States Ask Supreme Court to Put “Public Charge” Rules on Hold

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In earlier posts, we discussed the Trump Administration’s proposed new rule about denying permanent resident status to applicants who are considered likely to become a “public charge.”

In January 2020, the Supreme Court issued an order that allowed U.S. immigration officials to put the new rules into effect while it is still being challenged in the courts.

In February 2020, USCIS and the U.S. Department of State began to require applicants to follow the new public charge rules.

On April 13, 2020, officials representing New York, along with Vermont and Connecticut, asked the Supreme Court to put the public charge rules on hold until the Coronavirus emergency is over.

In their request, the state officials argued that the public charge rule has the effect of discouraging noncitizens from seeking health care, including testing and treatment for the Coronavirus.  Leaving the public charge rule in place at this time “makes it more likely that immigrants will suffer serious illness if infected and spread the virus inadvertently to others—risks that are heightened because immigrants make up a large proportion of the essential workers who continue to interact with the public.”

On April 24, 2020, the Supreme Court denied the requests, but indicated that the petitioners could file motions in the federal district court.  It appears that officials representing the state challengers likely will file a motion in district court.

Immigrant Detainees Battling Coronavirus

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Over the past few weeks, Coronavirus (or COVID-19) has wreaked havoc all throughout the United States. One highly vulnerable population at this time includes immigrants who are currently being held in detention.

While Attorney General William Barr has ordered the release of medically vulnerable federal inmates, there has yet to be a nationwide effort by Immigration and Customs Enforcement (ICE) to do the same for the more than 34,000 immigrant detainees around the country. Sixty percent of these detainees do not have criminal records and are only detained for immigration violations.

The Trump Administration is putting immigrant detainees at great risk by not mandating their release. According to Amnesty International, “ICE and its detention facilities have failed to adequately provide soap and sanitizer or introduce social distancing. Nor has it halted the unnecessary transfers of people between facilities in the interest of public health, routinely transporting thousands in and out of facilities.”

ICE has also continued to understate the number of detainees who have been exposed to or contracted COVID-19. Amnesty International has received reports of “suspected COVID-19 cases and lockdowns in multiple ICE facilities, where lawyers said ICE officials refused to comment on the health situations.”

The American Civil Liberties Union (ACLU) of Michigan has filed a federal lawsuit this week, demanding the release of immigrant detainees in Calhoun, Monroe, and St. Clair County Jail. Senior Staff Attorney, Miriam Aukerman, has said that “social distancing and strict hygiene are virtually impossible in a detention setting.”

One of the detainees who provided testimony for the lawsuit is Gener Alejandro Chinchilla-Flores, a 36-year-old Costa Rican national who has been detained at Monroe County Jail since Feb. 25, 2020. He has reported “numerous inmates are coughing and have reported an infestation of maggots.”

Jose Nicolas Chavez-Vargas, a 50-year-old Mexican national who has been detained at the Monroe County Jail since February 20, 2020, also provided testimony, stating, “Everyone sleeps in dormitories that house approximately 100 people, with about 50-60 bunk beds per dormitory. The beds are only 3 to 4 feet apart from each other. People continue to eat their meals communally, multiple times per day.”

While ICE continues to hold immigrants in detention, other county jails including Wayne have released all prisoners without felony cases and who do not pose a risk to public safety.

While it is clear that immigrant detention could lead to the deaths of many detainees due to the spread of COVID-19, it remains to be seen what measures ICE will take, if any, to protect the health and safety of this vulnerable population.

 

 

We are STILL here for you

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Just a short note to let you know that we are STILL working with you on your immigration matters during the Coronavirus public health emergency.  Although we are not able to see you in person at this time, we are able to work with you by phone calls, video consultations, and communications by email, U.S. mail, and any other ways that we can get the work completed.  We are still actively working on your cases, and we continue to send in applications to USCIS and the Immigration Courts.

If you would like to contact us, please simply give us a phone call at (734) 369-3131, or send us an email to mike@mcarlinlaw.com, and we will be in touch with you right away.  It is our pleasure to continue to provide high quality legal services during this difficult time.  Thank you!

Coronavirus Updates on Immigration

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Over the past few weeks, the spread of the Coronavirus (or COVID-19) has caused major upheaval all around the world. Every facet of life has been impacted in the United States including immigration. President Donald Trump declared a national emergency on March 13, 2020. His complete proclamation can be found here.

One of the measures that President Trump has taken is to suspend entry of all foreign nationals who were present in countries with COVID-19 outbreaks within the prior 14 days including China, Iran, and the Schengen area of Europe. This temporary ban only applies to foreign nationals and does not include lawful permanent residents or U.S. citizens.

In addition, this week, the Executive Office for Immigration Review (EOIR) cancelled all non-detained Master Calendar and Individual Hearings that were scheduled to take place from March 16, 2020 to April 10, 2020. These hearings will be rescheduled for later dates. Detained hearings are still taking place at this time. These measures are being taken to combat the spread of COVID-19, which is spread from person to person through respiratory droplets caused when a person coughs or sneezes. Immigration courts may be filled with hundreds of immigrants, attorneys, staff, and judges daily, and to ensure their safety, limiting the amount of people in each court is a necessary precaution.

According to The Hill, “the delay will affect 68 immigration courts around the country and comes as the immigration courts already face a backlog of about 1 million cases.”

While many immigrants have been waiting for their hearings in courts for several years, the importance of combatting the spread of the virus is of utmost priority.

United States Citizenship and Immigration Services (USCIS) has also suspended all in-person services including biometrics appointments and interviews until at least April 1, 2020.  These appointments and interviews will all be automatically rescheduled for later dates. In special circumstances, USCIS will conduct emergency appointments.

In our own effort to ensure the safety of our clients, we urge clients to schedule phone and video appointments as an alternative to in-person meetings. Our office is still open for clients who wish to drop off documents as well as to sign forms. If you have any questions, please do not hesitate to contact us. We wish you good health and safety in this difficult time.

Supreme Court Hears Free Speech Immigration Case

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Among the eight immigration cases pending at the U.S. Supreme Court is one involving the First Amendment.  On February 25, 2020, the Supreme Court heard oral arguments in U.S. v. Sineneng-Smith, a case involving a federal statute that makes it a crime to encourage or advise immigrants in the country to stay illegally.  The Supreme Court will decide if this federal statute is unconstitutional. A decision is expected by June 30, 2020.

The case stems from a California woman, Evelyn Sineneng-Smith, who ran an immigration consulting business serving Filipino home health care workers.  From 2001 to 2008, she collected more than $3 million from clients applying for an adjustment of their immigration status.  But the particular program Sineneng-Smith was filing under had ended in 2001, so the clients she applied for were not actually eligible.

Sineneng-Smith was convicted of mail fraud and tax violations.  She was also charged with the crime that is at issue in the case at the Supreme Court:  illegally encouraging an alien to remain in the United States.

The legal question in the case is whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain is unconstitutional.

During oral arguments, only Justice Samuel Alito seemed to believe that the government could actually punish anybody who ‘encourages’ undocumented immigration.  “If it could, after all, then political speech defending open borders or opposing deportation might be considered a federal offense.”

Representing the government, Deputy Solicitor General Eric Feigin asserted that the law covers only criminal conduct or ‘solicitation’ of a crime, not mere advocacy or expression.

Justice Sonia Sotomayor asked Feigin how “an average person” could possibly know about “all of the limitations you’re suggesting to us.”

A ruling for the First Amendment right to free speech this case would establish that the government cannot punish people for wanting to help immigrants in need.

Stayed tuned to see what the U.S. Supreme Court ultimately decides in this case.

U.S. Consulates Implementing New Public Charge Rule

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On Monday, February 24, 2020, the U.S. Department of State will implement new policies related to the Trump Administration’s public charge rule.  The new policy is scheduled to go into effect worldwide on February 24, 2020.

Applicants for immigrant visas will now be required to complete an additional form, called the DS-5540.

The U.S. Department of State has also amended the sections of the Foreign Affairs Manual (FAM) relating to the public charge ground of inadmissibility.

The new form asks for the following information regarding the immigrant visa applicant:

  • Whether you currently have health insurance in the United States
  • Whether you will be covered by health insurance in the United States within 30 days of your entry to the United States with your immigrant visa
  • Members of your household and whether they are employed
  • Information regarding your federal tax returns within the last 3 years
  • Your current income
  • Whether you have a job waiting for you in the United States, the name of the employer, and the proposed yearly income
  • Your assets
  • Your debts
  • Public benefits you have received on or after February 24, 2020
  • Your education level
  • Your employment skills

There is at least one lawsuit challenging the U.S. Department of State’s implementation of the public charge rule.  For now, it is required for immigrant visa applicants.

Judge Permanently Blocks DHS Policy Shift on Student Visas

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On February 6, 2020, a federal judge permanently blocked a DHS policy shift regarding persons who entered the United States on student visas and who later fell out of valid status.

Background

Many noncitizens who enter the United States on certain nonimmigrant visas – including F, J, and M student visas – are permitted to remain in the United States for the time during which they are pursuing their educations at accredited schools or engaging in authorized training after the completion of their studies.  When persons with these visas are admitted to the United States, they generally are admitted not for a specific period of time, but rather for the “duration of status.”  When DHS issues an I-94 to these persons, they generally state that they are permitted to remain through “D/S,” which stands for “duration of status.”

Noncitizens who accumulate “unlawful presence” in the United States suffer certain penalties when they depart the United States:  They are prohibited from returning to the United States for either 3 or 10 years, depending on the length of their “unlawful presence” in the United States before they departed.

For more than 20 years, DHS has maintained that persons with F, M, or J visas who fall out of valid status – who stop attending school or who stop authorized training – do not begin to accumulate unlawful presence unless or until a U.S. government official formally determines that they have lost their valid status.

DHS Policy Shift in 2018

DHS announced an abrupt change in this policy in August 2018, by stating that, effective immediately, persons with F, J, or M visas who stop going to school or who stop their training immediately begin to accumulate unlawful presence, without the requirement of any formal determination by a DHS official.

Federal Court Decision

A number of colleges, organizations, and noncitizens filed a federal lawsuit in North Carolina against DHS, asserting two main things:  (1) that DHS’s policy shift was a “rule” change that required that they give advance notice of the proposed change and give the public a chance to provide comments on the proposal, and (2) that the policy shift is unlawful because it conflicts with established immigration laws that Congress has passed.

In May 2019, the court issued a preliminary injunction against the DHS policy shift while the court considered the merits of the case.

On February 6, 2020, the court issued a final decision, agreeing with the colleges, organizations, and noncitizens that the DHS policy shift is unlawful for both reasons described above:  (1) the policy shift was a “rule” that requires the notice-and-comment procedure, and (2) the policy shift conflicts with federal immigration law.  The court permanently blocked DHS from implementing the policy shift against anyone, anywhere in the world.

We will need to wait and see if DHS appeals the court’s decision.  For now, the DHS policy is permanently blocked.

Trump Expands the Travel Ban

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On January 31, 2020, President Trump added six more countries – four in Africa – to the existing travel ban implemented in 2017.  The countries added to the Travel Ban are Nigeria (Africa’s most populous nation), Sudan, Tanzania, Eritrea, Myanmar, and Kyrgyzstan.

Immigrants from Nigeria, Myanmar, Eritrea, and Kyrgyzstan will not be able to obtain immigrant visas to the United States, while immigrants from Tanzania and Sudan will not qualify for the diversity visa lottery.  According to The Hill, “Four of the six affected countries are in Africa and represent 25 percent of the continent’s population.  All six have significant Muslim populations.”

The expansion of the Travel Ban does not affect the issuance of nonimmigrant visas – visas issued for tourists, students, temporary workers, and others.

The United States argues that the travel ban is needed to ensure that countries meet security requirements for travel into the United States.  The Administration has not been able, however, to answer an important question:  If the Travel Ban is to protect U.S. citizens from potential harm, then why does the expanded Travel Ban allow for nonimmigrant visas from the banned countries?

If a person wished to inflict harm upon the United States in some way, would that person choose to apply for an immigrant visa (which involves a much more restrictive and lengthy application process), or a nonimmigrant visa, which is comparatively easier to obtain?  The Administration’s decision to continue issuing nonimmigrant visas to applicants from the newly banned countries directly contradicts the purported justification for the expansion of the Travel Ban – to protect Americans from harm.

This ban will continue to result in separation of U.S. citizens and their families.  Spouses, children, parents, and siblings of U.S. citizens are subject to the ban.  Immigrants who have been waiting months or even years to reunite with their loved ones in the United States will continue to endure longer periods of separation and devastating effects.

Immigrants subject to the ban are able to apply for waivers.  Those waivers, however, are highly discretionary and decided by the U.S. consulates.  According to the Washington Post, since the rollout of the initial travel ban, only 10 percent of waivers have been granted since 2017.

Many advocates and politicians continue to speak out against the travel ban given the administration’s unclear rationale as to why certain countries are added to the list.  Senator Kamala Harris recently stated, “Trump’s travel bans have never been rooted in national security — they’re about discriminating against people of color …They are, without a doubt, rooted in anti-immigrant, white supremacist ideologies.”

The ban is likely to have an effect on the U.S. economy.  According to the New York Times, “A year after the Trump administration announced that a major pillar of its new strategy for Africa was to counter the growing influence of China and Russia by expanding economic ties to the continent, it slammed the door shut on Nigeria, the continent’s biggest economy.”

For Now, Supreme Court Allows USCIS to Use “Public Charge” Rules

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In earlier posts, we discussed the Trump Administration’s proposed new rule about denying permanent resident status to applicants who are considered likely to become a “public charge.”

That new rule was set to take effect on October 15, 2019, but courts issued orders blocking the implementation of the new rule while the cases challenging it were processed.

But on January 27, 2020, by a 5-4 vote, the Supreme Court lifted the injunction.  This means that USCIS may begin using the new rule while it is still being challenged in the courts.  There is one exception:  USCIS may not implement the new rule for green-card applicants in Illinois, because of an ongoing legal challenge in that state.

For now, we don’t know exactly if or how USCIS will begin to implement the new rule.  And it’s important to remember that lawsuits challenging the new rule are still moving forward.  The Supreme Court’s decision on January 27, 2020 simply states that USCIS may use the new rule (except in Illinois) while the lawsuits are pending.

How Will the Supreme Court Rule on DACA?

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As we noted earlier, among the eight immigration cases pending at the Supreme Court is the question of whether the current administration’s attempt to end DACA was legally proper.  The Supreme Court heard oral argument on November 12, 2019.

The case focuses on two questions:  (1) Are the courts even allowed to review the government’s decision to end DACA?  (2) Did the government violate the law in the way that it went about ending DACA?

Are courts able to review the decision to end DACA?

The administration’s first argument is that the courts may not review the decision to end DACA, because that decision was within the federal government’s discretion, and so may not be second-guessed.

One weakness of the government’s argument is that the original justification that the administration provided for ending DACA is that the program was illegal, and so the administration had no choice but to end the illegal program.  Justice Ginsburg pointed out the problem:  on the one hand, the government says that it had the discretion to end the program, while on the other hand, the government says it had no discretion because the program was illegal.

Did the government attempt to end DACA in a lawful way?

Both sides agree that the current administration could end DACA if it chose to do so in a legally proper way – by providing sufficient reasoning behind the decision.

The government’s original justification for ending DACA was a brief memo that stated that the program was illegal, and so it must be ended.  Those supporting the DACA program argue that the government’s original reasons were not sufficient to justify the decision to end the program.

The government later provided an additional memo that attempted to more fully address all of the factors involved, including the reliance of about 700,000 persons who have DACA.  One question that the justices must sort out is, if the DACA program is legal (despite the current administration’s argument that it isn’t), then is the administration’s justification for ending DACA sufficient?

We expect the Supreme Court to issue a decision any time between now and the end of June 2020.