Later, a federal court in Massachusetts issued a decision which barred federal officials from detaining or removing individuals subject to the EO.

There are so many questions and concerns that my colleagues and I have about this EO (and the others too), and of course there’s little to no clarity coming out of the White House. (Indeed, there’s contradicting information coming out of the White House and the Department of Homeland Security on some issues, including whether the EO applies to lawful permanent residents, i.e., Green Card holders).

So, where does that leave us? It’s way too early to tell as the situation is very fluid. However, I am advising my clients who might be affected by the EO (and frankly many others as well as there is not a lot of clarity on important issues, e.g., how this effects dual nationals where one nationality is of a Muslim-majority country) to refrain from traveling outside of the United States. Plain and simple, if you don’t have an urgent or compelling reason to travel outside the United States, then don’t.

Day 6 : Trump Signs Executive Orders Targeting Illegal Immigration

BorderSecurityImageHot off the press. Today, President Trump issued two (2) executive orders relating to immigration, one on border security (e.g., calling for the construction of a wall along the U.S.-Mexico border, etc.) and one on interior enforcement (e.g., including various provisions relating to enforcement of United States immigration laws, including withholding federal grant money from sanctuary cities).

Like President Obama before him (who he all so often criticized for using executive actions to enforce our immigration law), President Trump is using executive actions to enact these new immigration policies. (Thus far, there have been no changes announced as to President Obama’s Deferred Action for Childhood Arrivals (“DACA”) program.)

Here’s a high-level overview of what we know.

1. Southern Border Wall. The President announced that the United States will construct a wall along our U.S. – Mexico border, based apparently on authority under the Secure Fence Act of 2006 signed into law by President George W. Bush (which called for 700 miles of “reinforced fencing” along the U.S. – Mexico border, along with enhanced surveillance systems). At this point, there are just rumors as to how this will be paid for.

2. Detention for Illegal Entry. The President is seeking new policy guidance for all Department of Homeland Security personnel regarding the appropriate and consistent use of lawful detention authority under the Immigration and Nationality Act, including the termination of the practice commonly known as “catch and release” (whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law).

3. Curbing Funding to Sanctuary Cities. The President’s executive orders also seek to end Sanctuary Cities by stripping grant funding for those cities.

4. Temporarily Halting Refugee Admissions. The President is seeking a 120-day pause in refugee admissions to the United States, with the exception of those fleeing religious persecution if their religion is a minority in their country of nationality.

5. Banning Foreign Nationals from Certain Muslim-Majority Countries. The President is banning entry into the United States for at least thirty (30) days all immigrant and nonimmigrant nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. He also may require that all applicants from those countries (and perhaps others) demonstrate that he or she is not a security or public-safety threat to the United States.

6. Uniform Screening for Immigration Benefits. The President announced that there will be added requirements to screenings and procedures for all immigration benefits to identify fraud and to apparently detect an applicants’ intent to do harm. (Perhaps this is the “extreme vetting” we heard so much of on the campaign trail.) The President is also suspending the Visa Interview Waiver Program, essentially requiring all visa applicants to attend a visa interview, unless they are otherwise exempt from doing so under the law.

This is obviously a fluid situation, so I will endeavor to update this as appropriate.

The Inauguration of Donald J.Trump, Day 1

dreamstime_xs_62076674-copy“We, the citizens of America, are now joined in a great national effort to rebuild our country and to restore its promise for all of our people.” These were essentially the very first words uttered by now President Trump in his inaugural address.

When I first went back to re-read the President’s speech, I didn’t think much of this particular statement. Upon reflection, though, given the President’s rhetoric on the campaign trail, and even since he was elected, I find it a bit ironic that he in the same sentence speaks how “the citizens of America” would restore our country’s promise “for all of our people.”

“All of our people.” Presumably this means everyone that’s here, right? Citizens and non-citizens alike? Or does “our people” have a more limited meaning? Just citizens? What about permanent residents (i.e., Green Card holders)? What about people lawfully here on temporary visas? Am I reading too much into the President’s statement?

I just received an email from a colleague who, in a very different context, said “Language is important. Actions are important.” He was right in the context he used it. On Day 1 of a Trump presidency, language is very important. For every other day, actions will be very important.

“Every decision on … on immigration … will be made to benefit American workers and American families.” Really? What about everyone else who are lawfully living in the United States?

I have clients and colleagues calling me daily about what a Trump presidency means on the immigration front. And not just what I describe as at risk, or undocumented folks. Professionals too. I’ve tried to answer that question so many times, but the truth is, I really don’t know. Frankly, no one knows beyond those that are closest to the President. I suspect we’re about to find out.

Anecdotally, the news has not been good, and by all accounts, the Executive actions that former President Obama took (e.g., DACA, etc.) are no doubt in jeopardy.

President Trump quoted the Bible in his inaugural speech; specifically, “how good and pleasant it is when God’s people live together in unity.” I agree. “All of our people” should be able to remain here and live here in unity. Now let’s get to work on a compassionate way to make that happen. (And for God’s sake, let’s tackle some meaningful immigration reform in the process.)

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