NYC Immigration Lawyer Blog: January 2018

Tuesday, January 30, 2018

James McHenry Appointed As Permanent Director Of EOIR

On January 10, 2018, Attorney General Jeff Sessions appointed James McHenry as the permanent Director of the Executive Office for Immigration Review (EOIR) [PDF version]. McHenry had been serving as Acting Director since May 30, 2017 [see blog]. Prior to his appointment, McHenry served in various capacities at the EOIR and in the Department of Justice, including a stint as an Administrative Law Judge at the Office of the Chief Administrative Hearing Officer (OCAHO) [see blog]. McHenry, a graduate of Vanderbilt University Law School, will oversee more than 2,100 employees at the immigration courts, Board of Immigration Appeals (BIA), OCAHO, and the EOIR headquarters.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Monday, January 29, 2018

Trump Administration Asks Supreme Court To Hear DACA Case

On January 16, 2018, the Trump administration petitioned for a writ of certiorari before judgment in United States Department of Homeland Security v. Regents of the University of California [PDF version]. In this case, William J. Alsup, a judge of the United States District Court for the Northern District of California, enjoined on several grounds the Trump Administration's efforts to wind down the Deferred Action for Childhood Arrivals (DACA) program [see blog]. As a result, and notwithstanding the DACA rescission memo, the Trump Administration has begun allowing certain DACA applications in compliance with the order [see blog].

Rather than waiting for Judge Alsup to render final judgment in the case or seeking a stay of the injunction from the United States Court of Appeals for the Ninth Circuit, the Government opted to ask the Supreme Court to take the case before judgment is granted. Seeking certiorari before judgment is rare, although not unprecedented. The Government is hoping that the Supreme Court will agree to hear the case and decide it this term (which ends in June). In a press release, Attorney General Jeff Sessions explained that the administration is “now taking the rare step of requesting direct review on the merits of this injunction by the Supreme Court so that this issue may be resolved quickly and fairly for all the parties involved” [PDF version].

In our articles on the injunction, we explained that the Government likely has a good chance of prevailing in the case. However, it is possible that intervening issues — such as legislation that addresses the issue — may prevent the DACA rescission case from being fully litigated. Although there are many uncertainties for DACA recipients, it is important to remind readers again that there is a potentially small window for certain individuals to apply for DACA, as detailed on site. To learn about the DACA rescission and updates in the litigation of the issue, please see our comprehensive article on the subject [see article]. In the event that the Supreme Court grants cert and schedules oral arguments, we will examine the legal issues in the DACA case in more detail.

Lawyer website: http://myattorneyusa.com

Thursday, January 25, 2018

DOJ Announces First Denaturalization Under Operation Janus

Back on October 3, 2017, we posted a blog about civil denaturalization charges being brought in three cases against individuals who were ordered removed before obtaining legal status and naturalization under different identities [see blog]. The charges came as part of the Department of Homeland Security's (DHS's) “Operation Janus,” which investigated approximately 315,000 cases where fingerprint data was missing.

In the original post, we discussed charges against Balinder Singh, also known as Davinder Singh. Singh, a native of India, had been ordered excluded and deported in 1992 under the name Davinder Singh. However, he subsequently filed for asylum under the name Balinder Singh, abandoned his asylum application, and procured lawful permanent resident status through a U.S. citizen wife. The Department of Justice (DOJ) announced on January 9, 2018, that Judge Stanley R. Chesler of the United States District Court for the District of New Jersey entered an order revoking the naturalized citizenship of Singh and canceling his certificate of naturalization [PDF version]. Accordingly, after his denaturalization, Singh's status reverted back to that of an alien lawfully admitted for permanent residence, and the DHS now has the option of pursuing removal proceedings.

The DOJ statement notes that the USCIS intends to refer approximately 1,600 additional cases for prosecution under Operation Janus. We will update the site with more information about denaturalization proceedings stemming from Operation Janus as it becomes available. To learn more about denaturalization, please see the relevant category on our site [see category].

Lawyer website: http://myattorneyusa.com

Release Of 2018 HHS Poverty Guidelines

On January 17, 2018, the Department of Health and Human Services (HHS) released the new poverty guidelines. These new poverty guidelines became applicable on January 13, 2018. In the immigration context, the HHS poverty guidelines are applicable both in the public charge context and in the fee waiver context. Please see our articles on public charge generally [see article], deportability for public charge [see article], fee waivers with the United States Citizenship and Immigration Services (USCIS) [see article], and reduced fee requests for naturalization applications [see article].

The following charts represent the new HHS poverty guidelines [PDF version] [see here].

Please note that the HHS poverty guidelines are not defined for the following areas:

Puerto Rico;
U.S. Virgin Islands;
American Samoa;
Guam;
Republic of the Marshall Islands;
Federated States of Micronesia;
Commonwealth of the Northern Mariana Islands; and
Palau.

The HHS explains that when cases in which a Federal program using the HHS poverty guidelines are administered in any of the above jurisdictions, the Federal office administering the program will determine whether the HHS guidelines for the 48 contiguous states and the District of Columbia are used or whether some other procedure applies.

The new HHS poverty guidelines were published in the Federal Register at 83 FR 2642 [PDF version]. The HHS has the authority to update the poverty guidelines under Federal statute (see 42 U.S.C. 9902(2)). The USCIS will update the Form I-864P, HHS Poverty Guidelines for Affidavit of Support, to reflect the new poverty guidelines.

As we noted, the HHS poverty guidelines are relevant to immigration law in the public charge and fee waiver contexts. An individual attempting to overcome the presumption of public charge or obtain a fee waiver may consult with an experienced immigration attorney for case-specific guidance.

Lawyer website: http://myattorneyusa.com

Tuesday, January 23, 2018

New Immigration Judge Begins Service On Los Angeles Immigration Court

On December 11, 2017, the Executive Office of Immigration Review (EOIR) announced that Jankhana Desai was sworn in as a new Immigration Judge for the Los Angeles Immigration Court. The investiture ceremony for Immigration Judge Desai took place on December 8, 2017. Jankhana Desai was appointed to the Los Angeles Immigration Court by Attorney General Jeff Sessions.

Jankhana Desai, a graduate of University of California, Berkeley School of Law, previously served as an administrative law judge for the New York State Department of Health and as an administrative law judge for the State of California, Office of Administrative Hearings. She was also an adjunct law professor prior to being sworn in to serve on the Los Angelis Immigration Court.

You may read the full EOIR news release here.

Lawyer website: http://myattorneyusa.com

Monday, January 22, 2018

Texas Service Center To Begin Processing L Visa Petitions On February 12, 2018

The United States Citizenship and Immigration Services (USCIS) announced that the Texas Service Center will begin processing Form I-129, Petition for a Nonimmigrant Worker petitions for L nonimmigrant classification on February 12, 2018 [PDF version]. The Texas Service Center will share the L nonimmigrant petition workload with the California Service Center. As of February 12, the Vermont Service Center will no longer process any L nonimmigrant petitions.

The USCIS notice reminds L nonimmigrant petitioners that they should file the Form I-129 for L nonimmigrant status “at the address indicated on the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page.”

Beginning on March 12, 2018, the USCIS may begin rejecting any L nonimmigrant petitions filed at the wrong USCIS service center.

L nonimmigrant petitioners should consult with an experienced immigration attorney for case-specific guidance throughout the process. To learn more about the L nonimmigrant visa category, please see our selection of articles on the subject [see category].

Lawyer website: http://myattorneyusa.com

Thursday, January 18, 2018

DHS To Terminate El Salvador TPS (Effective Sep. 9, 2019)

On January 8, 2018, Secretary of Homeland Security Kirsten Nielsen announced that she would terminate the Temporary Protected Status (TPS) designation for El Salvador [PDF version]. However, Secretary Nielsen opted to delay the termination of El Salvador TPS for a period of 18 months in order to ensure an orderly transition. Accordingly, the TPS designation for El Salvador will terminate on September 9, 2019.

Secretary Nielsen determined that the conditions on the ground in El Salvador no longer support the continuation of El Salvador TPS, which was originally issued due to an earthquake in 2001.

The termination of El Salvador TPS is significant. El Salvador has by far the most TPS beneficiaries of any country, with U.S. News reporting that the number is over 260,000 El Salvadorans on TPS.[1] Furthermore, because TPS for El Salvador began in 2001, these individuals have been in the United States for a significant period of time.

The DHS notice makes clear that El Salvadorans on TPS who are eligible for other statuses will be able to remain in the United States on such status. However, El Salvadorans who do not have a separate basis for remaining legally in the United States and are unable to obtain such status will be required to depart on September 9, 2019, barring any legislation providing replacement benefits.

For now, El Salvadorans on TPS will be able to apply for extensions through the end of the TPS designation for El Salvador. They will also be able to apply for El Salvador TPS-related employment authorization documents (EADs). However, the DHS has not yet published a Federal Register notice on the re-registration period for El Salvador TPS. We will update the site when this information becomes available.

Neuhauser, Alan. “DHS Ending Protected Status for El Salvadorans.” U.S. News. Jan. 8, 2018. https://www.usnews.com/news/national-news/articles/2018-01-08/trump-ending-protected-status-for-el-salvador?intu.s.-news-information-rec

Lawyer website: http://myattorneyusa.com

Monday, January 15, 2018

District Court Enjoins DACA Rescission

On January 10, 2018, Judge William Alsup of the United States District Court for the District of Northern California issued a preliminary injunction against the Trump Administration's decision to rescind the Deferred Action for Childhood Arrivals (DACA) program [see order]. To learn about the DACA rescission and what it means more broadly, please see our comprehensive article on the subject [see article].

Judge Alsup ordered the Trump Administration “to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments…” However, Judge Alsup added three exceptions to his order that the DACA program be maintained as it was before September 5, 2017:

The Department of Homeland Security (DHS) does not have to accept or process new applications from applicants who have never received deferred action;
The DHS does not need to grant anyone advance parole under DACA; and
The DHS “may take administrative steps to make sure fair discretion is exercised on an individual basis for each renewal application…”

To this effect, Judge Alsup ordered the DHS to “post reasonable public notice that it will resume receiving DACA renewal applications and prescribe a process consistent with this order.”

Judge Alsup provided that his injunction will remain in force pending issuance of a final judgment order by his court or another order.

WHAT DOES THE NEWS MEAN?

While Judge Alsup issued a sharp rejoinder to the Trump Administration on its decision to rescind DACA, seeming to base the decision on his determination that the legal rationale provided by Attorney General Jeff Sessions for rescinding this exercise of executive discretion was inadequate, there is reason to believe that the victory for the plaintiffs will be short-lived.

While there are legitimate legal debates about whether the DACA program itself is legal, it is quite unusual, if not unprecedented, for a judge to order the President of the United States to affirmatively exercise his discretion in a certain way. For this reason and others, I believe that it is far more likely than not that Judge Alsup's injunction will be stayed — if not by the United States Court of Appeals for the Ninth Circuit, then by the Supreme Court of the United States — and that the Trump Administration will ultimately prevail in the litigation over its discretionary decision to rescind the DACA memorandum. Were the Supreme Court to side with the Trump Administration on appeal, it would in fact not be the first time the Court has weighed in on this very case. To learn more, please see our blog about the Supreme Court's unusual 5-4 decision to stay an order for discovery that had originally been issued by Judge Alsup and upheld in part on appeal by the Ninth Circuit [see blog].

While anything is possible, it is likely that the ultimate immigration fate of those who benefit from DACA will not be decided in litigation, but instead by the political branches. For the time being, it is most prudent for DACA beneficiaries and other interested parties to act on the presumption that DACA will be rescinded, but the ultimate resolution of the issue will be decided by the Congress and the president.

As always, we will continue to update the website with news on DACA, including if this case and other ongoing litigation on the issue ultimately creates new options or opportunities for DACA beneficiaries. Please continue to follow our website for up-to-date information on this important issue and other current events in immigration law.

Lawyer website: http://myattorneyusa.com

Thursday, January 11, 2018

Supreme Court Weighs In On Document Discovery In California DACA Rescission Case

On December 20, 2017, the Supreme Court of the United States issued a per curiam order [PDF version] lifting an order by the United States District Court for the Northern District of California that would have required the Trump Administration to turn over a substantial number of documents relating to its decision to terminate the Deferred Action for Childhood Arrivals (DACA) program. The issue arises from five lawsuits filed in California against the government over the DACA termination.

As the Supreme Court explains, the plaintiffs in District Court had argue that the decision of former acting-Homeland Security Secretary Elaine Duke to rescind DACA is unlawful. Among other reasons, the plaintiffs had argued that the decision violated the Administrative Procedures Act (APA) and the Due Process Clause of the Fifth Amendment.

(In an interesting aside, one of the plaintiffs in the California litigation is Janet Napolitano in her capacity as head of the President of the University of California. This is noteworthy because Napolitano originally issued the DACA memorandum when she was previously the Secretary of Homeland Security.)

In discovery, the Government had turned over 256 pages of documents relating to the decision to rescind DACA. The Government stated that those documents contained all of the non-deliberative material considered by then-acting Secretary Duke in reaching her decision to rescind DACA.

On October 17, the District Court ordered the Government to complete the administrative record by submitting more documents in accordance with the order. The Supreme Court excerpted the portion of the order that specified the documents that the Government was ordered to produce [see here].

In response, the Government petitioned the United States Court of Appeals for the Ninth Circuit for a writ of mandamus (thereby asking the Ninth Circuit to order the District Court to correct what the Government believed was its abuse of discretion in issuing the October 17 order). In In re United States, 875 F.3d 1200 (9th Cir. 2017), the Ninth Circuit denied the Government's petition in a published opinion on November 16, 2017. On November 19, 2017, the Government filed a motion with the District Court to stay the October 17 discovery order until after the District Court ruled on a separate motion by the Government to dismiss the respondents' motion for a temporary injunction against the DACA rescission. The District Court declined to grant the Government's petition, but it did stay the discovery order for one month. The Government then filed a petition for a writ of mandamus with the Supreme Court.

On December 8, 2017, the Supreme Court granted the Government's petition for a writ of mandamus and, pending further briefing, it stayed the District Court's order to the extent that it required discovery and the production of further documents from the Government. Interestingly, the Supreme Court split on this issue, with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch voting to grant the Government's petition (note: the opinion was un-signed, although we can assume that these five justices voted to grant the motion by the fact that the other four justices dissented). The decision drew a ten page dissenting opinion from Justice Stephen Breyer, which was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan [PDF version].

This brings us to the Supreme Court's December 20 decision. While the December 8 decision drew four dissents, no justices recorded dissents from the December 20 decision.

Here, the Supreme Court found that “[t]he Government makes serious arguments that at least portions of the District Court's order are overly broad.” Based on the facts of the case, the Supreme Court held that “the District Court should have granted the respondents' motion on November 19 to stay implementation of the challenged October 17 order and first resolved the Government's threshold arguments…” The Court added that, were the Government to prevail on one or both of those arguments (that the decision to rescind DACA was an unreviewable exercise of discretion under 5 U.S.C. 701(a)(2) and that the Immigration and Nationality Act (INA) deprives the District Court of jurisdiction), then any arguable need for the District Court to examine further documents would have been eliminated.

As a result, the Supreme Court vacated the Ninth Circuit decision denying the Government's petition for a writ of mandamus. It then directed the Ninth Circuit to “take appropriate action so that the following steps can be taken.” The steps are as follows:

The District Court should rule on the Government's threshold arguments; and
Thereafter, the District Court may consider whether narrower amendments to the record via additional discovery are necessary and appropriate.

As we noted, if the District Court agrees with one or both of the Government's threshold arguments, then the issue of whether further documents are necessary may be mooted. Neither of the Government's threshold arguments has to do with why DACA was rescinded, but rather whether the decision is reviewable on the grounds claimed by the plaintiffs. The second point is interesting as well. Assuming that the District Court rejects the Government's threshold arguments, then the Supreme Court's decision does not preclude the possibility that it may direct the Government to produce additional documents. However, the Court stated that it may consider, in that case, “narrower amendments to the record,” thus seeming to confirm that the Court agrees with the Government's position that the District Court discovery order was over-broad even when considered separately from the issue of the Government's threshold arguments. However, we must also note that the Court added that “[t]his order does not suggest any view on the merits of the respondents' claims or the Government's defenses…”

Finally, the Supreme Court precluded the District Court from “compel[ling] the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue.”

Although we have not yet covered the challenges to the DACA rescission in California and, separately, e in Federal District Court in Brooklyn, we will update the site with any major developments in the cases. Furthermore, we will update the site on any news from Congress regarding a potential legislative replacement.

Despite the pending litigation and debate in Congress, it is safest for those affected by the potential rescission of DACA to proceed as if DACA will be rescinded and plan accordingly. Those with specific questions should consult with an experienced immigration attorney for case-specific guidance.

Please see our full article to learn about the DACA rescission and related issues in detail [see article].

Lawyer website: http://myattorneyusa.com

Wednesday, January 10, 2018

Thoughts On The Ongoing Iran Protests

Over the past week, people in Iran have taken to the streets to protest the dire economic situation in the country and government malfeasance. According to a report by Kim Hjelmgaard of USA Today, Iranian media has stated that “[a]t least 20 people have died and 450 have been arrested in the nationwide protests that began [on December 28, 2017] in Mashaad and spread to other cities…” [link].[1] To be sure, no one would be surprised if the “Iranian media” cited to in the report is under-selling the situation.

In several more political pieces on the site, I have noted that Iran is the world's leading state-sponsor of terrorism. However, the geopolitical issues involving the threat that the Iranian regime poses to the world should not overshadow its brutal oppression of its own people at home. Speaking from experience as an immigration attorney who focuses extensively on U.S. asylum and refugee law, I can say with confidence that any experienced U.S. immigration attorney in these areas has been confronted with the human rights situation in Iran.

In 2009, the people of Iran rose up to protest election fraud in Iran and were met with force from the Iranian Government. At that time, both the United States and many of its Western allies were disappointingly circumspect in aligning the peaceful protesters with the repressive Iranian Government and its Islamic Revolutionary Guard. Fortunately, the United States Government is taking a different approach on this occasion.

Vice President Mike Pence made clear that the Trump Administration would be adopting a new posture regarding its response to the Iran protests [see here].

As he is apt to do, President Trump has used his Twitter account to comment often on the situation in Iran over the past week. The following is one example [see here].

Here, President Trump makes a sound point. Many U.S. Government officials and pundits who backed the Iran nuclear accord argued that the Iranian Government would spend the money it obtained as a result of the agreement on domestic programs. For example, here is a passage from former President Barack Obama on August 5, 2015, taking this very position:

“Iran's leaders have raised expectations of their people, that sanctions relief will improve their lives. Even a repressive regime like Iran's cannot completely ignore those expectations, and that's why our best analysts expect the bulk of this revenue to go into spending that improves the economy and benefits the lives of the Iranian people. Now, this is not to say that sanctions relief will provide no benefit to Iran's military. Let's stipulate that some of that money will flow to activities that we object to.”[2]

While the former president did acknowledge that some of the money from the Iran nuclear accord would be spent on the military, he stated that it was his position and that of his administration that “the bulk” of the money would be spent on the Iranian people. However, as President Trump noted, the Iranian people today are risking their lives to disclose that the non-representative Iranian Government is in fact not spending its newfound wealth on improving the lives of the citizenry. As we see in the protests, many people in Iran are determined to force the government to cease “ignoring [their] expectations,” an outcome that the then-President Obama suggested that his administration did not foresee.

The potential import to the Iranian people of the United States' recognition of the protests and their cause should not be minimized. According to a Wall Street Journal report, summarized at Newsmax, “[s]ome Iranians have shared President Donald Trump's tweets supporting the protesters…” [link].[3] While it also notes that many Iranians still “distrust Trump,” it is unsurprising to see that many Iranians see having the President of the United States shine a spotlight on their plight as a benefit.

Fortunately, the Trump Administration is doing more than just tweeting. According to the aforementioned report, it is also “lobbying countries around the world to support protesters in Iran as violent demonstrations intensify…” To this effect, Brian Hook, the U.S. Department of State's (DOS's) director of policy planning stated that “[w]e are encouraging all nations around the world to publicly condemn the government violence and to support the legitimate, basic rights of those protesting…” He added that “[w]e want to take a position with moral clarity and let the protesters know that they're not alone.” While I have criticized the DOS recently on its response to President Trump's decision to recognize Jerusalem as the capital of Israel [see blog], it has certainly been a beacon of “moral clarity” with regard to the current situation in Iran. The following is a December 29 statement on the protests from DOS Spokeswoman Heather Nauert [see here].

Unfortunately, thus far much of the world has been slow to respond. For example, on January 1, Hillel Neuer of UN Watch noted that the United Nations has been disappointingly, albeit unsurprisingly, silent on the situation in Iran [see here].

The UN's silence was also noted by U.S. Ambassador to the UN Nikki Haley, who called for an emergency security council meeting on the subject and stated:

“The people of Iran are crying out for freedom… All freedom-loving people must stand with their cause. The international community made the mistake of failing to do that in 2009. We must not make that mistake again.”[4]

Like Neuer, Ambassador Haley also noted the added significance of the silence of the UN Human Rights Council, which is always quick to condemn Israel for just about anything.

Ironically, the leader of the UN's main target of ire, Israel's Prime Minister Benjamin Netanyahu, issued a powerful statement in support of the Iranian people and criticizing “many European governments” who “watch in silence” [see here].

Whether the world was mostly silent on the 2009 protests in Iran due to a push for the Iran nuclear accord, as Israel's MK Michael Oren suggested, or for other reasons, the “moral clarity” being shown by several organs of the Trump Administration regarding the Iran protests is refreshing.[5] The Iranian regime is little better to its own people than it is to those around the world it terrorizes directly or indirectly through proxies. Standing with the protesters is not only the right thing to do, but it is in the strategic interest of the free world as well.

As I noted earlier, Iranians feature prominently among the nationalities of individuals seeking asylum and refugee status in the United States [see category]. We discussed an interesting situation involving an Iranian national who had gained a green card after being an asylee and sought a second green card so that the Iranian government would not discover that he had been granted asylum in the United States [see section]. For those interested, we also have articles discussing how the travel restrictions in President Trump's September 24 proclamation [see article] and the new refugee rules [see article] affect Iranian nationals.

Hjelmgaard, Kim. “Iran's Supreme Leader Ayatollah Khomeini blames 'enemies' for meddling in protests.” USA Today. Jan. 2, 2018. usatoday.com
Washington Post Staff. “Full text: Obama gives a speech about the Iran nuclear deal.” Washington Post. Aug. 5, 2015. www.washingtonpost.com/news/post-politics/wp/2015/08/05/text-obama-gives-a-speech-about-the-iran-nuclear-deal/?utm_term=.2470825e4fb3
Burke, Cathy. “White House Urges World-Wide Support for Iran Protesters.” Newsmax. Jan. 1, 2018. newsmax.com
Gehrke, Joel. “Nikki Haley: The UN 'must speak out' to support protesters in Iran.” Washington Examiner. Jan. 2, 2018. washingtonexaminer.com
Id.

Lawyer website: http://myattorneyusa.com

Tuesday, January 9, 2018

Attorney General Jeff Sessions Rescinds 25 DOJ Guidance Documents

INTRODUCTION

On December 21, 2017, Attorney General Jeff Sessions rescinded 25 guidance documents that had been issued over the years by the U.S. Department of Justice (DOJ) [PDF version].

We discussed in a previous article that Attorney General Sessions had issued a memorandum on ending the DOJ's practice of regulation by guidance [see article]. This guidance document was issued to follow the policy set forth in President Donald Trump's February 24, 2017 Executive Order 13777, titled “Enforcing the Regulatory Reform Agenda” and published in the Federal Register (FR) at 82 FR 12285 [PDF version].

RESCINDED DOCUMENTS

Sessions stated that he was rescinding the 25 guidance documents because they were determined to be “unnecessary, inconsistent with existing law, or otherwise improper.” The majority of guidance documents were issued under the Clinton, George W. Bush, and Obama Administrations, although a couple were older. The following is the list of 25 rescinded guidance documents:

ATF Procedure 75-4.
Industry Circular 75-10.
ATF Ruling 85-3.
Industry Circular 85-3.
ATF Ruling 2001-1.
ATF Ruling 2004-1.
Southwest Border Prosecution Initiative Guidelines (2013).
Northern Border Prosecution Initiative Guidelines (2013).
Juvenile Accountability Incentive Block Grants Program Guidance Manual (2007).
Advisory for Recipients of Financial Assistance from the U.S. Department of Justice on Levying Fines and Fees on Juveniles (January 2017).
Dear Colleague Letter on Enforcement of Fines and Fees (March 2016).
ADA Myths and Facts (1995).
Common ADA Problems at Newly Constructed Lodging Facilities (November 1999).
Title II Highlights (last updated 2008).
Title III Highlights (last updated 2008).
Commonly Asked Questions About Service Animals in Places of Business (July 1996).
ADA Business Brief: Service Animals (April 2002).
Prior Joint Statement of the Department of Justice and the Department of Housing and Urban Development Group Homes, Local Land Use, and the Fair Housing Act (August 18, 1999).
Letter to Alain Baudry, Esq., with standards for conducting internal audit in a non-discriminatory fashion (December 4, 2009).
Letter to Esmeralda Zendejas on how to determine whether lawful permanent residents are protected against citizenship status discrimination (May 30, 2012).
Common ADA Errors and Omissions in New Construction and Alterations (June 1997).
Common Questions: Readily Achievable Barrier Removal and Design Details: Van Accessible Parking Spaces (August 1996).
Website guidance on bailing-out procedures under section 4(b) and section 5 of the Voting Rights Act (2004).
Americans with Disabilities Act Questions and Answers (May 2002).
Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments' Employment Service Systems for Individuals with Disabilities (October 31, 2016).

TWO RESCINDED DOCUMENTS TOUCHING ON IMMIGRATION ISSUES (19 & 20, ABOVE)

None of the rescinded documents bear significantly on immigration issues. However, two of the letters did address issues having to do with the employment of aliens. While we will discuss the documents in brief, it is important to note that both have been rescinded and, in fact, taken down from the DOJ website. However, it is worth noting that David Shortell and Jessica Schneider of CNN reported that a DOJ official have stated that both of the immigration-related letters “were outdated and revoked because subsequent guidance on the subjects has been issued…”[1]

First, document 19, “Letter to Alain Baudry, Esq., with standards for conducting internal audit in a non-discriminatory fashion (December 4, 2009),” consists of a DOJ response to a question from Baudry, an attorney, concerning a client matter. Although the DOJ deleted the letter, we have uploaded a cached version for those who are interested in reading [PDF version]. The letter detailed that Baudry stated that the human resources manager of a client had learned from the police department that one of its employees lacked employment authorization. As a result, the client reviewed documents presented by another employee hired around the same time and discovered that the social security card presented by that employee included “notable spelling errors,” calling into question its validity.

Baudry posed two questions. First, he wanted to know if his client was permitted to question the employee and request or require that the employee submit another form of employment verification. If not, he wanted to know what other steps the employer should take. Second, he asked if the client could conduct a further review or audit of other files and take similar steps if it found any other documents that included “such obvious errors.”

Katherine A. Badwin of the DOJ did not provide case-specific guidance in response. Instead, she explained that the anti-discrimination provisions of the section 274B of the Immigration and Nationality Act (INA) “prohibits hiring, firing, recruitment or referral for a fee, and unfair documentary practices during the employment eligibility verification (Form I-9) process (document abuse) on the basis of citizenship or immigration status or national origin…” However, she added that “[a]n employer may choose to conduct an internal audit of its I-9 forms as long as it is conducted for every employee in the same manner.” She further added that if, during a properly conducted audit, an employer finds that some documents or forms are incomplete, it may re-verify those employees. An employer may not accept documentation that does not appear genuine or to relate to the employee in question.

However, document 20, “Letter to Esmeralda Zendejas on how to determine whether lawful permanent residents are protected against citizenship status discrimination (May 30, 2012),” did touch more directly on an immigration issue. Although the document appears to no longer be on the DOJ website, the text of the letter was uploaded by Chris Greider of Buzzfeed in connection with an article he wrote on the DOJ's decision [PDF version] [link].[2]

The now-rescinded Zendejas letter fielded a question regarding the reach of section 274B of the Immigration and Nationality Act (INA). Section 274B(1)(B) prohibits certain forms of employment discrimination against “protected individuals” on the basis of citizenship status. Aliens lawfully admitted for permanent residence (LPRs) are “protected individuals” under section 274B(3)(B). However, an LPR who fails to apply for naturalization within six months of becoming eligible to do so is not protected from citizenship status discrimination under the statute. Seema Nanda, a DOJ official who issued the letter, confirmed that section 274B(3)(B) does not cover LPRs who fail to apply for naturalization within six months of becoming eligible. However, she added that “all work authorized individuals are protected against other forms of discrimination under the anti-discrimination provision, including document abuse — the request for more or different documents, or the rejection of genuine looking documents in the employment eligibility verification process based on national origin or citizenship status.”

CONCLUSION

The two immigration-related guidance documents discussed above that have been rescinded by the DOJ do not represent any significant changes in the handling of immigration cases. Rather, the two rescinded guidance documents were reportedly rescinded because they have been since superseded by newer guidance. Employers with questions about section 274B of the INA should consult with an experienced attorney in the subject of employment immigration for case-specific guidance.

We will continue to follow this issue with respect to the DOJ, especially if the DOJ rescinds or revokes guidance relating to the Executive Office for Immigration Review (EOIR). Furthermore, we will update the site if similar steps are taken by the U.S. Department of Homeland Security (DHS) or U.S. Department of State (DOS).

Shortell, David and Jessica Schneider, “Justice Department rolls back guidance on fining poor defendants.” CNN. Dec. 22, 2017. cnn.com
Greider, Chris. “Jeff Sessions Cuts 25 'Guidance Documents,' Including Some Obama-Era Anti-Discrimination Guidance.” Buzzfeed. Dec. 21, 2017. buzzfeed.com

Lawyer website: http://myattorneyusa.com

Friday, January 5, 2018

DOJ Announces Criminal Complaint Filed For Unlawful Procurement Of Naturalization

On December 22, 2017, the U.S. Department of Justice (DOJ) announced that it charged a lawful permanent resident (LPR) from Uzbekistan with immigration offenses [PDF version].

The facts are as follows:

Sidikjon Mamadjonov, a 31-year old citizen of Uzbekistan residing in the United States, was arrested on December 22, 2017, on a criminal complaint charging him with immigration offenses.
Mamadjonov was admitted to the United States in February 2009. He became an LPR in September 2010.
On September 8, 2014, Mamadjonov filed a Form N-400, Application for Naturalization.
According to the criminal complaint, Mamadjonov told the FBI in an interview on November 20, 2017, that he had been informed on a trip to Turkey in 2013 that his brother had died in May or June 2013 while fighting in Syria with the “Nursa” group, which was affiliated with the Islamic State of Iraq and Syria (ISIS). When he returned from Turkey, Mamadjonov told the FBI that he received a package containing what he believed to be his brother's iPhone. The iPhone “contained several videos and photographs depicting [his brother] in Syria.” Mamadjonov also “recalled a video in which [his brother] stated, 'Join us brother, we are here.'” The phone also contained photographs of his Mamadjonov's brother's dead body and his bloodied face.
According to the criminal complaint, Mamadjonov told the FBI in three interviews in 2014 — notably after he later stated he had received the package containing his brother's iPhone and gave a different account of his trip to Turkey — that his brother was still alive.
The complaint also alleged that Mamadjonov had told the FBI in an interview in August 2016 that he did not know the whereabouts of his brother and that he had not overheard any discussions of Uzbeks in the United States going to Syria to fight. Furthermore, he told the FBI that he was not aware of any Uzbeks traveling to Syria.
The complaint alleged that in September 2014 Mamadjonov provided false answers on his Form N-400, which he submitted under oath. He answered “No” to the question of whether he had “ever been a member of, or in any way associated (either directly or indirectly) with: C. A terrorist organization?” In response to Part 11, Question 31 of the version of the Form N-400 he filled out, he answered “No” in response to “Have you ever given any Government official information that was materially face, fraudulent or misleading?” He signed the form below, certifying under penalty of perjury that the Form N-400 and evidence submitted with it was true and correct.
The complaint also alleged that Mamadjonov provided false statements to a United States Citizenship and Immigration Services (USCIS) officer in an interview regarding his Form N-400. In this interview, he again concealed information about his association with a member of a known terrorist organization, this being his brother. The complaint notes that “[a]t the conclusion of the interview, he swore an oath under penalty of perjury that his responses were true.”

The complaint charged Mamadjonov with Unlawful Procurement of Naturalization (18 U.S.C. 1425(b)), False Statements on a Naturalization Application (18 U.S.C. 1015), and False Oath or Declaration Under Penalty of Perjury (18 U.S.C. 1546). You may read the complaint here [PDF version]. The DOJ, however, made clear that “a complaint is only a charge and not evidence of guilt.” Mamadjonov will have the opportunity to defend himself in court.

While the complaint is not a conviction, the facts of the case are interesting. Regardless of the ultimate disposition of the specific case, it highlights several important points. First, an individual who is sought for questioning by the FBI or other law enforcement should consult with an experienced criminal defense attorney for guidance. Furthermore, the individual should never provide knowingly false information to law enforcement. Regarding Mamadjonov's Form N-400, the case also serves as a reminder that providing false information on an immigration application may render an individual subject to criminal penalties in addition to civil immigration penalties.

Mamadjonov was charged with unlawful procurement of naturalization under 18 U.S.C. 1425(b). We noted that Justice Neil Gorsuch posed questions about the language of 18 U.S.C. 1425(b) in oral arguments for Maslenjak v. United States, a case examining the scope of 18 U.S.C. 1425(a). For those interested, please see our full article on the Supreme Court decision in Maslenjak on the scope of 18 U.S.C. 1425(a).

Lawyer website: http://myattorneyusa.com

January 2018 Visa Bulletin

INTRODUCTION

On December 11, 2017, the U.S. Department of State (DOS) published the Immigrant Visa Bulletin for January 2018 [PDF version]. The visa bulletin contains filing dates and final action dates for the family-sponsored and employment-based immigrant visa preference categories. On December 15, 2017, the United States Citizenship and Immigration Services (USCIS) determined that beneficiaries of approved family-sponsored preference petitions must use the filing dates for applying for adjustment of status in January 2018 [PDF version]. Conversely, USCIS determined that beneficiaries of approved employment-based petitions must use the final action dates for applying for adjustment of status in January 2018.

In this article, we will examine the relevant charts provided by the DOS and the USCIS for immigrant visa applicants and adjustment of status applicants in January 2018. Furthermore, we will provide an overview of the news and notes included with the January 2018 visa bulletin from DOS.

Please see our full articles to learn about how to use the immigrant visa bulletin as an adjustment of status applicant [see article] and the differences between the final action dates and filing dates [see article].

To see how the visa bulletins have progressed over the current fiscal year, please see our index of visa bulletin articles [see article].

FAMILY-SPONSORED CASES

As we noted, the USCIS has determined that those applying for adjustment of status based on approved family-sponsored immigrant visa petitions must use the filing dates from the January 2018 visa bulletin. This is good news for family-sponsored applicants because the filing dates are generally more favorable to applicants than the final action dates.

In order for the beneficiary of an approved family-sponsored immigrant visa petition to be eligible to apply for adjustment of status in January 2018 (if otherwise eligible, of course), he or she must have a priority date that is earlier than the applicable filing date for his or her preference category and chargeability area. An applicant's priority date will generally be the date on which his or her immigrant visa petition was properly filed with the USCIS.

The following chart [see here] lists the filing dates for family-sponsored cases for January 2018.

For your reference, the following chart [see here] contains the final action dates for family-sponsored cases in 2018.

Although family-sponsored adjustment applicants must use the filing dates in January 2018, it is likely that the USCIS will determine that it is necessary for family-sponsored applicants to use the final action dates later in fiscal year 2018.

EMPLOYMENT-BASED CASES

The USCIS determined that beneficiaries of approved employment-based immigrant visa petitions must use the final action dates from the January 2018 visa bulleting for applying for adjustment of status. Employment-based applicants have been required to use the final action dates for every month in fiscal year 2018, and that trend is likely to persist through the end of the fiscal year next September.

Accordingly, the beneficiary of an approved employment-based petition may apply for adjustment (if otherwise eligible) only if his or her priority date is before the applicable final action cutoff date for his or her preference category and chargeability area. If labor certification was required for the petition, the priority date will usually be on the date on which the labor certification application was approved by the U.S. Department of Labor. For petitions for which labor certification was not required, the priority date will generally be the date on which the petition was properly filed with the USCIS.

The following chart [see here], courtesy of USCIS, contains the final action dates for employment-based cases in January 2018.

SCHEDULED EXPIRATION

The January 2018 visa bulletin's guidance on categories listed as “unavailable” is outdated. In this section, we will explain the current situation with the most up-to-date information.

The categories for employment-fourth preference certain religious workers (SR) and employment fifth preference investors (I5 and R5) are scheduled to expire unless they are extended by congress. These extensions are intertwined with passing legislation to extend funding of federal government operations. Regular readers of our blog and those otherwise interested in the affected categories will note that this issue has arisen regularly over the past couple of years.

The visa bulletin states that on December 7, 2017, President Donald Trump signed a continuing resolution, passed by Congress, to extend government funding through December 21, 2017. Accordingly, it states that no SR or IR/R5 visas could be issued after midnight, December 21, 2017.

However, subsequent to the issuance of the January 2018 visa bulletin, President Trump signed another continuing resolution passed by the Senate on December 21. This new continuing resolution funds the government through January 19, 2018. This extension also includes the SR, I5, and R5 categories.

What does this mean for beneficiaries of approved SR, I5, and R5 petitions? Assuming a new extension is not signed, the DOS may issue visas for SR beneficiaries until midnight, January 18, 2017. Furthermore, SR non-minister special immigrants must be admitted into the United States no later than midnight January 18. The DOS may issue I5 and R5 visas until the close of business on January 19, 2018. These same provisions apply to adjustment of status.

If a new government funding bill is signed prior to January 19, 2018, there will be no point at which visas in the SR, I5, and R5 categories become unavailable. Furthermore, if legislation is passed after January 19, the visas would become available after a gap period.

The DOS states that in the SR category, the final action date is current for January for all countries except El Salvador, Guatemala, and Honduras (Dec. 1, 2015 final action date) and Mexico (June 1, 2016 final action date), until January 19 (and after if they are extended). The final action dates for I5/R5 are current for every country except China-mainland born (July 22, 2014 final action date).

While it is perhaps more likely than not that the SR, I5, and R5 will be extended prior to their expiration, it is important to remember that the question is an ancillary issue in the broader budget negotiations for the entire U.S. government. It is certainly not beyond the realm of possibility that there will be a gap in the authorization of these three important programs. Those who may be eligible for visas/status in these categories in January 2018, whether through consular processing or adjustment of status, should consult with an experienced immigration attorney for case-specific guidance. We will update the website with information on the situation regarding these three categories as it becomes available.

SPECIAL IMMIGRANT TRANSLATORS

The DOS stated that it is holding the January Final Action Date for special immigrant (SI) translator category visas at April 1, 2010. It continues to expect to reach the annual limit of 50 visas in this category early in the fiscal year. At that time, the final action date in the SI translator category will become “unavailable.” The SQ special immigrant visa category for certain Iraqi and Afghan nationals employed by or on behalf of the U.S. government in Iraq or Afghanistan remains current.

REPORT ON NUMBER OF IMMIGRANT VISA APPLICANTS REGISTERED IN PREFERENCE CATEGORIES AS OF 11/1/17

The National Visa Center released a report on the number of applicants registered in the various preference categories for processing at overseas posts as of November 11, 2017. We have included the PDF for those who are interested [PDF version].

CONCLUSION

It is important for those seeking status in one of the family-sponsored or employment-based preference categories to stay abreast of developments in the visa bulletin, and especially so for those who intend to apply for adjustment of status. In general, those seeking immigrant visas or adjustment of status should consult with an experienced immigration attorney throughout the entire process for case-specific guidance. Regarding the January 2018 visa bulletin, this is particularly important for those seeking visas or adjustment in the SR, I5, and R5 employment-based preference categories.

Lawyer website: http://myattorneyusa.com

Tuesday, January 2, 2018

District Court Issues Preliminary Injunction Against Implementation Of Certain Portions Of 10/24 Refugee Executive Order

On December 23, 2017, Judge James L. Robart of the United States District Court for the Western District of Washington granted a motion for a preliminary injunction against the implementation by federal agencies of certain portions of the inter-agency memorandum implementing President Donald Trump's Executive Order 13815 on refugees [see article]. The preliminary injunction was granted pertaining to two cases: Doe v. Trump and Jewish Family Services v. Trump [see decision].

First, the injunction enjoins the Government from suspending the processing and suspending the admission of following-to-join refugees. However, this injunction applies only to following-to-join refugees with a bona fide relationship to a person or entity within the United States. Judge Robart cited to the Supreme Court decision discussing the term with respect to President Trump's previous Executive Order 13780 [see article]. However, the preliminary injunction does not enjoin the Government from engaging in efforts to implement “additional security measures” or align “the screening mechanisms for following-to-join refugees” with “processes employed for principal refugees.” In short, the injunction prohibits the Government from suspending the processing or admission of following-to-join refugees, but it does not prevent the Government from implementing additional security measures described in the Executive Order.

Second, the temporary injunction enjoins the Government from enforcing the provisions of the inter-agency memorandum (implementing Executive Order 13815) that suspend or inhibit the admission of refugees from Security Advisory Opinion countries. Again, Judge Robart limited the scope of the injunction to cover only refugees with a bona fide relationship with a person or entity in the United States. The injunction does not enjoin the Government from conducting a detailed threat assessment of each Security Advisory Opinion country.

Notably, Judge Robart specified that the injunction does not apply to President Trump, agreeing with a separate conclusion by the United States District Court for the District of Hawaii that the court lacked jurisdiction to enjoin the president. Instead, the preliminary injunction “runs against all other Defendants.” He noted that this includes the Secretary of Homeland Security and the Secretary of State.

Judge Robart is no stranger to litigation over President Trump's recent spate of immigration executive orders, having issued the first of multiple nationwide injunctions against the initial iteration of the “travel ban” [see blog]. In the instant case, Judge Robart concluded that the Trump Administration had exceeded its statutory authority under the Immigration and Nationality Act (INA) insofar as its provisions affect both following-to-join and Security Advisory Opinion countries, and he effectively concluded that the plaintiffs were likely to succeed on the merits of their arguments regarding the Administrative Procedures Act.

Interestingly, despite the fact that the Supreme Court vacated the judgment of the Ninth Circuit in its decision enjoining the travel restrictions and refugee provisions of the former Executive Order 13780 [see article], Judge Robart joined the Hawaii District Court regarding new travel restrictions in declining to depart from the prior reasoning of the Ninth Circuit [see article].

We will update the site with more information on litigation surrounding President Trump's Executive Order 13815 and its implementation as it becomes available.

Lawyer website: http://myattorneyusa.com