Supreme Court Decisions
Statute Defining Certain Deportable
"Crimes of Violence"
Justices Also Rule That Bond Hearings
for Prolonged Detainees Are Not Automatic
The U.S. Supreme Court decided two important immigration cases recently, one holding that part of the law defining a "crime of violence" for deportability purposes was unconstitutionally vague, and the other case holding that there is no automatic right to a bond hearing for those detained for as long as six months.
In April, the Supreme Court decided Sessions v. Dimaya, a case involving the "aggravated felony" ground of deportability, which includes convictions for certain "crimes of violence." The federal statute defining crimes of violence includes a broad, catch-all provision ("any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense"). According to the Court, this residual clause isn't specific enough for aliens with criminal convictions to determine if they would be subject to removal under it. In rendering its decision, the Court relied on a collection of legal principles known as the "vagueness doctrine." This is an extension of the concept of due process, which is based on the notion that the government has an affirmative obligation to give the people adequate notice of what behavior is proscribed by the law.
A few weeks earlier, the Supreme Court decided Jennings v. Rodriguez, a case involving the constitutionality and validity of prolonged detention. The Court reversed and remanded a Ninth Circuit decision that held that under the Immigration and Nationality Act (INA), prolonged detention becomes constitutionally suspect after six months and therefore provided an automatic right to a bond hearing after six months in detention. In a 5-3 decision, the Supreme Court held that there is not an automatic right to a bond hearing under these circumstances and that the Court of Appeals misread the INA. Because the Ninth Circuit's decision was a statutory not a constitutional interpretation of what is required, the Supreme Court remanded the case back to the Court of Appeals to determine whether prolonged detention without a bond hearing violates the Constitution.
Not all of those subject to immigration detention are held for months on end. Usually, cases involving detained individuals are given preferential treatment in immigration courts. But there have been a number of instances where, for varying circumstances, an immigrant has been detained for months or even years with no right to appear before an immigration judge to request bond. The plaintiff in this case, Mr. Rodriguez, had been detained for three years while the government tried his removal case.
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Independence of the Immigration Courts
and Due Process Under Attack
The Trump Administration through the Department of Justice (DOJ) has, little by little, implemented a number of policies over the last year that have undermined the independence of the immigration courts and have weaken due process for foreign nationals. Some basics: The immigration courts play a key role in affording noncitizens an opportunity to present claims for relief and stay in the United States. These immigration courts are woefully backlogged with an ever-growing caseload of more than 650,000 cases, many of which take years to be decided. It is against this backdrop, but with only the backlog in mind, that the Administration and DOJ has adopted changes. These changes — including steps to impose numerical quotas on immigration judges (IJs) and attempts to curtail procedural safeguards — fundamentally threaten the integrity of the immigration courts. Here is a summary of what is happening.
Referring Cases to the Attorney General
Over the past several months, Attorney General Jeff Sessions referred to himself for further review two immigration cases decided by the Board of Immigration Appeals (BIA), the appellate-level administrative court. These cases involve a judge's authority to use docket management tools (including continuances and administrative closure) and to exercise discretion in asylum cases. Immigration judges have inherent powers — including the power to control their own dockets and to administratively close cases as a means of exercising such control — delegated to them by Congress and recognized by the Supreme Court and lower federal courts. While attorneys general from time to time have referred immigration cases to themselves, it is less common to refer a case involving judicial discretion. Referrals such as the current ones have a chilling effect on IJs and foreign nationals before them: judges are less likely to take actions favorable to immigrants for fear that their decisions will be second-guessed by the Attorney General (AG) and immigrants representing themselves without a lawyer are less likely to advocate vociferously and appeal if necessary for fear that their actions are futile. Such referrals signal that the AG intends to massively curtail judicial independence.
Completion Quotas on Immigration Judges
In late March, the Executive Office for Immigration Review (EOIR) — a division of the Justice Department — announced that IJs will be held to a strict metrics, including requiring them to complete a minimum of 700 cases a year. The new completion quotas will go into effective October 1, 2018, and will become part of an IJ's performance reviews (tied to job security and raises). Judges, for example, could be influenced to deny a request for a continuance he or she otherwise would have reasonably granted, solely because of concern about completion numbers and job retention. Instead of reducing case backlogs — the purported rational behind the new policy — quotas will likely produce hastily made decisions, grave errors, and directly result in more appeals and remands, causing more delays and running contrary to the goals of the AG — not to mention undermining due process.
Curbing Use of Continuances
In July, the Chief Immigration Judge issued a memorandum making it more difficult for judges to grant multiple continuances. Continuances are necessary in a variety of circumstances, such as when an individual is facing deportation in immigration court while awaiting a decision by USCIS on a pending application. Examples are "U" visas petitions for victims of crime, immigrant visa petitions for family members of residents or citizens, or applications for certain individuals married to U.S. citizens. By law, IJs cannot make a decision on these applications; USCIS has sole jurisdiction to make those decisions. Should IJs adhere strictly to this policy, immigrants with valid forms of relief still pending before another immigration agency will be removed.
Immigrant's Access to Counsel
In early April, EOIR announced its intention to cancel the Legal Orientation Program (LOP) and the Immigration Help Desk, programs established years ago that facilitate the provision by nonprofit organizations of individual and group presentations, workshops, and pro bono referral services to detained immigrants in removal proceedings. The programs have been immensely successful, having a positive impact on judicial efficiency and fundamental fairness by reducing the time people spend in detention and saving immigration judge and court time because noncitizens better understand the immigration system and whether they are eligible for relief. (Congress expressed instruction to continue such programming in the 2018 appropriations bill signed into law.) The Administration is terminating the programs for purported fiscal considerations.
In response to these new policies, especially the LOP termination and judicial quotas, a number of immigration experts and stakeholders have raised serious concerns. Benjamin Johnson, Executive Director of the American Immigration Lawyers Association, called on Congress "to hold the Attorney General accountable and demand the Department of Justice keep the LOP running." The 2018 spending bill requires it, he noted, as does the U.S. Constitution, which guarantees equal protection under the law for everyone:
"Terminating the LOP, a proven program established … by then-President Bush, will strip the immigration court system of critical resources that ensure the most basic commitment to fairness and due process.… Defunding LOP and other tools … means that many thousands of people will be ushered through the system without understanding their rights and how the process works. Without LOP, the court system will be less fair, less efficient, and more expensive. Cases will move more slowly and more people will be held in detention for longer periods of time, costing taxpayers millions of dollars."
A number of retired immigration judges and former members of the BIA jumped into the fray, and submitted a statement to the Senate Judiciary Subcommittee on Border Security and Immigration that the immigration court system is in crisis and asked Congress to remove the immigration court system from DOJ. Dozens of immigration law professors did the same, calling on Congress to create an independent immigration court and to defend the court against the DOJ's attempts to erode due process. Democratic members of the Senate and House Judiciary Committees wrote a letter to the AG expressing their opposition to the impending termination of the LOP and the imposition of numeric case quotas, noting that the recent "measures raise constitutional concerns and stand in stark contrast to the American vision of a justice system for all." And, in response to yet another policy, other members of Congress raised allegations that DOJ may be violating federal law by blocking the hiring of much needed immigration judges based on ideological and political considerations.
Clearly the Attorney General and the Administration are taking dramatic steps to rewrite immigration law through the immigration court system. One solution to thwart this encroachment is to create an independent, "Article I" immigration court (i.e., within the legislative rather than executive branch of the government), which would allow immigration judges to decide cases with fairness and neutrality.
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I-9 Compliance in a New World:
It's Not Just Paperwork
Question for employers: How does your company handle its I-9s? Have you even thought about it? Unfortunately, most employers tend to underthink this hugely important human resources component, which affects all its employees, not just foreign nationals. ICE has announced it will increase its worksite audits by "four or five times," and all employers, irrespective of size, location, or industry, are subject. Couple that with a recent increase in fines — which may no longer constitute "the cost of doing business" — it is time to take a look at your I-9s and devise a plan to ensure current and future compliance.
Question for employees: How careful are you when filling out your I-9? Did you know a false claim to U.S. citizenship is a "nonwaivable" offense that will permanently prevent you from receiving any future immigration benefit and could result in your removal from the United States? In this new world, we have seen an increase in USCIS either asking an applicant for, or conducting its own investigation to obtain, an I-9 from current or even past employment. If your I-9 reveals a claim to U.S. citizenship, even if checked by mistake, this would have a fatal impact on an adjustment or naturalization application.
What it boils down to is that an I-9 isn't just paperwork. It is an official government form with real meaning and real consequences if not completed and maintained correctly. Employers, if you receive an unexpected visit from ICE with a Notice of Inspection, do not alter or correct your I-9s and do not ask employees for any documentation. Contact your immigration attorney immediately before you take action.
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Work Authorization for
H-4 Victims of Domestic Violence
The H-4 visa is available for the spouses of those for nationals who have received an H-1B visa. However, unlike many other visa categories for spouses, there are conditions on H-4 visa holders who can apply for and receive work authorization. H-4 visa holders can receive an EAD work if they meet one of these criteria: (1) their spouse has an approved I-140 petition, or (2) their spouse has continued in H-1B status past the six-year mark under the AC21 provisions. The Trump Administration is reconsidering these regulations and may withdraw work authorization for H-4 visa holders — a decision that is expected in June 2018.
Despite the uncertainty for many H-4 visa holders, there remains a safe haven for those spouses who have suffered abuse at the hands of the H-1B visa holder. The Violence Against Women Act (VAWA) allows certain abused H-4 (or A, E-3, G) nonimmigrant spouses to apply for work authorization, which enables victims to seek both safety and independence from their abuser. Applicants must use the Form I-765V, and make an affirmative demonstration of the abuse suffered. Victims who are recently divorced also may be eligible. Work authorization is granted in two-year increments and can be extended, but evidence of the abuse does not have to be resubmitted. However, the granting of work authorization does not provide an independent immigration "status," and the H-4 visa holder is still subject to the terms and conditions of the principal's H-1B visa.
Help is available to victims of domestic violence though the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TTY). The hotline has information about shelters, mental health care, legal advice, and other types of assistance, including information about filing for immigration status. For more information, visit the National Domestic Violence Hotline website.
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2020 Census to Include
Article I, Section 2, Clause 3 of the U.S. Constitution requires a census be taken every decade to ensure proper apportionment in the House of Representatives. The U.S. Census Bureau, overseen by the Commerce Department's Economics and Statistics Administration, implements the census. Aside from just population, the census collects valuable data to develop nationwide statistics on economics, health and social issues, and to better allocate federal funding for local education programs, law enforcement, transportation projects, farm aid, and other federally financed activities and programs. The authority to determine the questions on the census is vested in the Secretary of Commerce under 13 U.S.C. §§ 3, 4, and 141(a).
The Justice Department believes including the citizenship question will help it better enforce Section 2 of the Voting Rights Act, which requires a tally of citizens of voting age to protect minorities against discrimination. Commerce Secretary Wilbur Ross assessed all legal, program, and policy considerations and decided to reinstate the question on citizenship on the short-form census questionnaire. The citizenship question was frequently included in past census forms, is still included in the "long-form" census that random households receive, and the DOJ does have a vested interested in receiving accurate and complete data to protect minority voting rights. Secretary Ross acknowledged the concerns that the citizenship question would negatively impact response rates for noncitizens, but noted that "neither the Census Bureau nor the concerned stakeholders could document that the response rate would in fact decline materially" and "there is no information available to determine the number of people who would in fact not respond due to a citizenship question being added, and no one has identified any mechanism for making such a determination." Consequently, those concerns did not outweigh the interest of collecting accurate and complete data through existing and tried measures. However, Secretary Ross did mention that he believes the best approach going forward would be to use a combination of administrative records and the census to obtain citizenship data. (Previously, as much as up to 30 percent of responses to the citizenship question on the long-form census have been shown to be inaccurate.)
The State of California responded by filing a lawsuit in the federal district court, charging that the move violates the Constitution by interfering with the obligation to conduct a full count of the U.S. population, the "actual Enumeration" as stated in the Constitution and case law, which has held that apportionment must be "based on total population," regardless of citizenship. The state has the largest immigrant population in the country and is concerned about losing both seats in Congress and federal funding. The National Democratic Redistricting Committee (NDRC), headed by former U.S. Attorney General Eric Holder, also filed suit against the Census Bureau in a federal court in Maryland, arguing that its last-minute decision to add a citizenship status question on the 2020 Census is unconstitutional and a violation of the Administrative Procedure Act . While both complaints were filed in friendly venues, the legal necessity of "standing" is not a forgone conclusion and may ultimately doom both lawsuits.
In short, opponents charge the inclusion of a citizenship question is, according to California, "a partisan act aimed at advancing the Trump Administration's anti-immigration political agenda, heedless of legal requirements." However, both the California and NDRC complaints lean heavily on untested (and untestable) assumptions to support their position that the citizenship question would depress response rates, which is the same strategy that failed to establish standing in another lawsuit in the 1980s. Furthermore, the Census Bureau has already published reports that involve the question of citizenship and nationality, such as the January report saying nearly three-quarters of tech employees in Silicon Valley and half in San Francisco and the East Bay were foreign born. Still, the legal challenges to proper procedure under the APA and the Office of Management and Budget rules are much stronger because the Census Bureau did not have time to appropriately test and report on the potential effects of the citizenship question, and it may be those challenges that succeed.
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ICE Detains Pregnant Women
ICE has changed its policies regarding the handling of pregnant women in detention, breaking from the previous practice of automatically releasing them. Under a new directive, immigration officers will no longer default to trying to release pregnant women in ICE custody. Instead, the policy requires a case-by-case evaluation, and ICE will keep in custody "only those whose detention is necessary to effectuate removal, as well as those deemed a flight risk or danger to the community." Since December 2017, when the policy went into effect, 506 pregnant women have been detained in ICE custody. For those in custody, ICE has committed itself to providing services and acceptable standards of care, but women in their third trimester are unlikely to be detained because they would not be able to fly and therefore could not be deported anyway. The justification for the policy change is to continue to implement the Trump Administration's message that no one who violates U.S. immigration laws will be free from enforcement.
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President Reaffirms Desire to End "Catch and Release" at Border, Deploys National Guard
On April 6, 2018, President Trump published a memorandum directing the secretaries of Homeland Security, Defense, Justice, and Health and Human Services to update him regarding the steps being taken to end "catch and release" practices. Catch and release is an unofficial name of a protocol that has been followed by immigration enforcement agencies, ICE and CBP, under which people caught in unlawful immigration status are released while they wait for a hearing with an immigration judge. There is no single policy, regulation, or statute that simply allows apprehended foreign nationals to automatically be released when apprehended, but rather a collection of various and intersecting rules and policies by a number of agencies to provide relief to families, children, and asylum seekers while their immigration cases are being processed. The reports are due to the President in late May.
Meanwhile, in the wake of media reports on a migrant caravan headed to the Southern Border, and in anticipation of the springtime swell in border crossings, President Trump ordered the National Guard in four states deployed to the border. The presidential memorandum directs the National Guard to assist DHS in securing the border "to stop the flow of deadly drugs … gang members … and illegal aliens into this country." The governors of Texas, New Mexico, and Arizona all immediately acquiesced to the President's order. The governor of California delayed, but ultimately allowed the state's National Guard units to be deployed specifically to assist with "drugs and thugs" but not immigrants, a distinction that may prove impossible once in the field. In the previous National Guard deployments under Presidents Bush and Obama, Guard units acted as the Border Patrol's "eyes and ears," providing additional aircraft and manpower for surveillance and intelligence work. This deployment will likely involve the same type of assistance.
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DOS Guidance May Make It Harder for
G-4s to Sponsor G-5 Personal Employees
In a recent cable to consular officers, the Department of State reviewed and amended its guidance regarding minimum wage requirements and presumption of ineligibility for visa issuance for A-3, C-3, and G-5 attendants, servants, and personal employees. Most significantly, DOS directs that consular officers must presume that an applicant is not eligible for a visa if the employer is not the principal officer or deputy principal officer or does not carry the diplomatic rank of minister or higher. The guidance further states that employers who are officers and employees of international organizations (G-4) "rarely hold the rank of minister or higher and, therefore, their compensation is unlikely to be sufficient to cover the cost of employing a personal employee." How this plays out is yet to be seen, but clearly the intent is that G-4 employers' financial wherewithal will be closely scrutinized.
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Immigrant and Nonimmigrant Visa Applications
Both DS-260 & DS-160 Likely to Require
More Detailed History and Social Media Info
The State Department will likely require nonimmigrant and immigrant visa applicants to provide more detailed histories, including social media platforms. In notices of rulemaking governing electronic Forms DS-260 and DS-160, DOS detailed its intention to require visa applicants to provide identifiers for specified social media platforms during the preceding five years. Other questions seek five years of previously used telephone numbers, email addresses, and international travel, and whether specified family members have been involved in terrorist activities. For the DS-260, the new form would also ask for all prior immigration violations, and, for the DS-160, whether the applicant has been deported or removed from any country. No specific social media services were named in the proposed rule, although DOS reserved the authority to include additional social media platforms at a later date. Another proposed change would combine the DS-160 and DS-156, and discontinue the paper Form DS-156 altogether. The latter form is used for E investors. Consular officers had already begun more intensive vetting of some visa applicants — including requests for their "social media handles" (user names) — when DOS launched a new supplemental questionnaire, DS-5535 in May 2017. Comments to the proposed rule are due 5/29/2018.
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Burma (also known as Myanmar) is a sovereign state in Southeast Asia, nestled between Bangladesh and Thailand. Its 54 million citizens are ethnically diverse but overwhelmingly Buddhist, though the country has small groups of Christians and Muslims. Since receiving independence in 1948, the country has been defined by its ongoing internal ethnic conflict and strife.
The Rohingya are an ethnic minority within the western portion of Burma, most of whom are Muslim. Numbering close to one million and living close to the border with Bangladesh, at least 500,000 Rohingya have fled to that neighboring country (or beyond to India) for shelter from persecution. The Burmese government does not recognize the Rohingya as lawful citizens, but rather as Bangladeshi squatters, and denied them citizenship in 1982, leaving them stateless. Attacks on the Rohingya are often perpetrated by the military and police forces, but the government of Burma has censored the details of the violence. The country has also denied the United Nations, journalists, and human rights advocates access to the country.
However, reporters have been able to talk with the Rohingya who made it to temporary safety in Bangladesh, often living in refugee camps near the border. These victims shared stories of mass killings, gang rapes, and brutal beatings; more than half the women interviewed were victims of sexual violence. Corroborating satellite images have shown Rohingya villages burning. What is happening to the Rohingya is ethnic cleansing, not hyperbole or rhetoric. And while the persecution has persisted for decades, the recent uptick in violence seems to be related to the Arakan Rohingya Solidarity Army's attack on Burma's police posts last summer, which left 12 Burmese security officers dead. In response, Burma's military retaliation has intensified their persecution of the Rohingya population, causing mass suffering and displacement.
This most recent humanitarian crisis is not an aberration in Burma's brief history. The Karen and Chin ethnic groups in the country have also been viciously persecuted in the past years, and refugees from Burma constitute a large percentage of the United States' overall refugee admissions. Since 2005, the U.S. has resettled nearly 170,000 Burmese refugees. The current Administration has also pledged $32 million in humanitarian aid for the Rohingya crisis. Unfortunately, the desired drawdown of refugee admissions and the snail's pace of processing, though publicly billed as preventing terrorist infiltration into the Syrian refugee program, have had the unintentional consequence of cutting the annual number of Rohingya refugee admissions to the U.S. in half.
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NEWS IN BRIEF
The following additional items may be of interest to our readers:
USCIS to Destroy Undeliverable Green Cards and EADs after 60 Days: USCIS announced that it is now destroying permanent resident cards, employment authorization cards, and travel documents returned as undeliverable by the U.S. Postal Service after 60 business days if USCIS is not contacted with the correct address. Word to the wise: All foreign nationals should update their address with USCIS within 10 days of moving using Form AR-11.
H-1B Cap Reached in First Week of Filing: USCIS has received enough H-1B cap-subject visa petitions to exceed the statutory limit of 65,000 visas (+20,000 Master's cap visas) and necessitate a visa lottery. The agency reported receiving 190,098 petitions this year, slightly fewer than last year's lottery submissions. Those petitions not selected in the lottery will be returned with the filing fees. Premium processing for these cap-subject petitions was suspended.
DACA and Travel Ban Cases Wind Their Way Through Courts: The DACA program remains intact through two federal district court rulings. The Justice Department attempted to expedite the case to the Supreme Court but was unsuccessful, so it could take another entire year for the matter to be resolved through the judicial system. The case determining the legitimacy of the travel ban is set for oral argument on April 25, with the final decision slated for late June.
Chad Removed from Travel Ban List: In April, the President announced that Chad was off the list of countries with travel restrictions. The decision followed a period of review in which the Chadian government improved their identity-management and information sharing practices. Individuals from Chad who were once subject to the travel ban are now free to pursue their visa applications.
More Lives in Limbo: Trump Terminates DED Program for Liberians: In late March, the President announced that he would end deferred enforced departure (DED), a form of relief from deportation, for Liberians on March 31, 2019. The loss of DED designation for Liberia will affect 4,000 people who have been legally residing in the U.S. for over 25 years. The stated reason was that "conditions in Liberia have improved" and the country "has made significant progress in restoring stability and democratic governance." Work authorization cards with an original expiration date of 3/31/2018 are automatically extended through 9/30/2018.
U.S. Consulate in St. Petersburg Closed: On March 31, DOS closed the U.S. Consulate in St. Petersburg. The action is a direct result of the escalating diplomatic tensions between Russia and the United States. The U.S. embassy in Moscow remains open, as do the consulates in Yekaterinburg (central Russia) and Vladivostok (eastern Russia).
DHS Extends Work Benefits to Syrian F-1 Students Experiencing Economic Hardship: In 2012, the DHS temporarily loosened the employment regulations attached to the F-1 visa for Syrian nationals who could show they were experiencing severe economic hardship as a direct result of the civil unrest in Syria. This benefit has been extended three times, and DHS has granted another extension until 9/30/2019. Under the loosened regulations, Syrian F-1 students are deemed to be engaged in a full course of study despite working over 20 hours per week and taking a reduced course load.
USCIS Announces Re-Registration Period Open for Syrians with TPS: USCIS announced that current beneficiaries of TPS under Syria's designation who want to maintain their status through 9/30/2019, must register between 3/5/2018 and 5/4/2018. USCIS notes that work permits expiring 3/31/2018 are automatically extended through 9/27/2018.
Nicaragua Partner's with ICE's eTD System: Representatives of the government of Nicaragua recently signed a memorandum of understanding with ICE to participate as a partner in the ICE/ERO electronic Travel Document (eTD) system. This system streamlines citizenship determinations and facilitates travel documents for foreign nationals detained by the U.S. by electronically providing biographic and biometric information. Partners to the eTD system are asked to confirm the citizenship of their nationals, provide a travel document in a timely fashion, and accept the physical return of their nationals.
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