Articles Posted in Priorities for Removal

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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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A recent Supreme Court decision may enhance the pool of individuals eligible for cancellation of their removal proceedings. Cancellation of removal is a form of relief granted to individuals unlawfully present in the United States, who have been physically present in the United States continuously for a period of no less than 10 years, immediately preceding the date of an application for cancellation of removal. Under 8 U.S.C. section 1229(b)(1)(A), however the period of continuous presence ends when the alien has been served with a notice to appear in immigration court, also known as an “NTA.” A notice to appear is a document issued by the government that initiates a noncitizen alien’s removal proceedings.

Section 1229(d)(1)(A) mandates that the United States government must serve noncitizens in removal proceedings with a written “notice to appear,” specifying the time and place where the removal proceedings are expected to take place.

However, the Department of Homeland Security has followed a regulation dating back to the year 1997 wherein the agency has failed to notify noncitizens of the time, place, or date of initial removal hearings “whenever the agency deems it impracticable to include such information.”

The Board of Immigration Appeals (BIA) has held that even though these notices do not specify the time and date of removal proceedings as required by 8 U.S.C. section 1229(b)(1)(A), the period of continuous presence is still considered to have ended at the time the notice to appear (NTA) is served on the noncitizen alien.

The 1997 regulation along with the BIA ruling has created problems for individuals who would otherwise qualify for cancellation of removal under section 1229(d)(1)(A) of the law, because a deficient NTA served upon a noncitizen would mean that the individual would continue to remain physically present in the United States, despite being served with a deficient NTA.

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On Wednesday June 20, 2018, President Donald Trump signed executive order, “Affording Congress an Opportunity to Address Family Separation,” in response to mounting outrage over the administration’s controversial policy of separating immigrant parents from their children at the border.

The executive order clarifies that it will remain the policy of the United States to detain and remove aliens who have unlawfully entered or attempted to enter the United States outside of a designated port of entry, and that such individuals remain subject to a fine or imprisonment under U.S. law. The administration however promises to maintain family unity “by detaining alien families together where appropriate and consistent with law and available resources.”

What the order does

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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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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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Beginning April 1st New Delhi Will No Longer Process IR1/CR1 or IR2/CR2 visas

The U.S. Department of State announced via their website that the U.S. Embassy in New Delhi will no longer process IR1/CR1 visas for spouse of US Citizens or IR2/CR2 visas for unmarried minor children of US Citizens beginning April 1, 2018. Foreign nationals who are in the process of obtaining an IR1/CR1 visa or IR2/CR2 visa with an interview that has been scheduled on or after April 1, 2018, will have their interview at the U.S. Consulate General in Mumbai. We recommend that petitioners be on guard for any letters from the National Visa Center specifying the location of the intending immigrant’s interview, as well as details about how to prepare for the interview stage.

President’s DACA Deadline Passes

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During the last few days, the Supreme Court has been very busy taking up the issue of immigration. On Tuesday in a 5-3 decision, the Supreme Court handed down a controversial ruling strengthening the power of the Trump administration to detain undocumented immigrants facing deportation proceedings for extended periods of time. The Court rejected the opinion of federal judges in California who had previously ruled that detained immigrants facing removal proceedings have a right to a bail hearing after six months in jail.

Today, the Court emphatically disagreed, ruling in the case Jennings v. Rodriguez, that those who face deportation will remain detained while their cases are being considered by an immigration judge. Justice Samuel Alito speaking for the Court said that federal immigration law does not require bail hearings, and that the Ninth Circuit Court has no authority to allow for such hearings.

The Court handed down this ruling after immigrants’ rights activists brought a class action suit representing thousands of non-citizens who had been arrested and held for deportation. Many of these individuals sought asylum in the United States based on a credible fear of persecution. Although the majority of these individuals eventually went on to win their cases in immigration court, they were detained for a year or longer while their cases remained pending. The Ninth Circuit Court of Appeal had previously ruled that such individuals should have a right to a bail hearing after 6 months, and a right to be released from detention provided they could prove to the Court that they are not a danger to the community or a flight risk.

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In a continuing saga, the President is maintaining his hardline stance on immigration, this time expanding into the realm of legal immigration. Earlier this month, the Department of State released an amended version of the Foreign Affairs Manual (FAM) used by governmental agencies and other federal agencies as a manual, which directs and codifies information that must be carried out by respective agencies “in accordance with statutory, executive and Department mandates.”

The new amended version of the manual expands the definition of misrepresentation, the types of activities that may support a presumption of fraud, and establishes changes to existing policies that federal agents must follow in making assessments of fraud or material representation.

The manual sets out a list of activities which may support a presumption of fraud or material representation by an individual applying for any immigration benefit:

  • Engaging in unauthorized employment;
  • Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
  • A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

Old Rule: Previously, the rules set out by the Foreign Affairs Manual and USCIS imposed a presumption of fraud on persons who entered the United States with a non-immigrant visa type (e.g. as a tourist, business visitor, student, trainee etc.) and subsequently married a U.S. Citizen and applied for adjustment of status within the first 30 days of entering the United States.

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On Tuesday, February 28, 2017 the President of the United States Donald Trump addressed a joint session of congress for the first time ever delivering a unifying message to the American people. In his speech Donald Trump softened his stance on immigration while at the same time remaining true to his campaign promises.

On the topic of immigration, Donald Trump first discussed the creation of a Task Force to Reduce Violent Crime headed by the Department of Justice. Additionally, he stated that under his orders, the Department of Homeland Security, and Justice, the Department of State and Director of National intelligence will implement a plan to combat organized crime and the war on drugs. Trump pledged that he would work to dismantle criminal cartels and prevent them from bringing drugs into the country.

Second, Trump promised to keep his campaign promise to enforce the immigration laws of the United States and increase border security to “restore integrity and the rule of law at our borders.” He added, “We want all Americans to succeed, but that can’t happen in an environment of lawless chaos.”

Third, Trump called for the construction of a wall along our Southern border with Mexico to deter undocumented immigrants from entering the United States and to deter drug dealers and criminals from entering the United States and committing acts of violence. To his critics, Donald Trump posed the following question, “What would you say to the American family that loses their jobs, their income, or their loved one because America refused to uphold its laws and defend its borders?”

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