NEW MEMORANDUMS HAVE SERIOUS CONSEQUENCES FOR UNDOCUMENTED IMMIGRANTS
On Tuesday, February 21st, 2017 two (2) guidance memorandums were signed by Homeland Security Secretary John Kelly implementing the President's Executive Orders on immigration enforcement. The new memos direct the Department of Homeland Security (DHS) to escalate immigration enforcement nationwide. The memos reveal that DHS intends to take a much more "enforcement-oriented" position with regard to U.S. Immigration law.
How do these memorandums affect foreign nationals?
1. AN END TO LONG-STANDING PROTECTIONS FOR CHILDREN. DHS intends to strip many children arriving alone at our border of basic protections and to penalize their parents for seeking to reunite with their children in the United States. DHS will do this by narrowing the definition of "unaccompanied alien child" in order to limit those protections and by launching either civil or criminal enforcement against the parents.
2. A MASSIVE EXPANSION OF DETENTION. The memos contemplate a massive expansion of detention, including a requirement that DHS officers detain nearly everyone they apprehend at or near the border. This detention space expansion will benefit the private prison industry-means that children, families, and other vulnerable groups seeking protection in the United States will end up detained, at great financial and human cost.
3. PROSECUTION PRIORITIES AND DISCRETION ARE GONE. The new memos rescind earlier policies on whom to prosecute and deport and whom to de-prioritize because they pose no threat to our communities. The new enforcement priorities are extremely broad and cover nearly all undocumented individuals in the United States. In fact, they even include individuals simply charged or suspected of having committed crimes.
4. CREATION OF A DEPORTATION FORCE. The memos order the hiring of 5,000 additional Customs and Border Protection (CBP) agents and 10,000 additional Immigration and Customs Enforcement (ICE) agents. They direct a massive expansion of 287(g)-a provision that allows DHS to deputize State and Local law enforcement officers to perform the functions of immigration agents. The memos reinstate Secure Communities [terminating the Priority Enforcement Program (PEP), which targeted only criminal foreign nationals or individuals who had an outstanding order of removal/deportation], which expand the ways in which local police collaborate with ICE.
5. PLANS TO BYPASS IMMIGRATION COURTS AND SHORT-CIRCUIT DUE PROCESS. The memos indicate that many people in the interior of the country - not just those at the border - could be subject to expedited removal or expedited deportation without going before an immigration law judge, the details of which DHS said will be forthcoming in a notice in the Federal Register. This expansion of "expedited removal," will allow the government to bypass the backlogged immigration courts in order to remove or deport people rapidly and with little-to-no due process.
FEDERAL JUDGE IN VIRGINIA SUSPEND THE APPLICATION OF TRUMP'S EXECUTIVE ORDER TARGETING PREDOMINANTLY MUSLIM COUNTRIES
On February 13, 2017, U.S. District Judge Leonie Brinkema granted a preliminary injunction barring the Trump administration from implementing its travel ban in the State of Virginia. This ruling comes after other restraining orders imposed by federal judges across the U.S. The ruling is significant from a legal standpoint because the Judge found an unconstitutional religious bias is at the heart of the travel ban, and therefore violates First Amendment prohibitions on favoring one religion over another.
In her 22-page ruling, Brinkema writes that Trump's promises, during the campaign to implement what came to be known as a "Muslim ban," provide evidence that the current executive order unconstitutionally targets Muslims.
"The president himself acknowledged the conceptual link between a Muslim ban and the EO (executive order)," Brinkema wrote. She also cited news accounts that Trump’s adviser Rudy Giuliani said the executive order is an effort to find a legal way for Trump to be able to impose his Muslim ban.
This ruling differs from others insofar as this order is a permanent injunction rather than the temporary restraining order issued in other courts and in the Washington state case. Nevertheless, this injunction is limited in scope and it applies solely to the State of Virginia and does not cover the portion of the executive order directed at refugees.
ICE RAIDS IN CALIFORNIA: 100 ARRESTED
Last night, Immigration Customs Enforcement (ICE) carried out raids throughout the State of California.
The targets were foreign nationals with outstanding removal/deportation orders and criminal records. ICE took into custody about 100 foreign nationals.
Rumor has it that President Trump will add the following countries to the immigration ban purproted by his Executive Order: Egypt, Lebanon, Afghanistan, Pakistan, Colombia, Venezuela, Philippines, Mali, and Indonesia.
This rumor is not confirmed! It is advisable to speak with an experienced immigration lawyer before traveling in-and-out of the U.S.
DEPARTMENT OF STATE REVOKES ALL IMMIGRANT AND NON-IMMIGRANT VISAS FOR FOREIGN NATIONALS OF THE 7 COUNTRIES
The State Department, upon request and advice of the Department of Homeland Security, has revoked all visas from the affected countries BOTH immigrant and non-immigrant visas.
THE CALIFORNIA DISTRICT COURT SUSPENDED THE REVOCATION OF IMMIGRANT VISA
The California District Court issued a decision last night, February 1st, suspending the revocation of immigrant visas pursuant to Trump's Executive Ban. This decision should be considered a National Order as it applied to President Trump and his agents.
THE NATIONAL VISA CENTER PROVIDES GUIDANCE ON CANCELLATION OF IMMIGRANT VISA INTERVIEWS PURSUANT TO THE RECENT EXECUTIVE ORDERS
The National Visa Center (NVC) announced that Department of State (DOS) has temporarily stopped processing immigrant visa applications for individuals who are nationals or dual nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen, pursuant to President Trump's January 27, 2017, Executive Order. The NVC has cancelled all immigrant visa interviews for these applicants that were scheduled for February 2017. In related news, the DOS Visa Office has confirmed with the American Immigration Lawyers' Association that the majority of interview waiver cases—specifically, cases covered by INA §222(h)(1)(A) and (B)—are still eligible to receive interview waivers.
DHS Reviews the Validity of the Executive Order
The Department of Homeland Security is reviewing the validity of the Executive Order. The review has been initiated in response to congressional request and whistleblower and hotlines complaints.
ARE ISRAELIS WHO WERE BORN IN THE DESIGNATED 7 COUNTRIES BANNED FROM ENTERING THE US?
The State Department said that the Ban does not apply if the Israelis do not have a valid passport from one of these countries or are not declaring themselves as nationals of these 7 countries. Most of these Israelis left due to persecution and do not have valid passports and are not claiming to be nationals . On the other hand, if an Israeli has 2 passports, one from Iraq and the other from Israel, then he would be subject to the Ban. So not all Israeli Citizens born in one of the 7 countries are exempt from the Ban.
FALLOUT OF TRUMP'S EXECUTIVE ORDER 'PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES
Since Friday Evening January 27th, nationals of the 7 designated countries (Iran, Iraq, Libya, Sudan, Somalia, Syria & Yemen) have been either (1)denied entry to the US, (2) had visa approvals revoked, (3) had visa interviews cancelled and (4) have been detained for long hours at the airport. This has provoked outcry from foreign nationals, immigration advocates and lawyers, which was promulgated through protests and lawsuit.
For the benefit of our clients and all foreign nationals affected by this order we have written an analysis of the order, its implications and the continuing developments within the immigration realm. We shall strive to keep this document up to date as the situation develops.
WHAT DOES TRUMP’S EXECUTIVE ORDER REALLY SAY?
Trump’s Executive Order states that all immigrants (Legal Permanent Residents, Refugees, Dual Nationals) and nonimmigrants (ESTA, B1/B2, F-1, H-1B, L, P, R, E, I etc. visa holders) cannot be admitted and/or renter the U.S. if they come from the 7 designated countries unless an exemption applies that applies to the US National Interest.
WHEN DID DHS START IMPLEMENTING THE ORDER?
According to the American Immigration Lawyer’s Association on the evening of January 27, 2017, all U.S. Embassies and Consular Posts were instructed to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. A, G, NATO, C-2 and C-3 visas are exempt from the suspension. In addition, contractors have been instructed to cancel visa interviews for affected individuals.
The U.S. Embassy in Khartoum, Sudan, stated in an email to a foreign national the following: “President Trump signed an Executive Order on January 27, 2017 temporarily suspending entry into the United States of foreign nationals from seven countries under section 212(f) of the Immigration and Nationality Act. The Executive Order imposes on nationals of certain designated countries a 90-day bar on entry into the United States. This bar also includes a 90-day prohibition on visa issuance. These countries, as designated by Congress or the Secretary of Homeland Security, are: Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen. Beginning January 27, 2017, travelers who have nationality or dual nationality of one of these countries will not be permitted for 90 days to enter the United States or be issued an immigrant or nonimmigrant visa. This executive order applies to all nationals of the above list regardless of the location of the interview or visa issuance. Those nationals or dual nationals holding valid immigrant or nonimmigrant visas will not be permitted to enter the United States during this period. If you are a national, or dual national, of one of these countries, please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please DO NOT ATTEND your appointment as we will not be able to proceed with your visa interview. Immigrant or nonimmigrant visas will not be issued or printed for applicants who have previously interviewed. Additionally, as such travelers will not be admitted to the United States under the Executive Order, and at the request of the Department of Homeland Security, the Department of State is provisionally revoking valid visas previously issued to any affected nationals. Lawful Permanent Residents (green card holder) who are nationals of or hold dual nationality with a specified country also prohibited from entering the United States during this period should take notice of the travel bar and refer to the Department of Homeland Security and U.S. government websites as additional guidance becomes available. American citizen travel is not affected by this executive order.”
WHAT HAPPENED AFTER THE EXECUTIVE ORDER WAS PUBLISHED?
In one word: mayhem.
1. The Department of Homeland Security’s Response: Custom Border Protection Officers (CBP) immediately stopped admitting or allowing to re-enter any individual who was a national or citizen of one of the 7 designated countries. All visa interviews at US Embassies and Consulates were cancelled. As of January 30, 2017, immigration attorneys have been informed that United States and Immigration Services (USCIS) stopped adjudicating all the applications that are filed with forms starting with I; i.e. I-130. The forms denominated with the initial letter N are not affected; i.e. N-400, Application for Naturalization. The Chicago Asylum Office also indicated that forms I-589, Application for Asylum, are still being processed.
2. CBP strongly ‘suggested’ to Legal Permanent Residents (LPR) from the designated 7 countries to sign Form I-407, Record of Abandonment of Lawful Permanent Resident Status. LPRs should refuse to sign Form I-407 and instead demand that CBP allow their entry into the US as Green Card holders or serve them with a Notice to Appear (NTA) in front of the Immigration Judge. It is also important to note that LPRs, who have or plan to sign Form I-407, at a Port of Entry (international airport or land border) might trigger the exit tax even if the abandonment is subsequently reversed.
3. Immigration Attorneys across the U.S. successfully challenged the detention of LPRs by filing Habeus Corpus with local courts.
4. Certain Federal Courts issued an Order Restraining part of the Executive order:
a. New York City, New York: A federal judge in the Eastern District of New York issued the first order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO;
b. Boston, Massachusetts: Attorneys went into Federal District Court in Boston to seek an emergency Temporary Restraining Order (TRO). The TRO was to immediately prohibit CBP officials from detaining or removing travelers entering the U.S. at Boston's Logan Airport who have a lawful right to enter the United States. This includes citizens, lawful permanent residents, visa holders, approved refugees and other individuals specified in the President's January 27, 2017 Executive Order, who are likely to suffer irreparable harm if they are not allowed into the U.S. Shortly after 2:00 am on Sunday, the United States District Court for the District of Massachusetts granted the relief requested by issuing a 7-day TRO with immediate effect. Among other things, the order requires CBP to notify airlines, with flights arriving into Logan Airport, that CBP officers will not detain or return individuals based solely on the Executive Order. And on Sunday evening, DHS finally agreed to admit LPRs from these countries on a case-by-case basis;
c. Alexandria, Virginia: the court ordered federal officials to provide lawyers access to "all legal permanent residents being detained at Dulles International Airport" and barred officials from deporting covered individuals for the next seven days.
It is important to note that DHS is not uniformly complying with these court orders and similar orders that have been issued in a handful of other states.
5. On Sunday January 29, the White House back tracked and announced that LPR and Dual Nationals will not be barred from entering the US & the Department of Homeland Security’s issued two statements in response to the Court Orders:
a. “Upon issuance of the court orders yesterday, U.S. Customs and CBP immediately began taking steps to comply with the orders. Concurrently, the Department of Homeland Security continues to work with our partners in the Departments of Justice and State to implement President Trump’s executive order on protecting the nation from foreign terrorist entry into the United States. We are committed to ensuring that all individuals affected by the executive orders, including those affected by the court orders, are being provided all rights afforded under the law. We are also working closely with airline partners to prevent travelers who would not be granted entry under the executive orders from boarding international flights to the U.S.”
b. “The entry of lawful permanent residents (green card holders) is deemed to be in the public interest and absent the receipt of “significant derogatory information…, LPR status will be a dispositive factor in [the] case-by-case determinations.”
ARE DUAL NATIONALS ALLOWED TO TRAVEL TO THE U.S.?
There has been official “clarification” from the White House that the Executive Order will not apply to dual nationals. This past weekend (January 27 to January 29) while implementing the EO several statements were released by US Embassies and Pre-Clearance CBP Directors:
1.U.S. Embassy in London: over the weekend it posted on its website that dual nationals of the 7 designated countries, who are also UK citizens, were not allowed to travel to the U.S. and all nonimmigrant and immigrant visa processing had been halted. This statement contradicted UK Foreign Secretary Borris Johnson, who assured the British Parliament that the UK Government had received full assurances from the US Government and the US Embassy that British passport holders, regardless of possible dual nationality, would be fully welcomed in the US and NOT impacted by the recent Executive Orders. On January 29, 2016, the US Embassy in London released this statement:
“Dual nationals of the United Kingdom and one of these countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa. Additionally, those who have indefinite leave to remain in the United Kingdom and hold nationality of one of these countries are eligible to apply for U.S. visas…..”https://uk.usembassy.gov/updated-guidance-executive-order-protecting-nation-terrorist-attacks-foreign-nationals/
2. The CBP Port Director at Abu Dhabi confirmed the following:
a) County of passport issuance on which you are traveling should be controlling: If an individual has a valid passport, that is not from one of the 7 identified countries, and also has a valid visa - CBP Abu Dhabi is letting them through, regardless of where the person was born.
Example A: UK Citizen, born in Tehran, traveling to the US on a UK passport with a valid H-1B visa stamp. Individual should be admitted.
He further confirmed that even if an individual may have a claim to citizenship in one of the 7 countries, but that this may not be facially obvious on the passport and/or visa documents, again - provided that the person has a valid US visa and is traveling on a passport that was not issued by one of the 7 countries, the person should be admitted - in other words, CBP is not doing much digging in these instances to identify citizenship claims of one of the 7 countries.
Example B: UK Citizen, born in the UK, but has a claim/right to citizenship in one of the 7 countries through derivative status - i.e. parents born there - this person should be admitted based upon the fact that they have valid visa and are traveling on a valid passport not issued by one of the 7 countries.
b) LPRs: Confirmed that CBP Abu Dhabi is admitting LPRs even if they are born in one of the 7 countries or may have a claim to citizenship in one of the 7 countries.
c) Visa Waiver/ESTA: Confirmed officers are reviewing passport stamps for ESTA travelers as usual.
3. As of January 30, 2017, DHS posted an update declaring the ban will only apply if a foreign national travels with a passport from one of the 7 countries. https://www.dhs.gov/news/2017/01/29/protecting-nation-foreign-terrorist-entry-united-states
DOES THE EXECUTIVE ORDER TACKLE OTHER ISSUES THAT ARE PERTINENT TO ALL FOREIGN NATIONALS?
Section 4 of the Executive order directs DOS, DHS, Director of National Intelligence and FBI to implement as part of “the adjudication process for immigration benefits,” a program that will identify anyone entering on fraudulent basis with intent to harm or who are at risk of causing harm after admission.
It is to include a number of uniform procedures:
1. In person interview;
2. Database of docs to be sure duplicates are not used by multiple persons;
3. Amended application forms to ferret out fraud and intent to harm;
4. A mechanism to insure the applicant is who he says he is;
5. A process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and applicant’s ability to make contributions to the national interest; and
6. A mechanism to assess whether the applicant has the intent to commit criminal or terrorist acts after entering the US.
It is hard to foretell how a form will aid government officials determine fraud/intent to harm and how to create a ‘mechanism’ that will assess the foreign national’s intent to commit crimes or acts of terrorism. It is uncertain how criteria n. 5 can be imposed on visa applicants or petitioners without Congressional Action or the standard regulatory process for the issuance of new regulations. In addition, adopting the term “contributions to the national interest” references a substantive part of immigration law, pursuant to the Employment Based Category 2 (EB-2), which has generated hundreds of cases, appeals and detailed articles by many experts in the field.
WHAT ADVISE AND FUNDAMENTAL RIGHTS ARE AVAILABLE TO MIGRANTS AND REFUGEES FROM THE 7 DESIGNATED COUNTRIES?
· If you are already in the U.S. do not leave!
· If you are arriving at a U.S. Port and are denied entry, remember that you have rights and ask to speak to a lawyer. Sometimes officers may ask you uncomfortable questions to assess if you support terrorism or the establishment of a Sharia Law in the U.S. CBP may also want to know if you have travelled to your home country after being granted asylum or refugee status;
· If you are a Legal Permanent Resident you have certain rights:
o Upon entry to the US CBP will check if you were absent for more than 6 months. In addition, CBP will ask questions to assess whether you have abandoned your U.S. residency. It is important to demonstrate permanent ties to the US; i.e. job letter, payment stubs, federal tax returns, deeds of real property, family etc.;
o CBP is likely to scrutinize your Facebook and other social media to make sure you do not pose a threat. They may insist that you give up your green card by signing form I-407. Under no circumstances sign this form without consulting an immigration attorney. This is because you are entitled to argue in front of an immigration judge, with assistance of counsel, that you did not relinquish permanent residency in the US;
o You have a right to speak with an Immigration Attorney. You should travel with Form G-28, Notice of Entry of Appearance for Attorney or Legal Representative, with your attorney’s information and signature.
The American Immigration Lawyers’ Association (AILA): urged travellers to please use caution of course as we know this is not an absolute guarantee of the way in which travelers may be treated and can change at any time.
CALL OUR OFFICE AT 617-536-0584 BEFORE TRAVELING ABROAD