Articles Posted in Defensive Asylum

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The United States Citizenship and Immigration Services (USCIS) has released a new policy memorandum that will have wide ranging implications for immigrants. Beginning September 11, 2018, USCIS will use their discretion to deny an application, petition, or request filed with USCIS without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if insufficient evidence is sent with the initial filing of the application or if the evidence provided does not establish the applicant’s eligibility for the benefit requested.

The new policy memorandum “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)” supersedes the 2013 policy memorandum titled “Requests for Evidence and Notices of Intent to Deny” which previously governed an officer’s discretion to deny an application, petition, or request without first issuing a request for evidence. Previously, the 2013 memo required requests for evidence to be issued where the initial evidence was unsatisfactory or did not establish the applicant’s eligibility for the benefit requested.

As of September 11, 2018, USCIS now has the power to deny petitions lacking initial evidence without sending a Request for Evidence or Notice of Intent to Deny to cure the defect. This is bad news for applicants of immigrant and non-immigrant visa types, because applicants who have not provided sufficient evidence to USCIS to establish that they are eligible for the benefit requested can be denied without having the opportunity to cure the defect.

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DHS Statement on Family Reunification

The Department of Homeland Security recently issued a statement outlining the administration’s four-point plan to reunite minor children separated from their parents at the border. Beginning July 10, 2018, HHS and DHS will coordinate the reunification of children under 5 years of age currently in the custody of HHS, with parents who are in DHS custody.

#1 Verification of Parental Relationship

The administration will first ensure that a parental relationship with the child has been verified before reunifying the child with his or her parent. In addition, the parent must undergo a background check to ensure that reunification will not compromise the safety and welfare of the child. If a parent is found unsuitable for reunification purposes, in the course of a background check, the child will not be reunified with the parent. Parents who are in the custody of the U.S. Marshall or in a state or county jail for other offenses may not be reunified with their child.

#2 Transportation of Parents to ICE custody

Parents separated from their children will be transported to ICE custody where they will be reunited with their parents. Beginning July 10, 2018, DHS will coordinate physical reunification of minor children under 5 years of age with parents transported to ICE custody, provided the parent has been cleared for parentage and poses no danger to the child.

#3 Preparation of Children under Five Years of Age for Transportation

The Office of Refugee Resettlement (ORR) will coordinate transportation of minor children under the age of five for reunification purposes. Children will be transported under supervision and their possessions will be brought with them to ICE custody.

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Earlier this week, the United States Supreme Court handed down a controversial decision upholding the President’s latest travel ban in the case Trump, President of the United States, Et Al. v. Hawaii Et Al. The 5-4 decision reflected a deeply divided court, but ultimately the conservative justices on the court banded together ruling in favor of the Trump administration.

Chief Justice Roberts, joined by Justices Kennedy, Thomas, Alito, and Gorsuch, ruled that the latest travel ban was “squarely within the scope of Presidential authority.” Justices Breyer, Kagan, Sotomayor, and Ginsburg dissented. Despite concurring with the majority opinion Justice Kennedy added, “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

As you may recall in September of 2017 the President issued Executive Order No. 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.” The purpose of this executive order was to identify any deficiencies from several foreign countries needed to adequately assess whether nationals from particular countries seeking to enter the United States presented security or safety threats to the United States. The order specifically called for global requirements for information sharing among these countries, and increased immigration screening and vetting of individuals from particular countries of concern. The President exercised his broad authority under the constitution to place entry restrictions on nationals of eight foreign countries whose information systems for managing and sharing information about their nationals was deemed inadequate by the current administration. These countries included—Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.

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Return of Unselected Petitions for H-1B Applicants FY 2019 Begins

H-1B applicants who were not selected in the H-1B visa lottery for fiscal year 2019 will begin to receive their rejected applications from the Vermont Service Center and California Service Center. Our office expects to receive returned packages within the next few months. If you were not selected in the lottery, there are several alternatives that you may be interested in. To read all about these alternatives please read our helpful blog post here.

USCIS Adjustment of Status Filing Dates July 2018

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Today, Monday June 11, 2018, in an unprecedented move, the Trump administration announced that it would be dropping asylum protection for survivors of domestic violence. The announcement was made by Attorney General Jeff Sessions this afternoon in the case Matter of A-B- 27 I&N Dec. 316 (A.G. 2018), which explained that victims of domestic violence would no longer be eligible to receive asylum in the United States.

Matter of A-B- 27 effectively reverses a decision formerly made by the Department of Justice immigration appellate court which granted asylum to a woman from the country of El Salvador on the basis of allegations of rape and abuse by her husband.

In his decision, dated June 11, 2018, the Attorney General overruled a separate but similar decision in Matter of A-R-C-G-, stating that the case was “wrongly decided” by the appellate court and should not have become precedent. The Attorney General was able to make such a binding decision on immigration courts across the country because their authority derives directly from the Department of Justice, instead of the judiciary branch.

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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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Temporary Protected Status has come under vigorous attack by the Trump administration. As previously reported, the Secretary of the Department of Homeland Security, appointed by President Trump has been instructed by the administration to scrutinize the TPS program closely to align with the President’s hard line stance on immigration. Within the last few months, the Department has mounted an aggressive attack on the TPS program, stripping El Salvador, Nicaragua, Haiti, and Nepal of its TPS designation.

As readers may recall, during November of 2017, the Secretary of Homeland Security announced that the TPS designation for Honduras would be extended for a period of 6 months from January 5, 2018 to the new expiration date of July 5, 2018, granting Hondurans under TPS an automatic extension. This extension was granted because the administration needed more information to determine whether the country’s designation would continue. As the new expiration date approaches, the day of reckoning may finally be here for nationals of Honduras under TPS.

According to reports released by the New York Times this afternoon, officials speaking on condition of anonymity have told reporters that the Trump administration has already decided to end the TPS designation for the country of Honduras, but has yet to formally announce the termination. The decision to terminate the TPS designation for Honduras is expected to be handed down on Friday.

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The Trump administration has ended an Obama-era policy that required immigration officials to release pregnant women in detention from federal custody. As of at least December, the Trump administration has directed Immigration and Customs Enforcement (ICE) to treat pregnant detainees as they would any other, except for women who have reached their third trimester. The new policy change aligns with the President’s hard line stance on immigration, and executive orders signed into law by the President during the past few months.

Under the new policy, immigration officials must now make a case-by-case determination “taking any special factors into account,” when deciding whether to release pregnant women in federal custody, including whether the alien has an asylum claim based on a credible fear of persecution. Other factors that are taken into account include the woman’s medical condition, potential danger to the public, and potential for flight. Pregnant women who remain in detention will continue to receive necessary medical care and a record of pregnant women in custody must be kept by immigration officials.

Philip Miller, ICE Deputy Executive Associate Director, divulged that 35 pregnant women are currently in federal custody subject to mandatory detention, and that 506 pregnant women have been detained by ICE since December. Miller however would not comment on how many of these women were deported, or released from detention. “In terms of risks to the community, we look at criminal history. Just as there are men who commit violent acts, heinous acts, so too have we had women in custody who have been convicted of committing heinous, violent acts,” Miller commented when discussing the factors that mitigate against release.

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On February 20, 2017, the U.S. Department of Homeland Security released a memorandum entitled “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies.” The memorandum establishes new policies that call for the detection, apprehension, detention, and removal of undocumented immigrants residing in the United States unlawfully. The policies outlined in this memorandum will replace the former President’s deportation policies. According to the directive, the removal of undocumented immigrants will be prioritized based upon the potential danger the individual poses to citizens of the United States and the potential risk of flight.

Among other things the directive mandates the following:

  • Expand the 287(g) program, which authorizes state and local law enforcement officials to assist federal law enforcement in investigating, identifying, apprehending, arresting, detaining, transporting, and searching undocumented immigrants;
  • Immediately begin planning, design, construction and maintenance of a land border wall between the United States and Mexico;
  • Expand the scope of expedited removal of undocumented immigrants pursuant to section 235(b)(1)(A)(iii)(I) of the Immigration and nationality Act, to detain and expeditiously remove undocumented immigrants apprehended at the border, who have been ordered removed from the United States after being denied relief from deportation;

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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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