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.
The Trump administration has issued new enforcement guidelines following the Executive Order, parts of which were stayed by the Ninth Circuit Court of Appeals. The two DHS memos dated February 20, 2017, separately address Immigration enforcement at the Border, and Enforcement priorities in the Interior. They are meant to implement the Executive Orders issued by President Trump.
The Interior Memo Marks A Major Shift In Interior Enforcement
By U.S. ICE – In Two Ways
FIRST, it expands the use of “Expedited Removal” of undocumented immigrants, allowing customs agents to deport more people faster and with fewer hurdles. The memos expand the period of expedited removal from two weeks to two years after people enter the country, and eliminate a requirement that they were caught within 100 miles of the border. Those subject to expedited removal are not afforded review of the DHS decision by an Immigration Judge.
Expedited Removal is found in 8 U.S.C. 1225(b)(1)(A)(1) and is a method of deportation that is shielded from review by Immigration Judges and Federal Courts. It is carried out exclusively by ICE officials at DHS. There are two grounds by which persons can be charged under Section 235: being an intended immigrant without possessing an immigrant visa, or, having engaged in fraud or misrepresentation in order to obtain an immigrant benefit. (Any other charge of deportation must involve full review by administrative Immigration Judges and an appeal process.)
SECOND, the memo ends the Obama priorities guidelines (which focused mainly on aliens with significant criminal convictions, those with prior deportation orders, and recent entrants.) The new memo’s priorities include those who have been charged with a crime, have obtained an immigration benefit by fraud, (work permit for example), have illegally obtained public benefits. It largely expands the population of aliens subject to ICE arrest warrants.
DHS: (United States) Department of Homeland Security
ICE: (U.S) Immigration and Customs Enforcement (ICE is a section under the DHS)
Trump’s Immigration Executive Order (EO ) Sends Shock Waves.
Of the 8 policy changes made on Friday, the 2 causing the most confusion were the suspension of Visas from Nationals of the 7 primarily muslim countries, and the 90 day pause on refugee admissions. After the announcement,
Winning? Yyyeee … No. The roll-out of the Immigration E.O.s was bungled by the Trump administration. Sorry Mr. President but if you were on the outside observing, we would see tweets like “Sad! Our Immigration system is so badly managed. Our safety depends on you. DHS* must be smart!”
Although temporary in nature, President Trump’s Orders effect Immigrants who are from Somalia, Iran, Syria, Iraq, Yemen, Libya and Sudan. For at least 90 days, all visa applications filed by Nationals from the 7 countries are on hold. That includes Visitor visas, Immigrant visas, refugee and asylee applications for those seeking entry to the U.S., as well numerous applications for those already in the U.S..
FOLLOWING THE ANNOUNCEMENT, the Public needed to know further information on the implementation:
1) Whether those who are nationals of one of the 7 countries but had U.S. Green Card status were subject to the ban upon reentry, and
2) whether all Immigration-related applications would be stopped for Nationals of those 7 countries. It is now 5 days later, and the answer to these questions is still not clear.
Green Card holders are not treated as applicants for admission if they are returning to the U.S. from a brief trip abroad. The law provides 6 specific circumstances where LPRs can be found to be re-applying for admission, and INA 212(f) which the President invoked is not one of the 6.
As far as which applications were included in the ban on visa issuance, on Monday U.S. CIS** indicated that all applications were on hold. On Tuesday (Jan31,2017), we learned that applications for citizenship were NOT included in the ban.
For nearly thirty years Cuban nationals have been the beneficiary of an exclusive parole policy, known as the “wet foot / dry foot” rule. That rule provided that if a Cuban reaches the shore of the U.S., and requests to stay, they will be paroled into the U.S.. After one year of physical presence, they can file for permanent resident (green card) status. If however, Cubans do not make it ashore but are encountered at sea, the p0licy was to return them to Cuba.
Without the policy, Cubans will be treated like other Foreigners (arriving aliens) encountered at the border. Aliens seeking admission to the U.S. border must either have pre-authorized visas, advance parole, or be visa exempt. Absent authorization, such aliens are subject to the “expedited removal” policy, which would result in an Order of Removal and 5 year ban for future admission.
WET FOOT/ DRY FOOT” RULE
The only exception to the Expedited Removal Order and 5 year ban is for aliens who are successful in obtaining a favorable “credible fear” determination by an asylum officer. This is the policy that Cubans will now be subjected to. It is a curious policy change with one week remaining in the Obama administration.
U.S. Customs & Border Protection announced this week (Dec.20, 2016) that they will be issuing electronic I-94 cards to visitors rather than paper forms going forward. An I-94 form is needed by all persons except U.S. Citizens, returning resident aliens, aliens with immigrant visas, and most Canadian citizens visiting or in transit. Air and Sea travelers will be issued I-94s during the admission process at the port of entry (including airport pre-flight inspection stations).
An advantage of this new policy is that travelers can access their I-94 and travel history for the past 5 years online. This allows the traveler to print out the information and store it on their mobile devices.
HOW IT WORKS:
As set forth on the CBP website:
(1) The I-94 land border automation will allow travelers to speed their entry into the United States by submitting I-94 applications and paying the $6 fee online prior to their arrival at the port of entry.
(2) The On-line I-94 application will collect information that previously was collected in-person at the land border port of entry, to include biographic information (name, date of birth, country of citizenship), passport details, visa details (if applicable), and petition/Student and Exchange Visitor Program (SEVIS) number (if applicable).
After submitting an online application for the I-94 and paying the associated fees, travelers must present themselves at a land border port of entry within seven days of the form being submitted to complete the issuance process.
This system replaces the previous paper I-94 process for air and sea travel into the U.S.. Rather than distributing a paper Form I-94, Customs and Border Protection (CBP) will scan a traveler’s passport, generating an electronic arrival record with data elements found on the current paper Form I-94. CBP will make the electronic I-94 available on the website.
SAMPLE I-94 ON-LINE FORM
CANADIANS in Florida
Canadians can stay in the United States a maximum of 182 days, or six months during the calendar year .
The purported “Canadian Retiree Visa bill“, which would allow Canadians over the age of 50 to stay in the States eight months, instead of the current six is still in limbo. Retired Canadians need to follow the Canadian rules to maintain their Canadian medical insurance. That requires Canadians to live in Canada for a certain time frame to remain eligible for health benefits in Canada. This may supersede any new bills being passed in the United States. (OHIP (Ontario Health Insurance Plan): The (Canadian) person must be physically present in Ontario for 153 days (about 6 months) in the calendar year to get coverage all year round.)
SNOW BIRDS MEMO
For now, you can refer to the 2010 snow birds memo which addresses several issues for Canadians vacationing in the U.S.:
Summer 2010 Issue 75 Jul 16, 2010.
“A Canadian citizen who is granted entry into the United States under a B-2 Visitors Visa may be permitted to remain in the country for six months less a day. This could be 181, 182 or 183 days, depending on the date on which you enter. It is important to note that each time you enter the United States, even just for a few hours, it counts as one day. Each day that you visit the U.S. in a 12-month period will be counted and should be subtracted from the “six months less a day” that you intend to visit the United States in the winter.
Also, when you enter the U.S. for an extended period, such as six months, shorter trips outside of the country departing from and returning to the U.S. do not count as days that you can subtract from your “six months less a day” count. This is the case even if you return to Canada for a week or two during the holiday season.
Those seeking to stay beyond 6 months are advised to formally request the extension at a Port of entry or by filing an I-539, application to change / extend visitor status.
It is important to note that a U.S. Customs and Border Protection officer has the authority to limit your visit to the United States to any period of time that he/she sees fit. So, do your best to be accommodating when they question your intentions and length of stay. The wrong attitude could cost you days in the sun.
What Happened to the 240-day Visa?
About the JOLT Bill
JOLT Act (Jobs Originating through Launching Travel Act), a measure that has already been passed by the Senate but still needs to be acted on by the House of Representatives. published by Ingleinternational.com
The JOLT bill was introduced in 2011. The bill has nearly 150 sponsors in the ‘House’ but is not yet a law. On January 3, 2017, congress reconvenes. Another year to see what happens with the Jolt proposal. Historically, not a lot of bills get passed.
When you prepare for your long travels across the border, it is important that you contact your insurance company to get the latest guidelines. You provincial Health insurance may have certain limitations on coverage to emergencies that could happen after you have crossed the border for your snow bird migration. Contact the Royal Canadian legion and Canadian Snow-birds Association (CSA) for details. The CSA has recommended Medipac Travel Insurance as their preferred choice in travel insurance for the past 19 years.
The American Immigration Lawyers Association, AILA, has reacted to the election of Donald Trump with . . let’s say . . . concern, to keep it non-inflammatory. But AILA should see a great opportunity for much needed improvements in the Immigration laws of our country. Here are a couple . . . in my mind . . . . no brainers.
1, Include Dairy workers in the category of agricultural workers authorized to receive non-immigrant employment visas. Under current law they can’t. (unless they have a B.S. from an Ag school, like Texas A&M for instance, then they qualify for H1-B. But not many College grads opt for hands-on dairy work)
2, The change that is so obvious (but would cause a near seismic reaction in the AILA boardroom) is to change the system of deportation for criminal aliens. We currently have a system that was introduced in the 1940s, and lumps all convictions, whether foreign or domestic into categories of deportable offenses. E.g., Controlled substance offenses, weapon offenses, Aggravated Felonies, and . . . the one most confusing, Crimes Involving Moral Turpitude (CIMTs). Now, the objective was understandable, to take convictions from foreign jurisdictions, and attempt to fit them within our system of jurisprudence.
However, to apply that methodology to convictions from States within the U.S. is so unnecessary and outdated. (like the phonebook) State penal codes are now easily accessible on-line, so they can simply be listed on a state-by-state basis. E.g., “These convictions in (Ohio) are deportable offenses: 1, THEFT, Ohio Revised Code § 2913.02, . . . etc. Thus, a non-citizen could know that if he/she commits this offense, they are subject to deportation. Instead, the current system would charge that conviction along with many other offenses as being a CIMT .
The problem with the current system, using CIMT as the example, is that there is constant litigation over issues involved with CIMT, in Federal Courts, including the Supreme Court. What qualifies as a CIMT?, What records may be examined to make the determination?, and on and on. There have been no less than 3 Supreme Court decisions in the last 4 years over issues involved with CIMT. So, while it keeps AILA and its members, like us, very busy, the time has come to . . . pull the plug . . . let the swamp drain. Simplify the process.
Instead, all 50 States penal codes should be referenced, e.g., Announce, “Okay, These convictions are deportable offenses, . . . . , and you can be subject to deportation, with some defenses. More serious crimes: “Committing these crimes will result in automatic deportation with (nearly) no defenses. ”
It is often said that the current deportation system is back-logged. It’s true and the reason is obvious.
THE NSEERS PROGRAM REGISTRATION
If President Trump decides to implement his promise of extreme vetting of certain muslim immigrants, he can utilize an existing law passed in response to the 9/11 attacks. The NSEERS ( National Security Entry-Exit Registration System ) program was created by regulation in November, 2002, to vet persons from certain countries who were already in the U.S. , as were the Islamic radicals involved in 911, most having student visas.
From August 2002 until April 2011, nonimmigrants from 25 predominantly Arab and Muslim countries were required to register under the NSEERS program each time they arrived in or departed from the United States, or had to obtain a waiver of these requirements. NSEERS required immigrants present in the U.S. from Muslim-majority, Arab, and South Asian countries to register their presence, fingerprints, and photographs with local immigration offices or officers at U.S. ports of entry. While the Obama administration discontinued the reporting requirements of NSEERS in 2011, the law still exists and could be renewed by simple executive order.
DISCRIMINATION OR SECURITY?
Following its passage in 2002, The NSEERS program was criticized by human rights groups as excessively discriminatory and ultimately ineffective. Other non-partisan reports showed that it may have been an effective law enforcement tool. E.g., 83,000 men complied with the National Security Entry-Exit Registration System program, and more than 13,000 of them were placed in deportation proceedings. An inspector General (OIG) report in 2011 stated that the program was obsolete and should be eliminated.