Those who are affected by American immigration policies have deeply suffered since Trump entered office in 2017. Sudden reforms, executive orders, and memos have made it nearly impossible for immigration agencies to be successful in their vital work. Though this was certainly expected given the focus President Trump placed on immigration during his campaign, it was nonetheless disheartening for those who wished to come to the United States. The U.S. should always be a beacon of hope for those who wish to immigrate; President Trump changed this.

Now, there is cautious optimism among experts that the damage done in the past four years will be remedied by President-Elect Biden, though we can expect it to take time. Simply undoing policies put in place by President Trump without well thought out replacements would be unwise. The Biden Administration must work out effective policies to begin healing the damage done to immigration. Additionally, the COVID-19 pandemic requires immediate action to prevent further lives from being lost.

Let us examine the actions President Biden could take in the short-term regarding immigration. These issues include the removal of the current ban on travel from predominantly Muslim countries, reforming the asylum-seeking process, increasing the cap on admitting refugees, preserving and expanding DACA, scaling back the aggressiveness of ICE agents, and removing the “Public Charge” policy.

In his first week of office, President Trump issued the first edition of the “Travel Ban.” Two variations and several legal challenges later, a travel ban still exists for thirteen countries, affecting them to various degrees. Regardless of what the ban was called (as it was initially called a Muslim Travel Ban, then the language was changed to not sound as harsh), it is aimed at predominately Muslim countries. While this three year-long ban has been problematic, it can potentially be reversed by the new president. All versions of the ban have come through executive order; President- Elect Biden would be able to issue a new executive order overriding the one that implemented the ban. He may then direct the Department of Justice to cease defending the ban in court. This would reopen immigration channels for potential immigrants with the possibility of long-term permanent status.

Coming to the United States and seeking asylum has been a right for those meeting the proper criteria: they must demonstrate a credible fear of persecution or torture that would result if they were to return to their native country. Under the Trump Administration, this process has been crippled. Currently, there are tens of thousands of asylum seekers forced to wait in Mexico for a chance to enter the US. Many of the inhumane practices the Trump Administration attempted to put into place were struck down in the court system. However, asylum overall has largely become out of reach due to the policies pushed through our legal system. In addition, there is currently a restriction on how many asylum seekers are allowed to cross the border each day. This could be undone by instructing US Customs and Border Protection commissioner to issue a memo to those in charge at the ports of entry removing the restriction.

Similarly, the Trump Administration has severely lowered the admission of refugees, calling them “national security threats” and “drains on the US economy.” Early into his presidency, Mr. Trump whittled the number of refugees allowed from 110,000 down to 50,000. He continued to lower this number each year, resulting in it now sitting at just 15,000. While it is common practice for presidents to set the limit for the number of refugees in the fall, right before the start of a new fiscal year, President-Elect Biden could potentially follow Mr. Trump’s lead and set a new limit for refugees early in his presidency through an executive order. Mr. Biden has already pledged to increase the admission target to 125,000.

President Trump made the Deferred Action for Childhood Arrivals, or DACA, program one of his major targets, though his attempts to dismantle it ultimately failed in the Supreme Court. The court’s decision, however, still left a path to end the program, as while they disagreed with the manner in which the program was ended, they also did not protect it. Therefore, unless President-Elect Biden secures DACA long-term, it may still be endangered in the future. In the short term, Mr. Biden can issue a new memo removing the 2017 order to end the program. In the long run, the program should be expanded to include those who were unable to apply for the program during the ongoing legal battle. Additionally, there is pressure for Mr. Biden to expand the number of people who qualify for DACA and give them a clear path to citizenship. These changes would protect the program indefinitely, regardless of who is president in the future.

Immediately after taking office, President Trump ramped up the number of arrests and deportations performed by Immigration and Customs Enforcement, or ICE. Under President Obama, ICE was directed to target those who had criminal records and, in general, leave peaceful undocumented immigrants alone. These “enforcement priorities,” as they were known, were removed once Trump took office. He directed ICE agents to arrest all undocumented immigrants regardless of their history, leading to large scale raids of businesses and factories. President-Elect Biden will be able to reinstitute the enforcement priorities with a new executive order.

There has always been a requirement for prospective immigrants to show that they will be self-sufficient to a certain degree. This rule, known as the “public charge” rule, was introduced in the Immigration Act of 1882. However, the Trump Administration greatly increased the requirements for prospective immigrants. They have now expanded the rejection criteria and left much up to the interpretation of each individual agent due to a lack of a concrete evaluation system. These new requirements prevent those who are not financially well-off from gaining long-term permanent resident status. In recent times, being on public assistance has been looked down upon by those who have always had the privilege to avoid it. Realistically, forcing underprivileged people to choose between receiving life-saving aid and having a green card in their future puts them in an impossible situation. The public charge rule has been challenged in court, and although it took effect in February, a federal judge has since struck the rule down, yet it still remains in effect as an appeals court stayed the order until the appeals process is completed. Should it stay there until Mr. Biden is inaugurated, he would be able to instruct his attorneys to drop the appeal and let the previous decision take effect. This would solve the issue in the present, while allowing more secure measures to be created for the future.

While none of these improvements will happen immediately, there is reason to believe President-Elect Biden will make positive changes to our immigration programs and policies. Immigrants are a vital part of American society. Though there is reason for caution, there is equally reason for hope.

“I inherited separation from President Obama," and "I was the one that ended it." – Donald J. Trump on June 23, 2019.

 

While this claim has been continuously proven wrong by fact checkers, Trump continues to argue that the notorious family separation policy was instituted by Obama. In truth, Trump’s former Attorney General Jeff Sessions began the family separation policy in an implementation of “zero tolerance” for illegal border crossings. As a result of this policy, thousands of children have been taken from their families and now face conditions of unsafe and unsanitary conditions that have proved fatal.

 

Twenty-four immigrants have died in ICE custody in the Trump administration’s two-and-a-half-year term. An additional four immigrants have died shortly after being released from ICE custody. That is the average size of an elementary class in the United States. However, this is far from unusual. The peak number of immigrant deaths in ICE detention centers in one year was thirty-two in 2004, the first full year that these records were kept.

 

Back in 2015, twenty-eight members of Congress wrote to ICE about their concern for the mounting death tolls in detention centers run by their agents. Their largest concern continues to be an issue today: failure to provide adequate medical care to detainees. While lack of medical care in ICE centers has often been failing, the concern issue has become more prominent as a result of the Obama-era implementation of family detention centers, privatization of these centers, and monetary incentives for the number of beds the facility could fill.

 

While Obama’s administration certainly harmed the health of migrants, the expansion of these programs by Trump’s administration have made the centers far more lethal than they proved to be under the previous administration.

 

Since the Department of Homeland Security was created after the September 11, 2001 attacks, there have been 188 recorded deaths in ICE detention. Last year, Department of Homeland Security officers observed “horrific” conditions during a surprise inspection of an immigrant detention facility outside of Los Angeles, California. In fifteen out of twenty of the rooms had nooses made of bed linens hanging from the air vents.

 

More recently, the Trump administration has further come under fire as lawyers have begun interviewing some of the children. They have found that children are often taking care of children, they lack basic necessities such as toothbrushes and soap. The administration has argued that these items are not required by law that mandates the government keep the children in “safe and sanitary” conditions. With little remorse being shown by the administration up to this point, it is likely that the conditions will only get worse. The only hope in site is governors and legislatures fighting back. Thus far, this has only really happened in Illinois where Governor J.B. Pritzker has signed a bill prohibiting local law enforcement officers from working with Immigration and Customs Enforcement and preventing private detention centers from opening in the state. Hopefully, more states will follow this strategy.

In 2016 then-Candidate Donald Trump campaigned upon a promise to crack down on asylum seekers. Throughout this year, he has tried to fulfill that promise as aggressively as possible.

 

In January 2019, the Trump administration implemented a “Stay in Mexico” policy wherein migrants coming from Mexico, legally or illegally, who are applying for asylum are sent back to Mexico while they await their hearing date in the United States even if they are not from Mexico. If the migrant has multiple hearings, he is sent back to Mexico in between each one. The administration argues that this is legal under 8 U.S.C. § 1225(b)(2)(C) which states that a migrant who is arriving on land from a foreign territory contiguous to the United States, may be returned to that territory pending a proceeding.

 

The policy is likely a ploy to try to prevent these migrants from gaining asylum in the United States. According to 8 U.S. Code § 1158(2)(A)(vi), a migrant must be denied asylum if he was “firmly resettled in another country prior to arriving in the United States”. The administration is trying to force migrants to become resettled in Mexico before they can get a hearing to prevent them from obtaining asylum in the United States. A migrant is considered to be resettled if “prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement”. 8 CFR § 1208.15.

 

This is also problematic because the migrants can be arrested and deported from Mexico since they are usually not Mexican citizens. Additionally, because the migrants are not Mexican citizens, they are unable to find employment during the time they are stranded in Mexico unless they receive authorization, which would likely destroy their chance of obtaining asylum in the United States.

 

Under the Immigration and Nationality Act (INA), people can also be denied the ability to claim asylum in the U.S. if they can be removed to a ‘safe third country’ with which the U.S. has a formal agreement. However, no such agreement exists between the U.S. and Mexico, and evidence suggests the conditions in Mexico are far from secure.

 

This could also be against international law because under the 1967 Protocol Relating to the Status of Refugees, ratified by the United States, “[n]o Contracting State shall expel or return ('refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Protocol Relating to the Status of Refugees, art. 33, Jan. 31, 1967, 606 U.N.T.S. 267.

 

However, the Ninth Circuit has upheld this program at least to this date. As it stands now, it would appear that the only way to stop this policy is through legislation passed by Congress. Fortunately, there are two ways a migrant could get around this resettlement issue under 8 CFR § 1208.15(a). First, the migrant will not be considered resettled if he can prove that he has no significant ties to that country. The migrant could prove this by showing that  “This would require showing that: (1) the entry into that country (Mexico) was a necessary consequence of his or her flight from persecution, (2) that he or she remained in that country only as long as was necessary to arrange onward travel, (3) and that he or she did not establish significant ties in that country.

 

Second, the migrant will not be considered resettled if he can prove that “the conditions of his/her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled”. In making his or her determination, the asylum officer or immigration judge shall consider the conditions under which other residents of the country live; the type of housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or reentry, education, public relief, or naturalization, ordinarily available to others resident in the country.

 

While the “Stay in Mexico” policy may be arbitrary, exceptions in the law could allow migrants to still obtain asylum in the United States. Since the courts have allowed this policy to continue and there is no telling how the administration may continue to undermine the immigration process, it seems that the future of asylum law lies at the discretion of Congress.

 

This is a video of me speaking at a naturalization ceremony in federal court last Friday. It was a great honor for me to be able to do this so Andrea recorded it. Listen to message to those hoping to become American Citizens.

The Missiouri Immigrant and Refugee Advocate, via ActionNetwork.org, have provided an excellent statement on the current state of DACA:

Yesterday, September 5, 2017, Jeff Sessions made an announcement on behalf of the White House, that the Deferred Action for Childhood Arrivals (DACA) program has been rescinded. There have been many questions circulating in regards to what exactly this means. Lets take time to explain some of what was left vague during Session’s announcement.  

·     Current DACA recipients are able to keep their benefits, which include employment authorization documents until they expire. 

·     Individuals with pending applications that were filed prior to September 5, 2017 will have those cases reviewed on an individual, case-by-case basis and not automatically rejected. 

·     Individuals in the process of renewal will have their case reviewed on an individual, case-by-case basis. Individuals whose benefits are due to expire between September 5, 2017 and March 5, 2018 can apply for renewal by October 5, 2017. Such cases will be reviewed on an individual case-by-case basis. Any applications filed after October 5, 2017 will be rejected. 

·     If Congress does not pass a law the benefits of DACA recipients will expire according to their expiration date, they cannot be renewed after October 5, 2017.

·     There have been several bills that have been introduced, including the Bridge Act. The Bridge Act is not a permanent solution, however those who qualified for DACA would have provisional protection under the Bridge Act. Keep in mind that the Bridge Act expires after three years and cannot be renewed. 

Yesterday’s announcement although expected has been a painful one for our DACAmented and undocumented community. We must continue to raise our voices in support of DACA. What can you do next?

Call your local representatives and voice your support of the DACA program, and the need for congress to push through a law to protect DACA recipients. Ask your representatives to publically support DACA.

Thanks to fellow immigration attorney Jessica Piedra (jpiedralaw.com) for summarizing the details of the new DACA Wind-Down Memo:

Initial Applications: 

·         Initial applications already filed will be processed

·         New initial applications will be rejected

 

Renewal Applications

·         Renewals already filed will be processed

·         Current DACAs that expire on/before March 5, 2018 can renew until  October 5, 2017.

 

Current DACA holders

·         DACA holders can keep their status and work permits until they otherwise expire

 

Travel Permits/Advance Parole

·         Those that have Advance Parole travel permits now – not canceled (JCP: not a good idea to travel now, consult an attorney before leaving)

·         No new Advance Parole travel permit applications accepted

·         Pending Advance Parole travel permit applications will be closed and fees will be refunded.  

 

Here’s the text of the actual memo: 

https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

According to a Reuters report, the Trump administration has rolled out a new questionnaire (see below) for U.S. visa applicants that asks for all prior passport numbers; five years' worth of social media handles, email addresses and phone numbers; and 15 years of biographical information including addresses, employment and travel history. Officials will request the additional information when they determine "that such information is required to confirm identity or conduct more rigorous national security vetting," a DOS official said. 

The Department proposes requesting the following information, if not already included in an application, from a subset of visa applicants worldwide, in order to more rigorously evaluate applicants for terrorism or other national security-related visa ineligibilities:

  • Travel history during the last fifteen years, including source of funding for travel;
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Name and dates of birth for all children;
  • Names and dates of birth for all current and former spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

 

Most of this information is already collected on visa applications but for a shorter time period, e.g. five years rather than fifteen years. Requests for names and dates of birth of siblings and, for some applicants, children are new. The request for social media identifiers and associated platforms is new for the Department of State, although it is already collected on a voluntary basis by the Department of Homeland Security (DHS) for certain individuals. Regarding travel history, applicants may be requested to provide details of their international or domestic (within their country of nationality) travel, if it appears to the consular officer that the applicant has been in an area while the area was under the operational control of a terrorist organization as defined in section 212(a)(3)(B)(vi) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B)(vi). Applicants may be asked to recount or explain the details of their travel, and when possible, provide supporting documentation.

Surprised as so many others were by the outcome of last week's US presidential election, those interested in immigration benefits have suddenly found they have no choice but to act now to seek benefits they may be eligible for.  Newly elected presidents from both parties have a history of acting on immigration early into their first terms.  For example, George W. Bush pushed for and signed the LIFE Act which allowed many undocumented immigrants an opportunity to gain legal status if they had been in the US for a certain period of time and had already filed for limited immigration benefits in the past that prior to the Act would not have offered a path to legalization.  President Obama tried and failed to get comprehensive immigration reform passed.  The Senate approved a comprehensive bill that the House of Representatives refused to even consider.  Thus, many immigrants and their families, including undocumented individuals, were waiting to take any action--waiting to see if Democratic candidate Hillary Clinton would be elected, and to see if the makeup of Congress would change the dynamics of immigration reform.  Everyone hoping for reasoned solutions to what all agree is an untenable situation.

The election results certainly did change the dynamics of immigration reform.  At this point, no one taking power in January is talking about reforming the law to advance legal immigration.  Virtually all of President-elect Trump's rhetoric has been focused on enforcement or restrictions on immigration (such as the "extreme vetting" of those from countries that have connections to terrorism).  In this light, many affected by immigration policy are afraid.  This atmosphere of fear is driving many to take action.  Family members of US citizens are coming forward in droves to pursue existing paths toward regularizing their status, while others, like long-time permanent residents, are deciding now is the time to apply for citizenship.

Immigration is a funny thing.  Regardless of the outcome of the election, immigration business was likely to boom.  The only question was would it boom in the direction of increased legal immigration or would it boom in the direction of a crackdown.  With the latter virtually inevitable, people are no longer waiting for a better option--they know nothing better will be coming along for a long time.  Even though many do have legal paths toward regularizing their status; millions of others do not.  They are the most vulnerable at this point.

Many current benefits (mostly those based on Executive Orders signed by President Obama) are likely to go away soon after President Trump takes office.  One such example is the Deferred Action for Childhood Arrivals or DACA program.  When the DREAMERS Act failed to pass, this was the solution offered by President Obama for the children of those whose parents brought them to the US when they were very young and had no choice in the matter.  The program has allowed many such children to get work permits, driver's licenses, open bank accounts, and attend school.  This may all change if President Trump carries through with his promise to rescind all of the President Obama's executive orders.

If you or someone you know is in need of regularizing their status or just getting solid advice at this turbulent time, contact an experienced immigration lawyer now. 

The U.S. Citizenship and Immigration Services recently announced that it is adjusting the fees required for most immigration applications and petitions. The new fees will be effective Dec. 23.

 

USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits. The law requires USCIS to conduct fee reviews every two years to determine the funding levels necessary to administer the nation’s immigration laws, process benefit requests and provide the infrastructure needed to support those activities.

 

Fees will increase for the first time in six years, by a weighted average of 21 percent for most applications and petitions.   The USCIS claims this increase is necessary to recover the full cost of services provided by USCIS.

 

Applications and petitions postmarked or filed on or after Dec. 23 must include the new fees or USCIS will not be able to accept them.

 

"This is our first fee increase since November 2010, and we sincerely appreciate the valuable public input we received as we prepared this final rule," said USCIS Director León Rodríguez. "We are mindful of the effect fee increases have on many of the customers we serve. That’s why we decided against raising fees as recommended after the fiscal year 2012 and 2014 fee reviews.  However, as an agency dependent upon users’ fees to operate, these changes are now necessary to ensure we can continue to serve our customers effectively.  We will also offer a reduced filing fee for certain naturalization applicants with limited means."

 

Changes in the new fee schedule can be found here. Highlights follow:

   A modest fee increase of $45, or 8 percent, from $595 to $640 for Form N-400, Application for Naturalization.

                      USCIS will offer a reduced filing fee of $320 for naturalization applicants with family incomes greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. For 2016, this means, for example, that a household of four with an income between $36,000 and $48,600 per year could pay the reduced fee. Those eligible may apply for this option using the new Form I-942, Request for Reduced Fee.

   The fee for Form N-600, Application for Certificate of Citizenship, and N-600K, Application for Citizenship and Issuance of Certificate Under Section 322, will increase from $550 or 600 to $1,170.

Missouri is home to thousands of “Dreamers”—immigrants brought to the US as children.  Since 2012, many have been granted work authorization and permission to remain in the US under the DACA (Deferred Action for Childhood Arrivals) initiative.

On July 1, 2015, several public college systems in Missouri began issuing letters to students with DACA requiring them to pay out-of-state or international tuition rates and disqualifying them from institutional scholarships. They are saying the budget bill requires them to do this, but their position violates the Missouri constitution.  Missouri lawmakers were, to be clear, motivated by anti-immigrant sentiment, intending to put a university education out-of-reach of most of these newly documented students--most who have no known memory of living anywhere other than here in the US. Tuition is increasing by three fold this fall.  We need to act now and respond to this senseless discrimination.

Here is a link to a fact sheet describing the details of the state's action and how some colleges and universities have responded: http://bit.ly/1HqPLb2 

Several local immigrant rights organizations are leading the way.  If you want to get involved, or if you are a student affected by these actions needing help transferring schools, contact one of the following organizations:

            www.immpros.org                       www.Facebook.com/KSMODA                     www.mira-mo.org    

 

 

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