The New Travel Ban, Asylum Seekers, and I-730 Petitions

by Jason Dzubow

As you might have heard, the White House recently issued a new travel ban (official known as the Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and this one looks more likely to survive a court challenge than previous bans. This time around, the “banned” countries are Chad, Iran, Libya, North Korea, Somalia, Syria, Yemen, and certain government officials from Venezuela.

Moose limb ban.

Here I want to look at how the ban will impact asylum seekers, asylees (people who already have asylum), and I-730 petitions, which are petitions filed by asylees to bring their relatives (spouse and minor, unmarried children) to the United States. One caveat: Even though the latest travel ban seems more well-crafted than prior iterations, it likely will still be subject to court challenges, and it will have to be interpreted and implemented by various government agencies, so how individuals will actually be affected is not yet entirely clear. With that out of the way, here’s how things look now:

Asylum Seekers

The short answer here is that asylum seekers who are already in the U.S. should not be affected by the new ban. Section 6(e) provides–

Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.

Also, it appears that asylum seekers who want to travel while their cases are pending, using Advance Parole, should be able to do so. Section 3(b) states–

The suspension of entry pursuant to section 2 of this proclamation shall not apply to…  any foreign national who has a document other than a visa — such as a transportation letter, an appropriate boarding foil, or an advance parole document — valid on the applicable effective date under section 7 of this proclamation [all bars will be in effect by October 18, 2017] or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission.

The original travel ban (from January 2017) was intended to impact asylum seekers. Basically, USCIS was directed to adjudicate their cases up until the decision, but to hold the decision until the ban was lifted. That never actually went into effect. This new ban, which is more carefully tailored, does not seem to impose any restrictions or limitations on the asylum process or on asylum seekers, and so we can expect that such cases will proceed as before.

Asylees

People who have been granted asylum are asylees. I see nothing in the proclamation that would inhibit asylees’ rights in the U.S. They should be able to work, travel (using an appropriate travel document), and eventually get their green card and their U.S. citizenship as before.

I-730 Petitions

When a person is granted asylum, she can file to bring her spouse and minor, unmarried children to the United States using a form I-730. Whether people from the banned countries will still be able to bring their “following to join” family members here may be problematic, at least as I read the President’s order. Section 3(a) states–

[S]uspensions of and limitations on entry… shall apply only to foreign nationals of the designated countries who: (i) are outside the United States on the applicable effective date under section 7 of this proclamation; (ii) do not have a valid visa on the applicable effective date under section 7 of this proclamation; and (iii) do not qualify for a visa or other valid travel document under section 6(d) of this proclamation [certain individuals whose visas were marked revoked or canceled by the first travel ban].

Basically, this means that people outside the U.S. from a “banned” country cannot get a visa to come here. There are some exceptions to this rule in section 3(b), but none of them seem to apply to I-730 beneficiaries. The closest I can see to an exception for following-to-join asylees appears in section 3(b)(vi)–

The suspension of entry pursuant to section 2 of this proclamation shall not apply to… any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Perhaps I-730 beneficiaries can argue that they fall within this exception, but frankly, I don’t see it. If these beneficiaries do not meet an exception, they can apply for a waiver to allow them to join their asylee relative in the U.S., even though they are banned from coming here. The waiver process, discussed in section 6(c), seems complex, but the short answer is that waivers are granted in the discretion of the consular officer or other government official and are issued on a case-by-case basis. Further–

A waiver may be granted only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry would not pose a threat to the national security or public safety of the United States; and (C) entry would be in the national interest.

The proclamation gives some examples of when a waiver might be appropriate, including where the “foreign national has previously established significant contacts with the United States” or where “the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship.” None of the examples specifically refers to asylees or I-730 beneficiaries, and so there is an open question about whether such people are able to join their asylee family members in the United States.

We will have to see how the Trump Administration implements the ban with regards to I-730s. Hopefully, such people will be allowed to join their family members in the U.S. If not, you can bet that the matter will be litigated in court, and I imagine that the asylees would have a strong case. The United States has ratified the Protocol on the Status of Refugees, and so that treaty has the force and effect of law. The Protocol (and the Refugee Convention that is incorporated into the Protocol) essentially commits treaty countries to ensure family unity for refugees. See also INA 208(b). A Presidential proclamation cannot nullify this law, and so any attempt by the Trump Administration to block following-to-join relatives will likely not succeed, though of course the Administration can throw obstacles in the way of such people and cause plenty of hardship, stress, and uncertainty for this already-vulnerable group of individuals.

So there you have it. Again, we will have to wait to see how the new ban is implemented and whether it will be affected by litigation. Hopefully, my concerns about I-730 beneficiaries will not come to pass, and asylum seekers, asylees, and their family members will not be harmed by the latest travel ban.

UPDATE – October 9, 2017 – The U.S. State Department has issued guidance indicating that I-730 beneficiaries will not be affected by the new proclamation, and so following-to-join beneficiaries will still be able to join their asylee family members in the United States. Thank you to “Jabi” for letting us know about the good news.

Continue reading

344 Comments

The “New” Travel Ban and How It Affects Asylees and Refugees

by Jason Dzubow

Late last month, the U.S. Supreme Court issued a decision allowing the Trump Administration to begin enforcing its travel ban against all refugees and against individuals from six “banned” countries–Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Travel Ban Redux, or Once More Into the Breach (of Decorum), Dear Friends

Since the Court’s decision is (to put it kindly) a little vague, it was initially unclear how exactly the Administration would enforce its executive order (“EO”). Now, the Department of Homeland Security and the State Department have issued some guidance, and so we have a better idea about the effects of the EO. Of course, given that the Supreme Court’s decision is subject to interpretation, we can expect more litigation in the weeks and months ahead, but for today, I want to discuss how the EO will likely be enforced with regards to asylum seekers, asylees, and refugees.

Asylum Seekers: Asylum seekers are people who are physically present in the United States and who have a pending asylum case. The short answer for asylum seekers from banned countries is that the EO has essentially no effect on your case (the longer answer is here). Cases will move forward and be adjudicated as before (i.e., slowly). I should note that since the beginning of the Trump Administration, we have had several cases approved, including cases from Muslim countries and banned countries.

Asylees and Refugees Who Have Already Been Resettled in the United States: Asylees are people who have been granted asylum by the U.S. government. Refugees in this section refers to people approved for refugee status overseas who have already been resettled in the United States. According to a DHS FAQ sheet (question # 11):

Returning refugees and asylees, i.e., individuals who have already been granted asylum or refugee status in the United States, are explicitly excluded from this Executive Order. As such, they may continue to travel abroad and return to the United States consistent with existing requirements.

This means that if you already received asylum, or if you were already resettled in the U.S. as a refugee, you can travel outside the U.S. and return, and the EO does not affect you. However, if you are from one of the “banned” countries, it is a good idea to keep an eye on the news to make sure there are no future changes that might affect your ability to return (one helpful website is the American Immigration Council).

Also, according to DHS (question # 22), people who received a green card based on asylee or refugee status are not affected by the EO.

Asylees and refugees can file for their family members (spouses and minor, unmarried children) to come to the United States, and the EO does not block those family members from coming here. According to DHS (question # 34), “Family members planning to join refugees or asylees are only approved for travel if a bona fide relationship to a spouse or parent in the United States exists. Therefore, if the relationship were confirmed, the travel suspension would not apply.” (see also question # 36). So asylees who have filed I-730 petitions should not be prevented from reuniting with their family members in the U.S.

Refugees Who Are Waiting to Come to the U.S. for the First Time: It is important to note that all refugees, even people from countries that are not banned, are affected by the EO. According to DHS (question # 31), “Under the Executive Order as limited by the Supreme Court’s decision, any refugee, regardless of nationality, is prevented from admission to the United States unless he or she (1) demonstrates a bona fide relationship with a person or entity in the United States or (2) obtains a national interest waiver from the Department of State or CBP [Customs and Border Protection].”

The EO blocks admission of all refugees (other than those who meet an exception to the rule) for 120 days. According to the U.S. State Department, there are exceptions for “those refugees who are in transit and booked for travel,” though these people will likely all be in the U.S. by now.

According to DHS (question # 29), refugees can still come to the U.S. if they have a “close” family relationship with someone already here. DHS interprets this to mean:

[A] parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships. However, “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law and any other “extended” family members.

Certainly we can expect this interpretation to be the subject of litigation. Why is a half-sibling a close relative, but a grandparent is not?

Also, a refugee with a bona fide relationship to an “entity” in the United States is still eligible to travel here, but what this means is also unclear. According to a senior official at the State Department:

As regards relationships with entities in the United States, these need to be formal, documented, and formed in the ordinary course of events rather than to evade the executive order itself. Importantly, I want to add that the fact that a resettlement agency in the United States has provided a formal assurance for refugees seeking admission is not sufficient, in and of itself, to establish a bona fide relationship under the ruling. We’re going to provide additional information to the field on this.

I expect we will see litigation on this point as well. Litigation means delay, and so the likely effect of the EO on refugees will be to greatly reduce the number of people coming to the United States.

Blocking refugees from resettling in the U.S. has been a goal of the Trump Administration since the beginning, and it is one reason why Mr. Trump was elected in the first place. So, like it or not (and obviously, I don’t), this is what democracy looks like. But of course the result is that innocent people will die, and it is all the more reason for those of us who support our refugee program to try to convince the general public on this point, to work with our representatives in Congress, and to litigate in court.

The EO’s impact on nationals of the six banned countries and on all refugees is temporary, at least for now. The Supreme Court will take up the merits of the EO this fall, and the President may issue new EOs (and Congress may pass laws that impact immigration). In essence, all this is a moving target, and so asylees, asylum seekers, and refugees need to keep abreast of any changes. We also have to keep working hard, in order to protect victims of persecution and to defend our nation’s values, which these days seem in grave jeopardy.

Continue reading

153 Comments

Return of the Travel Ban

by Jason Dzubow

Days after President Trump took office, he moved to implement one of his campaign promises: To bar Muslims, refugees, and others from coming to the United States. Courts were not amused, and blocked significant portions of the President’s executive orders (thanks largely to the brilliant work of lawyers at the ACLU and at several states attorneys offices). The President tried again, with a new, more limited executive order (“EO”). The new EO was also severely limited by the courts.

You’d think a bunch of people in burkas would be a bit more sympathetic to Muslims.

But now, the Supreme Court has spoken, and the EO is back, at least in part. So what’s the story? Here is a nice summary (with some comments by yours truly) of where we are now, courtesy of Aaron Reichlin-Melnick at the American Immigration Council (and if you want to do something to help resist the travel ban, consider donating to the AIC–they are a terrific organization that does yeoman’s work in all areas of the immigration field):

“[The] the Court ruled that the government can only enforce the travel ban against foreign nationals who do not have ‘a credible claim of a bona fide relationship with a person or entity in the United States.’

“What this means is that individuals from the six countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] will be permitted to enter the United States if they have a ‘close familial relationship’ with someone already here or if they have a ‘formal, documented’ relationship with an American entity formed ‘in the ordinary course’ of business. However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in the limited fashion permitted by the Supreme Court on June 29, 2017.

“Who is likely to be allowed to enter the United States?

  • Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017: These individuals are not included in the travel ban [However, it seems to me that the decision leaves open the possibility of a new EO where such people are banned, and so I am concerned about that as well].
  • Individuals with visas coming to live or visit with family members: The Court’s order is clear that individuals who ‘wish [] to enter the United States to live with or visit a family member’ have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
  • Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience: The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.
  • Other types of business travelers: It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.
  • Refugees: Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies [I read this a bit more pessimistically–I do not know whether a pre-existing relationship with a resettlement agency is enough to avoid the ban]. The Court ruled that such individuals may not be excluded even if the 50,000 [person] cap on refugees has been reached or exceeded.

“Who may have trouble entering the United States?

  • Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017: The Court’s decision is not clear on whether it is prospective or retrospective only. Individuals who form such relationships to avoid the travel ban are barred from entering.
  • Tourists: Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering [I also read this more pessimistically–it seems to me that anyone from a banned country who does not merit an exception as discussed in the decision will be denied a visa, including people coming to the U.S. for business, pleasure or medical treatment].”

As I read the decision and the EO, asylum seekers who are already in the United States, as well as people who have asylum or have a green card based on asylum, are not blocked from traveling and re-entering the country. They are also not blocked from receiving additional immigration benefits (like asylum, a green card, a work permit, travel documents or naturalization). However, the proof will be in the implementation–how the Department of Homeland Security (“DHS”) interprets and applies the Supreme Court decision in actual, real-life cases.

In that regard, I agree with Justice Thomas, who “fear[s] that the Court’s remedy will prove unworkable” and will invite a “flood of litigation.” Who is a qualifying relative for purposes of this decision? Must that person be a U.S. citizen? Or can the person be a resident or an asylee (as in a refugee/asylee following-to-join petition, form I-730)? Could the qualifying relative simply be someone here on a work visa or a visitor visa? What if the person is here illegally? And what is a business relationship, and how do we know whether it is bona fide or created solely for the purpose of subverting the EO?

In short, while the Supreme Court decision is reasonably clear for some aliens, it leaves large gray areas that will require interpretation, meaning more litigation. Such litigation is expensive and time consuming, and so the Court’s decision is likely to leave some people who might qualify to come here stranded, depending on how DHS implements the EO, and depending on whether they can get legal help. Overall, that’s not a great situation to be in.

Finally, yesterday’s decision perhaps telegraphs where the Justices will come down on the merits of the EO when they look at the case this fall (the Court’s decision relates only to whether to stop implementation of the EO pending a decision on the merits). Three Justices (Thomas, Alito, and Gorsuch) seem likely to allow a broader version of the ban to go forward. Given what we see in this decision, it may be that the other Justices are more skeptical of the ban and will limited it in some ways (and with luck, if the Trump Administration fears that the Court will limit the ban, it may just declare victory and allow the EO to expire, as originally intended).

All this remains to be seen, but for now, anyone from a banned country should pay attention to how the EO is implemented in the coming days, and perhaps avoid traveling outside the U.S. until we know more.

Continue reading

143 Comments

The Terrorist Tactics of the Anti-Terrorism Executive Order

by Jason Dzubow

Earlier this week, President Trump issued a new Executive Order (“EO”) to replace one of his prior orders, which was largely blocked by the federal courts. The new EO, Protecting the Nation from Foreign Terrorist Entry into the United States, temporarily bans certain nationals of six majority-Muslim countries from entering the United States, suspends the U.S. refugee program for 120 days, and reduces the total number of refugees that the U.S. will resettle in FY 2017. Whether the new ban can withstand court scrutiny, and how it will ultimately effect who can come to our country, remains to be seen.

“My favorite four-letter word.”

For those foreigners already in the United States, the new ban has little legal effect. The immigration status of permanent residents, refugees, asylees, and asylum seekers remains essentially untouched. One possible exception is for family members of asylees and refugees who are hoping to come to the U.S. on a Refugee/Asylee Relative Petition (form I-730). Such relatives from the six “banned” nations–Iran, Libya, Somalia, Sudan, Syria, and Yemen–may be ineligible for a visa for a 90-day period. However, even this is unclear, as the EO provides a number of exceptions for nationals of banned countries, and such relatives may be entitled to an exception (depending on how you read the EO).

So for non-citizens in the U.S., including those from banned countries, the EO has almost no effect on their legal status here. That’s not to say that the EO has no effect–it certainly does. But that effect relates to the message the EO sends and the psychological damage it inflicts on Muslims and on non-citizens. Indeed, for this population, the effects of the anti-terrorism EO are similar to the effects of an actual terrorist attack in certain key ways.

Like a terrorist attack, the number of people directly impacted by the EO is much smaller than the number of people terrorized by it. The new EO is very narrowly tailored, so much so that it almost does not make sense. For example, the Administration claims that vetting for the six banned countries is insufficient. Yet the order allows nationals of those countries who already have visas to come to the United States. If there is a problem with the vetting, shouldn’t all the “improperly” vetted visas be revoked? Presumably, the Administration wants to avoid another humiliating defeat in court, but the limited scope of the EO seems to undercut the very rationale for its existence.

On the other hand, if the purpose of the EO is not really to block people from coming here, but rather to frighten people who are already here (Muslim Americans and non-citizens), the limited legal effect is less of a concern. As long as the order stands up in court–and even if it doesn’t–Mr. Trump has sent a strong message to the intended audience (really, there are two intended audiences: Mr. Trump’s supporters who want to see him fighting against “the others” and “the others” themselves, who feel targeted and excluded by the Administration’s policies). In this sense, the EO mirrors a classic terrorist tactic–limited impact (because you have insufficient resources to have a wider impact) with maximum effect (everyone in the targeted population is frightened).

And make no mistake, the EOs and the accompanying rhetoric are affecting their intended targets. Reports indicate that non-citizens and their children are under great stress due to President Trump’s words and policies. This stress can have harmful and life-long effects, especially on children. Muslims, including American citizens, have been subject to a barrage of bigoted statements from the President and his surrogates, and they are also suffering from similar types of stress. Some refugees are fleeing the United States, which they now view as unsafe, for Canada. So while the legal effect of the EOs may be small, the harm is very real, and very damaging.

Mr. Trump’s EOs are similar to terrorism in another important way: They help create a vicious cycle. Terrorists rarely have the power to conquer territory. Instead, the purpose of their attacks is to draw a response. Unless the response is careful and precise (a rarity), it can cause further alienation and anger, thus driving more people into the terrorists’ camp–a vicious cycle. In the case of the EOs, they help justify the narrative that groups like ISIS have been peddling (that the United States is at war with Islam). They also frighten and alienate people living in our country, particularly Muslims and non-citizens. Since alienated and frightened people are more likely to embrace extremism, the EOs are a type of self-fulfilling prophesy: EOs push people towards extremism, extremism justifies more EOs. It’s a vicious cycle analogous to the one created by terrorism.

Finally, the EOs do not exist in a vacuum. They are part of a larger campaign to demonize foreigners and Muslims. The whole effort of the Trump Administration towards such people is irresponsible and dangerous. It puts our country at greater risk by encouraging extremism and discouraging cooperation. But unfortunately, this Administration has proved again and again that it will not allow facts to get in the way of ideology, or sound policy advice to contradict prejudice. The new Executive Order is just the latest example of the misguided course our country is now taking. We are all less safe because of it.

Continue reading

154 Comments

Implementing the Executive Orders: The DHS Memo

by Jason Dzubow

Earlier this week, DHS Secretary John Kelly issued a memorandum describing how DHS plans to implement President Trump’s policies concerning “Border Security and Immigration Enforcement Improvements.” Here, I want to discuss how this memo could affect the asylum system.

First, for people granted asylum or who have obtained their residency (green card) or citizenship through asylum, the memo has essentially no effect. The only possible exception is that DHS plans to expand the Fraud Detection and National Security Directorate (affectionately referred to as the FDNS), and if DHS somehow discovers that a previously-granted case was, in fact, fraudulent, it could reopen that person’s case. Also, given the Trump Administration’s stepped-up enforcement, it is a good idea to carry proof of lawful status with you at all times, just in case you are stopped by the authorities (and in many cases, non-citizens are actually required by law to carry proof of immigration status).

Shade-enfreude (defined): The pleasure one gets knowing that someone with a darker skin tone is in pain.

For people with asylum cases currently pending–before the Asylum Office or the Immigration Court–the memo also has little effect. As I have written here before, a person with a pending asylum case cannot be deported from the United States without due process of law, meaning a hearing before an Immigration Judge and an appeal. So while the atmosphere for asylum seekers has become more toxic, the substantive law and procedure remains largely the same. As mentioned above, you should carry proof of your pending status (work permit, asylum receipt, court order) with you at all times.

One possible issue for people currently in the system is more delay. The DHS memo directs USCIS “to increase the number of asylum officers and FDNS officers assigned to detention facilities located at or near the border with Mexico to properly and efficiently adjudicate credible fear and reasonable fear claims and to counter asylum-related fraud.” The memo also envisions a “joint plan with the Department of Justice to surge the deployment of immigration judges and asylum officers to interview and adjudicate claims asserted by recent border entrants.” Assigning more Asylum Officers and Immigration Judges to the border (either by physically sending them there or by having them adjudicate cases remotely), obviously means that those adjudicators will not be available to work on the hundreds of thousands of cases in the backlog, and that could mean more delay. In addition, the memo calls for hiring thousands more immigration officers, and for stepped up enforcement and detention. If all that happens, many more people will be channeled into the Immigration Court system, and unless more judges (lots more judges) are hired, the influx of people into the system will cause further delay. On the other hand, the memo also calls for expanded use of “expedited removal,” which may end up removing certain cases from the system and cause the remaining cases to move more quickly. How all this plays out, only time will tell.

Another possible issue for people with pending asylum cases is the increased focus on fraud. The Immigration and Nationality Act and the REAL ID Act, along with the Code of Federal Regulations, and case law set forth the standards for evaluating credibility. The DHS memo calls for “enhancing” asylum referrals and credible fear determinations. While this would not directly impact people with pending asylum cases (as asylum referrals and credible fear determinations occur prior to a case being sent to Immigration Court or to the Asylum Office), it might signal DHS’s intention to subject asylum cases to greater scrutiny. Also, of course, expansion of the FDNS points towards a greater focus on asylum fraud, which could impact pending cases (personally, I think DHS should be doing more to combat asylum fraud, as long as they are doing so effectively, as I discuss here).

For people inside the United States who plan to seek asylum here, but have not yet filed, the memo may affect you. If you entered lawfully with a visa, you should be able to apply for asylum as before. Indeed, even if you entered unlawfully, you should be able to seek asylum as before. However, if you entered the U.S. without inspection or based on some type of fraud (how broadly “fraud” will be interpreted is not yet known), and you are detained by ICE (Immigration and Customs Enforcement) before you file for asylum, you could be subject to “expedited removal.” People crossing the border illegally who get caught or who surrender to ICE agents may also be subject to expedited removal.

People facing expedited removal are permitted by law to request asylum. If they indicate a fear of harm in their country, the law requires that an Asylum Officer perform a “credible fear interview” where the person must demonstrate a “significant possibility” that they could establish eligibility for asylum. If they meet this standard, their case will be referred to an Immigration Judge for an asylum hearing. If they do not demonstrate a “significant possibility” of winning asylum, they can be removed immediately from the United States (subject to limited review by an Immigration Judge). The DHS memo indicates that the government will greatly expand the use of expedited removal, though the details of the plan have not yet been released.

As you might imagine, there are some major problems with the expedited removal process. For one, ICE officers often fail to inform aliens of their right to seek asylum (or ignore their requests to seek asylum). If this happens, people with a legitimate asylum claim may be removed from the United States before they have an opportunity to claim asylum or have a credible fear interview. The expedited removal process is quite fast and there is little chance to retain counsel and defend yourself, and no opportunity to see an Immigration Judge. In addition, the DHS memo seeks to expand the use of expedited removal and raise the evidentiary bar for credible fear interviews. All this will make it more difficult for asylum seekers who are subject to expedited removal from asserting their claims. I plan to write another post on this topic, but I will first wait for DHS to clarify its position on expedited removal (in the mean time, if you want to learn more, check out this excellent practice advisory by the American Immigration Council).

Per its campaign promises, the Trump Administration is ramping up immigration enforcement efforts. People who have won asylum, or who have already filed, are largely insulated from those efforts, and without Congressional action, it is likely to remain that way. But if you are in the United States and you plan to file for asylum, you should do so soon (at least before your lawful status expires). Remaining here lawfully is the best way to protect yourself from the Administration’s enforcement efforts.

Continue reading

219 Comments

Updates on the Executive Orders: The Umpire Strikes Back

by Jason Dzubow

President Trump’s Executive Orders (“EOs”) on immigration triggered a series of lawsuits that are still playing out in federal courts across the nation. The lawsuits have resulted in orders barring certain portions of the EOs, at least for the time being.

Judge James Robart: Referees helping Refugees.

For those not familiar with the U.S. system, we have three (supposedly) co-equal branches of government: The executive (the President), the legislative (Congress), and the judicial (federal courts). The judicial generally acts as an umpire or referee, making sure that the other branches play by the rules, or in this case, the Constitution and laws of the United States. What has been happening with the EOs is that the President is asserting his authority over immigration (and the President does have broad authority over immigration), but he is constrained by the U.S. Constitution and the existing immigration law. The lawsuits argue that the President has overstepped his authority, and so far, most courts have agreed to issue preliminary orders blocking the EOs, at least until the courts can more fully analyze whether the orders comply with the law.

Probably the broadest decision thus far issued was by a U.S. District Judge in Seattle, James Robart. The lawsuit was brought by Washington State and the state of Minnesota in their role as “parens patriae of the residents living in their borders.” The decision temporary stays several key portions of the EO related to terrorism based on the Judge’s conclusion that the states’ lawsuit was likely to succeed on the merits and that the states face “immediate and irreparable injury” as a result of the EOs. Specifically, the Judge found that the EO “adversely affects the States’ residents in the areas of employment, education, business, family relations, and freedom to travel.” In addition, the Judge found that, “the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injuries to the States’ operations, tax bases, and public funds.” Thus, the Judge issued a temporary restraining order against the EO. The order blocks portions of the EO nationwide, and will remain in effect until the Court can reach a decision on the merits of the lawsuit (or until it is overturned by a higher court).

The President, through the Department of Justice, filed an appeal, but the U.S. Court of Appeals for the Ninth Circuit has thus far refused to overturn the District Judge’s order. So what does all this mean?

First, according to its website, USCIS “continues to adjudicate applications and petitions filed for or on behalf of individuals in the United States regardless of their country of origin, and applications and petitions of lawful permanent residents outside the U.S. USCIS also continues to adjudicate applications and petitions for individuals outside the U.S. whose approval does not directly confer travel authorization. Applications to adjust status also continue to be adjudicated, according to existing policies and procedures, for applicants who are nationals of countries designated in the Jan. 27, 2017, ‘Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States.'” This means that even if you are from one of the “banned” countries–Iraq, Iran, Syria, Sudan, Somalia, Libya or Yemen–your case will be processed as before the EO. So USCIS should continue to issue decisions for nationals of such countries, at least for the time being.

Second, the State Department will resume issuing visas for people from the listed countries, including refugees. U.S. visas for nationals of these countries that were “provisionally revoked” are now “valid for travel to the United States, if the holder is otherwise eligible.” Meaning that if you are from a banned country and you have a valid U.S. visa, you should be able to enter the United States. Again, the Judge’s order is temporary, and it may be overturned, so if you have a visa and wish to come to the United States, you should do so immediately, since we do not know for how long the Judge’s temporary restraining order will remain in place.

Third, DHS/Customs and Border Protection is also following the Judge’s order, even if it is doing so reluctantly. From the CBP website:

In accordance with the judge’s ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President’s Executive Order, which is lawful and appropriate. The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.

So all people with valid visas and who are otherwise eligible to enter–including nationals of the banned countries–should be able to board planes, travel to the United States, and enter the country. In short, the Judge’s order restores the situation for such travelers to how it was prior to the EOs.

Finally, I wrote in an update to last week’s post that additional countries may be added to the banned list. As long as the Judge’s order is in place, I doubt that will happen, and–more importantly–the State Department informed the American Immigration Lawyer’s Association that there was no “addendum, annex or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in [the] Executive Order.” Hopefully, this means that we will not see additional countries added to the “banned” list.

The legal fight over the EOs is a rapidly moving target, so before you make any travel plans, please check the news or check with a lawyer to make sure there are no additional changes affecting you. I will also try to keep posting updates here.

[Update, February 10, 2017 – In a 3-0 decision, the U.S. Court of Appeals for the Ninth Circuit has ruled that the temporary restraining order put into place by Judge Robert will remain in place. So for now, implementation of the EO continues to be blocked.]

Continue reading

148 Comments

Update on President Trump’s Immigration Orders

by Jason Dzubow

Since President Trump began issuing executive orders (“EOs”) on immigration last week, there has been outrage, confusion, and chaos within the immigration community. The EOs were clearly not very well thought out, and seem to have been written by someone lacking a comprehensive understanding of America’s immigration law. As a result, several courts have blocked portions of the EOs, and the Administration has walked back one of the more problematic elements of the new rules. There will be time later for an analysis of how all this affects our country’s security and moral standing, but since we are still in the middle of it, and since the situation is rapidly changing, I wanted to provide an update to my post from last week, to help non-citizens understand their situation.

I’ve never felt so proud to be Canadian! Oh, right, I’m American. Woo-f’n-hoo.

As I wrote last time, the EOs’ most damaging effects are on people trying to come to the United States. For people who are already here, the effect is less dramatic (and not all-together clear). Also, I believe nothing I wrote last week is obsolete, so if you have not read the previous posting, please do, as today’s posting is meant to supplement what I wrote last time.

Lawful Permanent Residents from Countries of Particular Concern: In some ways, the worst part of the EOs is how they affected lawful permanent residents (“LPRs” or people with green cards) who are from “countries of particular concern,” meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya (perhaps more countries will be added to this list later).

DHS originally interpreted the EOs to mean that LPRs from these countries would be turned back at the border. Apparently, at least some LPRs were rejected at the airport and sent back to their point of origin (Customs and Border Protection or CBP claims that only two LPRs were turned back). However, after (partially) successful litigation by the ACLU and others, DHS Secretary John Kelly issued a statement that “the entry of lawful permanent residents [is] in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” This means that if you are an LPR from one of the listed countries, you should probably (but not certainly) be able to re-enter the United States, but you should expect delays upon arrival, as your case will be individually reviewed to determine whether you present a threat to the United States. Whether you will, in fact, be able to enter the U.S. is not guaranteed, and how long the delay will be at the airport is currently unknown (DHS claims that entry into the U.S. should be “swift”).

Given all this, it is clearly a bad idea for anyone with lawful status in the U.S. who is from one of the listed countries to travel outside the U.S. at this time. If you are from one of the listed countries and are currently outside the U.S., you should be able to return if you are an LPR (if you have some other status in the U.S., especially a non-immigrant status, you likely will not be able to return at this time). Because there is so much uncertainty for people from these countries, it is best to remain in the United States or, if you are outside the country and are able to return, to return as soon as possible.

People from Countries of Particular Concern Waiting for an Immigration Benefit: For people in the U.S. who are from “countries of particular concern” and who are waiting for an immigration benefit, such as asylum, a work permit or a green card, the situation is also unclear.

Section 3 of the EO on terrorism is titled, “Suspension of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern” and states that the U.S. government should conduct a review to determine whether additional information is needed to adjudicate visas, admissions, and “other benefits under the INA (adjudications)” for people from countries of particular concern. The reference to “other benefits under the INA” or Immigration and Nationality Act – the immigration law of the United States –would presumably include benefits such as green cards, asylum, and work permits, though the EO does not specifically define what it means. Also, while the EO suspends immigrant and non-immigrant admissions for 90 days for people from countries of particular concern, it makes no other mention of suspending immigration benefits to such people who are already in the U.S. As a result, it is unclear whether, or for how long, USCIS (the agency that administers immigration benefits) will suspend such benefits for people from the listed countries.

Unfortunately, some leaked–but thus far unconfirmed–emails from USCIS indicate that the agency has decided to suspend all final decisions in cases for people from the listed countries. According to one news source:

“Effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya,” wrote Daniel M. Renaud, associate director of field operations for DHS’s office of U.S. Citizenship and Immigration Services. “Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made.”

In other words, while interviews can take place for such people, no decisions–to include approval, denial, withdrawal, or revocation–will be made “until further notice.” I can report that USCIS is conducting interviews for people from countries on the list–my Syrian asylum client was interviewed yesterday–but I have not heard anything official yet about whether decisions will be issued. If this is accurate, it means decision will be suspended, at least for a while, on asylum cases. Whether it will affect applications for work permits, which are issued while waiting for a final decision on an asylum case, is less clear. Hopefully, it will not, and hopefully, this suspension will be temporary.

I-730 Petitions: If a person is granted asylum, she can file an I-730 (follow to join) petition for her spouse and minor, unmarried children. For family members from countries on the list, the EO applies, and thus the State Department “has stopped scheduling appointments and halted processing for follow-to join asylee beneficaries who are nationals or dual nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. Further information on appointments for follow-to-join refugees will be available in the future.” In other words, family members of asylees from the listed countries cannot currently come here based on I-730 petitions, but how long this prohibition will last is unknown. In contrast to the State Department website, CBP indicates that I-730 petitions will be adjudicated on a case-by-case basis. How this will ultimately play out, we do not know, but there is still hope that family members overseas will be able to join the principal asylee in the United States. Also, the visa ban is set to expire after 90 days, and so we can hope that once procedures are reviewed, travelers from “countries of particular concern” will be able to come to the United States to join their family members.

People from Other Muslim Countries: At this point the EOs are limited to the seven listed countries. People from other Muslim countries are not affected. However, the EOs require government agencies to determine whether additional countries should be added to the “banned” list. For this reason, if you are a non-citizen, and particularly if you are from a predominately Muslim country, it is important to keep an eye on the news, just in case more countries are added to the list. A good source for up-to-date information about the EOs, and the lawsuits opposing them, is the American Immigration Council’s website, here.

So that is the update for now. It is important to understand that the “ban” described in the EO is temporary, and that the people mainly affected are nationals from “countries of particular concern.” Of course, we will have to see how this plays out going forward, but it is important to remain calm and patient, and to keep hoping–and working–for something better.

[Update for February 2, 2017: I have heard an unconfirmed rumor out of the State Department that additional countries will be added to the list of banned countries. This is not confirmed, but here is the message I received: “There is a draft order being circulated at the State Department. The order has language extending the list of banned countries to Egypt, Lebanon, Afghanistan, Pakistan, Philippines, Mali, Colombia, and Venezuela.” I suggest people from those countries pay careful attention to the news, in case the countries are added to the list, and I suggest that people from these countries not travel outside the U.S. until we have some clarification.]

Continue reading

193 Comments