Archive for February 2017

THE LATEST ON IMMIGRATION ENFORCEMENT NATIONWIDE

On February 20, 2017, Department of Homeland Security (DHS) Secretary John Kelly signed two memoranda implementing President Trump’s Executive Orders on immigration enforcement, both at the border and within the United States, thus drastically increasing immigration enforcement nationwide.

Please note that the Memorandum dealing with interior enforcement specifically states that the June 15, 2012 DACA memorandum and the November 20, 2014 DACA+/DAPA memorandum are not rescinded.

Below, is a summary of the portions of each Memoranda having the most severe impact on foreign nationals.

INTERIOR ENFORCEMENT

The Memorandum implementing the Executive Order entitled “Enforcement of the Immigration Laws to Serve the National Interest,” states that the DHS will execute the immigration laws against all removable individuals and will no longer “exempt classes or categories of removable” individuals from enforcement.  In other words – all removable individuals are a priority and subject to deportation.

The Memorandum lists individuals described in:

  • INA § 212(a)(2) – criminal and related inadmissibility grounds;
  • INA § 212(a)(3) – security and related inadmissibility grounds;
  • INA § 212(a)(6)(C) – fraud, misrepresentation inadmissibility grounds;
  • INA § 235(b) – expedited removal of inadmissible “arriving aliens” and other noncitizens apprehended in the interior;
  • INA § 235(c) – expedited removal based on security and related grounds;
  • INA § 237(a)(2) – criminal grounds of removal;
  • INA § 237(a)(4) – security and related grounds of removal
  • Removable aliens who:
    • Have been convicted of any criminal offense;
    • Have been charged with any criminal offense that has not been resolved;
    • Have committed acts that constitute a chargeable criminal offense (includes minor infractions such as jaywalking or driving without a license, and may be applied to undocumented individuals for having committed the chargeable offense of improper entry);
    • Have engaged in fraud or willful misrepresentation in connection with any official matter before a government agency;
    • Have abused any program related to receipt of public benefits (according to the DHS’ FAQ’s, – abuse of a public benefit program includes “those who have knowingly defrauded the government or a public benefit system…”);
    • Are subject to a final order of removal, but have not departed; or
    • Otherwise pose a risk to public safety or national security.

The Memorandum also directs DHS to use their authority to remove individuals expeditiously, through the use of fast-track removal mechanisms for criminals.  Prosecutorial discretion should only be used on a case-by-case basis and that DHS’ should initiate deportation proceedings as opposed to using prosecutorial discretion.  DHS will no longer afford Privacy Act rights and protections to individuals who are not U.S. citizens nor lawful permanent residents.

BORDER ENFORCEMENT

The Memorandum implementing the Executive Order entitled “Border Security and Immigration Enforcement Improvements,” expands the detention of nearly everyone who is apprehended by immigration authorities, including those with no criminal convictions, and expands the expedited removal process which will be detailed in a notice in the Federal Register.

The Memorandum states that DHS will detain nearly everyone it apprehends including those with no criminal convictions, until they:

  • Are removed from the U.S.;
  • Are required to be released by statute or because of a binding settlement agreement or judicial order;
  • Become a U.S. citizen or hold other valid immigrant status;
  • Are found to have a credible fear of persecution by an asylum officer or IJ and agree to comply with any conditions imposed by ICE upon release; or
  • Are paroled into the U.S. (parole must be approved by ICE or CBP, but is not needed in “exigent circumstances such as medical emergencies”).

Since detention of those described above may not be possible immediately, detention will be prioritized based on an individual’s dangerousness and flight risk potential.

The Memorandum also directs immigration authorities to expand expedited removal proceedings which is the removal of individuals in as little as 24 hours without the opportunity to appear before an immigration judge.  Currently, use of expedited removal is limited to undocumented immigrants who are encountered within 100 air miles of the border and within 14 days of entry.  Once details are published in the Federal Register, use of the expedited removal provision will apply to individuals who have been in the U.S. for up to two years and are encountered anywhere in the U.S.

In addition, those noncitizens arriving on land from Mexico and Canada, and placed in removal proceedings, may be returned to Mexico or Canada to wait for their removal proceedings, in lieu of being held in custody.

Parole authority will be used sparingly and only on a case-by-case basis.

DHS has published “Fact Sheets” and “Frequently Asked Questions” regarding the implementation and interpretation of President Trump’s Interior Enforcement and Border Enforcement Executive Orders and may be found at

 

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PRESIDENT TRUMP’S EXECUTIVE ORDER BANNING TRAVEL FOR NATIONALS OF SEVEN MAJORITY-MUSLIM COUNTRIES IS ON HOLD

On February 9, 2017, a three judge panel in the 9th Circuit Court of Appeals unanimously ruled that the injunction ordered by U.S. District Court Judge Robart against President Trump’s Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” remains in effect. Until further action by a court, the order barring implementation of the travel and refugee ban remains in place, and all individuals may apply for visas and admission to the United States without regard to nationality, to include the citizens of seven majority-Muslim countries named in the Executive Order. However, the legal battle is not over, since it is believed that President Trump will pursue further legal action through the court system.

Interpretation and implementation of this Executive Order is constantly changing, not only based on the outcome of various litigation across the country, but also as the result of clarification provided by the various agencies involved.

As a result, we strongly discourage all foreign nationals from any of the seven countries from traveling outside of the U.S. for any reason, to include travel to Canada and/or Mexico. Even short term business trips could result in a bar to entry to the U.S., if the Executive Order is again given effect. As a precaution, lawful permanent residents who are nationals from one of the seven countries should not travel outside the United States, as they may be subjected to significant scrutiny.

We will continue to track any and all new developments regarding President Trump’s Executive Orders on immigration and we will make every effort to provide you with the most up-to-date general information.

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President Trump’s Executive Order Banning Travel for Nationals of Seven Muslim Countries

As many of you may have heard, on Friday, January 27, 2017, President Trump issued an Executive Order stating that foreign nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen may not enter the U.S. for at least 90 days; refugees from Iran, Iraq, Libya, Somalia, Sudan and Yemen may not enter the U.S. for at least 120 days; and refugees from Syria may not enter the U.S. until further notice. Those who hold a visa to the U.S. may not use it, and new visas cannot be issued. However, this has been subject to various agency actions as well as Federal Court actions.

At first, the government said this ban includes lawful permanent residents or “green card” holders. On Sunday, January 29, 2017, the government clarified that lawful permanent residents would be allowed to return to the U.S. unless they receive “significant derogatory information indicating a serious threat to public safety and welfare.”

On February 2, 2017, the Department of State confirmed that travel for “dual nationals from any country with a valid U.S. visa in a passport of an unrestricted country” is not restricted. We strongly suggest that dual nationals traveling to the U.S. present only unrestricted passports.

In addition, on February 2, 2017, the U.S. Customs and Border Protection, in their “Frequently Asked Questions,” state that “[t]he entry of Iraqi nationals with a valid Special Immigrant Visa to the U.S. is deemed to be in the national interest and such individuals can apply for admission to the United States, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare…”

Individuals already in the U.S. from one of the seven countries with valid visas are permitted to remain, provided they do not violate the laws of the U.S. There is no indication that they would be prevented from changing or extending status.

As a consequence of Present Trump’s Executive Order banning travel for nationals of seven Muslim countries, various individuals, states and organizations have filed federal law suits around the country. In particular, on February 3, 2017, U.S. District Senior Judge James Robart, in Seattle, Washington issued a nationwide temporary restraining order, prohibiting the federal government from enforcing the Muslim travel ban restrictions contained in President Trump’s January 27, 2017 Executive Order. The Ninth Circuit Court of Appeals denied the Department of Justice’s request for an immediate stay of Judge Robart’s restraining order, and has ordered briefs to be filed. It is anticipated that the Ninth Circuit will issue a decision in the very near future, and that the case may reach the Supreme Court. Other courts have issued similar rulings.

As a result, currently there appear to be no formal travel restrictions on immigrants, nonimmigrants, and refugees from any of the impacted countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen). Provisionally revoked visas have been reversed and are valid for travel, provided the holder is otherwise eligible. Those who arrived after the Executive Order was issued and had their visas physically cancelled as a result of the Executive Order will not need to apply for a new visa, and absent any other issues will receive a waiver upon their arrival to the United States. There have been reports of delays upon on arrival to the United States, but this does not appear to be the standard.

Further, U.S. Citizenship and Immigration Services has confirmed that it continues to adjudicate filed cases normally, to include those individuals from any of the impacted countries. There have been unofficial reports of delays.

Interpretation and implementation of this Executive Order is constantly changing, not only based on the outcome of various litigation, but also as the result of clarification provided by the various agencies involved.

As a result, we strongly discourage all foreign nationals from any of the seven countries from traveling outside of the U.S. for any reason, to include travel to Canada and/or Mexico. Even short term business trips could result in a bar to entry to the U.S., if the Executive Order is again given effect. As a precaution, lawful permanent residents who are nationals from one of the seven countries should not travel outside the United States, as they may be subjected to significant scrutiny.

We will track any and all new developments and we will make every effort to update the information contained in our blog so that you have the most up-to-date general information.

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