Category Archives: Immigration

What Does Judge Robarts’ TRO Regarding Trump’s “Muslim Ban” Executive Order Actually Do?

A federal judge’s February 3 ruling in Seattle, Washington, responding to an emergency motion brought by Washington State, issued a Temporary Restraining Order invalidating key parts of President Trump’s executive order entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals.”

The judge’s order applies nationwide and is still in effect as of February 15, due to followup action by the federal Ninth Circuit Court of Appeals. How much of Trump’s order is actually undone by this, and how long the effect will last, is worth a closer look.

First, let’s understand the nature of a TRO. As its name implies, it’s temporary. It just puts a hold on things, maintaining the status quo (pre-executive order), until further court hearings can be held. So it’s not a final decision, and could later be reversed.

Nevertheless, a TRO points in the direction of how a court might treat the subject at hand, due to the list of items that must be proven before the court issues it. These include:

  • That the plaintiff is eventually likely to succeed on the merits (the main substance) of the case.
  • That the plaintiff is likely to suffer irreparable harm if the TRO is not granted.
  • That the balance of equities tips in favor of the plaintiff, and
  • That the TRO is in the public interest.

These raise the question of who is the “plaintiff” in this case. Technically speaking, it’s the states of Washington and Minnesota. Because a state is essentially a caretaker of its residents, it can take legal action to protect their interests. In this case, the two states alleged that the executive order adversely affected their residents in matters of employment, education, business, family relations, and freedom to travel.

But they didn’t stop there. The two states also alleged that they themselves were harmed by the damage Trump’s order inflicted on the operations and missions of their public universities and other institutions of higher learning, as well as the states’ operations, tax basis, and public funds.

The Washington court agreed, and issued the TRO “until such time as the court can hear and decide the states’ request for a preliminary injunction.”

Now, as to which parts of the order were affected. It covered sections 3(c), and 5(a), (b), (c), and (e). That means that:

  • The 90-day ban on people entering the U.S. on immigrant or nonimmigrant visas from certain countries (all Muslim-majority) contained in Section 3(c) is now blocked.
  • The 120-day suspension of the refugee admissions program contained in Section 5(a) is now blocked.
  • The prioritizing of refugee claims based on religious persecution where the religion is a minority in the refugee applicant’s country of nationality contained in Section 5(b) (most likely to favor Christians in the countries where refugees are now coming from) is now blocked.
  • The indefinite ban on Syrian refugees contained in Section 5(c) is now blocked.
  • The order that refugees may still be admitted on a case-by-case basis but only if their entry is in the U.S. interest, in particular where the person is a religious minority in the country of nationality facing religious persecution, the person would enable the U.S. to conform its conduct to a preexisting international agreements, or the person is already in transit and denying admission would cause undue hardship, all contained Section 5(e), is now blocked.

Some sections of Trump’s executive order will remain in force. For example, refugee admissions are still limited to 50,000 total in fiscal year 2017.  (It’s within the president’s power to set such a limit.)

And a section requiring all visa applicants to attend an interview (instead of benefiting from a waiver) remains in force as well.

Nevertheless, the substantive and discriminatory parts of the order have largely been gutted–for now.

Trump’s Executive Orders a Slap at Bush-Era Enhancements to Visa Security?

Donald J. Trump stated, in the introductory material to his January 27, 2017 Executive Order on “Protecting the Nation From Foreign Terrorist Entry Into the United States,” that “while the visa-issuance process was reviewed and amended after the September 11 attacks . . . these measures did not stop attacks by foreign nationals who were admitted to the United States.”

The order doesn’t mention which attacks Trump thinks could have been prevented, but here’s a handy article on “How Many Terrorist Attacks in the U.S. Have Been Carried Out by Immigrants from the 7 Banned Muslim Countries?”.

The Executive Order goes on to call for a “uniform screening standard,” suggesting that Trump and his advisers think that what’s already in place is haphazard at best.

Interesting, given that at the time, the changes to visa screening procedures were considered so severe that some worried they were causing a decline in travel to the United States and “hurt businesses by straining relationships with customers and hindering opportunities for new business.”

Let’s take a look back at what new immigrant-screening measures were implemented after September 11, initially by President George W. Bush and then followed up on or adjusted by President Obama:

  • Creation of the Department of Homeland Security (DHS), which brought together 22 separate agencies, including all immigration and border-related ones, into a single, Cabinet-level department.
  • Requirement that airlines send passenger lists in advance of flights, for review by the Transportation Security Administration (TSA). (See Aviation Security.)
  • More scrutiny of fingerprints, names, and other records before approval for visas for tourists, business visitors, students, and others, thus adding 50 days to visa approval times in many cases.
  • Creation of machine-readable, tamper-proof visas.
  • Enhanced use of technology and data sharing between federal agencies.
  • Requirement that all visa applicants from certain countries undergo an in-person interview at a U.S. embassy or consulate before visa approval.
  • Additional training of U.S. consular officers who review visa applications to help them identify fraud and terrorist links.
  • Increased visa fees.
  • Creation of US-VISIT, a program that captures biometric data from foreign nationals both at visa-issuing U.S. consulates and embassies and at U.S. ports of entry. (It’s now called “Office of Biometric Identity Management.”)
  • Implementation of the SEVIS database, an online tracking system under which schools are made responsible for tracking foreign students enrolled there.
  • Implementation of the Alien Absconder Initiative, which involved interviewing non-citizen men from “MASA” (Muslim, Arab, and South Asian) countries.
  • Creation of the NSEERS (National Security Entry-Exit Registration System) special registration program), under which adult males from 25 predominately Muslim countries were required to register and be fingerprinted and photographed at ports of entry or present themselves at immigration offices inside the U.S. for fingerprints and photographs. This was later ended.
  • Other changes that were not publicly disclosed.

This information was compiled from various resources, such as an American Bar Association Article on “9/11 and Immigration Law and Policy,” and this DHS report on Implementing 9/11 Commission Recommendations.

And although it’s a long list, I may have missed a few. One wouldn’t think that one Republican president would so easily forget or dismiss such significant efforts by another. But then, a list of forgotten lessons of history would be even longer than the list above.

How Many Green Cards Were Misdelivered?!

green cardThe title of the recent report from the U.S. Office of the Inspector General says it all: “Better Safeguards Are Needed in USCIS Green Card Issuance.”

According to the OIG’s findings, U.S. Citizenship and Immigration Services (USCIS) “continues to struggle to ensure proper Green Card issuance.”

Among other problems over the last three years, USCIS made mistakes on, or produced duplicate versions of, at least 19,000 cards. What’s more, the agency received over 200,000 reports from approved applicants saying that their cards went missing before they got them–in many cases, because the cards were sent to the wrong address.

The latter problem isn’t always USCIS’s fault. However, the OIG found that the number of misdelivered green cards could be reduced if the process for updating one’s address with USCIS were easier.

Do these problems affect only the immigrants awaiting a valid green card? Not if you’re, say, an employer waiting to hire a recent immigrant, or a concerned citizen wondering about whose house that misdirected green card actually went to!

If you are an immigrant and USCIS made an error on your green card, see Mistake on Your Green Card: Who Pays the Replacement Fee? for tips on getting a free replacement. And if you’re awaiting your green card, and plan to move, be sure to either submit your change of address online, call USCIS’s customer service number, 800-375-5283, or complete Form AR-11 (available at www.uscis.gov/ar-11) and mail it to the address listed on the form.

If Obama Was “Deporter in Chief,” What Will Trump Be?

10year92_lgDuring President-Elect Donald Trump’s November 13, 2016 “60 Minutes” interview, he vowed to immediately deport up to three million immigrants. According to him, the U.S. needs to remove people who “are criminal and have criminal records, gang members, drug dealers.”

It sounds like a bold plan—but is it different from existing policy?

During President Barack Obama’s eight years in office, he earned the nickname “Deporter in Chief” from various immigration advocacy groups. His administration reportedly deported more than 2.5 million people from the United States.

And that doesn’t count the million-plus undocumented people who left the U.S. voluntarily or “self-deported” in recent years—in the case of Mexico, numbers that a Pew report said were higher than the number entering, as of late 2015.

And who, exactly, was tops on the list for the Obama administration’s deportation efforts? You can read the list yourself, in a 2011 memo by the Director of U.S. Immigration and Customs Enforcement (ICE).

The memo explains that ICE’s top enforcement priorities (given that the agency lacks the resources with which to deport or remove every undocumented or otherwise deportable immigrant in the United States) include:

  • individuals who pose a clear risk to national security
  • serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind
  • known gang members or other individuals who pose a clear danger to public safety, and
  • individuals with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.

Sound familiar? But according to Donald Trump, there are still three million criminals who haven’t been deported. Except that his numbers don’t seem to have a verifiable source. According to a 2015 study from the Migration Policy Institute, there are a mere 300,000 first-priority undocumented felons in the U.S. and 390,000 “serious misdemeanants.”

It’s little wonder that immigrants’ rights groups are raising concerns that Trump’s intention is to create a pretext with which to justify massive deportations regardless of criminal backgrounds.

Does a Child Whose Parent Might Be Deported Experience Less Hardship Upon Turning 21?

Length of rope almost broken

A widely misunderstood portion of U.S. immigration law called “cancellation of removal” allows an immigration court judge to grant a green card to (instead of ordering deportation for) someone with no status in the U.S. who:

  • has been living in the U.S. continuously for at least ten years
  • has been a person of good moral character all that time
  • has not been convicted of any of various criminal offenses, and
  • who demonstrates to the satisfaction of the court that his or her removal would cause exceptional and extremely unusual hardship to the person’s spouse, parent, or child who is a citizen or lawful permanent resident of the U.S.

This is not an “amnesty.” Nor is it a remedy that immigrants can proactively apply for. It is simply a last-ditch defense for someone who finds him- or herself in removal proceedings, and whose U.S. citizen or green-card holding relatives would suffer greatly if he or she were removed from the United States.

Of course, anyone whose family member is about to be deported is (assuming their last argument wasn’t a doozy) likely to suffer emotionally. But the law requires more: It demands a showing of “exceptional and extremely unusual hardship,” which is a significant step up.

The classic example—and the first thing a lawyer representing someone with a potential case for cancellation of removal asks about—is when the U.S. citizen or green card holder has medical problems and relies on the soon-to-be-deported spouse or parent for some form of support.

Let’s say, for instance, that the U.S. citizen child is developmentally delayed, and requires help from the non-citizen parent with daily life tasks and basic coping. That might be grounds for cancellation . . . for as long as the child remains a child. Just how long is that? According to U.S. immigration law, childhood ends at age 21. One might query whether the hardship just disappears at age 21, but the law is written quite clearly, and can’t be changed except by the U.S. Congress.

Any possible unfairness will, however, be compounded by current long delays in the immigration courts. Due to understaffing and the added burden placed by the Central American migration crisis, many cases wait years before they’re heard by an immigration court judge. The odds that a child will turn 21 during this time are higher than ever, leading to a lot of unhappy birthdays.

This has led lawyers to attempt to argue that the child’s age should be considered as of the date the application for removal is submitted, rather than the date the judge makes a decision. Such an argument was, however, recently shot down by the federal Ninth Circuit court, in the case of Mendez-Garcia v. Lynch, 10/20/16.) The court upheld a decision by the Board of Immigration Appeals (B.I.A.), which said in essence that the application for removal is a “continuing” one, in which any new facts relevant to hardship (such as the birth of a child) must be taken into account—so that a child turning 21 cannot be ignored.

The facts of the Mendez-Garcia case actually weren’t very sympathetic. Mr. Mendez Garcia had some criminal activity on his record, and hadn’t done much to ensure that his case got through the immigration court system quickly. Immigrant advocates are no doubt wishing that the court had a more sympathetic case before it.

Until such a case comes along and provides cause for a rethinking of the Ninth Circuit court’s interpretation, however, anyone pursuing a case for cancellation of removal and relying on a U.S. teenager as a basis for a hardship finding would do best to talk to a lawyer right away. The lawyer might be able to request expedited hearings and avoid the problem altogether.