Federal Court Rules Trump Administration Can End Temporary Protected Status (TPS)

On September 14, 2020, the United States Court of Appeals for the Ninth Circuit ruled that the Trump Administration is within its authority to end Temporary Protected Status (TPS) for hundreds of thousands of immigrants in the United States.  A copy of the decision can be found here.  This decision affects citizens from El Salvador, Haiti, Nicaragua, and Sudan.

TPS is a form of relief granted to immigrants in the United States who are citizens of certain countries that the Department of Homeland Security has deemed unable to handle the return of its citizens adequately due to natural disasters, armed conflict, or other extraordinary conditions.  A grant of TPS allows the beneficiary to live and work with authorization in the United States and without fear of deportation.  A grant of TPS must be renewed during designated periods as well.

According to National Public Radio, “The Trump administration terminated TPS designations of El Salvador, Haiti, Nicaragua and Sudan in 2017 and 2018. (It later ended TPS for Honduras and Nepal, and a separate case brought last year by citizens of those countries is ongoing).”

Several TPS beneficiaries filed a lawsuit in federal court challenging the Trump’s Administration’s decision.  A district court had issued a preliminary injunction, preventing the termination of the TPS program, but this week’s decision lifts the injunction, allowing for immigrants from the affected countries to be subject to removal as early as next year.

According to the New York Times, “The Trump administration has argued that the emergency conditions that existed when people were invited to come to the United States — earthquakes, hurricanes, civil war — had occurred long ago.”

However, most TPS holders have been living in the United States for a decade or longer.  The plaintiffs in this case argued that the Trump Administration’s decision to end TPS was fueled by “animus toward ‘non-white, non-European immigrants.’”

The plaintiffs in this case plan to appeal the decision of the 9th Circuit.  Immigrant advocates have been critical of this decision, which will potentially expose many individuals with TPS to removal from the United States, where they have established familial, economic, and social ties.

As the Trump Administration continues its effort to end legal immigration to the United States, its decision to end Temporary Protected Status is another measure that will cause severe consequences for over 400,000 immigrants in the United States.

USCIS’s Naturalization Delays Will Reduce Access to Voting

USCIS is processing naturalization applications at a slower rate than usual.  That means that many persons who had expected to be able to vote this November might not be able to do so.

The Coronavirus pandemic has contributed to the delays, but the Trump Administration had slowed down the process well before 2020.  In 2016, under President Barack Obama, the naturalization process averaged 5.6 months.  President Trump became president in January 2017.  By 2018, the average processing time was 10.3 months.

USCIS maintains that when they reopened field offices in June 2020, they focused on conducting naturalization oath ceremonies, and by the end of July 2020 they cleared the backlog of ceremonies.  But overall, July 2020 had only about one-twelfth of the number of naturalization ceremonies that typically occur in a month.

Although USCIS might have “cleared the backlog” in ceremonies of persons already approved for citizenship, the truth is, USCIS continues to delay the processing of many persons still stuck in the naturalization application process.  There are currently more than 700,000 people waiting for their naturalization interviews.

One research group estimates that the naturalization delays will mean that nearly 400,000 persons will not be able to vote.

Diego Iñiguez-López of the National Partnership for New Americans states, “It’s part of the larger anti-immigrant agenda that the Trump administration has pursued over the last few years.  Keep immigrants feeling unwelcome, keep them afraid, keep them intimidated, and keep them away from knowing and asserting their rights, including their right to vote.”

Trump Administration’s Effort to Expand Biometric Data Collection

The Trump Administration is currently working on a proposal that would greatly expand the collection of biometric data from individuals seeking immigration benefits.  The U.S. Department of Homeland Security confirmed this week that a draft policy was in progress, which would allow the government “to request biometrics from immigrants with green cards or work permits at any point until they become a U.S. citizen, in what amounts to continuous vetting.”

Currently, United States Citizenship and Immigration Services (USCIS) requires that applicants for immigration benefits provide fingerprints, photographs, and signatures.  The new policy would extend biometric collection to “include DNA, eye scans, voice prints and photographs for facial recognition” as well as the collection of DNA from U.S. citizen sponsors and children under 14 years of age.

In addition, per CNN.com, “The proposed rule will allow the agency to collect DNA to verify a genetic relationship, where establishing a genetic or familial relationship is an eligibility requirement for the immigration benefit.”

This proposed policy is part of the administration’s continued effort to promote extreme vetting of immigrants.  In January of this year, we published a blog post regarding collection of DNA from individuals seeking entry at the border. A copy of this post can be found here.

This new policy has already received criticism from immigration advocates.  Andrea Flores, deputy director of immigration policy for the American Civil Liberties Union (ACLU), said, “Collecting a massive database of genetic blueprints won’t make us safer — it will simply make it easier for the government to surveil and target our communities and to bring us closer to a dystopian nightmare.”

The proposed rule will undergo further review before implementation but is considered a top priority at this time by the Trump Administration.


USCIS Will Accept Advance Parole Requests from DACA Recipients

On August 24, 2020, USCIS announced some updated procedures regarding DACA recipients.  The most important change in USCIS policy is that USCIS will accept requests for advance parole from DACA recipients.

You may access the full policy memo here.

But USCIS cautioned that advance parole requests will need to establish “exceptional circumstances” in order to be approved.  In the past, under President Obama, USCIS routinely approved DACA recipients’ advance parole applications that requested travel permission for educational and employment purposes, or to visit an ill grandparent.  It appears that now, USCIS would not approve those applications.

USCIS provided a few examples of travel that might be approved:

  • to support national security or military interests
  • to further U.S. federal law enforcement interests
  • to get life-sustaining medical treatment that is not available in the United States
  • to support the immediate safety, well-being, or care of an immediate relative, especially minor children

Please note that this list does not include all potential reasons to request advance parole.

In the new memo, USCIS also repeated the position from July 2020 that they will reject all initial DACA requests from persons who never previously had DACA.  But now USCIS also states that if, in the future, they begin to accept first-time applications for DACA, then a prior rejected application would not cause a problem for a future applicant.  USCIS also repeated the announcement last month that it will grant DACA renewals for one year at a time, rather than two years at a time.

Changes to Employment Authorization Requirements for Asylum Seekers

Last month, the Trump Administration issued two new rules that would further restrict eligibility criteria for asylum seekers requesting employment authorization.  The first rule issued on June 19, 2020, “Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications,” will take effect on August 21, 2020.  The final rule can be found here.  The second rule, “Asylum Application, Interview, and Employment Authorization for Applicants,” issued on June 26, 2020, will take effect on August 25, 2020 and can be found here.

Both rules will make it significantly harder for asylum seekers to obtain employment authorization in the United States, which has been a goal of the Trump Administration for some time.  While asylum seekers will still be eligible for employment authorization, many changes will take place in the process.

First, the new rules mandate that an asylum applicant must wait 365 days after filing an asylum application before applying for employment authorization.  This is a significant change from the old rules, which allowed asylum applicants to wait 150 days to apply for employment authorization and another 30 days for adjudication of the application.

Moreover, under the new rules, after an application for employment authorization is submitted, a United States Citizenship and Immigration Services (USCIS) Officer will determine whether there is an unresolved “applicant-caused delay” when the application was filed and whether the application should be denied on that basis.

Examples of “applicant-caused delay” include: “amending an asylum application that causes a delay in adjudication; an unexcused failure to appear at an asylum interview or decision pick-up; failure to appear at a biometrics appointment; not filing supplemental documentation to the asylum office within 14 days of an interview, a request to transfer asylum offices or to reschedule an asylum interview, a request to provide additional evidence, or a failure to provide an interpreter.”

The new regulations also limit validity of an employment authorization document to a maximum of two years and prevent asylum seekers from receiving employment authorization if they attempt to enter the United States without inspection on or after August 25, 2020 (subject to certain exceptions).

The effects of these new rules will no doubt cause devastating consequences for asylum seekers who will now have to wait more time before obtaining employment authorization.  The additional restrictions also make it easier for USCIS to deny employment authorization applications on many grounds.  While unfortunate, these new regulations are not surprising given this administration’s constant efforts to eliminate immigration to the United States.

Court Blocks Trump’s “Public Charge” Rule

On July 29, 2020, a federal court blocked the Trump Administration’s new “public charge” rule.

In earlier posts, we have discussed the new rule and its harmful effects on thousands of people who have recently applied for permanent resident status.  Anyone who has had to prepare an application for permanent resident status under the new “public charge” rule knows the enormous amount of work involved, the need to provide reams of very sensitive personal financial data to USCIS, and the frustration of facing yet another enormous obstacle to legal status that the Trump Administration has created.

Well, for now, at least, the “public charge” obstacle has been put on hold, both for persons applying for permanent resident status in the United States, before USCIS, and for persons applying for immigrant visas at U.S. consulates throughout the world.

Judge George McDaniels, a judge of the U.S. District Court for the Southern District of New York, issued two separate opinions that block further implementation of the new “public charge” rule:  one decision affects USCIS, while the other decision affects the U.S. Department of State, which runs U.S. embassies and consulates throughout the world.  The main reasoning behind the judge’s decisions was the negative effect that the new rule had on persons struggling to maintain health and safety during the Coronavirus pandemic.

The judge indicated that the new public charge rule spread fear among immigrants that the new rule would label them as a “public charge” if they obtained medical care or other benefits related to the fight against Coronavirus.  The judge concluded that the new public charge rule harmed the United States and immigrants who were making choices that they believed would help them avoid “public charge” problems but that would place them at greater risk of harm as a result of Coronavirus.

It is expected that the Trump Administration will appeal the judge’s rulings.  But for now, both USCIS and the U.S. Department of State have indicated that they are no longer implementing the new “public charge” rules.

USCIS Fee Adjustments To Take Effect On October 2, 2020

On August 3, 2020, the Department of Homeland Security (DHS) published a final rule regarding fee adjustments for applications filed with United States Citizenship and Immigration Services (USCIS). A copy of the complete final rule can be found here. The final rule will take effect on October 2, 2020.

According to the news release, “USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the cost of providing adjudication and naturalization services. DHS is adjusting USCIS fees by a weighted average increase of 20% to help recover its operational costs. Current fees would leave the agency underfunded by about $1 billion per year.”

The new rule includes new fee increases, removal of certain fee exemptions, as well as changes to fee waivers and premium processing requirements. Some key aspects of the rule are listed below:

The new USCIS fees will undoubtedly impose hardships on immigrants and businesses. For example, USCIS is increasing “the cost of the application (N-400) to become a U.S. citizen by more than 80%, rising from $640 to $1,160 (for online filings, although a separate $85 biometrics fee would be eliminated).”

In addition, although there is a $10 decrease for adjustment of status applications, a separate fee will now be required for applications for employment authorization and advance parole (fees which were previously included with the adjustment of status application).

As the Trump administration continues to restrict immigration to the United States, this new rule is an additional measure that makes it more complicated and expensive for immigrants to pursue adjustment of status, citizenship, as well as other legal status within the country.

Trump Defies DACA Rulings

On July 28, 2020, the Trump Administration announced that USCIS will:

  • reject all initial DACA requests – applications by persons who have never before received DACA status.
  • reject all applications for advance parole based on DACA, unless there are exceptional circumstances.
  • approve DACA renewal applications for only one year, instead of two.

These announcements appear to directly contradict the ruling of the Supreme Court last month that the Trump Administration did not act properly when it ended DACA.

Legal challenges to the Trump Administration’s July 28 announcement are likely.  California Attorney General Xavier Becerra appeared to indicate that he would return to court, stating that DACA should be “in full effect, including for new applications.  The courts have spoken.  We know what it takes to defend DACA . . . and we’ll do it again if necessary.”

DACA enjoys overwhelming support among the American people, including among Republicans.

U.S.-Canada Asylum Treaty Found Unconstitutional

On July 22, 2020, a federal Canadian judge ruled that an asylum treaty between the United States and Canada known as the “Safe Third Country Agreement” is unconstitutional. A copy of the decision can be found here. The Safe Third Country Agreement (STCA) mandates that refugees must seek protection in the first country they arrive in. The Canadian judge deemed that the agreement with the U.S. violates Canada’s charter of human rights “because it returns asylum-seekers to the U.S., where they are ‘immediately and automatically imprisoned’ by U.S. authorities, often under inhumane conditions.”

The Safe Third Country Agreement came into effect in 2004. Since that time, many refugees have been denied entry into Canada because they arrived in the U.S. first, a designated “safe” country, where they could seek asylum. The ruling made by Federal Court Judge Ann Marie McDonald states “that the act of sending people back to the U.S., where they were at risk of imprisonment, violated their rights to life, liberty, and security.”

Canada’s Justice Department has thirty days to decide whether to appeal the decision. One of the applicants who challenged the Safe Third Country Agreement, Nedira Jemal Mustefa, was arrested after trying to enter through the Canadian Border from the U.S. She was placed in solitary confinement for one week and describes “losing 15 pounds as a result of not eating, saying that she was given pork even though she told officers she could not eat it for religious reasons.”

The Safe Third Country Agreement has raised more controversy since President Donald Trump took office and began carrying out the administration’s effort to limit asylum as well as other forms of immigration to the U.S. Moreover, “The deal has also been at the center of intense debate in Canada because a loophole allows asylum seekers who cross the border at unauthorized points of entry to proceed into Canada and file their claims.”

Overall, this new ruling further highlights how unwelcoming the U.S. has become to refugees. Unfortunately, the U.S. is becoming less and less of a haven for individuals fleeing persecution and harm in their home countries. Other countries have taken notice including Canada. Time will tell if similar decisions will follow.

Trump Announces Plan to Revoke Student Visas, then Retreats

On July 14, 2020, the Trump Administration backed down from its proposed plan to deny and rescind visas from students studying online at U.S. schools.

On July 6, 2020, ICE announced that foreign students who plan to take fully online courses will not get student visas, and online-only students already in the United States need to leave the country or risk being deported.

Analysts viewed the move as an attempt by the White House to pressure universities to reopen their campuses to in-person classes, instead of the approaches that many schools have spent months in planning to try to reduce the spread of Coronavirus.

At least three separate lawsuits seeking to block the new rules have already been filed.  On July 8, Harvard and MIT filed a lawsuit.  The following day, the State of California filed its own legal challenge.  And on July 13, a group of 17 states and the District of Columbia filed a legal complaint.

Massachusetts Attorney General Maura Healey noted that the “Trump administration didn’t even attempt to explain the basis for this senseless rule, which forces schools to choose between keeping their international students enrolled and protecting the health and safety of their campuses.”

To date, more than 200 universities have presented briefs in support of the legal challenges to the proposed restrictions.

It appears that the Trump Administration succumbed to the overwhelming criticisms and legal challenges to the new rule, abruptly abandoning its position only 8 days after announcing it.