Category Archives: immigration consequences of criminal convictions

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

Section 245 of the Immigration and Nationality Act (INA) allows certain foreign nationals who are physically present in the U.S. to adjust to permanent resident status and avoid filing for an immigrant visa at the U.S. Consulate abroad.

But unless an exception or exemption applies, you are barred from filing for INA 245(a) adjustment if you are in unlawful immigration status at the time of filing a Form I-485 [INA 245(c)(2) bar]; you have violated the conditions of your nonimmigrant status or visa [INA 245c)(2) and INA 245(c)(2)(8) bars]; and/or you failed to maintain lawful nonimmigrant status when you would otherwise be eligible for employment-based immigration [INA 245(c)(7) bar].

Statutory Bars to Adjusting Status Under INA 245(a)

The bars to INA 245(a) Adjustment of Status (AOS) include the following:

1. You Are In Unlawful Immigration Status at the Time of Filing a Form I-485 Application: INA 245(c)(2) Bar

Under INA 245(c)(2), an INA 245(a) Adjustment of Status application will be denied if at the time of the Form I-485 filing, you are not in lawful immigration status. For purposes of the INA 245(c)(2) bar, lawful status includes nonimmigrants (e.g. B1/B2 visitor, F-1 student, H-1B professional worker); refugees; asylees; parolees; and foreign nationals in Temporary Protected Status (TPS​).

You are in unlawful immigration status if you have never had lawful status (e.g. entered the U.S. without inspection and admission or parole) or ​your ​lawful status ​has ended​ (expired or was rescinded, revoked, or otherwise terminated due to violation of nonimmigrant status or other reason).

Having authorized stay is different from having lawful immigration status. The timely filing of a pending application to extend or change status (Form I-129 or Form I-539), or a pending application for adjustment (Form I-485), generally provides authorized stay, but does ​not​ provide lawful immigration status.

​A person who has a timely-filed pending Extension of Status (EOS) or Change of Status (COS) application may file a Form I-485 application after his or her nonimmigrant status expires. But if USCIS denies the EOS or COS application, you are generally considered to be in unlawful immigration status as of the expiration of your nonimmigrant status and on the date the adjustment application is filed. The INA 245(c)(2) bar would then apply, unless an exemption is available.

2. You Failed to Continuously Maintain Status and/or Violated the Terms of Your Nonimmigrant Visa: INA 245(c)(2) and INA 245(c)(8) Bars

You are not eligible to file a Form I-485, Application to Register Permanent Residence or Adjust Status, under ​INA 245(a)​ if, other than through no fault of your own or for technical reasons,​you have ever:

Failed to continuously maintain a lawful status since entry into the United States. [You are barred from adjustment of status under INA 245(c)(2) if you are in unlawful immigration status on the date of filing the Form I-485 application.]

OR

Violated the terms of your nonimmigrant status​, such as worked without authorization. [You are barred from adjustment of status under ​INA 245(c)(8) not only if you violated the terms of your most recent nonimmigrant status, but also if you ever violated the terms of your nonimmigrant status at any time during any prior periods of stay in the U.S. as a nonimmigrant.​]

To be eligible for AOS, you only need to maintain your nonimmigrant status until you properly file a Form I-485 adjustment application with USCIS, ​so​ long as you do not engage in unauthorized employment after filing the adjustment application.​ But to protect yourself from being placed in removal proceedings if your Form I-485 is denied, you should continue to maintain your nonimmigrant status (e.g. H-1B) when possible.

When the ​INA 245(c)(2)​ and ​INA 245(c)(8) Bars May Be Excused

For purposes of ​INA 245(c)(2)​ and ​INA 245(c)(8)​, a failure to maintain lawful immigration status or violation of nonimmigrant status may be excused only for the specific period under consideration if: ​

a. The applicant was reinstated to F, M, or J status

If USCIS reinstates F or M student nonimmigrant status or if the U.S. Department of State reinstates J exchange visitor nonimmigrant status, the reinstatement only excuses the particular period of time the nonimmigrant failed to maintain status. The reinstatement does not excuse prior or future failure to maintain status.​

b. The applicant’s failure to maintain status was through no fault of his or her own or for technical reasons

The term  “other than through no fault of his or her own or for technical reasons”​ ​is limited to the following​ ​circumstances:​ 

  • Inaction of another person or organization designated by regulation to act on behalf of an applicant or over whose actions the applicant has no control, if the inaction is acknowledged by that person or organization.
  • Technical violation resulting from inaction of USCIS
  • Technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay from USCIS in person or by mail
  • Technical violation resulting from Legacy ​Immigration and Naturalization Service (​INS​)​’s application of the 5-​year​ or 6-year period of stay for certain H-1 nurses, if the nurse was re-instated to H-1 status as a result of the Immigration Amendments of 1988.​

c. The applicant was granted an extension of nonimmigrant stay or a change of nonimmigrant status.

The immigration officer will consider all your current and previous entries into and stays in the United States, including current and previous applications for extension of stay (EOS) or change of status (COS).

If USCIS approves a timely filed EOS or COS application, or excuses and approves an untimely filed EOS or COS application, the approval is effective as of the date of the expiration of the prior nonimmigrant status. In that event, you will be considered to have maintained lawful​ status ​despite the gap in time between the expiration of the prior nonimmigrant admission and the date of the EOS or COS approval.

3. You Are an Employment-Based Applicant Who Is Not in Lawful Nonimmigrant Status: INA 245(c)(7) Bar

If you are an employment-based adjustment applicant who is not in a lawful nonimmigrant status at the time of filing your Form I-485 application, you are barred from adjusting status under INA 245(c)(7). This bar does not apply if you were in a lawful nonimmigrant status at the time of filing for adjustment, subsequently left the United States, and returned using an approved advance parole travel document while the adjustment application remains pending. ​

For purposes of this bar to adjustment, the term “lawful nonimmigrant status” includes a foreign national in a lawful status classified under the nonimmigrant statutory provisions(e.g. B1/B2 visitor, F-1 student, H-1B professional worker) and a foreign national in Temporary Protected Status (TPS).

​Lawful nonimmigrant status does not include parolees, ​asylees​, or certain other foreign nationals who are otherwise authorized to stay in the United States. ​

Exceptions and Exemptions to the Bars to Adjusting Status Under INA 245(a)

The ​INA 245(c)(2)​, ​INA 245(c)(8), and INA 245(c)(7)​ bars to adjustment do NOT apply to: ​

  • Immediate relatives of U.S. citizens [spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older)]
  • ​Violence Against Women Act (VAWA) self-petitioners/VAWA-based applicants
  • ​Certain foreign doctors/physicians and their accompanying spouse and children​
  • ​Certain G-4 international organization employees, NATO-6 employees, and their family members
  • Special immigrant juveniles
  • ​Certain members of the U.S. ​armed forces​ and their spouse​s​ and children​
  • ​Employment-based applicants in the 1st, 2nd, 3rd and certain 4th preference categories who meet the ​INA 245(k) exemption. [The INA 245(k) exemption applies if your failure to maintain a lawful status, engagement in unauthorized employment, or violation of the terms of your nonimmigrant status or nonimmigrant visa lasted only for 180 days or less since your most recent lawful admission.]

​Bars to Adjustment are Different from Grounds of Inadmissibility​

Bars to adjustment should not be confused with the grounds of inadmissibility listed in INA 212.

When you are inadmissible under section 212, you may not adjust status unless you qualify for a limited exception or unless a waiver of inadmissibility is available, you qualify for it, and it is granted to you. Inadmissibility grounds include health concerns (communicable disease of public health significance), criminal activity, national security, public charge, fraud and misrepresentation of material facts to gain immigration benefits, unlawful presence, and prior removals.

Consult an Experienced Immigration Attorney

Because there are various bars and inadmissibility grounds to prevent AOS, as well as exemptions and waivers available, you need to consult an immigration attorney before you file a Form I-485 application to adjust to permanent resident status.

To learn more, read our related article, Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Max Braun

 

212(d)(3) Nonimmigrant Waiver: When Do You Need It and How Do You Get It?

In this video, immigration attorney Dyan Williams discusses the 212(d)(3) nonimmigrant waiver, including answers to 4 frequently asked questions: do I need a visa with the waiver, do I qualify for the waiver, what must I prove to get the waiver, and how do I apply for the waiver?

For more information, read 212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Contact Dyan for advice and guidance on the 212(d)(3) nonimmigrant waiver application process.

This video provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.

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Potential Solutions for Visa Refusal or Visa Denial

Some visa refusals and visa denials are proper, such as when you fail to provide the requested documents to prove visa eligibility or when you are inadmissible to the U.S. due to past actions. But when the decision is improper or can be overcome, you may take remedial action if you still want to come to the U.S.

A consular officer’s decision to deny or issue a visa is not subject to judicial review, based on the doctrine of consular non-reviewability. Because consular officers have so much discretion in issuing visa decisions, it’s especially important to address complications from the get-go.

When you’re faced with a visa refusal or denial, your potential solutions include:

1. Refiling for the Nonimmigrant Visa in Section 214(b) Situations

There is no waiver to overcome the INA 214(b) ground of ineligibility (failure to overcome presumption of immigrant intent) in nonimmigrant visa cases. But the finding is not permanent, which means you may later establish nonimmigrant intent by showing a considerable change in circumstances.

When your nonimmigrant visa (e.g. B-1/B-2 visitor visa or F-1/M-1 student visa) is denied due to failure to overcome the presumption of immigrant intent, you will need to reapply for the visa and, at the visa interview, present new, persuasive evidence of strong ties to your home country.

To avoid multiple visa refusals under section 214(b), you must build strong family roots, property ownership, employment ties, and other connections to your country that you cannot abandon and will cause you to depart the U.S. before your authorized stay expires.

In 214(b) visa refusal cases, you should not reapply for the B-1/B-2 visa, for example, until your personal, professional, and financial circumstances have changed significantly. Owning a business, investing in property, having a well-paid, steady job, or starting a family in your country are positive factors.

2. Requesting an Advisory Opinion (Administrative Review)

When your visa denial is based on questions of law, you may request an Advisory Opinion from the Department of State’s Visa Office in Washington D.C. The Visa Office will not review claims that the consular officer made a mistake of fact.

The Visa Office has a dedicated email channel, LegalNet, for you and/or your attorney to request a case-specific response on the interpretation or application of immigration law. An example is when a person is denied an H-1B or L-1 visa, which allows dual intent, under section 214(b) (failure to overcome presumption of immigrant intent). Another example is when a visa applicant is charged with 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain immigration benefit), even when the misrepresentation was not material and did not affect visa eligibility.

Within seven (7) business days of receiving a proper inquiry, LegalNet will provide notice that the inquiry has been received and is being processed. The complexity of the case and availability of required information affects the time frame for a substantive responses.

LegalNet will provide substantive responses only to the following types of inquiries:

  • Legal questions about a specific case when the applicant or representative has attempted to contact the consular post at least twice without receiving a final response, and where 30 days have passed since the second inquiry (unless action is required sooner to avert significant harm to the applicant)
  • Legal questions about a specific case in which the applicant or representative has received a final response from the consular post, but believes it to be wrong as a matter of law
  • Legal questions about specific cases involving T visas, U visas, Diversity visas, or adoption visas, and
  • Legal questions about specific cases involving the Child Status Protection Act (CSPA) and the Violence Against Women Act (VAWA).

The substantive response will be a summary of the advisory opinion forwarded to the consulate. Advisory opinions on applications or interpretations of law are binding on consular officers, but consular officers have sole authority to apply the law to the facts.

3. Filing a Motion to Reconsider and Rescind a Section 212(a) Inadmissibility Determination

Although there is no appeal process for a visa denial based on INA section 212(a) inadmissibility grounds, the U.S. Consulate or Embassy may reconsider its decision based on new evidence or legal arguments establishing you actually qualify for the visa.

In immigrant visa cases, the federal regulations allow  you to submit a motion to reconsider within one year of the visa denial to the consulate. No new application or filing fee is required when a timely motion is filed. Motions to reconsider must include relevant documentary evidence and legal claims to overcome the inadmissibility ground.

In nonimmigrant visa cases (except section 221(g) refusals), the only way to have your case reconsidered is to submit a new visa application and, at the visa interview, present a request to reconsider the inadmissibility finding.

It’s appropriate to file a motion to reconsider when the inadmissibility finding is based on a consular officer’s misinterpretation of the facts or law. But when the inadmissibility determination originates from the U.S. Department of Homeland Security (DHS), e.g. U.S. Citizenship & Immigration Services (USCIS) and U.S. Customs & Border Protection (CBP), the Consulate will generally instruct you to contact those agencies.

4. Applying for a Waiver of Inadmissibility 

When you are truly inadmissible or you are unable to get the erroneous inadmissibility charge vacated by the Consulate, you may apply for a waiver. A waiver grant is not a travel document to enter the U.S. Rather, it allows – but does not guarantee – admission on a Canadian passport (if you are a Canadian citizen) or a visa grant by the Consulate when you are inadmissible to the U.S.

Nonimmigrant waiver 

For nonimmigrant visa applicants, the 212(d)(3) waiver excuses almost all grounds of inadmissibility listed in section 212(a). This includes health-related grounds, criminal offenses, prostitution, smuggling, fraud or willful misrepresentation of material fact to gain immigration benefits, false claims to U.S. citizenship to gain benefits under federal, state or immigration law, and unlawful presence in the U.S. The only inadmissibility grounds that cannot be excused by the 212(d)(3) waiver involve security and related issues, foreign policy considerations, and participation in Nazi persecutions.

In Matter of Hranka, the Board of Immigration Appeals listed three factors that must be considered in deciding whether to grant or deny the waiver. These factors are also described in the Foreign Affairs Manual, which sets forth policies for the Department of State. They are:

  • The risk of harm to society if the applicant is admitted to the U.S.
  • The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.
  • The importance of the applicant’s reasons for seeking to enter the U.S.

The consular officer must recommend your nonimmigrant waiver request for approval before it is forwarded to the U.S. Customs & Border Protection for a final decision.

Immigrant waiver

For immigrant visa applicants, there are waivers for certain inadmissibility grounds, including fraud or willful misrepresentation, some criminal offenses, and unlawful presence.

You will need to determine whether a waiver is available for the specific section of law that makes you inadmissible. Even when a waiver is available, only certain immigrant visa applicants may qualify for it.

You qualify for the I-601 waiver [INA§ 212(i) waiver] of the lifetime fraud/willful misrepresentation bar under section 212(a)(6)(C)(i) if you are one of the following:

1. An intended immigrant who is the spouse, son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the §212(i) waiver.]

or

2. A VAWA self-petitioner who will suffer extreme hardship or whose U.S. citizen, lawful permanent resident, or qualified alien parent or child will suffer extreme hardship if you are not admitted to the U.S.

You qualify for the I-601 [INA§ 212(a)(9)(B)(v)] waiver of the 3/10 year unlawful presence bar if you are the spouse or son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the unlawful presence waiver.

You qualify for the I-601 [INA § 212(h)] waiver of crime-related inadmissibility grounds if you are one of the following:

1. An immigrant who is the spouse, parent, son or daughter of a U.S. citizen or permanent resident, or K visa petitioner, who will suffer extreme hardship if you are not admitted to the U.S.

2. A self-petitioning abused spouse or child of a U.S. citizen or permanent resident, under the Violence Against Women Act (VAWA).

3. Inadmissible only under prostitution grounds [sections 212(D)(i) or (D)(ii) of the INA]; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security to the United States.

4. Inadmissible due to certain criminal activities (e.g. a crime involving moral turpitude; single offense of simple possession of 30 grams or less of marijuana) that occurred more than 15 years before the date of application for a visa, admission, or adjustment of status; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security of the United States.

The I-601 immigrant waiver under section 212(h) of the INA excuses  you from the following criminal grounds:

1. Crimes involving moral turpitude

2. One controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish)

3. Two or more criminal convictions (other than purely political ones) with an aggregate sentence imposed of at least five years

4. Prostitution

5. Unlawful commercialized vice, whether or not related to prostitution

6. Certain aliens involved in serious crimes who have asserted immunity from prosecution

The immigrant waiver is not available for all crime-related grounds of inadmissibility. In particular, persons charged with the following are not eligible for the waiver:

1. 212(a)(2)(A)(i)(II)[Controlled Substance Violation] – except when it relates to a single offense of simple possession of 30 grams or less of marijuana (or hashish); or

2. 212(a)(2)(C)[Controlled Substance Traffickers]

3. 212(a)(2)(G)[Foreign government officials who committed particularly severe violations of religious freedom]

4. 212(a)(2)(H)[Significant traffickers in persons/human traffickers]

5. 212(a)(2)(I)[Money laundering]

Waiver for prior removal orders (or certain immigration violations)

Advance permission to reapply for admission into the United States is needed when you are inadmissible under sections 212(a)(9)(A)(i)(e.g. expedited removal order) and (ii) (removal order by an Immigration Judge), as well as sections 212(a)(9)(C)(i)(I) (illegal re-entry after accruing more than one year of unlawful presence) and (II)(illegal re-entry following removal order).

When any of these inadmissibility bars apply, you need an I-212 waiver to be readmitted to the U.S. or to obtain a visa as an immigrant or nonimmigrant. For more information on these inadmissibility grounds, read our article, When do you need an I-212 Waiver (and how do you get it)?

The I-212 waiver request may be filed at any time, in conjunction with a visa application, when sections 212(a)(9)(A)(i) and (ii) apply. But when sections 212(a)(9)(C)(i)(I) and (II) apply and you are an immigrant visa applicant, you must be outside the U.S. and wait ten years abroad before filing  the Form I-212.  [Note: As an alternative, if you are a nonimmigrant visa applicant, you may seek a section 212(d)(3) nonimmigrant waiver, at any time, if you are inadmissible under section 212(a)(9)(C)(i)(I), i.e. unlawful presence of more than one year, in the aggregate, and subsequent reentry without admission or parole.]

A completed and signed Form I-212,  Application for Permission to Reapply for Admission into the United States after Deportation or Removal, must be submitted – except in few situations, such as when filing for a nonimmigrant visa at certain U.S. consulates. The Form I-212 filing fee and sometimes a biometrics fee are required.

Consult an immigration attorney with expertise in visa refusals or denials

When your visa is refused or denied, and you still wish to come to the U.S., you need to contact an immigration attorney to evaluate your visa eligibility, verify whether the consulate has valid grounds to deny the visa, and discuss or pursue possible remedies.

For more information, read our related article, Common Reasons for Visa Refusal or Visa Denial.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Anne Worner

Effects & Impact of Trump’s Executive Order on Enhancing Public Safety in the Interior of the United States

On day five of his Administration, January 25, 2017, President Donald Trump issued his second executive order on immigration, titled, Enhancing Public Safety in the Interior of the United States. It focuses on the removal of persons who illegally enter the U.S. and persons who overstay or otherwise violate the terms of their visas.

Here is a description of Trump’s executive order on enhancing public safety within the United States, including the potential effects and impact: 

Authority: In the order, Trump cites to the Constitution and federal laws, such as the Immigration & Nationality Act (INA), as grounds for his presidential authority.

The president may set the policy and practices of immigration agencies and officials, in compliance with federal law set by Congress and the U.S. Constitution.

Purpose: The order directs departments and agencies to employ all lawful means to enforce federal immigration laws and ensure the removal of persons who have no right to be in the United States.

Policy Highlights: 

1. Faithful Execution of Immigration Laws Against All Removable Persons. The executive order notes, “Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety.  This is particularly so for aliens who engage in criminal conduct in the United States.”

2. Enforcement Priorities. The executive order instructs the Secretary of Homeland Security to prioritize for removal all persons described in the Immigration & Nationality Act as inadmissible under sections 212(a)(2) (Criminal and related Grounds), 212(a)(3) (Security and related grounds), 212 (a)(6)(C) (Willful misrepresentation to gain immigration benefit) and 235 (Expedited Removal of inadmissible arriving alien), or removable under sections 237(a)(2) (Criminal offenses) and (4)(Security and related grounds).

The order also prioritizes removable persons who:

(a)  Have been convicted of any criminal offense;

(b)  Have been charged with any criminal offense, where such charge has not been resolved;

(c)  Have committed acts that constitute a chargeable criminal offense;

(d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e)  Have abused any program related to receipt of public benefits;

(f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

3. Civil Fines and Penalties. The executive order instructs the Secretary to issue guidance and promulgate regulations, where required by law, to assess and collect fines and penalties, as  authorized, from persons unlawfully present in the U.S. and from those who facilitate their presence in the U.S.

4. Additional Enforcement and Removal Officers. The executive order instructs the Secretary, through the Director of U.S. Immigration & Customs Enforcement, and to the extent permitted by law and subject to availability of funds, to hire 10,000 additional immigration officers to perform law enforcement functions.

5. Federal-State Agreements. The executive order instructs the Secretary to immediately engage with the Governors of the States, as well as local officials, to enter into INA 287(g) agreements. This allows for State and local law enforcement officials to perform functions of the immigration officers in relation to the investigation, apprehension , or detention of aliens in the United States under the Secretary’s direction and supervision.

6. Terminate the Priority Enforcement Program (PEP) outlined in the November 20, 2014 Memorandum and reinstate the Secure Communities program. The executive order instructs the Secretary to take all appropriate action to end the PEP program, which prioritizes removable persons who have been convicted of an offense listed under the DHS civil immigration enforcement priorities, has intentionally participated in an organized criminal gang to further the illegal activity of the gang, or poses a danger to national security. Trump’s order calls for the revival of the Secure Communities program, which was discontinued by then-Secretary Jeh Johnson in November 2014.

7. Refusal of Federal Grants to “Sanctuary Jurisdictions.” The executive order states that it is the executive branch’s policy to ensure that a State shall comply with 8 U.S.C. 1373 (Communication between government agencies and the Immigration and Naturalization Service).

Trump’s order adds that the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure jurisdictions that refuse to comply with 8 U.S.C. 1373 are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.  It further notes, “The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

The order also instructs the Secretary to publish a weekly list of all the crimes committed by immigrants and the jurisdictions that did not honor detainers with respect to such immigrants.

8.  Create an “Office for Victims of Crimes Committed by Removable Aliens.” The executive order calls for the establishment of an office, within the U.S. Immigration & Customs Enforcement, to provide “professional services to victims of crimes committed by removable aliens and the family members of such victims.”  The order also instructs the office to “provide quarterly reports  studying the effects of the victimization by criminal aliens present in the United States.”

Effects and Impact:

1. Broadening enforcement priorities

The executive order significantly broadens immigration enforcement priorities. It eliminates guidance in the November 20, 2014 memorandum issued by then-Secretary Jeh Johnson under the Obama Administration.

In that memorandum, Johnson noted that Priority 1 for immigration enforcement included aliens engaged in or suspected of terrorism or espionage; aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States; aliens convicted of an offense for which an element was active participation in a criminal street gang; aliens convicted of a felony as defined by state statute; and aliens convicted of an “aggravated felony” as defined by federal law. Priority 2 included aliens convicted of three or more misdemeanor offenses, aliens convicted of a “significant misdemeanor” (i.e. domestic violence ; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence); aliens apprehended in the United States after unlawfully entering or re-entering the United States and who cannot prove they have been physically present in the United States continuously since January 1, 2014 ; and aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.

In contrast, Trump’s executive order prioritizes persons who have been convicted of any criminal offense, which may include even minor infractions and misdemeanors. It also prioritizes any removable person who has been charged with (but not actually convicted of) a crime, or abused any program related to receipt of public benefits. It further encourages the removal of any person who an immigration officer deems is a danger to the “public safety or national security,” thus giving wide discretionary power to individual officers.

New guidance has yet to be issued to local immigration officers on how to implement the executive order. Some ICE Field Officers have stopped granting requests for prosecutorial discretion (PD), as described in the November 20, 2014 memorandum, in light of Trump’s order unless further guidance permits this relief. Others continue to grant PD based on prior directive under the Obama Administration, unless new instructions are provided.

With over 500,000 removal cases pending in fiscal year 2017, and immigrants facing years long delays before a judge makes a final decision on their case, the immigration court system is already heavily backlogged. Prioritizing removable persons who do not pose a threat to public safety will make it harder to focus on those who do.

2. Reinstating the 287(g) partnerships and Secure Communities program

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added section 287(g) to the Immigration & Nationality Act, permitting the delegation of immigration officer duties to deputized state officers and employees. The 287(g) program was credited by ICE for identifying more than 402,079 potentially removable aliens – mostly at local jails – from January 2006 through September 30, 2015.   In a December 20, 2012 news release, however, ICE announced it would phase out the 287(g) program in favor of other, more efficient enforcement programs, such as Secure Communities.

In November 2014, then-Secretary of Homeland Security, Jeh Johnson, issued a memorandum discontinuing the Secure Communities program because it “attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation…” In its place, Johnson introduced the Priority Enforcement Program to focus on convicted criminals and others who pose a danger to public safety. The memorandum instructed ICE to replace requests for detention (i.e., requests that an agency hold an individual beyond the point at which they would otherwise be released) with requests for notification (i.e. , requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state or local authority).

Trump’s executive order promises to reinstate 287(g) partnerships and the Secure Communities program, which were criticized for fueling community mistrust in the police, being prone to racial profiling, increasing the use of immigration detainers to the detriment of the criminal justice system, and creating confusion over the roles of local, state, and federal agents.

3. Penalizing “sanctuary” cities, counties or states

The executive order threatens to withhold federal grants to jurisdictions (cities, counties, and states) that do not comply with 8 U.S.C. 1373. The order does not specifically define “sanctuary jurisdiction,” but the term generally refers to those that decline federal requests to hold arrestees in jail due to their immigration status or to collect immigration status from suspects.

Since Trump’s election, “sanctuary” cities like New York, Minneapolis-St. Paul, San Francisco and Seattle have vowed to limit their cooperation with federal immigration authorities. They won’t stop immigration authorities from enforcing federal law within their boundaries. But they will focus on local law enforcement so residents don’t avoid talking to the police out of fear of deportation risks or immigration consequences.

Whether federal funds may be withheld for the purpose of forcing “sanctuary jurisdictions” to support immigration enforcement is subject to legal challenges. Detaining individuals after a scheduled release date, to assist with federal immigration enforcement, may violate immigration and Constitutional law.

Furthermore, 8 U.S.C. 1373 merely requires communication between government agencies and the immigration agencies. It addresses the exchange of information regarding citizenship and immigration status among federal, state, and local government entities and officials.

Subsection (a) states federal, state and local government entities and officials may not “prohibit, or in any way restrict” government officials or entities from sending to, or receiving from, federal immigration officers information concerning an individual’s citizenship or immigration status.

Subsection (b) provides that no person or agency may “prohibit, or in any way restrict,” a federal, state, or local government entity from (1) sending to, or requesting or receiving from, federal immigration officers information regarding an individual’s immigration status, (2) maintaining such information, or (3) exchanging such information with any other federal, state, or local government entity.

Section 1373 prohibits government entities and officials from prohibiting or restricting intergovernmental exchange of such information. But it does not impose an affirmative duty on states and localities to collect information from individuals regarding their immigration status, nor does it require states and localities to take specific actions upon obtaining such information.

Conclusion

Expanding immigration enforcement priorities, reviving the 287(g) and Secure Communities programs, and threatening to penalize “sanctuary jurisdictions” are in line with Trump’s campaign positions.  Nevertheless, they are costly and likely ineffective strategies for protecting the American public from dangerous “aliens who engage in criminal conduct.”

For information on Trump’s other executive orders on immigration, read:

Effects & Impact of Trump’s Executive Order on Border Security and Immigration Enforcement Improvements

Effects & Impact of Trump’s Executive Order on Protecting the Nation from Foreign Terrorist Entry Into the United States

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Neon Tommy

Effects & Impact of Trump’s Executive Order on Border Security and Immigration Enforcement Improvements

On day five of his Administration, January 25, 2017, President Donald Trump issued his first executive order on immigration, titled, Border Security and Immigration Enforcement Improvements. It prioritizes the detention and removal of unauthorized immigrants apprehended at the U.S.-Mexico border.

Here is a description of Trump’s executive order on border security and immigration enforcement, including the potential effects and impact: 

Authority: In the order, Trump cites to the Constitution and federal laws, such as the Immigration & Nationality Act (INA), the Secure Fence Act of 2006, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as grounds for his presidential authority.

The president may set the policy and practices of immigration agencies and officials, in compliance with federal law set by Congress and the U.S. Constitution.

Purpose: The order directs departments and agencies to “deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”

Policy Highlights: 

1. Physical Wall. The executive order instructs the Secretary of Homeland Security to take steps to immediately plan, design and construct a physical wall along the southern border. The Secretary must identify and allocate federal funds for planning, designing and constructing the wall.

“Wall” means “a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” The “southern border” means “contiguous land border between the United States and Mexico, including all points of entry.”

2. Detention Facilities. The executive order instructs the Secretary to allocate resources to immediately construct, operate, control, or establish contracts to construct, operate or control facilities to detain aliens at or near the land border with Mexico. The Secretary shall immediately assign asylum officers and immigration judges to detention facilities for the purpose of conducting reasonable fear determinations and removal proceedings, respectively.

3. Detention for Illegal Entry (End “Catch-and-Release”). The executive order instructs the Secretary to take immediate, appropriate actions to ensure the detention of aliens apprehended for violating immigration law, pending the outcome of their removal proceedings or their removal from the U.S. The Secretary shall issue new policy guidance to all Department of Homeland Security personnel on detention use, including the termination of “catch and release,” which involves persons being released in the U.S. shortly after their apprehension, and while their removal proceedings are pending.

4. Additional Border Patrol Agents. The executive order instructs the Secretary to take appropriate action to hire 5,000 additional Border Patrol agents, and ensure they are assigned to duty as soon as is practicable.

5.  Foreign Aid Reporting. The executive order directs all executive departments and agencies to quantify federal aid or assistance to the Government of Mexico on an annual basis for the past 5 years.

6. Federal-State Agreements. The executive order instructs the Secretary to immediately engage with the Governors of the States, as well as local officials, to enter into INA 287(g) agreements. This allows for State and local law enforcement officials to perform functions of the immigration officers in relation to the investigation, apprehension , or detention of aliens in the United States under the Secretary’s direction and supervision.

7. Parole, Asylum, and Removal.  The executive order instructs the Secretary to take immediate, appropriate action to ensure the parole and asylum provisions of immigration law are not exploited to prevent the removal of otherwise removable aliens.

8. Priority Enforcement. The executive order instructs the Attorney General to establish prosecution guidelines and allocate resources to ensure federal prosecutors give high priority to prosecutions of offenses connected to the southern border.

Effects and Impact:

1.  Building the wall 

The estimated cost of building the wall is at least $10 billion. During his election campaign, Trump stated Mexico will pay for it.  But his  executive order calls for the allocation of federal funds to plan, design and construct the wall. Congress must approve funding for any new physical barrier along the southern border. This means American taxpayers will front the cost for the wall.

Trump says Mexico will pay the money back later. His Administration suggested imposing a 20% tax on goods imported  from Mexico to pay for the wall. But experts say this will lead to higher prices for American consumers, result in trade wars, and jeopardize U.S. jobs.

Another idea floated by the Administration is seizing or taxing remittance payments from immigrants sending money earned in the U.S. (their country of residence) to their families in Mexico (their native country). Trump has said the USA Patriot Act anti-terrorism law may be used to accomplish this feat, but such an action will likely be met with legal battles, logistical obstacles, and economic drawbacks.

Between 2000 and 2010, U.S. taxpayers spent $90 billion on border security. The costs involve deploying National Guard troops to the border, paying U.S. Customs and Border Protection (CBP) agents, building barriers, employing drug-sniffing dogs, and using predator drones.

In 2006, under the Bush Administration, Boeing and other companies were awarded a federal contract, named Secure Border Initiative Net (SBInet), to build a high-tech, “virtual fence” along the southwest border. Most of the 2,000-mile border between Mexico and the U.S includes desert plains, steep hills and other natural barriers that are hard to cross. At the time, about 88 miles of physical fencing existed and the U.S. government planned to increase the physical fences to 370 miles by the end of the following year.

The Obama Administration embraced SBInet, but cancelled the project in 2011, following mounting questions from Congress regarding feasibility, viability, cost and effectiveness. By that point, about $1 billion had been spent.

Skepticism concerning Trump’s proposed wall is warranted. John Kelly, who was recently sworn in as Secretary of Homeland Security, said a physical barrier is not enough. In his confirmation hearing, he stated, “If you build a wall, you would still have to back that wall up with patrolling by human beings, by sensors, by observation devices.”

2. Increasing Detentions and Expedited Removals

Enormous amounts of manpower, resources, and technology are already dedicated to securing the nation’s borders. In 2014, the number of Border Patrol agents grew to nearly 21,000, over a 500%  increase from 1992 when there were about 4,000 agents.

In July 2006, then-Secretary of Homeland Security, Michael Chertoff, announced the  end of the”catch and release” policy. Since then, the Department of Homeland Security (DHS) began detaining more individuals while they wait for their immigration court dates. On average, in 2006, DHS detained 21,450 people on a daily basis, compared to over 40,000 this year.

DHS also increased the issuance of expedited removal orders to persons caught at the border, rather than allow them to return without the legal consequences of a removal. In 2014, DHS removed 414,481 persons, compared to 280,974 persons in 2006.

Trump’s executive order aims to increase the size of the enforcement agencies, create more detention facilities for persons apprehended along the southern border, and end “catch and release.”

Although the “catch and release” policy ended under the Bush Administration, the Obama Administration issued a Policy Memorandum on the apprehension, detention and removal or undocumented immigrants, which some labeled as “catch and release 2.0”. The policy divided enforcement priorities into three general categories: Priority 1: Aliens who pose a threat to national security, border security, or public safety. Priority 2: Aliens who are misdemeanants and new immigration violators.  Priority 3: All other immigration violators.

The Policy Memorandum instructed the agencies to focus on priority one and priority two offenders, instead of wasting resources on arresting and detaining priority three offenders. Because Trump’s executive order does not make these distinctions, it gives immigration enforcement agents more freedom to apply the detention and expedited removal process to all persons who they find ineligible for relief, particularly those apprehended at the border.

Federal funds must be allocated to operate detention facilities and detain hundreds of thousands of immigrants each year. The use of detention facilities is a very costly way to deter illegal crossings or other immigration violations. More affordable alternatives include parole/release on own recognizance, bonds, regular check-ins with immigration agents, regular home visits and check-ins, telephonic monitoring, and electronic ankle bracelet monitoring.

The executive order, which claims abuse of parole and asylum provisions, could also result in due process issues for asylum-seeking families fleeing to the border. This includes women and children from the Northern Triangle (Honduras, Guatemala and El Salvador) with credible asylum claims. Human rights groups and immigration advocates have raised concerns about detaining individuals escaping violence and persecution in their home countries. There are more humane and cost-effective alternatives to detention.

3. Deputizing State and Local Law Enforcement Officers to Perform the Duties of Federal Immigration Agents

Section 287(g) of the INA allows delegation of immigration authority to state and local law enforcement officers.  The 287(g) program permits a state or local law enforcement entity to partner with U.S. Immigration & Customs Enforcement (ICE), under a joint Memorandum of Agreement, to enforce federal immigration law in their jurisdiction.

The 287(g) program was criticized for damaging public safety, being prone to racial profiling, and lacking oversight.  In 2009, ICE revised the 287(g) program to prioritize the arrest and detention of undocumented immigrants with criminal histories. In a December 2012 news release, ICE announced it would not renew any of its agreements with state and local law enforcement agencies that operate task forces under the 287(g) program.

At that point, ICE concluded that other enforcement programs, including Secure Communities, are a more efficient use of resources for focusing on priority cases. Introduced in 2008, Secure Communities was a DHS program designed to identify immigrants in U.S. jails who are removable under immigration law. Participating jails sent the arrestee’s fingerprints not only to criminal databases, but also to immigration databases. No local law enforcement agencies were deputized to enforce immigration laws and ICE had only a technological presence in jails and prisons.

In November 2014, then-Secretary of Homeland Security, Jeh Johnson, issued a memorandum discontinuing the Secure Communities program, and replacing it with the Priority Enforcement Program to focus on convicted criminals and others who pose a danger to public safety. The memorandum instructed ICE to replace requests for detention (i.e., requests that an agency hold an individual beyond the point at which they would otherwise be released) with requests for notification (i.e. , requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state or local authority).

Trump’s executive order promises to revive the 287(g) program, which allows states and localities to engage in immigration enforcement to supplement federal efforts. This practice can create mistrust of local law enforcement and involve the use of limited resources to detain and subsequently remove persons with only traffic stops or minor infractions.

With over 500,000 removal cases pending in fiscal year 2017, and immigrants facing years long delays before a judge makes a final decision on their case, the immigration court system is already heavily backlogged. 287(g) agreements fail to prioritize dangerous criminals over undocumented immigrants who pose no threat to public safety. They also tend to reduce cooperation from immigrant communities, which is crucial to preventing and investigating crimes.

Conclusion

Building a wall, increasing detention, and deputizing state and local law enforcement officers to enforce immigration law are consistent with Trump’s campaign promises. But they could very well backfire in the form of wasted taxpayers’ money, squandering of limited resources, unbearable pressure on the already backlogged immigration court system, and reduced cooperation between immigrant communities and their state and local law enforcement entities.

For information on Trump’s other executive orders on immigration, read:

Effects & Impact of Trump’s Executive Order on Enhancing Public Safety in the Interior of the United States

Effects & Impact of Trump’s Executive Order on Protecting the Nation from Foreign Terrorist Entry Into the United States

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Clive Darra