Articles Posted in Asylum Law

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Image by Lorie Shaull

It is with great sadness that we report that today, Monday January 8, 2018, the Secretary of Homeland Security, Kirstjen M. Nielsen, has formally decided to terminate the Temporary Protected Status (TPS) designation for the country of El Salvador. This decision is extremely upsetting given that Salvadorans were among the largest group of foreign nationals receiving temporary provisional residency permits under the TPS program in the United States. The consequences of this decision are even more troubling considering the plight that Salvadorans face in their home country. For more than a decade, the country of El Salvador has been plagued by soaring gang violence, drug trafficking, human smuggling, and an endemic rate of violence against women.

Per today’s statement issued by the Department of Homeland Security, the TPS designation for El Salvador will officially terminate on September 9, 2019. This means that the Department of Homeland Security will give Salvadorans a period of 18 months, before terminating their provisional residency permits on September 9th, to allow Salvadorans to make an orderly departure from the United States or to seek alternative legal means to remain in the United States.

According to the Washington Post, the United States has issued approximately 200,000 provisional residency permits to Salvadorans, many of whom have been living in the country since 2001. Salvadorans were first given Temporary Protected Status in 2001 when a series of large earthquakes devastated the impoverished country. Since 2001, the United States government has renewed their temporary permits on an 18-month basis.

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Yesterday, November 6, 2017, the acting Secretary of Homeland Security, Elaine Duke, announced her decision to terminate the Temporary Protected Status (TPS) designation for Nicaragua, with a delayed effective date of 12 months until the termination of that designation, giving Nicaraguans enough time to make preparations to either depart the United States or seek alternative lawful immigration status in the United States, before the designation officially terminates on January 5, 2019.

Furthermore, Duke announced that the TPS designation for Honduras will be automatically extended for six months “from the current January 5, 2018 expiration date to the new expiration date of July 5, 2018.” This automatic extension has been granted because additional information is necessary to determine whether conditions have changed in Honduras that would justify termination of  the country’s TPS designation.

According to Duke’s announcement, the decision to terminate the TPS designation for Nicaragua was made after it was determined that the conditions in Nicaragua have changed since the country’s original 1999 designation that no longer justify granting protected status to this class of individuals. Furthermore, because the Secretary received no formal request from the Nicaraguan government to extend TPS status, and there was no evidence to indicate that the Nicaraguan government could not adequately handle the return of Nicaraguan nationals, the TPS designation for Nicaragua was no longer justified.

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Just one day before Presidential Proclamation No. 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” was set to go into effect, a federal judge in Hawaii issued a ruling blocking portions of the Presidential Proclamation from being enforced on a majority, but not ALL, of the countries, listed in the Proclamation.

The Presidential Proclamation, commonly referred to in the media as ‘travel ban 3.0’ set out to suspend the entry of foreign nationals from eight “countries of identified concern,” and the admission of foreign nationals from those countries was to remain limited until further notice.

The countries to be affected by travel ban 3.0 included: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. A federal judge from the state of Hawaii by the name of Derrick Watson has granted a temporary restraining order preventing the government from suspending the admission of foreign nationals from the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but DOES NOT prevent the government from suspending the admission of foreign nationals from North Korea and Venezuela, and from imposing stricter screening standards on Iraqi nationals. The restrictions on foreign nationals from North Korea, Venezuela, and Iraq will continue to be enforced according to the Proclamation, beginning today, Thursday, October 19, 2017. Restrictions on North Koreans and Venezuelans will likely remain indefinitely, given that the U.S. government has no formal diplomatic avenues for communication with those countries.

Judge Derrick Watson wrote in his opinion that the latest revision of the ban, “suffers from precisely the same maladies as its predecessor,” and “lacks the sufficient finds that the entry of more than 150 million nationals from [the] specified countries would be ‘detrimental to the interests of the United States,” and “plainly discriminates based on nationality.”

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You have questions, we have your answers. Here are answers to 6 of your Frequently Asked Questions.

In this blog, we are answering 6 of your frequently asked questions in detail. Please remember that every case and every story is different and unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance on your immigration journey. For any further questions please visit our website or call our office for a free first time legal consultation. We thank you for your continued trust in our law office.

Q: Should I hire an attorney to file my green card application and go with me to the green card interview?

This will largely depend on the complexity of your individual case. For example, there are individuals that are eligible to adjust their status to permanent residence based on their marriage to a U.S. Citizen or based on a qualifying family relationship, but may be applying for permanent residence under special circumstances such as 245i or another special immigrant classification such as VAWA.

Still other individuals may be applying for their green card for a second time after being denied.

Individuals who are applying for their green card under one of these special immigrant classifications should absolutely seek the assistance of an immigration attorney to apply for permanent residence to avoid any mistakes in filing and to be well prepared for the green card interview. In these situations, any minor mistakes on the paperwork can result in major delays, or worse—require refiling the green card application altogether. In addition, for complex cases it is always important for an attorney to prepare the foreign national for the most vital part of the green card application which is the green card interview. An attorney’s presence at the green card interview is also important to ensure that the foreign national’s rights are not violated by the immigration officer.

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8358967030_aef1cd0812_zThe Trump administration is quickly mobilizing resources to facilitate the massive deportation of undocumented persons living and working in the United States, and to secure the U.S. border.

A new 90-day progress report prepared by the Department of Homeland Security outlines how the agency is planning on implementing the provisions of the Executive Order 13767 entitled “Border Security and Immigration Enforcement Improvements” signed by President Trump earlier this year. Although the progress report is only a preliminary assessment of how the agency will enforce the executive order, the report reflects what immigration enforcement might look like in the near future.

Securing the border: Regarding border security, the progress report outlines that U.S. Customs and Border Protection is taking immediate action to plan, design, and construct a physical wall on the southern border between the United States and Mexico. Specifically, the report states that CBP is partnering with the U.S. Army Corps of Engineers to design and construct prototypes to expand the southern border, and has submitted a request for funding from Congress for $20 million.

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The Department of Homeland Security has released its end of the year statistics for fiscal year 2016 reflecting immigration enforcement priorities for convicted criminals, threats to public safety, border and national security. The report found that during fiscal year 2016, 530,250 individuals were apprehended nationwide, and a total of 450,954 individuals were removed and returned to their countries of origin. For their part, the U.S. Border Patrol reported a total of 415,816 apprehensions nationwide, an increase in 78,699 persons, when compared to fiscal year 2015. For their part, the U.S. Immigration and Customs Enforcement (ICE) arrested 114,434 individuals during fiscal year 2016, a decrease in 10,777 persons, when compared to fiscal year 2015. During fiscal year 2016, the U.S. Customs and Border Protection (CBP) Office of Field Operations identified 274,821 inadmissible individuals at ports of entry nationwide, an increase in 21,312 persons, when compared to fiscal year 2015. Lastly, ICE reported that during fiscal year 2016 they removed or returned 240,255 individuals, an increase in 4,842 individuals when compared to fiscal year 2015.

The report highlighted that the Department of Homeland Security has successfully honored the Obama administration’s immigration enforcement priorities announced in November 2014, which prioritize the deportation of national security threats, individuals attempting to enter the United States unlawfully, and convicted criminals. As evidence of this, the report states that during fiscal year 2016, ninety-eight percent of initial enforcement actions involved individuals which fell into one of three enforcement priority categories. The report indicates that ninety-one percent of apprehensions fell within the top priority for individuals who either presented a national security threat, attempted to enter the United States unlawfully, or were convicted of a crime (including gang members).

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USCIS has announced that beginning October 5, 2016 the validity period for initial and renewal employment authorization cards (EADs) will be extended from the previous one-year validity period to a two-year validity period, for asylum applicants eligible to receive employment authorization. EAD applications pending as of October 5, 2016 and all EAD applications filed on or after October 5, 2016 will receive 2-year EAD cards.

Asylum applicants cannot apply for employment authorization with their initial asylum applications. Applicants with a pending asylum application, who have filed for asylum on or after January 4, 1995, must wait until at least 150 days have passed since filing of their asylum applications (not including any delays that were caused by them) before applying for employment authorization. Once at least 150 days have passed since filing of the asylum application, and provided the application is still pending with USCIS, applicants may apply for employment authorization by filing Form I-765 Application for Employment Authorization using the (c)(8) asylum classification. On average it takes approximately 90 days for the I-765 to be processed, and for the employment authorization card (EAD) to be mailed to the applicant. Once you receive the employment authorization card you may begin to work immediately. You may also obtain a driver’s license for the validity period of your employment authorization, and a social security number by presenting your employment authorization card at the DMV and SSA near you. There is no fee to apply for your first employment authorization card if your asylum application is pending with USCIS or you have been granted asylum. If you are applying for a renewal EAD card (it is not your first time receiving an EAD) your application is subject to the filing fee.

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On September 7, 2016 the United States Citizenship and Immigration Services (USCIS) published the Affirmative Asylum scheduling bulletin which describes how the service will prioritize the adjudication of affirmative asylum petitions. USCIS has developed a three tier system to prioritize scheduling of interviews and adjudication of petitions.

USCIS has indicated that as of December 26, 2014 applicants who were scheduled for an interview, and who subsequently rescheduled their interview themselves, or had their interview rescheduled by USCIS, will fall under the first tier. These applicants will receive top priority. Applications that were filed by children will fall under the second tier and receive secondary priority for interview scheduling. Lastly, any other pending affirmative asylum applications are currently being adjudicated in the order that they were received by USCIS. Consequently, the oldest cases that were received by USCIS (cases that were received the earliest) are scheduled first. These applications fall under the third tier and have the lowest priority.

In sum, applicants who were rescheduled for an interview and child applicants will receive first priority.

All other applicants will be required to wait in line for an interview based on the date USCIS received their asylum application. The following table provided by USCIS outlines estimates of scheduling dates for asylum interviews by month and year. The table is based on current caseload and volume of applications waiting in line for an interview. Interviews are currently being scheduled taking into account time and resource constraints of local offices.  It is not uncommon for asylum offices to divert their resources to defensive asylum interviews.

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A new factsheet published by AILA and Kids in Need of Defense (KIND) provides statistics on the representation and removal of unaccompanied children and families facing removal proceedings before immigration court. The data concludes that an overwhelming number of unaccompanied children and families are ordered removed from the United States, despite having demonstrated a legitimate fear of persecution or torture and passing a credible fear interview, making these individuals viable candidates for asylum, prosecutorial discretion, or other relief from deportation. This is due to a lack of legal representation and legitimate concern for the due process of law.

Families Passing Credible Fear in preliminary interviews with federal asylum officers

On the whole, the majority of families in detention centers demonstrate a legitimate fear of persecution or torture and maintain a high rate of approval during credible fear interviews;

  • In preliminary interviews with asylum officers, approximately 90% of families successfully demonstrated a credible fear of persecution or torture;
  • Upon completion of these interviews, approximately 88% of detained families pass their credible fear interviews;
  • The USCIS Asylum Office has indicated that the credible fear passage rates remain unchanged—at a rate of 90%;
  • DHS data indicates that 53% of 121 individuals, arrested by DHS during the January raids, lacked legal representation before immigration court;

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Following a recent surge in apprehensions of undocumented immigrants at the Southwest border, the Department of Homeland Security announced that, beginning January 1st Immigration and Customs Enforcement (ICE) engaged in a concerted nationwide crackdown, taking adults and some children into custody, who have evaded their orders for removal. In a recent press release, the Secretary of DHS, Jeh Johnson indicated that the crackdown occurred as a result of President Obama’s November 2014 executive action on immigration, which put in place new priorities for removal, including the removal of convicted criminals, individuals posing a threat to national security, individuals apprehended at the border or who were found to have entered the United States unlawfully after January 1, 2014. In November 2014 President Obama had implemented these new priorities in an effort to secure the border. In the press release, Jeh Johnson added, “as I have said repeatedly, our borders are not open to illegal migration; if you come here illegally, we will send you back consistent with our laws and values…individuals who constitute enforcement priorities, including families and unaccompanied children will be removed.”

According to the Department of Homeland Security, Central American migrants were removed and repatriated at an increasing rate since the summer of 2014. During this time, there was a surge in the number of families and unaccompanied children from Central America attempting to cross the southern border illegally. In response to this surge, DHS collaborated with the Mexican, Guatemalan, Honduran, and Salvadorian governments to decrease these numbers. According to Jeh Johnson the collaborative efforts were temporarily successfully. In 2015 the number of apprehensions by the U.S. Border Patrol decreased dramatically to 331, 333. Fiscal year 2015 experienced the lowest amount of apprehensions on the southern border since 1972. Recently, an increased rate of apprehensions resurfaced. This sudden spike resulted in the January 1st crackdown prompting ICE to action. As part of the crackdown, dozens of female agents and medical personnel were deployed to assist with the apprehension and removal process. According to DHS, in cases involving medical urgency or other reasons, ICE exercised prosecutorial discretion. As stated by DHS, enforcement operations will continue as needed in collaboration with state and local law enforcement.

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