Visa Lawyer Blog

Articles Posted in Apprehensions

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Several weeks ago, the President signed an executive order preventing undocumented immigrants from applying for asylum.

On Monday, a federal judge from San Francisco issued a nationwide injunction, forcing the government to continue to accept asylum claims by undocumented immigrants, regardless of where or how they entered the United States. As a result, the President’s executive order will be suspended until a decision is reached by the court in the lawsuit East Bay Sanctuary Covenant et al., v. Donald J. Trump, et al.,

The President hoped that his executive order would curb illegal immigration at the Southern border, ahead of the arrival of a large immigrant caravan from Central America.

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Photo by bbcworldservice

U.S. Customs and Border Protection has recently announced that in anticipation of the migrant caravan, lane closures will begin on November 13, 2018 at the San Ysidro and Otay Mesa ports of entry.

At least three northbound vehicle lanes at San Ysidro and one lane at Otay Mesa will be closed. CBP will be installing pre-position port hardening infrastructure equipment to increase security in preparation for the arrival of the caravan.

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The Washington Post recently reported that President Trump is expected to deliver a scathing speech on immigration this upcoming Tuesday October 30, 2018. The President’s speech will come just a week before the highly contested midterm elections, where more than 425 House seats are up for re-election.

Interestingly, the Post is reporting that President Trump is gearing up to invoke his executive power to prevent Central American migrants from applying for asylum at the Southwest border. Such a move would trigger constitutional challenges in federal court. However, as we know, the President and his administration have not shied away from controversy.

The President is eager to present his agenda to boost his approval ratings and encourage Republican voters to support GOP candidates in battleground states.

Earlier this month the President expressed his sentiments regarding an immigrant caravan consisting of more than 7,000 Central American migrants’ intent on reaching the U.S. border.

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On September 7, 2018, the government published a notice of proposed rule making in the federal register, entitled, “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children.”

The proposed rule seeks to amend existing regulations relating to the apprehension, processing, care, custody, and release of alien juveniles in custody.

If the proposed rule is enforced, it will replace the Flores Settlement Agreement reached in 2001 in response to the class-action lawsuit Flores v. Reno. The Flores Settlement Agreement allows detained children the right to a bond hearing and affords them several important protections including:

  • the right to be represented by counsel;
  • the right to have detention assessed by an independent immigration judge, outside of the Office of Refugee Resettlement system;
  • the right to present evidence;
  • the right to examine and rebut the government’s evidence;
  • the right to build a record regarding their custody.

If the government has its way, children in detention will be stripped of these rights.

The government states that consistent with the Flores Settlement Agreement, the proposed rule would ensure that juveniles in government custody are treated with dignity and respect, with a special concern for the vulnerability of minors in custody.

The rule would create an “alternative” to the existing licensed program requirement for family residential centers, including the ability to detain family units together during the entirety of their immigration proceedings.

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Several months ago, we reported that the United States Citizenship and Immigration Services (USCIS) amended its policy regarding the issuance of Notice to Appear (NTA) documents in removal proceedings.

During the month of June, USCIS released a policy memorandum indicating the agency’s intent to revise NTA policy to better align with the President’s Executive Order 13768 “Enhancing Public Safety in the Interior of the United States.” NTAs are documents that are issued to alien’s subject to removal from the United States. Issuance of an NTA initiates the process of removing an individual from the United States.

Specifically, the Executive Order 13768 called on DHS to “prioritize the removal of aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4) … who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal.”

In addition, the Executive Order called for the removal of individuals who:

  • (a) Have been convicted of any criminal offense;
  • (b) Have been charged with any criminal offense that 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 have not departed; or
  • (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

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Beginning next year, the United States Citizenship and Immigration Services (USCIS) will launch a task force located in Los Angeles, designed to identify, detect, and prosecute individuals who have fraudulently gained United States Citizenship, for example by entering into a ‘sham’ marriage to obtain permanent residence, or engaging in other fraudulent activity, such as using a false identity to apply for permanent residence and/or naturalization.

USCIS has already begun to process of hiring lawyers and immigration officers who will review cases of individuals who have been deported, who the agency believes may potentially use a false identity to obtain permanent residence and/or citizenship. Such cases will be referred to the Department of Justice, who will then initiate the removal of individuals who have committed immigration fraud.

Of the denaturalization task force, USCIS Director L. Francis Cissna told reporters, “We finally have a process in place to get to the bottom of all these bad cases and start denaturalizing people who should not have been naturalized in the first place. What we’re looking at, when you boil it all down, is potentially a few thousand cases.”

The denaturalization task force will be funded by immigration application filing fees. The denaturalization task force will be primarily focused on targeting individuals who have used false identities to obtain immigration benefits.

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Return of Unselected H-1B Petitions

H-1B cap-subject petitions that were not selected in the fiscal year 2019 visa lottery have been returned to unlucky applicants. If you filed a petition between April 2 and April 6 and you did not receive a receipt notice for your application, you will be receiving your returned petitions in the mail by August 13. If you do not receive a returned petition by this date, you should contact USCIS.

Updated NTA Policy

On June 28th USCIS issued a policy memorandum providing updated guidance for the referral of cases and issuances of notices to appear (NTAs) in cases involving inadmissible and deportable aliens. The policy memorandum outlines the Department of Homeland Security’s priorities for removal as well as guidelines for referring cases and issuing NTAs.

Under the updated policy the following classes of aliens are prioritized for removal, “aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal,” as well as aliens “who, regardless of the basis for removal:

(a) Have been convicted of any criminal offense;

(b) Have been charged with any criminal offense that 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 have not departed; or

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

Today, USCIS announced that it is postponing implementation of this policy guidance because operational guidance has not yet been provided to immigration officers. The policy memorandum gave USCIS 30 days to implement proper protocols for NTA issuance consistent with the updated policy memorandum. We will notify our readers once we receive information about when the NTA policy will be implemented.

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In this post, we bring our readers important information regarding revisions to the Notice to Appear “NTA” policy guidelines. On June 28, 2018, the United States Citizenship and Immigration Services (USCIS) released new policy guidance outlining the Department’s priorities for enforcement and removal of undocumented immigrants from the United States.

Form I-862 also known as a Notice to Appear is a document that is given to an individual to initiate removal proceedings. The Notice to Appear instructs the individual of a date and time to appear in immigration court for removal proceedings.

To better align with the President’s Executive Order 13768 “Enhancing Public Safety in the Interior of the United States,” USCIS has revised its NTA policy expanding the class of individuals who may be referred to ICE and issued a Notice to Appear. Under the revised policy, USCIS may now refer cases “with articulated suspicions of fraud to ICE prior to adjudication,” of cases filed with USCIS. The revised policy does not apply to recipients and requestors of Deferred Action (DACA) when (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. For this class of individuals the 2011 NTA guidelines will apply.

The President’s Executive Order 13768 specifically calls on DHS to “prioritize the removal of aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4) … who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal.”

In addition, the Executive Order prioritizes the removal of individuals who:

  • (a) Have been convicted of any criminal offense;
  • (b) Have been charged with any criminal offense that 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 have not departed; or
  • (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

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Our fears have come true. On May 4, 2018, we reported that the Department of Homeland Security would be making an official announcement terminating the TPS designation for the country of Honduras. Shortly after our report, DHS published a formal announcement terminating the Temporary Protected Status (TPS) designation for Honduras, with a delayed date of termination for a period of 18 months. The official date of termination will be January 5, 2020.

This means that nationals of Honduras living in the United States under TPS will have a period of 18 months to arrange for their departure from the United States or seek alternative legal status to remain lawfully present in the United States.

According to a statement released by DHS, the decision was made after the Secretary determined that “the disruption of living conditions in Honduras from Hurricane Mitch that served as the basis for the TPS designation” in 1999 were no longer substantial enough to justify continuation of the designation.

The report also claims that conditions in 1999 have greatly improved, and the country has made “substantial progress in post-hurricane recovery and reconstruction from the 1998 Hurricane Mitch.”

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The latest string of immigration raids have come very close to home. Last week, federal agents from Immigration and Customs Enforcement (ICE) took part in a five-day immigration sweep throughout San Diego County with the goal of apprehending and removing criminal immigrants at large.

During the sweep 53 undocumented immigrants were arrested including immigrants who were not criminals but had final deportation orders issued by the Immigration Court. 10 of the 53 arrested had been previously deported. These individuals were said to have re-entered the United States after previous deportations or had been found in violation of federal immigration laws. According to USCIS, those detained were of Mexican and Guatemalan nationality and were picked up in Santee, Vista, Encinitas, Chula Vista, Escondido, Oceanside, San Diego, and Imperial Beach.

Gregory Archambeault, the field office director of the San Diego Office for Enforcement and Removal Operations defended the actions adding that these types of operations, “reflect the vital work ERO officers do every day to uphold public safety and protect the integrity of our immigration laws and border controls.”

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