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KURZBAN KURZBAN WEINGER TETZELI AND PRATT -- IMMIGRATION LAW UPDATE

 

Administration Seeks Supreme Court Review

Ninth & Fourth Circuits Uphold Nationwide
Preliminary Injunction on Travel Ban

In a scathing rebuke of the Administration's executive order travel ban, the U.S. Court of Appeals for the Fourth Circuit upheld the nationwide preliminary injunction, enjoining the Administration from implementing it. Here's what that court had to say:

The question for this Court, distilled to its essential form, is whether the Constitution … remains "a law for rulers and people, equally in war and in peace." And if so, whether it protects Plaintiffs' right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles — that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court's issuance of a nationwide preliminary injunction....

The Administration has sought Supreme Court review of the Fourth Circuit's decision, despite the Ninth Circuit also deciding the travel ban to be unconstitutional. That court determined that the President had not conducted the requisite factfinding to justify halting immigration based on nationality. It held:

We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be "detrimental to the interests of the United States." Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court's order preliminarily enjoining Sections 2 and 6 of the Executive Order.

Both the Ninth and Fourth Circuit decisions leaned heavily on the President's statements and tweets made during his volatile campaign. In addition to deciding the constitutionality of the executive order, the Supreme Court will have to determine if applying this rhetoric is permissible during the legal analysis of the executive order. Therefore, the upcoming Supreme Court decision will not only provide the final say in the travel ban fiasco, but could also have a tremendous impact on future presidential campaigns. Meanwhile, there have been reports that visa travel from the targeted countries has plummeted.

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DOL to Ramp Up Investigations
of Foreign Worker Visa Programs

The Department of Labor has a minor but important role in some immigration matters, including the H-1 and H-2 visa programs and labor certification applications for employment-based green cards. After reviewing the DOL's foreign worker visa programs, Labor Secretary R. Alexander Acosta announced actions to increase protections for American workers while aggressively confronting entitles that are committing visa fraud and abuse. The department is directing its Wage and Hour Division and the Employment and Training Administration to use all their tools in conducting civil investigations to enforce labor protections provided by the visa programs, to make changes to the labor condition application (LCA) needed for the H-1B visa, and to identify systematic violations and potential fraud. The Office of the Solicitor General will coordinate the enforcement efforts and refer criminal findings to the Office of the Inspector General. Pursuing this new direction, the DOL recently obtained a preliminary injunction of the H-2A visa program for a farming operation in Arizona where illegal and potentially life-threatening housing was being provided to the foreign workers. Other legal actions against H-1B and H-2B violators are likely on the way.

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New Consular Questionnaire Means
More Rigorous Vetting of Certain Visa Applicants

Armed with a supplemental questionnaire, DS-5535, consular officers around the world have started more intensive vetting of some visa applicants — including requests for their social media handles (user name) — in an effort to block potential terrorists and other national security threats from entering the country. DS-5535 was rolled out as a temporary "emergency" measure in late May and is authorized to remain in effect until November. However, it is expected to be updated and made permanent.

The three-page supplemental questionnaire asks a subset of visa applicants for expanded information, including:

  • Address history during the last 15 years;
  • Employment history during the last 15 years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Names 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. Requests for names and dates of birth of siblings and, for some applicants, children are new. In one of the more controversial questions, applicants are asked for their user names on all social media accounts they have used in the last five years. 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 by law. Applicants may be asked to recount or explain the details of their travel, and when possible, provide supporting evidence. Though responding is voluntary and "not necessarily" a rationale for visa denial, the questionnaire advises that not providing answers could cause a delay in processing. The State Department estimates that about 65,000 of 13 million visa applicants every year could be subjected to the extra scrutiny.

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Enforcement-Only Bills Moving
Through the House of Representatives

Two bills are winding their way through the House's Judiciary Committee that focus on immigration enforcement tactics and ignore any major policy changes: U.S. Immigration and Customs Enforcement Authorization Act (H.R. 2406) and the U.S. Citizenship and Immigration Services Act (H.R. 2407). Included in the former bill is a provision that gives ICE access to personal information within any Department of Homeland security database — including data on DACA recipients — and also allows ICE broader authority in issuing detainers. The second bill requires a mandatory expansion of the E-Verify system despite the fact that the system is in dire need of many improvements. Neither of these bills put forward any new policies or revisions to existing immigration practices, nor do they address the millions of undocumented individuals currently living in the shadows.

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Texas Passes
Anti-Immigrant Bill

Last month, the governor of Texas signed Senate Bill 4 (SB-4), a measure allowing local police officers to ask for the citizenship status of anyone they arrest or detain and requiring local jurisdictions to honor detainers issued by ICE. The bill is a direct result of Travis County Sheriff Sally Hernandez publicly criticizing President Trump's executive order targeting sanctuary cities, stating that she will not abide by the order. (The state capital, Austin, is the county seat of Travis County.) Texas lawmakers responded with SB-4. The Texas law is similar to the Arizona law that made headlines a few years back — a law that was eventually struck down in federal court — with one major difference: the new law allows state authorities to punish any police chief or sheriff who tells their subordinates not to act as de facto immigration agents. Violators face steep fines as well as potential removal from office.

The requirement to honor detainers issued by ICE comes at a time when federal judges are scrutinizing the very practice. ICE detainers were recently held unconstitutional by a federal judge in Texas, and other district judges across the country have reached the same conclusion. However, ICE is still using the same practice, and SB-4 requires local jurisdictions to honor requests to hold immigrants beyond the completion of their sentence in order to allow ICE to take custody of them.

SB-4 is already being challenged in the federal courts, with El Paso County, Maverick County, and the City of El Cenizo all filing lawsuits against Texas. In the meantime, the American Immigration Lawyers Association has responded by relocating its annual conference from Texas in protest of the law stating,

[O]ur Board decided it could not ask AILA members, and in many cases their families, to attend a conference in the state which has passed SB-4 into law. SB-4 serves no legitimate purpose and undermines our country's principles of fairness, due process, and equal treatment under the law.

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Extends to Even Non–Criminally Related Cases

ICE Recalendaring Cases That Were Administratively Closed in Exercise of Prosecutorial Discretion

Under the Obama Administration, certain undocumented immigrants were permitted to have their immigration cases administratively closed in the exercise of prosecutorial discretion (PD), which in essence was a form of relief from deportation. Often this was granted when an undocumented parent of U.S. citizen children was placed in removal proceedings. The Trump Administration terminated the policy of prosecutorial discretion, and now Immigration and Customs Enforcement (ICE) has begun recalendaring cases that were previously administratively closed. While ICE headquarters has indicated that it is recalendaring cases only where there is an arrest or conviction subsequent to the administrative closure and that it is not seeking to recalendar all of the cases that were administratively closed for PD, some local ICE offices are seeking to recalendar PD cases even when there was no intervening arrest or conviction.

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Immigration Courts and Backlog

Immigration courts have an enormous backlog that has not only persisted, but grown exponentially over the years. In 2006, the average case processing time was about 198 days. A decade later the same case will take 650 days to process. Government officials attribute the backlog to a number of factors: staffing shortages, lack of resources, changing agency priorities, etc. The immigration court backlog continues to grow during a time when the number of immigration judges on staff to handle cases increased by 17 percent. This is because immigration judges are taking more time to process cases; they are granting more continuances to allow foreign nationals to build their cases.

The Department of Justice has started hiring and relocating judges to detention centers on the southern border, but some experts are concerned that simply having more immigration judges will not solve the backlog problem. The Government Accountability Office found that EOIR — the DOJ office that is responsible for immigration courts, judges, and staff — is lacking critical management, accountability, and performance evaluation systems. These mechanisms are essential for EOIR and oversight bodies, such as Congress, to accurately assess the immigration courts and ensure that EOIR is achieving its mission, which includes timely adjudication of all cases. While hiring more immigration judges is needed to replace the roughly 39 percent of current judges eligible for retirement, it will not have a positive effect on the overall case processing times. EOIR will have to reevaluate its own practices and capabilities in order to reduce the current backlog, not just hire more judges.

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Money and USCIS:
Refund Requests and Bounced Checks

Refund Requests

Generally, USCIS does not issue refunds for filing fees, regardless of the decision on the application. There are very limited exceptions: for example, when USCIS collects the incorrect fee. If an applicant or petitioner believes he or she is entitled to a refund of a fee, the first step is to write to the service center where the application is pending. If the service center agrees that a refund is warranted, it will forward the refund request to the Burlington Finance Center (BFC) for check/money-order issuance, usually within 2-3 weeks of the case being adjudicated. The service center will also submit a refund approval notice to the applicant once a decision has been made. The case receipt number also becomes the case identification number for BFC purposes. Because the BFC works as only a debt manager for all outstanding balances on USCIS applications and petitions and does not decide whether to issue a refund, only contact the BFC once the refund request has been approved and forwarded to the BFC for refund issuance. The refund will be issued to the person who paid USCIS, in whatever form it was originally submitted (check, money order, or credit card reimbursement). Be sure to check your current mailing address, as the BFC will mail the refund or confirmation of credit card reimbursement to the address it has on file. The check or money order will look similar to other government checks, such as federal tax refunds. The contact information for the BFC is: Burlington Finance Center, P.O. Box 5000, Williston, VT 05495-5000, Phone: (802) 288-7600 or 1-866-233-1915 (toll-free).

Bounced Checks

Under the regulations, failure to properly file a petition may result in a denial or rejection, with no return of fees. Improper filings include cases where the filing fee check or credit card payment was returned as not payable. Previously, if a payment was rejected, USCIS generally would arrange with the BFC to invoice the applicant or petitioner. The replacement check (or credit card payment) had to be received within 14 days of the invoice date. Now, however, USCIS will no longer give individuals the opportunity to cure a dishonored payment. If a payment is initially returned as unpayable by the applicant's or petitioner's financial institution, the Department of Treasury will "re-present" the rejected payment to the remitter's financial institution once more before notifying USCIS of the dishonored payment. Once the payment is dishonored, USCIS will reject the filing and impose a $30 charge. A rejected benefit request will lose its filing date and any receipts issued will be voided. If an application or petition is approved prior to the discovery of a dishonored payment, USCIS may revoke the approval. Moral of the story: Make sure you have sufficient funds in your bank account when paying the filing fee for your immigration case.

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Supreme Court Holds Gender-Based Distinction
for Acquisition of Citizenship Is Unconstitutional

The Supreme Court found unconstitutional the gender-based distinction in the immigration act, requiring a shorter period of parental physical presence in the U.S. for acquisition of citizenship through an unwed citizen mother versus an unwed citizen father. Rather than extending the shorter period of required physical presence to children of unwed citizen fathers, or the longer period to unwed citizen mothers, the Justices said that it was up to Congress, rather than the Court, to act on the issue.

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New Jersey Chief Justice Urges ICE to Add
Courthouses to List of "Sensitive Locations"

In a recent letter, New Jersey Chief Justice Stuart Rabner requested that DHS Secretary Kelly urge ICE not to arrest individuals who show up for court appearances in state court. The chief justice said that courthouses should be added to the list of "sensitive locations" outlined in a 2011 ICE enforcement memo. That memo extends the principle of "sensitive locations" to schools, hospitals, houses of worship, and public demonstrations. Chief Justice Rabner noted:

A true system of justice must have the public's confidence. When individuals fear that they will be arrested for a civil immigration violation if they set foot in a courthouse, serious consequences are likely to follow. Witnesses to violent crimes may decide to stay away from court and remain silent. Victims of domestic violence and other offenses may choose not to testify against their attackers. Children and families in need of court assistance may likewise avoid the courthouses. And defendants in state criminal matters may simply not appear. To ensure the effectiveness of our system of justice, courthouses must be viewed as a safe forum. Enforcement actions by ICE agents inside courthouses would produce the opposite result and effectively deny access to the courts.

We couldn't agree more.

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NEWS IN BRIEF

TPS Extended for Haitian Nationals until 1/22/2018: DHS announced the extension of the designation of Haiti for temporary protected status (TPS) for six months, from 7/23/17 through 1/22/18. The 60-day re-registration period runs until 7/24/17. DHS has also announced that it will re-evaluate Haiti's TPS designation prior to January 2018 and decide anew whether extension, re-designation, or termination is warranted. In fact, in April USCIS concluded that the conditions in Haiti no longer support its designation for TPS. The agency recommended that DHS terminate Haiti's TPS designation, but delay the effective date until January 22, 2018. The goal of this extension is to provide a six-month period of orderly transition prior to TPS termination. Some 47,000 Haitians have lived in the United States under the protection of TPS for more than seven years. It is feared that termination of the program will create immense hardship for these individuals and will impact their children, many of whom are U.S. citizens, and their families back home who rely on remittances for their basic needs. Haitian TPS beneficiaries are reminded to also apply for work authorization. A timely filed EAD application would automatically extend the validity of the expired EAD for 180 days until 1/18/18.

FY2018 Budget Proposal Allocates Significant Funding to Border Security and Immigration Enforcement: The Trump Administration's fiscal year 2018 budget request would dramatically increase immigration enforcement and border security funding, including increasing immigration detention by 66 percent. The Administration is requesting an extra $300 million to hire an additional 500 CBP officers and 1,000 new ICE agents, and another $1.6 billion for construction of a border wall. These funding increases are intended to reduce illegal entries and overstays by strict enforcement.

Proposal in Play to Relax Standards for CBP Applicants: The House of Representatives recently passed The Anti-Border Corruption Reauthorization Act, which is designed to relax CBP hiring standards by exempting some applicants from polygraph testing before being hired. Unfortunately, the bill will do nothing to ensure good hiring practices by the Border Patrol, which has a history of staffing issues related to corruption, excessive use of force, and abuse. These same problems prompted Congress to pass the Anti-Border Corruption Act of 2010, which required additional hiring measures including mandatory polygraph testing. (CBP is the only federal law enforcement agency with a congressionally mandated polygraph as a condition of employment.) This bill will now move over to the Senate, where the similar "Boots on the Border" bill — passed last month — addresses CBP's chronic staffing shortage by streamlining background tests for qualified veterans, military service members, and law enforcement officers in good standing.

USCIS Issuing New Green Cards and Work Cards: USCIS has redesigned the permanent resident card (green card) and the Employment Authorization Document (EAD, or work card) in their proactive approach against the threat of document tampering and fraud. These redesigned cards use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant than the ones currently in use.

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