Federal Judge Orders Full Reinstatement of DACA

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On December 4, 2020, Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York ordered full reinstatement of the Deferred Action for Childhood Arrivals (DACA) program. A copy of the order can be found here. This order is a victory for DACA recipients and DACA-eligible youth as it reverses the Trump Administration’s efforts to end the DACA program over the last three years.

Former President Barack Obama implemented the DACA program in 2012. The program shields immigrants who were brought unlawfully to the United States as children from deportation and offers them work permits. To receive DACA, applicants must demonstrate various requirements including continuous residence in the U.S., enrollment or graduation from high school, and lack of felony conviction. A full list of eligibility requirements may be found here.

In his recent decision, Judge Garaufis ordered the Department of Homeland Security (DHS) to announce that it was accepting new DACA applications. The Trump Administration in recent years limited the DACA program to renewals and the issuance of DACA grants and work permits to one year. In response to this order, DHS posted an announcement on December 7, 2020, stating that it would begin accepting first-time requests for DACA, applications for advance parole, as well as extension of one year grants of status and work permits to two years.

According to National Public Radio, “DACA currently protects about 640,000 undocumented young immigrants. As of July, an estimated 300,000 young people living in the U.S. are eligible for the program and still waiting for a chance to apply. That includes 55,000 who have aged into eligibility over the last three years.”

While this order marks a victory for the DACA program, this is not the end of the road. DACA faces a legal challenge in a different case that will be heard in Texas later this month, asking for the program to be deemed unlawful. This litigation may prove futile however, as President-elect Joe Biden has already pledged to fully restore the DACA program. While the future remains to be seen, it appears to be brighter once Joe Biden takes office in January.

How Will Joe Biden Change Immigration Policies?

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When Joe Biden is sworn in as the 46th president of the United States on January 20, 2021, he will face many challenges:  the Coronavirus pandemic, global climate change, and economic instability are probably the top concerns on his agenda.  But it’s worth considering how immigration policies and laws might change under the Biden Administration.

We don’t yet know which political party will control the Senate.  Georgia has a special election on January 5, 2021 that will determine the winners of the state’s two Senate seats.  Both Democratic candidates would need to win in order for the Senate to end up with 50 Senators affiliated with the Democratic Party, and 50 Republicans.  In that scenario, Vice President-Elect Kamala Harris would be the tie-breaker, giving Democrats control of the Senate.  But if either one or two Republican candidates in Georgia win their Senate races, then Republicans will retain control of the Senate.

Control of the Senate will determine how much Biden will be able to accomplish on immigration and many other issues.

In any event, perhaps one of the first immigration issues Joe Biden will address will simply be to get the U.S. consulates around the world to return to work and begin issuing visas again.  Under the Trump Administration, the processing of visas slowed down to a crawl, especially for applicants in Africa, Asia, and South America.  Applicants in Haiti, for example, received 67 percent fewer immigrant visas  between 2016 and 2019 than previously.  Applicants in Iran experienced a drop of nearly 80 percent.  And that time period, of course, was before the Coronavirus pandemic.

For applicants applying for permanent residence within the United States, Joe Biden will need to undo many of Trump’s policies that slowed down USCIS in the processing of applications.

Biden will also face a crisis at the U.S.-Mexico border created by Trump, whose punishing policies turned away thousands of Central American asylum applicants.  Many of those persons are in dangerous conditions in Mexico, waiting for an opportunity to simply ask for asylum in the United States.

DACA is another issue that Biden likely will try to address.  A lasting solution – a path to permanent residence and citizenship – would require the approval of Congress.  In the meantime, Biden might try to undo Trump’s damage to the DACA program, perhaps by returning renewals to two-year periods (rather than one) and allowing applications from persons who have never had DACA in the past.

And there are yet more immigration issues for Biden:   What to do with Trump’s unfinished border wall?  How to undo Trump’s “Muslim ban”?  How to return the refugee resettlement program to normal levels after Trump severely cut it back?

Joe Biden will need to face all of these immigration issues, and more, in 2021 and beyond.

Sixth Circuit Issues Decision Regarding Administrative Closure

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On November 24, 2020, the U.S. Court of Appeals for the Sixth Circuit issued a decision in the case of Hernandez-Serrano v. Barr, rejecting a challenge to Matter of Castro-Tum and concluding that Immigration Judges and the Board of Immigration Appeals (BIA) do not have the general authority to administratively close cases. The full decision can be found here.

In 2018, former Attorney General Jeff Sessions certified Matter of Castro-Tum to himself in an unprecedented move, ruling that “[I]mmigration Judges and the Board [BIA] do not have the general authority to suspend indefinitely immigration proceedings by administrative closure.” This decision was met with widespread criticism from immigration attorneys and advocates as it stripped immigration judges from their ability to exercise jurisdiction in adjudicating cases.

Administrative closure is a procedural tool that allows an immigration case to be put on hold indefinitely and for removal proceedings to be delayed. This allowed “individuals the opportunity to pursue more promising forms of relief, eliminated unnecessary costs associated with remaining in active removal proceedings, and allowed judges to prioritize other cases.”

The recent Sixth Circuit decision sets up a circuit split as both the Fourth and Seventh Circuit have concluded that Immigration Judges and the Board of Immigration Appeals (BIA) do have the authority to administratively close cases. The Fourth Circuit decision, Zuniga Romero v. Barr, can be found here. The Seventh Circuit decision, Meza Morales vs. Barr, can be found here.

While this recent decision rejected a challenge to Matter of Castro-Tum, the Court in footnote one suggested that a noncitizen subject to a final order of removal can apply for adjustment of status directly with the United States Citizenship and Immigration Services (USCIS) even if not an arriving alien. How USCIS will respond to this recent decision remains to be seen.

 

 

 

Trump Changes Naturalization Test and Policies

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The Trump Administration has changed the naturalization test, making it more difficult to pass, changing answers to previous questions in politically questionable ways, and increasing the burden on applicants.

Trump also changed how USCIS decides whether to approve or deny a naturalization application, again further restricting the ability of persons to become U.S. citizens.

Such changes come as no surprise from Mr. Trump, who will need to vacate the White House on January 20, 2021.  We eagerly await his departure.

The changes to the naturalization test will affect all persons whose naturalization applications are filed with USCIS on or after December 1, 2020.  The changes will not affect persons whose applications were filed before December 1, 2020.

The new test has 128 questions (instead of 100) to study.  At the naturalization interview, the officer will ask a total of 20 questions chosen at random (instead of 10), and the applicant must answer at least 12 correctly (instead of 6).  And, apparently, the USCIS officer will not stop the questioning once the applicant obtains a sufficient number of correct answers, but instead is supposed to go through all 20 questions.

The new list of questions includes some insidious changes.  For example, the question “Who does a U.S. Senator represent?” which had the correct answer of “all people of the state,” has been replaced with the following answer:  “citizens of their state.”  This change tracks the Trump Administration’s assault on noncitizens.  Trump is trying to exclude undocumented persons from the 2020 census count, despite the fact that the census is to count all persons in the United States, regardless of status.

Another example of Trump’s politicization of the naturalization process is a new question:  “Why is the Electoral College important?”  One of the authorized answers is:  “It provides a compromise between the popular election of the president and congressional selection.”  This answer makes no sense, and appears to be an attempt to inject politics into the naturalization process.

In addition to changes in the naturalization test, USCIS recently updated its policies to include a very long list of reasons to deny an application based on the applicant’s immigration history, including innocent errors committed by U.S. immigration officials in approving an applicant’s previous application, even if that U.S. government error occurred many decades ago.

The naturalization changes fit into a pattern we have grown accustomed to seeing from the Trump Administration:  change as many things as possible to make things more difficult for noncitizens.

We look forward to a brighter future beginning January 20, 2021.

Joe Biden Administration Plans Sweeping Changes for Immigration

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Joe Biden’s monumental presidential win has ushered in a new era of hope for immigrants. President-elect Joe Biden has already planned sweeping changes to immigration for his first weeks in office. This will mark a vast shift from the Trump administration’s efforts to eliminate immigration to the United States over the last four years.

CBS news obtained an advance look into the changes that President-elect Joe Biden hopes to enact next year. These changes include fully restoring Deferred Action for Childhood Arrivals (DACA), which the Trump administration tried to end. Currently, the United States Citizenship and Immigration Services (USCIS) is only accepting renewals for DACA, while the new changes would allow for first time applications.

The Biden administration also plans to rescind the Muslim Travel Ban that President Trump put into place, severely limiting immigration to the United States for citizens of several predominantly Muslim countries. Many immigrants from these countries have been stuck overseas for several years due to this ban.

Additional changes include implementing “a 100-day freeze on deportations while looking at ways to deprioritize the removals of undocumented immigrants who aren’t violent criminals.” This would be drastically different from President Trump’s designation of all undocumented immigrants as priorities for removal.

The Biden Administration also plans to undo the damage wrought by President Trump on migrants seeking asylum at the southern border by withdrawing agreements with Guatemala, El Salvador, and Honduras, which allowed the U.S. to send back asylum seekers to these countries.

While these proposed changes by the Biden administration are encouraging, we must wait until next year to see what unfolds. Regardless, it is time for positive change and a chance to undo the damage that has been done by the Trump administration to immigration.

America Has Elected Joe Biden and Kamala Harris

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America has elected Joe Biden as the next President and Kamala Harris as the next Vice President of the United States.  They will take the oath of office and begin their four-year term on January 20, 2021.

Between now and January 19, 2021, unfortunately, Donald Trump is still the president.

We do not yet know how the Biden-Harris Administration will be changing immigration procedures that could affect the lives of many persons, perhaps millions of persons.

One thing we can say:  Things will very likely not get any worse than they were under Donald Trump.  We believe that Joe Biden will keep his promise to end some of the most horrible and shameful policies of the Trump Administration.  We expect that children will no longer be put in cages.  We expect that people will again be able to apply for asylum.

Joe Biden recently stated that during his first 100 days, he wants to send a bill to Congress to reform immigration law.  Let’s hope that he does that, and let’s hope that Joe Biden plans to reform immigration law in ways that will help the approximately 11 million persons currently in the United States without permission.  We certainly don’t know the details yet.  But at least we have hope.

Perhaps most importantly, we now know that beginning January 20, 2021, Donald Trump will no longer be president of the United States.

With the election of Joe Biden and Kamala Harris, we feel that a great burden has been lifted from our shoulders.  Donald Trump’s anti-immigrant statements and false claims will become a thing of the past.  The Biden-Harris Administration will begin a new era of more respectful behaviors and more appropriate responses to immigration matters.

Along with many other millions of people in the United States, and many more millions around the world, we congratulate Joe Biden and Kamala Harris, and we are very much looking forward to January 20, 2021 and beyond.

Detainee Deaths in ICE Custody

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The amount of deaths of immigrant detainees in Immigration and Customs Enforcement (ICE) custody has been on the rise over the past several years.  A recent CNN report revealed that 21 people died in ICE custody this year, double the number of deaths in 2019.  Immigrant advocates believe that this rise in deaths is due to worsening conditions in detention centers, lack of adequate medical care, as well as mishandling of COVID-19 by ICE.

According to the CNN Report, “More than a third of the people who died in ICE custody this year had tested positive for Covid-19 – including a 56-year-old man from the Marshall Islands, who died in a Louisiana hospital, and a 61-year-old man from Mexico, who died in a Georgia hospital last week.”

When questioned about this rising death count, ICE responded by detailing their efforts to combat the spread of COVID-19 in detention centers and stated that the total number of detainees has decreased during the pandemic.

While there has been an increase in detainee deaths this year, past years have also revealed alarming numbers. BuzzFeed News filed a Freedom of Information Act (FOIA) Request in 2019, requesting records pertaining to 25 deaths of detainees in ICE Custody.  Over 5,000 pages of documents were released, revealing “that ICE’s own investigators raised serious concerns about the agency’s care of the people it detains, with one employee describing the treatment leading up to one death as ‘a bit scary.’”

In addition, “in multiple instances, guards who were supposed to observe detainees placed in solitary confinement for extra monitoring falsified records to hide apparent dereliction of duty. In at least two cases — at Eloy Detention Center in Arizona and Adelanto Detention Facility in California — people died while they were not being watched but should have been.”

Overall, these deaths of detainees in ICE custody reveal disturbing details of inadequate treatment and denial of basic human rights to immigrants. As immigrant advocates continue to speak out, it remains to be seen whether ICE will take the necessary steps to prevent more deaths of detainees in the future.

Trump Administration Announces New Bars to Asylum

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On October 20, 2020, the Trump Administration announced a new rule that would further bar certain immigrants from obtaining asylum. This new rule set forth by the Department of Justice (DOJ) and the Department of Homeland Security (DHS) will go into effect on November 20, 2020. A copy of the rule can be found here.

This rule will prevent certain immigrants from obtaining asylum based on their criminal history. A DOJ Press Release lists these categories of immigrants including those who are convicted of any federal or state felony, alien smuggling, illegal reentry, gang activity, drunk driving, drug crimes, domestic violence, and other offenses relating to false identification.

The rule also bars immigrants who have committed certain domestic violence offenses even if they have not been convicted.

According to the DOJ, “To ensure that criminal aliens cannot obtain this discretionary benefit, the Attorney General and Secretary of Homeland Security have exercised their regulatory authority to limit eligibility for asylum for aliens who have engaged in specified categories of criminal behavior.”

Immigrant advocates have expressed outrage over this new rule. Human Rights First asserts that this new rule will “disparately impact particularly vulnerable populations, including LGBTQ asylum seekers and asylum seekers from Africa, the Caribbean, Central America, and other regions who are routinely criminalized because of their identities, racially disparate policing practices, or in connection with experiences of trafficking and domestic violence.”

The publication of this rule comes as no surprise given the Trump Administration’s efforts to end immigration to the United States. Whether this rule will be successfully challenged in federal court in the future remains to be seen.

U.S. Ban on Communist Party Members

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On October 2, 2020, United States Citizenship and Immigration Services (USCIS) issued a policy alert regarding inadmissibility based on membership or affiliation with the Communist Party or any other totalitarian party.  A copy of the policy alert can be found here.  While this new alert does not change existing immigration law, it requires U.S. immigration officers to exert stricter enforcement when determining whether an applicant for an immigration benefit such as a visa or lawful permanent residence is inadmissible based on this ground.

While the policy alert did not mention the Chinese Communist Party (CCP) by name, experts believe that this move is being imposed as “top Trump administration officials ramp up criticism of the CCP for its role in covering up the coronavirus outbreak.”

The inadmissibility ground for membership or affiliation with a Communist Party or other totalitarian party was created by Congress to ensure the safety and security of the United States and dates back to the 1950s.  However, there are certain exceptions for involuntary membership, past membership, and for immigrants who are close family members of U.S. citizens or lawful permanent residents who do not pose a threat to the security of the United States.

According to the Migration Policy Institute, “There were 2.5 million Chinese immigrants in the United States in 2018, or about 5.5 per cent of its total foreign-born population.”  Moreover, “Almost all Chinese government officials are members of the Communist Party, as are most executives of state-owned enterprises and officials at public institutions.”

In response to this policy alert, “Hu Xijin, editor-in-chief of Chinese tabloid newspaper Global Times, took a positive view of the rule change, saying the immigration restriction would help “keep more talents in China.”

While it is clear that this policy alert is part of the Trump Administration’s continued effort to eliminate immigration to the U.S., it remains to be seen how much of an impact this new guidance will have on immigrants in the future.

Trump Administration: “We Need To Take Away Children”

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New information disclosed by U.S. government officials establish that in 2018 the Trump Administration actively pursued the separation of families arriving along the southern border of the United States, and that the goal of the policy was to deter people from entering the United States.

Michael E. Horowitz, the Inspector General of the U.S. Department of Justice, is in charge of a draft report on the policy, which the Trump Administration abandoned after worldwide condemnation.

“We need to take away children,” then-Attorney General Jeff Sessions told U.S. attorneys working in locations near the U.S.-Mexico border.

The Trump Administration separated at least 5,000 families before a federal court ordered an end to the policy and the reunification of the separated families.

The draft report states that “The department’s single-minded focus on increasing prosecutions came at the expense of careful and effective implementation of the policy, especially with regard to prosecution of family-unit adults and the resulting child separations.”

In the draft report, which has not been released publicly, U.S. government officials noted that in a meeting about the policy, President Trump “ranted” and was on a “tirade,” and was “demanding as many prosecutions as possible.”

The draft report also includes details about U.S. immigration officials “taking breastfeeding defendant moms away from their infants.”

Mr. Horowitz concludes in the draft that senior U.S. officials, including then-Attorney General Jeff Sessions, were aware that “the prosecution of these family-unit adults would result in children being separated from families.”