Attorney General Sessions announced today that U.S. asylum will no longer be available to persons fleeing gang violence and domestic abuse caused by private persecutors. The policy appears to be aimed squarely at those seeking asylum from Central America, mainly Guatemala, Honduras, El Salvardore, and Nicaragua. What do those countries have in common? Their governments are unable to control drug-trafficking cartels and gangs like the ‘Mara”, and have a poor record of preventing domestic violence. The U.S. is now denying asylum eligibility to those seeking protection on those grounds where the persecutor is a private actor.
Members of a caravan of migrants from Central America and supporters gather on both sides of the border fence between Mexico and the U.S. as part of a demonstration, prior to preparations for an asylum request in the U.S., in Tijuana, Mexico, Sunday. | REUTERS
The concept of asylum has traditionally been known as political asylum. But under U.S. asylum law there are 5 separate grounds for asylum: political, religious. nationality, race, and membership in a particular social group (PSG). The asylum claimant must show that the persecution is caused by the government in their native country, or by a group that the government is unable to control. The claim for protection from gangs and domestic violence is usually couched in terms of a PSG since it does not involve a political motive, nor fit within the other categories. However, these claims often involve private actors, especially claims involving domestic violence.
APPLICATION FOR ASYLUM
To make a claim for asylum, the applicant must establish that a reasonable person in their position would have a well-founded fear of persecution if returned to their country. The claims are presented to asylum officers and Immigration Judges and must establish that their claims fall within one of the 5 grounds. Those fleeing from gangs and domestic abusers have sought protection by having “Membership in a particular social group”, since their fear involves persecution by private actors. But, recently, the Attorney General certified to himself that female domestic violence survivors may not fall within this ground of asylum, and with this new decision, Attorney General Sessions has now eliminated asylum protection for those seeking protection from gang violence as well.
Supreme Court voids deportation based on Aggravated Felony ground “Crime of Violence”, but effect on deportation proceedings may not be significant.
In Dimaya v. Sessions, ( https://www.supremecourt.gov/opinions/17pdf/15-1498_1b8e.pdf)
The Supreme Court found that the category of aggravated felony “crime of violence” was too vague to be enforceable. The Court found that deciding whether State criminal statutes qualified as a “crime of violence“, and therefore an aggravated felony, was too difficult because of the vagueness of the term and resulted in inconsistent results.
The “Aggravated Felony” ground of deportation is the most punishing of all deportation grounds, and results in few if any avenues for available relief from deportation. In most cases a conviction for a “crime of violence” results in a lengthy criminal jail sentence, followed by a DHS detainer, and then a period of mandatory detention for the alien, until the deportation proceedings are completed. For “green card” holders, it usually results in automatic loss of that status and immediate deportation from the U.S..
“Crime of Violence” is only one of many aggravated felony grounds of deportation, and encompasses a broad sweep of potential activities, weapons, and mental states. It also includes only those crimes for which the alien received a sentence of at least one year of imprisonment. Other aggravated felony grounds are more specifically tied to particular crimes such as weapons trafficking, drug trafficking, human trafficking, murder, rape, and other individualized serious criminal convictions. Often serious criminal convictions qualify as more than one aggravated felony ground, such as certain weapon offenses.
This decision actually is a continuation of Federal Courts striking down ambiguous criminal definitions used as a basis for deportation. The separate ground of “Crimes Involving Moral Turpitude” (CIMT) is undergoing Court scrutiny, though it is not an aggravated felony ground. (The Second Circuit Court of Appeals recently decided that New York Petit Larceny convictions could not categorically be considered CIMTs) It usually takes conviction of two or more CIMTs to cause an alien to be deportable. In fact, with the “Crime of Violence” ground quashed by the Supreme Court, many of those same offenses will be charged as CIMTs if they don’t fit within another aggravated felony ground.
The Trump administration intends to implement new rules aimed at the use of public benefits by Immigrants and visitors to the U.S.. Historically, U.S. Immigration law has required that Immigrants and visitors show that they have private financial means for their support in the U.S.. Both must provide “Affidavit of Support” forms prior to being admitted to the U.S.. In the case of visitors, they must provide form I-134, signed by the U.S. sponsor along with supporting documents to show the source of the funding. For Immigrants, the sponsor must file form I-864, and show more extensive financial records. The sponsor signing the I-864 pledges to support the intending immigrant to at least 125% of the poverty level for their household size for a ten-year period.
DECLARATION OF SELF-SUFFICIENCY
The new regulations require the filing of a form called “Declaration of Self-Sufficiency” (Form I-944) and requires additional information and documentation relating to public charge considerations. This form will be used in conjunction with DHS proposed amendments to its regulations to interpret the minimum statutory factors for determining whether an alien is inadmissible as a public charge. For those in the U.S. seeking permanent resident status, their history of receipt of public benefits will be reviewed. DHS will be providing a list of public benefits to be considered when making a public charge determination, including common tax credits. The current rules provide that non-cash, supplemental and certain limited cash, special purpose benefits should not be considered for public charge purposes.
A House subcommittee recently passed a proposed bill that would allow Dairy Farms to hire foreign workers. The current law for agricultural workers (H-2A) does not allow for year-round employment of workers, but only seasonal, so dairy farms have been unable to petition for workers in that category.
On 10/23/17, Representative Bob Goodlatte (R-VA) introduced the Agricultural Guestworker Act (H.R. 4092) which seeks to create a new temporary agricultural guestworker program by replacing the current H-2A program with an H-2C visa for temporary agricultural workers.
The new H-2C visa program would cover year-round agricultural and horticultural work, including dairies, aquaculture operations, raw food processors, and forestry-related activities, among others.
Change in regulation is intended to discourage short-term visitors from obtaining Green cards through marriage to a U.S.C.
In September, 2017, the Trump administration issued a new regulation in the Foreign Affairs Manual (FAM) that discourages foreign nationals who intend to marry U.S. citizens from entering the U.S. as visitors. This provision increases the time period before which visitors can marry without it resulting in a presumption of misrepresentation at entry. (The FAM provides for the procedures that govern the operations of the State Department, the Foreign Service, Customs and Border Protection, and, when applicable, other federal agencies.)
In the past, the responsible Federal Immigration agencies have tried to strike a balance between the ability of U.S. citizens to marry their foreign national spouse with-out undue burden, while maintaining the integrity of the border inspection system. Thus, those intending on marrying a U.S. Citizen are required to have an immigrant visa if they intend to live in the U.S.. But what if they decide to marry a U.S. citizen shortly after arrival?
THE “30 / 60” RULE
The policy has been that as long as the marriage does not take place within 30 days of entry to the U.S. and the visa application is not filed within 60 days, the application is acceptable without a presumption of misrepresentation. This policy has been changed by the Trump administration.
9 FAM 302.9-4 (U) MISREPRESENTATION – INA 212(A)(6)(C)(I)
(2) (U) Inconsistent Conduct Within 90 Days of Entry:
(a) (U) However, if an alien violates or engages in conduct inconsistent with his or her non-immigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry. To make a finding of inadmissibility for misrepresentation based on conduct inconsistent with status within 90 days of entry, you must request an AO from CA/VO/L/A. As with other grounds that do not require a formal AO, the AO may be informal. See 9 FAM 304.3-2.
As a result of this policy change, visitors to the U.S. will have to wait at-least 90 days before marrying the U.S.C. For those entering the U.S. on a visitor visa, often for a 6 month duration, they would still be able to file the visa applications while in lawful visitor status. But those entering the U.S. on only an ESTA approval are given a maximum of 90 days, and would risk being deported in remaining in the U.S. past their authorized stay.
DACA: Deferred Action for Childhood Arrivals
Deferred Action is not a permanent lawful status in the U.S., only temporary.The Action being deferred is deportation. It is not Lawful Permanent Resident (green card) status, and thus it does not offer a path to citizenship.
- Renewals accepted for additional 6 months
Those seeking to renew their DACA status, must file the application, form I-821, along with the application for employment authorization, I-765, within 30 days:
(DHS) Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.
Eligibility for DACA extensions
- Those whose DACA permits expire by March 5, 2018, may apply for two-year DACA extensions if they apply for the extension by October 5, 2017
- Those whose DACA permits expire on and after March 6, 2018 will not be eligible to file DACA extension applications
- DHS will continue to adjudicate DACA extension applications properly filed and received by USCIS on and before September 5, 2017, even if the current DACA approval of the applicant expires after March 5, 2018
- Initial applications no longer accepted
DHS will not accept new filings for DACA status. The program commenced in 2012, and most of those eligible are assumed to have submitted applications. By the end of 2018, nearly 850,000 applicants had been approved for the status.
The Trump administration has enhanced the screening of Visa applicants in 3 recent measures. These actions support the campaign promise use extreme vetting of visa applicants.
First, the recent program of expedited visas for certain non-immigrants has been cancelled. Second, DOS has added a new form form, DS-5535, Supplemental Questions for Visa Applicants, which standardizes the collection of additional information, including social media usage, from immigrant and nonimmigrant visa applicants “who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities”.
Secondly, in February, an executive Order suspended the Visa Interview Waiver Program (VIWP) and effectively mandated in-person interviews for all nonimmigrant visa applicants, unless an interview is not required by statute or otherwise excepted by the Order. The VIWP allowed consular officers to waive the interview requirement for applicants seeking o renew nonimmigrant visas within 12 months of expiration of the initial visa in the same classification.
Most recently, the Department of State issues a new form to be used in the discretion of consular officials. Form DS-5535, Supplemental Questions for Visa Applicants, standardizes the collection of additional information, including social media usage, from immigrant and nonimmigrant visa applicants “who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities.”
Deferred Action for Childhood Arrivals (DACA) 2017
The Obama Administration’s Executive Action known as Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) has been eliminated by the Trump administration. But recall that the proposed program was halted by a Federal Judge in Texas in 2015, and was never implemented. That leaves the original program, DACA, as the single remaining “Dream Act”-related Executive Action still in effect. (That provision applies to those aliens who entered the U.S. prior to reaching age 16, and completed High School, or military Service, and provides temporary lawful status and employment authorization. ) The other program not implemented was the expanded DACA version.
THE POTOMAC SERVICE CENTER
A positive legacy of the never-implemented programs was additional capacity for adjudication of Immigration applications. In anticipation of the programs DAPA and DACA II, DHS built an entirely new U.S. CIS Service Center, the “Potomac Service Center“. This Service Center, located in Arlington, Virginia, went into Service in 2015, and currently processes a variety of applications such as naturalization applications for Military Veterans, and extensions for H1-B visa holders.
It is becoming obvious to us that the Immigration Courts have changed policies following the issuance of the DHS Enforcement Memos. No changes have been announced by the federal agency, EOIR, in charge of the conduct of Immigration Courts, but the change is evident.
All those with cases before the Immigration Judge should be aware that there will be no tolerance to deviations from Orders of the Judge. This would include any motions filed with the Judge.
We’ve seen the AILA Summary for the Memo “Enforcement of the Immigration Laws to Serve the National Interest”. It “directs DHS personnel to make full use of all statutory authorities to remove aliens expeditiously.” I do see a new February 2017 memo on the EOIR web page, entitled “observing Immigration Court Hearing“, and it does appear the EOIR manual was updated in February 2017.
EOIR: The Executive Office for Immigration Review (EOIR) administers the nation’s immigration laws through court proceedings, appellate reviews, and administrative hearings.
A.G. Sessions announces an end to “Catch and Release”. For those of us legal practitioners, we’ve known about it for weeks!
Attorney General Jeff Sessions announced that U.S. Immigration enforcement agencies will stop the practice of releasing those aliens found inadmissible at the border. Currently, aliens who approach the border, “arriving aliens”, are eligible to be released under the supervision (Parole) of the Department of Homeland Security. Parole is authorized under the Immigration Act in certain circumstances, limited to: Urgent Humanitarian Reasons, Significant Public Benefit, and those receiving a favorable “Credible Fear” determination from an asylum officer.
Specific examples of humanitarian reasons are reuniting with terminally ill family members, medical treatment, tending to family affairs of a deceased relative. The category of Significant public benefit may involve organ donations, or participation in civil litigation. The more common form has been those who receive a favorable credible fear finding from an asylum officer.
According to A.G. Sessions, the catch and release policy will end. In actuality, it ended soon after inauguration day, January 20th. Since that time, the exercise of parole by U.S. DHS has been rare; at least that’s been the case near the Northern border.