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Readers of this space know that the practice of immigration law has always presented my colleagues and I with unique and interesting challenges. Over the last three years, however, I would describe most of the challenges practitioners encounter as completely unnecessary. Let me give you an example.
A prospective client walks through my door, tells me her story, and to keep it short and simple, I determine that she’s out of status, has a prior removal order, but if those things weren’t true, she would be able to stay in the United States because she has some other relief that could be available to her (e.g., she originally had a lawful entry and she’s married to a U.S. citizen), but for the previously stated adverse factors.
Generally our advice to this individual might be, let’s get the paperwork prepared and filed for the “relief” that we think you’re eligible for with, e.g., U.S. Citizenship and Immigration Services (“USCIS”) (but for the adverse factors), and then let’s go to the Immigration Court, ask the Immigration Judge (“IJ”) to reopen her prior removal order (for whatever reasons we can come up with, including, possibly, the fact that our prospective client has relief available to her, again but for the adverse factors), and assuming the IJ did reopen the case, then ask the IJ for a continuance (and to place our client’s matter on the Court’s “status docket”) in the Immigration Court proceeding so we can wait for what we think will be a favorable decision by USCIS.
Yesterday (as I write this, it was just yesterday), that last part became unnecessarily more difficult. In a decision by the Board of Immigration Appeals (“BIA”) issued on January 22, 2020, the BIA held as follows:
In assessing whether to grant an alien’s request for a continuance regarding an application for collateral relief, the alien’s prima facie eligibility for relief and whether it will materially affect the outcome of proceedings are not dispositive, especially where other factors—including the uncertainty as to when the relief will be approved or become available—weigh against granting a continuance.”
Matter of Mayen, 27 I&N Dec. 755 (BIA 2020) (Emphasis added.)
This impacts foreign nationals in many kinds of situations. The example I gave is just one. Here’s another, and no doubt more compelling. Sadly sometimes the prospective client that shows up at your office has been the victim of a crime, such that this individual might be eligible for a “U” nonimmigrant visa. U visas provide temporary and sometimes permanent legal status to victims of an enumerated list of “qualifying criminal activities” who have suffered substantial physical or mental abuse, and possess information concerning that crime, and who have been, are being, or are likely to be helpful to law enforcement or government officials.
There are many “qualifying criminal activities” including domestic violence and sexual assault. Here’s the problem. Let’s say my prospective client has a very compelling case to receive a U visa. The problem is the adjudication backlog at USCIS. Right now, the time that it takes for USCIS to process U petitions is more than 4 years, and that assumes that USCIS simply approves (or denies I suppose) your client’s petition. If USCIS sends you a Request for Evidence (“RFE”), which can often be the case, the adjudication time will be substantially longer.
So, back to my prospective client. The quick reaction and consensus of my colleagues and I will be that some or many IJ’s will use the BIA’s decision in Matter of Mayen as a means to unclog their docket. Attorneys will then be forced to unnecessarily appeal adverse decisions of these IJ’s to the BIA, the BIA will likely affirm the IJ’s decision, and then our clients will be forced to appeal further to a U.S. Circuit Court of Appeals and, depending on where the client resides, hopefully get a favorable decision. This is all just so unnecessary.
We can debate, and meaningfully debate at that, all day long as to whether Democrats or Republicans have better policies as it relates to immigration and even immigration reform. What we’re talking about here, though, is about being practical and being fair. IJ’s have the ability to meaningfully assess whether a respondent before them has a prima facie right to obtain relief before USCIS so he or she can lawfully remain here. Assuming this is true, what difference will it make then to the Court if a respondent’s case is put on a separate status docket and the Court checks in with that respondent “periodically” to see how their case with, e.g., USCIS is going? In my view, it makes (or should make) no difference.
Practicing immigration law is very rewarding. And of course it’s challenging too. All fields of law have their challenges. That’s alright. What’s not alright, however, is creating obstacles to lawyers and litigants that are truly unnecessary (and unfair). Let’s solve the underlying problem through meaningful immigration reform. Let’s not punish individuals who would have (more) rights in the United States “but for” delays at USCIS that are not of their own creation. Seems fair to me.
Can 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 . . . (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.
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.
 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).
 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.
I 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?
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.
To 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.
Hot 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.
I think I went to bed around 10:30 PM on election night. Pretty early for sure. But once the analysis was coming in on voting trends in Florida and Michigan, I knew the writing was on the wall.
So what does a Trump presidency mean in the world of immigration? Potentially a lot. I am very fortunate to have a diverse law practice, and within our immigration practice, we serve both corporate clients (e.g., from start-ups to mature businesses) and individuals and families. A fair amount of the individuals that we serve are what I consider to be at-risk; some are here in the United States lawfully, and others not. Many do not want to go home. These are amazing people, with amazing and often horrifying stories to tell of why they came to the United States, and how. Unfortunately, because of what we’re seeing in the aftermath of the election, many of them are now scared, really scared (including some of our corporate clients)!
On the one hand, we have business clients who are concerned about their foreign national employees, whether they’re going to be able to remain here, whether their working status will be able to be extended, whether they can safely take business trips outside the United States and return unimpeded. All sorts of questions. I try to assure these folks that nothing, yet anyway, has changed, as far as their employees are concerned.
And then we have what I refer to as our at risk clients, some here lawfully and some not, many who came to the United States leaving terrible and dangerous situations back in their home countries, and who are legitimately fearful to return. Many of these individuals are unaccompanied minors, kids who have been abandoned by their families back home and who made perilous journeys across our Southern border, seeking a better life. I am very concerned about this population.
This is the time when scammers, and so-called notarios, are likely to come out of the woodwork. We’re advising clients not to fall for scammers or notarios who will prey on this at risk population, people who are often confused and are no doubt fearful about the election results.
We’re receiving daily calls from clients and potential clients who are afraid of what the next four years may mean to them and their families, their businesses, and their communities. Our job now, more than ever, is to work with them, help them realize the American dream, and help them overcome any obstacles that may be created by our new President and our immigration laws and regulations.
When we receive these calls, our first response is “don’t panic”! With perhaps one or two exceptions, we do not know for sure exactly what will happen when President-elect Trump takes office in January. We’re advising our clients not to make any hasty or rash decisions, and instead take the time necessary to review their particular situation, get the facts, review the law, and know their rights.
One of the things that the President-elect said he would do on “Day 1” is rescind many of the executive actions put into place under the Obama Administration. The biggest one, in the immigration arena, is no doubt President Obama’s 2012 initiative known as Deferred Action for Childhood Arrivals (“DACA”). That program allows some aliens who are unlawfully present in the United States, and who had been brought to the United States as children and met other criteria, to also receive deferred action and, in many cases, employment authorization.
As of June 30, 2016, U.S. Citizenship and Immigration Services (“USCIS”) had approved close to 750,000 DACA applications (since 2012). We do not know if, how or when DACA might end. President-elect Trump could take action on DACA immediately or soon after his inauguration, weeks or months later, or perhaps not at all if he softens or changes his position (as he has so often done of late).
Finally, one of the biggest things that we are highly recommending to our clients is, if they are eligible, to apply for citizenship in the United States. Of course, everyone’s situation is not the same, but if someone meets the basic eligibility requirements for becoming a U.S. citizen, and they have no adverse factors in their background that would make them ineligible for citizenship (or worse, potentially removable from the United States), we’re advising them to take a hard look at applying for U.S. citizenship. Citizens of the United States have so many more protected under the law than someone who is not.
These are interesting times we live in. And its only just begun.