Category Archives: deferred action

Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

On June 28, 2018, USCIS issued updated guidance requiring its officers to initiate removal proceedings in more cases to align with President Trump’s executive order, Enhancing Public Safety in the Interior of the United States.  USCIS Director L. Francis Cissna said the new policy equips USCIS officers to better support the immigration enforcement priorities of the Department of Homeland Security (DHS).

The 2018 memorandum instructs USCIS to issue a Notice to Appear in removal proceedings before an Immigration Judge to inadmissible or deportable persons in an expanded range of situations, instead of referring NTAs to the U.S. Immigration & Customs Enforcement (ICE) in limited cases.  One major change is that an NTA must be issued whenever a person’s immigration benefit request is denied and he or she is “not lawfully present” in the United States.

What is a Notice to Appear?

A Notice to Appear is a Form I-862 the DHS issues to initiate removal proceedings against a person. The NTA includes the charges against the person and alleges the immigration laws he or she violated.  Some NTAs include the date and time of the initial hearing, when you first appear before an immigration judge who decides whether you should be removed or whether you qualify for relief, including voluntary departure in lieu of a removal order.

What Was the Previous USCIS Policy on Issuing a Notice to Appear? 

The November 7, 2011 Policy Memorandum (PM), which is now superseded by the June 28, 2018 PM, provided “USCIS guidelines for referring cases and issuing Notices to Appear (NTAs) in a manner that promotes the sound use of resources of the Department of Homeland Security and the Department of Justice to enhance national security, public safety, and the integrity of the immigration system. ”

The 2011 policy instructed USCIS to issue an NTA in the following situations:

  • Cases where it is required by statute or regulation, such as termination of Conditional Permanent Resident Status and denials of Form I-751, and asylum referrals.
  • Fraud or willful misrepresentation/section INA 212(a)(6)(C) cases when a Statement of Findings substantiating fraud is part of the record.
  • In naturalization (Form N-400 application) cases where the applicant is removable, including those who were inadmissible at the time of obtaining permanent residence.

The 2011 policy further directed USCIS to refer matters to ICE in the following situations:

  • Egregious Public Safety (EPS) cases “where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of” certain specified aggravated felonies as defined under section 101(a)(43) of the INA; is a Human Rights Violator, is a known or suspected street gang member or is subject to Interpol  hits; or has re-entered the U.S. after removal subsequent to a felony conviction where no Form I-212, Application for Consent to Reapply for Admission, has been approved.
  • Cases where the person is inadmissible or removable due to a criminal offense falling outside of the EPS definition, after USCIS completes adjudication.

What is the Current USCIS Policy on Issuing a Notice to Appear?

The June 28, 2018 Policy Memorandum (PM) requires USCIS to issue a Notice to Appear in a broader range of cases without first consulting ICE.

Many more persons will be placed in removal proceedings as USCIS is now required to issue an NTA in the following situations:

  • If an application or petition for immigration benefits is denied and the person is not in lawful status (not lawfully present).
  • If an application or petition for immigration benefits is denied and the person is removable (i.e. subject to any removability grounds under INA 237), especially when there is evidence of fraud or misrepresentation and/or abuse of public  benefit programs.
  • Criminal cases in which the applicant is removable and has been convicted of or charged with any criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or is the ground of removability.
  • Naturalization cases in which the applicant is removable and USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds due to a criminal offense.

USCIS will continue to apply the 2011 NTA guidance to the following:

  • Cases involving national security concerns.
  • Cases where issuing an NTA is required by statute or regulation.
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status.
  • Deferred Action for Childhood Arrivals (DACA) recipients and applicants when USCIS is: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

UPDATE: On September 27, USCIS announced it will begin implementing the new guidance on October 1 in certain cases. For instance, it may issue NTAs on denied status-impacting applications, including Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status. The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. 

In a September 27th teleconference, USCIS also said it will not issue an NTA immediately upon denial of an immigration benefit.  Normally, it will wait for the expiration of the motion or appeal period before issuing an NTA. If an NTA is issued before a motion or appeal is filed or while it is pending, and USCIS takes favorable action on the motion or appeal, USCIS will notify ICE. Withdrawing an application does not cancel USCIS’s authority to issue an NTA. 

Potential Negative Effects of the NTA Policy Change

The new NTA guidance might discourage eligible applicants from seeking immigration benefits out of fear of getting their requests denied and being placed in removal proceedings if they are not lawfully present.  This includes persons applying for a green card (lawful permanent resident status), a change or extension of status, a waiver of inadmissibility and other immigration relief.

Departing the United States on one’s own, after being denied an immigration benefit, will bring harsh penalties when an NTA is issued and the person fails to appear for the scheduled Immigration Court hearing. An in absentia removal order is issued if there is clear, unequivocal and convincing evidence that written notice was provided and that the person is removable, but did not attend the proceeding.

At the same time, those who wait in the United States for an initial court date to appear before an immigration judge will continue to accrue unlawful presence toward the 3/10-year bar to re-entry under INA 212(a)(9)(B).  A person who accrues unlawful presence of more than 180 days but less than one year is barred from re-entering the U.S. for three years. The bar to re-entry is 10 years if the person accrues unlawful presence of more than one year prior to departure. The initiation of removal proceedings does not stop the accrual of unlawful presence.

Furthermore, the updated policy turns USCIS into another immigration enforcement component of DHS, along with ICE and the U.S. Customs & Border Protection (CBP).  An increase in the issuance of NTAs will create additional backlog in the immigration court system and lengthen USCIS processing times.

Conclusion

Besides the new NTA policy, USCIS issued updated guidance to make it easier to deny a petition or application without first issuing a Request for Evidence or Notice of Intent to Deny. Another  USCIS policy change also subjects more nonimmigrant students and exchange visitors to accruing unlawful presence toward the 3/10-year bar, as well as the permanent bar under INA 212(a)(9)(C).

All these new policies are in line with the February 2018 change in USCIS’ mission statement, deleting sentences that refer to the United States as “a nation of immigrants” and to noncitizens who apply and pay for immigration benefits as “customers.” USCIS Director Cissna explained that this is “a reminder that we are always working for the American people.”

For more information, read our related articles:

Updated Policy Makes It Easier for USCIS to Deny Petitions and Applications Without First Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

USCIS Policy Change Makes Nonimmigrant Students and Exchange Visitors More Likely to Accrue Unlawful Presence Toward 3/10-Year Bar and Permanent Bar

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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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White House-Backed Bill Proposing Protections for Dreamers/DACA Holders, Restrictions on Family-Based Immigration, and End to Diversity Visa Lottery Fails to Pass in the Senate; Worries Prevail

Of the four immigration bills that were recently considered by the Senate, three offered a path to citizenship for 1.8 million undocumented immigrants brought to the U.S. when they were children. But the White House’s calls to end “chain migration” by limiting family-based immigration to only spouses and minor children of U.S. citizens (and possibly permanent residents), as well as scrap the Diversity Visa Lottery program, have made it harder for a divided Congress to address the nation’s immigration problems with a legislative fix.

Comprehensive immigration reform remains a divisive issue in Congress, as reflected in the Senate’s failure to advance any of the four immigration bills up for a vote on Thursday, February 15. On immigration, a supermajority of 60 out of 100 senators must agree to end debate and force an up or down vote on a bill. The Chuck Grassley (R-Iowa) immigration bill, which was backed by President Trump and mirrored the White House “four pillars” immigration framework, received the least number of votes to move forward.

Dreamers and DACA Holders in Limbo

There seems to be bipartisan support for protecting “Dreamers” or young undocumented immigrants who qualify for the Deferred Action for Childhood Arrivals (DACA) program, which was introduced by the Obama Administration on June 15, 2007, and rescinded by the Trump Administration on September 5, 2017.

DACA is a temporary immigration relief for undocumented immigrants who came to the U.S. as minors before age 16, lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

Although DACA provides authorized stay and work authorization on a temporary basis, it does not provide a path to permanent residence or citizenship in the U.S.

When the Trump Administration announced the ending of DACA, and left it up to gridlocked Congress to address the ramifications, it set an expiration date of March 5, 2018. But with federal courts in New York and San Francisco issuing temporary injunctions on February 13 and January 9, respectively, which block the Administration’s September order rescinding the DACA program, USCIS issued a statement noting it will, for now, continue accepting requests for DACA renewals under pre-existing terms.

The end of DACA does not mean there will be mass deportations of young, undocumented immigrants. The U.S. Department of Homeland Security (DHS) has to issue a Notice to Appear and file it with the Immigration Court to initiate removal proceedings against an applicant, who may seek available relief  (e.g. asylum, cancellation of removal) from the Immigration Judge. The DHS may also set enforcement priorities so that Dreamers or DACA holders are low priorities for removal.

White House Calls for Limits on Family-Based Immigration and an End to Diversity Visa Lottery Program

In his first State of the Union address before a joint session of Congress on January 30, Trump expressed concerns with family-based immigration, which he referred to as “chain migration.”  He claimed, “under the current broken system, a single immigrant can bring in virtually unlimited numbers of distant relatives.”

He stated his immigration plan “protects the nuclear family by ending chain migration” and would “focus on the immediate family by limiting sponsorships to spouses and minor children.”

Trump also called for an end to the Diversity Visa Lottery, which he said is “a program that randomly hands out green cards without any regard for skill, merit or the safety of our people.” He previously noted in a December 15, 2017 speech, “they give us their worst people, they put them in a bin,” and “the worst of the worst” are selected in the Diversity Lottery.

Using anecdotal cases, the President has linked family-based immigration and the Diversity Visa Lottery program to terrorist attacks and threats to the national security of the United States.

In a December 11, 2017 statement, Attorney General Jeff Sessions wrote, “The President is exactly correct about the changes we need to our immigration system. We have now seen two terrorist attacks in New York City in less than two months that were carried out by people who came here as the result of our failed immigration policies that do not serve the national interest —the diversity lottery and chain migration.”

Of the two examples, the first is Sayfullo Saipov, from Uzbekistan, who entered the United States in 2010 on a diversity immigrant visa. Saipov is accused of killing eight people and injuring a dozen others when he drove a rented truck through a Manhattan, New York City bike lane in October 2017.

The second example is Akayed Ullah, a permanent resident from Bangladesh, who is suspected of carrying out a terrorist attack in New York City in December 2017. Ullah is accused of attempting to bomb a subway station with a low-tech explosive device, but only he was injured when the device failed. He came to the United States in 2011 as the minor child of a parent who was petitioned by an adult U.S. citizen sibling (in fourth preference, family sponsored category).

Family-Based Immigration, As It Stands

U.S. citizens and lawful permanent residents/green card holders may sponsor only certain relatives for immigrant visas. Except for the immediate relative category (spouses and minor children of U.S. citizens, and parents of adult U.S. citizens), there is a limited number of visas available and lengthy waiting lists (some lasting more than a decade) in family-based, preference categories.

The preference categories include unmarried sons and daughter of U.S. citizens and their minor children (if any);  spouses, minor children, and unmarried sons and daughters 21 or older of permanent residents; married sons and daughters of U.S. citizens and their spouses and minor children (if any); and siblings of adult U.S. citizens and their spouses and minor children (if any).

The beneficiary (immigrant visa/green card applicant) also must not be inadmissible to the United States based on likelihood of becoming a public charge, certain criminal offenses, immigration violations, or other grounds defined by statutory law.

For more information on the existing family-based immigration system, read Immigrant Visa Process: Delays and Setbacks; Changes to the Visa Bulletin: Understanding the Two Filing Charts; and Priority Date Recapture and Retention in Family-Based Immigration.

Current Diversity Visa Lottery Program

Contrary to Trump’s claims, countries do not choose which of their citizens to put in the Diversity Visa Lottery.  Rather, the program issues up to 50,000 diversity visas each year to qualified applicants from U.S.-designated countries with low rates of immigration to enter the U.S. as permanent residents – if they win the DV lottery and successfully complete the immigrant visa or green card process.

To be eligible, applicants must be born in an eligible country. Natives of countries with relatively high rates of immigration – such as Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam – do not qualify.

Applicants must also have at least a high school education or its equivalent (successful completion of a 12-year course of formal elementary and secondary education); or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform the job.

After being selected in the lottery, applicants must clear a background check and demonstrate they have no health problems, criminal records, national security concerns, or other inadmissibility grounds barring them from the United States.

For more information on the current Diversity Lottery program, read Diversity Immigrant Visa – November Entry Deadline (Plus Other Things to Consider.

White House “Four Pillars” Immigration Framework and Its Influence on Congress

In some respects, the White House’s immigration framework takes a harder line on legal immigration than on young, undocumented immigrants – many of whom came to the United States as children without proper travel authorization or lawful admission.

Immigration Bills in the Senate

On Wednesday, February 14,  before the Senate voted on the four immigration bills, Trump issued a statement calling on Congress to support the Grassley proposal. He wrote, “The Grassley bill accomplishes the four pillars of the White House Framework: a lasting solution on DACA, ending chain migration, cancelling the visa lottery, and securing the border through building the wall and closing legal loopholes.”  He also asked all senators to oppose any legislation that fails to fulfill these four pillars.

Each bill needed at least 60 votes to advance in the Senate. The four proposals included:

Sen. Chris Coons (D-DE) and John McCain (R-AZ) Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included no funding for Trump’s border wall, but did include measures to improve border security.

Failed 52 to 47. Democrats were almost united in favor and Republicans mostly voted against it.

Sen. Pat Toomey (R-PA) Bill: withheld federal funding for municipalities (dubbed “sanctuary cities”) that refuse to enforce federal immigration policy through their local police officers and other state law enforcement agencies.

Failed 54 to 45. Republicans and a few Democrats backed it, but most Democrats voted against it.

Sen. Susan Collins  (R-ME), endorsed by Minority Leader Chuck Shumer (D-NY), Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border security; prevented DACA recipients from sponsoring parents for legal status.

Failed 54 to 45. Democrats almost unanimously supported it, along with eight Republicans.

Sen. Charles Grassley (R-IA), based on proposal backed by White House, Bill: provided path for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border wall; severely restricted legal immigration by limiting family-based immigration to spouses and minor children of U.S. citizens and ending diversity visa lottery program.

Failed 39 to 60. Democrats opposed the bill en masse, joined by a notable number of Republicans, while most of the GOP conference and a couple Democrats supported it.

Immigration Bill in the House

Immigration reform will be even harder for the more conservative House to tackle. Republican leaders are scrambling for sufficient votes on an immigration proposal in the House that is more restrictive than the Trump-backed Grassley bill in the Senate.

The immigration bill by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Homeland Security Committee Chairman Michael McCaul (R-Texas) offers a temporary, renewable legal status — rather than a path citizenship — to DACA holders in exchange for funding Trump’s border wall, cracking down on so-called sanctuary cities, requiring U.S. employers to use the E-Verify system to check the immigration status of job applicants, restricting family-based immigration, and scrapping the diversity visa lottery program.

Although Trump has expressed support for this bill, it is expected to meet its demise in the divided Senate, even if it passes through the House.

Worries Prevail With No Clear Path to Immigration Reform

If limiting family-based immigration and ending the Diversity Visa Lottery program are non-negotiable components of a White House-backed immigration plan, Congress faces steep obstacles in creating a legislative solution for Dreamers or DACA holders.

Worries prevail as the immigration fate of Dreamers and DACA holders hang in the balance, and some family-based immigration and the diversity visa lottery program are potentially on the chopping block.

In the meantime, eligible DACA holders may file renewal applications according to the latest USCIS policy, while federal court litigation ensues. U.S. citizens and permanent residents may also continue to file family-based petitions for certain relatives, and applicants from eligible countries may seek diversity immigrant visas under existing programs. Any change to U.S. immigration law is expected to apply prospectively and have no retroactive effect.

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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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DREAMers Face Uncertainty as Trump Administration Ends DACA and Leaves the Fight Up to a Divided Congress

On his campaign trail,  President Trump said he would “immediately terminate” DACA – the Deferred Action for Childhood Arrivals program introduced by the Obama Administration in June 2012.  Although it took several months to make a decision, the Trump Administration issued a memorandum on September 5, 2017, to end the program.

As of this date, no new, initial DACA applications will be accepted. Current DACA holders whose benefits expire on or before March 5, 2018, may file for a renewal, valid for 2 years, by October 5, 2017.

Almost 800,000 eligible, undocumented immigrants have received DACA as a temporary relief from removal, which includes work authorization valid for two years. Commonly known as “DREAMERs,” DACA holders include undocumented immigrants who came to the U.S. as minors before age 16, have lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

DACA, however, has always been a temporary relief subject to rescission by a new Administration and which provided no path to lawful nonimmigrant status, permanent residence, or citizenship.

The DACA program was introduced by the Obama Administration in a  June 15, 2012 memorandum from then DHS-Secretary Janet Napolitano, titled Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children. Critics viewed it as an unconstitutional use of power by the Executive Branch. Supporters saw it as an extension of prosecutorial discretion related to immigration enforcement priorities and necessary protection for undocumented immigrants who came to the United States as children and grew up in the country.

Federal court litigation ensued, in which a Texas-led coalition of 26 states  — including Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin — filed a lawsuit to stop the expansion of DACA and the introduction of a similar relief, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

In January 2017, after taking office, President Trump stated in an interview with ABC’s David Muir that a new policy would be issued within weeks, but that DACA recipients “shouldn’t be very worried.” He further commented: “I do have a big heart. We’re going to take care of everybody…But I will tell you, we’re looking at this, the whole immigration situation, we’re looking at it with great heart.”

Meanwhile, Attorney General Jeff Sessions continued to hold a hardline, calling DACA an “unconstitutional” act by Obama that has “denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens to take those jobs.” Sessions made the announcement in a September 5th news conference that the Trump Administration will phase out the DACA program.

On Twitter, following Sessions’ remarks, President Trump wrote, “Congress now has 6 months to legalize DACA (something the Obama administration was unable to do.) If they can’t, I will revisit this issue!”

In a written statement issued after Sessions’ announcement, Trump said, “I am not going to just cut DACA off, but rather provide a window of opportunity for Congress to finally act.”

“We will resolve the DACA issue with heart and compassion — but through the lawful democratic process — while at the same time ensuring that any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve,” Trump added.

There are at least four bills being discussed in Congress that provides protection to DREAMErs. They include the Dream Act, sponsored by Sens. Dick Durbin, D-Ill., and Lindsey Graham, R-S.C; Recognizing America’s Children (RAC) Act, sponsored by Rep. Carlos Curbelo, R-Fla.; American Hope Act, sponsored by Rep. Luis Gutierrez, D-Ill.; and BRIDGE Act, sponsored by Rep. Mike Coffman, R-Colo. The first three creates a path for citizenship or permanent resident status if applicants meet certain requirements. The fourth seeks to codify the current DACA program into law and extend it for three years (but offers no path to permanent residence or citizenship), giving Congress more time to enact comprehensive immigration reform.

Trump gave Congress six months to fix the broken immigration system, but there are diametrically opposed viewpoints within the Senate and House: some call for tougher border security and immigration enforcement, while others seek protection from removal and a pathway to permanent residence and citizenship for certain undocumented immigrants who came to the U.S. as minors.

Congress has struggled for several years to resolve big legislative issues like immigration. As such, six months make a very short period to tackle the monumental problem of DACA holders losing protection from removal and authorization to work in the United States.

With a divided Congress, the fate of DREAMers is uncertain. In addition to filing for DACA renewal, if eligible, and tracking legislative action in Congress, DACA holders should consult an immigration attorney to discuss other more concrete, existing immigration options.

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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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