NYC Immigration Lawyer Blog: July 2019

Thursday, July 25, 2019

Adoptions from Rwanda To Be Processed Under Hague Convention

On May 20, 2019, the U.S. Department of State (DOS) announced that the United States has determined that it will be able to process intercountry adoptions from Rwanda consistent with the Hague Adoption Convention [PDF version]. This means that U.S. consular officers will be able “to verify on a case-by-case basis that an intercountry adoption can proceed in accordance with U.S. laws and U.S. obligations under the [Hague] Convention.”

Under the new rules, “all intercountry adoptions between Rwanda and the United States must meet the requirements of the [Hague] Convention and U.S. laws.” Prospective adoptive parents seeking to adopt children from Rwanda should “not finalize [such] an adoption or obtain legal custody of a child in Rwanda in a case before a U.S. consular officer issues an 'Article 5/17 Letter.'”

The DOS is advising prospective adoptive parents that there may be delays in the process of adopting children from Rwanda while Rwanda implements its new adoption laws, regulations, and procedures. It adds that prospective adoptive parents should work closely with their U.S.-accredited adoption service provider to ensure that they properly complete all of the necessary steps under Rwanda's intercountry adoption laws and regulations in accordance with both Rwandan and U.S. law.

The DOS is asking prospective adoptive parents who started their adoption processes by filing the Form I-600A or Form I-600 before July 1, 2012, the date on which the Hague Convention took effect in Rwanda, to contact the DOS at adoption@state.gov with the details of the case.

The DOS's recognition that it can now process intercountry adoptions from Rwanda under the Hague Convention is significant for those cases. As the DOS recommended, prospective adoptive parents with pending intercountry adoption cases from Rwanda should continue to work closely with their accredited adoption service providers. Prospective adoptive parents should also consult with an experienced immigration attorney for guidance on the immigration laws and regulations governing intercountry adoptions.

To learn about more recent Rwandan adoption news, please see our blog on Rwanda's lifting its suspension of intercountry adoptions in November 2017 [see blog]. To learn more about intercountry adoption generally, please see our growing selection of articles on site [see category].

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

IJ Susan Beschta Dies At 67

In tragic news, Immigration Judge Susan Beschta died of brain cancer at age 67. The New York Times published a lovely obituary about her life that is well worth your time [link].[1]

The obituary goes into Beschta's fascinating life — which took her from being a member of the punk rock band the “Erasers” in the 1970s to obtaining a law degree in 1989 and dedicating her life to service. Beschta worked for nine years as an attorney for Catholic Charities in New York before becoming a Department of Homeland Security assistant chief counsel in New York in 2002. Shortly after receiving her brain cancer diagnosis and having surgery, Beschta was sworn in as an immigration judge on the New York City Immigration Court.

I knew Susan Beschta to be an incredibly good person and am very saddened by her passing away. It is a great loss for all of us involved in cases before the New York City Immigration Court that we will not benefit from her high character and keen intelligence. She is survived by her three children and four siblings. She lived her life well, and will be missed by many.

Williams, Alex. “Susab Beschta, Punk Rocker Turned Judge, Is Dead at 67.” The New York Times. May 10, 2019. https://www.nytimes.com/2019/05/10/obituaries/susan-beschta-dead.html

Lawyer website: http://myattorneyusa.com

Tuesday, July 23, 2019

Online Filing Available For Certain Form I-539 Extension Applications

Beginning on May 22, 2019, the certain nonimmigrants may file the Form I-539, Application to Extend/Change Nonimmigrant Status, online [PDF version].

Online filing to extend stay and hold status in the United States will be available to single applicants (“without co-applicants, or legal or accredited representation”) in the following nonimmigrant categories:

B1 temporary visitor for business;
B2 temporary visitor for pleasure;
F1 academic student with a specific status expiration date;
F2 spouse or child of an academic student with a specific expiration date;
M1 vocational student; or
M2 spouse or child of an M1 student.

The USCIS states that online filing will allow eligible applicants to obtain their application info and processing queue faster than mail delivery. Furthermore, applicants will be able to communicate with the USCIS directly rather than through mail.

The USCIS included specific guidance for F2 and M2 derivatives. Before seeking to file online, the derivative seeking to extend stay should compare the expiration date of his or her status with his or her spouse's or parent's F1 or M1 status. If the expiration dates are different, the F2 or M2 derivative may to extend stay online as an individual. If the expiration dates are the same, the derivative must apply as a co-applicant using a paper Form I-539.

If an applicant is unsure about his or her eligibility to file online, he or she may confirm at uscis.gov/i539online.

The USCIS's eProcessing initiative promises to increase convenience for applicants. We discuss it more generally in a separate post [see blog].

eProcessing does not change any of the substantive requirements for affected nonimmigrant categories. Applicants with case-specific questions should still consult with an experienced immigration attorney for guidance. This is especially important in cases where the individual may have status concerns. In certain less complicated cases, eProcessing may provide a good option for filing to extend stay and hold status in the United States.

To learn about some of the affected categories, please see our website's growing selection of articles on Travel Visas [see category] and Student Visas [see category].

Lawyer website: http://myattorneyusa.com

USCIS Accelerates Transition to eProcessing

On May 22, 2019, the United States Citizenship and Immigration Services (USCIS) “announced a new strategy known as eProcessing to accelerate USCIS's transition to a digital business model” [PDF version].

The USCIS described eProcessing as “a complete digital experience, from applying for a benefit, to communicating with USCIS, through receiving a decision on a case.”

The USCIS is transitioning to eProcessing over time. To start, “certain visitors for business, visitors for pleasure, and vocational students can now apply online to extend their stay in the United States” [see blog]. The USCIS plans to add additional nonimmigrant classifications in the near future. Applicants may confirm their eligibility to file for an extension of stay online at uscis.gov.i539online. Eligible applicants may file the Form I-539, Application to Extend/Change Nonimmigrant Status online with their USCIS account.

The USCIS plans to create official digital immigration records. This promises to “give USCIS officials faster access to applicant data” and give applicants access to “a more responsive and effective USCIS.”

We will update the site with more information about eProcessing as it becomes available. If the initiative proves effective, it promises to improve processing efficiency for a variety of USCIS forms. It is important to remember, however, that improvements in the USCIS's online capability do not change substantive requirements for affected categories. Individuals with case-specific questions should consult with an experienced immigration attorney.

Lawyer website: http://myattorneyusa.com

Monday, July 22, 2019

AILA/CBP Q&A Notes From April 2018

On April 8, 2019, the liaison for the NY/NJ branches of the U.S. Customs and Border Protection (CBP) answered questions from the American Immigration Lawyers Association (AILA) [PDF version]. In this post, we will briefly examine some of the more interesting questions and answers.

Admission of H4 and L2 Beyond Visa Expiration Date After Principal Receives an Extension

H4 and L2 derivative beneficiaries are eligible for admission for the same period as the principle H1B or L1. In certain cases where the H1B or L1 principal receives an extension of status, the H4 or L2 derivative may have an earlier expiration date on his or her visa than the principal. AILA asked the CBP what evidence the H4 or L2 would need to present at the border to indicate that he or she is eligible for admission for the same period as the principal H1B or L2.

The CBP stated that the H4 or L2 derivative should present his or her valid visa along with the new Form I-797 approval notice indicating that his or her principal spouse's status has been extended. The CBP said that this evidence is sufficient for proving that the derivative is eligible to be admitted for the full period for which his or her principal spouse is admitted. The CBP stated that if the derivative H4 or L2 beneficiary is told that he or she needs to present an approved Form I-539, the H4 or L2 should ask to speak to a supervisor.

Investor With Expired E2 Visa and Valid Form I-94 Returning from Canada

An E2 treaty investor with an expired E2 visa and valid Form I-94 returning from Canada or Mexico after a stay of less than 30 days “should ask to speak with a[] [CBP] officer to obtain a new I-94.” The investor should not go to a kiosk.

H, L, O, and P Petition Extension Issues

The CBP confirmed that an individual with an extended H, L, P, or O nonimmigrant visa petition and a visa which is valid for a shorter amount of time than the extension “is eligible to be admitted until the end date listed on the petition.”

Please see our website's full section on work visas to learn more about the aforementioned work visa categories and related issues [see category].

Dual National Question

A dual national with a visa in an expired passport from one country and a valid passport from another country cannot enter the United States. The individual's visa must be in the valid passport.

Electronic System for Travel Authorization (ETSA) Question for Dual Citizens

AILA asked a question regarding dual citizens of two countries for which ESTA is available. Can a dual citizen apply for ESTA in both of his or her passports and travel with either passport? The CBP stated that the dual citizen should apply for ETSA with the passport that he or she intends to use for travel to the United States. It added that “CBP looks at denied ESTA petitions, and they indicated that the system may automatically deny the ESTA in a second passport if approved with the first.” The CBP indicated, however, “that so long as ESTA is approved with both passports, there should be no issues when traveling.”

Advance Parole Documentation

AILA asked whether individuals with advance parole who are not applicants for adjustment of status should carry any additional documents to demonstrate their eligibility to be paroled in the United States. The CBP responded that if the individual has temporary protected status (TPS) and a Form I-512, the CBP can check the individual's status using the Form I-512.

AOS Applicant Traveling on Advance Parole After Underlying Basis for AOS Has Changed

AILA asked whether an adjustment of status applicant who was granted advance parole may continue to travel on that grant of advance parole if his or her underlying basis for the adjustment of status has changed. The CBP stated that this is an issue for the United States Citizenship and Immigration Services (USCIS). For CBP purposes, it “will check the status of the [Form] I-485 at the time that an individual requests admission.” CBP will only parole the individual if the Form I-485 is still pending. CBP Is concerned with ensuring that the individual is being paroled in order to continue to have the adjustment of status application processed. The CBP confirms the status of the adjustment of status application with the USCIS.

Round-Trip Cruises and Departure

Going on a closed loop cruise — defined as a cruse that departs from and arrives to the same port — constitutes a “departure” for non-lawful permanent residents. Upon return, a non-lawful permanent resident must present a valid passport and visa (if applicable) or a valid Form I-512 (if applicable).

VWP Refusal Document Requests

AILA asked how individuals who are refused admission under the visa waiver program (VWP) may request a complete copy of the paperwork when it is not provided by the CBP. The CBP stated that it is its general policy to provide the paperwork. In cases where the paperwork is not provided, the individual may request it through a Freedom of Information Act Request (FOIA).

Drug Tests at the Border

The CBP stated that it does not administer drug tests at the border.

Electronic Device Searches and Cloud Data

AILA asked what procedures CBP has in place to ensure that officers do not access information stored in the cloud when searching electronic devices. The CBP responded that it requires that all devices be put in airplane mode during searches so that it cannot access cloud data. The CBP can detain a device if the individual does not allow a search. The CBP stated that devices are usually detained “for reasons associated with terrorism, narcotics, and/or child pornography.” CBP consults legal counsel when there are specific questions about detaining devices and device searches. The CBP noted that these policies apply to all travelers, including U.S. citizens.

CBP Role in Return of Individuals Who Had Been Removed

AILA asked about CBP's role in cases where an alien who was removed wins a motion to reopen and can be returned to the United States or when an alien is removed in error. CBP stated that the U.S. Immigration and Customs Enforcement (ICE) is necessarily involved in these cases because that agency has the alien's A File and other relevant documents. CBP coordinates with ICE “because of any detention and/or bond issues associated with the case.” In these cases, ICE paroles the alien into the United States.

Lawyer website: http://myattorneyusa.com

Visa Bulletin for July 2019

Introduction

The U.S. Department of State (DOS) released its Visa Bulletin for July 2019 on June 6, 2019 [PDF version]. The Visa Bulletin for July 2019 contains the final action dates and dates for filing for the family-sponsored and employment-based preferences for the month. The United States Citizenship and Immigration Services (USCIS) determined that most family-sponsored adjustment of status applicants — with the exception of one case — must use the dates for filing chart from the Visa Bulletin for July 2017, while employment-based adjustment applications must use the less favorable final action dates [PDF version].

Below, we will examine the charts from the Visa Bulletin for July 2019, explain their significance to adjustment of status applicants during the month, and go over news and notes from the Visa Bulletin.

To learn more about using the immigrant visa bulletin for adjustment of status, please see our full article on the subject [see article]. We have archived our articles on previous visa bulletins [see archive]. We discuss the difference between the dates for filing and final action dates in a separate blog post [see blog].

Family-Sponsored Cases

The USCIS has determined that approved beneficiaries of family-sponsored immigrant visa petitions in the F2A preference must use the final action dates from the Visa Bulletin for July 2019. While the dates for filing are generally more favorable than the final action dates, the USCIS's decision works in favor of these potential adjustment of status applicants because the final action date for the F2A preference in all chargeability areas is Current in July 2019. This means that the beneficiary of an approved family-sponsored immigrant visa petition in the F2A preference may apply for adjustment of status in July 2019 regardless of his or her priority date, provided that he or she is otherwise eligible for adjustment of status. The F2A preference is for the spouse or unmarried child (under the age of 21) of an alien lawfully admitted for permanent residence.

Below, courtesy of USCIS, is the final action dates for the F2A preference in July 2019 [see here].

All other beneficiaries of approved family-sponsored immigrant visa petitions must use the dates for filing from the July 2019 Visa Bulletin to see if they are eligible to apply for adjustment of status during the month. The beneficiary of an approved family-sponsored petition in one of the family-sponsored preferences must compare his or her priority date to the applicable filing date for his or her preference category and chargeability area. If the beneficiary's priority date is earlier the applicable filing date cutoff on the Visa Bulletin for July 2019, the beneficiary may apply for adjustment of status provided that he or she is otherwise eligible for adjustment.

In most family-sponsored cases, the beneficiary's priority date is the date on which the immigrant visa petition was properly filed on his or her behalf with the USCIS.

The following chart, courtesy of USCIS, reflects the family-sponsored dates for filing from the July 2019 Visa Bulletin for all preference categories except F2A [see here].

For reference purposes, the following chart reflects the final action dates for the family-sponsored preferences for the July 2019 Visa Bulletin [see here].

Please bear in mind that only beneficiaries of petitions in the F2A preference should rely on the final action dates for assessing adjustment of status eligibility in July 2019. All other applicants must use the dates for filing.

Employment-Based Cases

The USCIS determined that all beneficiaries of approved employment-based preference petitions must use the final action dates from the July 2019 Visa Bulletin in order to determine whether they are eligible for adjustment of status during the month. The beneficiary of an approved employment-based preference petition must compare his or her priority date to the final action date cutoff on the Visa Bulletin for July 2019 for his or her preference category and chargeability area. The beneficiary of an approved employment-based preference petition will be eligible to apply for adjustment in July 2019 provided that his or her priority date is earlier than the final action date cutoff and he or she meets the other generally applicable requirements for adjustment of status.

For employment-based petitions where labor certification is required, the beneficiary's priority date will generally be the date on which the labor certification application was accepted for processing by the U.S. Department of Labor. In cases where no labor certification is required, the beneficiary's priority date will generally be the date on which the petition was properly filed with the USCIS.

Please note that a final action date or filing date of “C” stands for “Current.” For any preferences and chargeability areas with a priority date of Current, beneficiaries of approved petitions who are otherwise eligible for adjustment of status may apply for adjustment in July 2019 regardless of their priority date.

The following chart includes the employment-based final action dates from the July 2019 Visa Bulletin [see here].

For reference purposes only, the following chart contains the employment-based dates for filing from the July 2019 Visa Bulletin [see here].

As we explained, those seeking to apply for adjustment of status in an employment-based preference in July 2019 must use the final action dates, not the filing dates.

News and Notes From the Visa Bulletin for July 2019

The Visa Bulletin for July 2019 includes an unusual amount of news about final action date movement over the coming months. In this section, we will examine the news and notes from the July 2019 Visa Bulletin.

F2A Category Availability

The final action date for the F2A category became “Current” in July. DOS states that this priority date is expected to remain through September. The DOS made this decision in order to increase demand for visa numbers in the F2A category. It stated that although there is a large demand for F2A numbers, “currently there are not enough applicants who are actively pursuing final action on their case to fully utilize all of the available numbers under the annual limit.” Once enough F2A applicants pursue final action on their immigrant visa applications or adjustment of status, the DOS will again establish a final action date to control F2A number use within the annual limit.

This decision comes as good news for F2A applicants pursuing final action on their cases, whether through immigrant visa applications abroad or through consular processing in the United States. For the time being, these individuals will be able to take the final step toward becoming a lawful permanent resident without regard to priority date. Those who are ready to move forward on their cases may consult with an experienced immigration attorney for case-specific guidance.

Mexico Family-Sponsored and Employment-Based Availability

The DOS retrogressed the Mexico F1, F3, F4, E4, and SR final action dates for July in order to keep visa issuances within the annual numerical limits. This will continue through the end of the fiscal year. In October 2019, the DOS will return the final action dates for Mexico in these categories to the latest dates established in FY-2019.

E5 Availability for India and Vietnam

India and Vietnam will both reach their annual per-country limit in the E5 immigrant investor preference during July. For this reason, DOS established an E5 final action date for India and held the E5 final action date for Vietnam. In August, both India and Vietnam will be subject to the same E5 final action date that applies to China-mainland born applicants. This will persist for the rest of the fiscal year. In October 2019 — the first month of the next fiscal year — the E5 dates for Vietnam and India will advance. DOS expects that the E5 final action date for India will advance to the summer or fall of 2017, while the date for Vietnam will advance to the fall or early winter of 2016.

Visa Availability in Coming Months

The DOS listed its projection for visa movement in numerous preferences over the coming months.

Worldwide Dates (Family):

F1: Up to five weeks.
F2A: Current.
F2B: Up to six weeks.
F3: Up to six weeks.
F4: Up to one month.

Employment First Dates:

Worldwide: Little if any forward movement. Increased demand may require corrective action in September.
China: Little if any forward movement.
India: No forward movement. The date will return to February 22, 2017, in October.

Employment Second Dates:

Worldwide: Expected to remain Current, but temporary corrective action may be required for September.
China: Up to four months.
India: Up to one week.

Employment Third Dates:

Worldwide: Expected to remain Current, but temporary corrective action may be required for September.
China: Up to several months.
India: Little if any forward movement.
Philippines: Will remain at the Worldwide date.

Employment Fourth Dates:

Current for most countries
El Salvador, Guatemala, Honduras, and Mexico: Little if any movement through September.

Employment Fifth Dates:

Current for most countries.
China: Too early to predict whether it will be possible to advance the China date to October.
India and Vietnam: Will be subject to the same date as China during August and September.

Conclusion

Beneficiaries of approved preference petitions should stay abreast of movement in the monthly visa bulletins. This is especially important for adjustment of status hopefuls. Petitioners and beneficiaries may consult with an experienced immigration attorney for case-specific guidance and assistance.

Please see our website's categories on the following subjects to learn about some of the specific types of processes and visas discussed in this article:

Adjustment of Status [see category]
Consular Processing [see category]
Family Immigration [see category]
Employment Immigration [see category]
Investment Immigration [see category]

Lawyer website: http://myattorneyusa.com

Friday, July 12, 2019

Some Cap-Subject H1B Petitions to be Transferred Between Service Centers

The USCIS stated that it may transfer some Form I-129 H1B FY-2020 cap-subject petitions between the Vermont Service Center and the California Service Center for workload management purposes [PDF version]. The USCIS will notify petitioners whose cases are transferred. If a petitioner receives a transfer notice, it should direct all future correspondence to the Service Center to which the petition was transferred.

We discuss issues relating to the FY-2020 H1B cap in a separate article [see article]. Please see our website's growing categories on Work Visas [see category] and AC21 [see category] to learn more about the H1B program and related issues.

Lawyer website: http://myattorneyusa.com

Tuesday, July 9, 2019

DHS and DOL Make Available 30,000 Additional H2B Visas for FY 2019

On May 8, 2019, the Department of Homeland Security (DHS) and the Department of Labor (DOL) published a joint rule to make an additional 30,000 H2B temporary nonagricultural worker visas available for FY-2019 [PDF version]. The United States Citizenship and Immigration Services (USCIS) news release on the matter states that these additional 30,000 H2B visas will only be available “to returning workers who received an H2B visa, or were otherwise granted H2B status, during one of the last three fiscal years (FY 2016, 2017, or 2018), and availability is restricted by prioritizing only those businesses who would suffer irreparable harm without the additional workers.” (Emphasis added.)

The reason why the additional 30,000 H2B visas for FY 2019 are restricted to returning H2B workers is because they have “demonstrated their ability to abide by the terms and conditions of the H2B program and, therefore, are less likely to remain in the United States and work without authorization after their legal status expired.”

Beginning on May 8, 2019, eligible petitioners may file a Form I-129, Petition for Nonimmigrant Worker, seeking to accord H2B status on an eligible H2B worker for one of the additional 30,000 H2B visas. These petitioners must also submit a supplemental attestation on the Form ETA 9142-B-CAA-3 with their petition. Among other things, a petitioner submitting a supplemental attestation on the Form ETA 91-42-B-CAA-3 that his or her business would suffer irreparable harm if it could not employ the beneficiaries of the associated H2B petition.

The DHS's and DOL's decision to make available an additional 30,000 H2B visas for FY 2019 comes as welcome news to employers with a need for foreign workers and for returning H2B workers who may benefit from employment opportunities in the United States. Petitioners with an interest in the additional H2B visas should consult with an experienced immigration attorney immediately for case-specific guidance on the applicable rules and regulations.

You may read the text of the final rule here [PDF version].

We discuss Work Visas generally in a distinct section of the website [see category].

Lawyer website: http://myattorneyusa.com

Thursday, July 4, 2019

USCIS Selects New Deputy Director

On May 10, 2019, the United States Citizenship and Immigration Services (USCIS) announced that it had selected Mark Koumans as its new Deputy Director [PDF version].

The USCIS describes Koumans as “a career federal employee…” Koumans has served in various capacities with the U.S. Customs and Border Protection (CBP) since 2015. Prior to his service with CBP, Koumans served for eight years as a Deputy Assistant Secretary in the Department of Homeland Security (DHS) Office of Policy and as a member of the U.S. Foreign Service for 17 years. Koumans replaces Tracy Renaud, who had been serving as the acting Deputy Director of USCIS since March 2019.

The appointment of Koumans continues a large shakeup in the DHS immigration components over the past few months. Although there have been rumors that USCIS Director L. Francis Cissna might be replaced, he remains in his position for the time being. Regarding the choice of Koumans, Director Cissna stated that “[h]e brings a wealth of experience working complex immigration, organization, and operational issues with our partners at Customs and Border Protection, Department of Homeland Security headquarters, and State.”

Lawyer website: http://myattorneyusa.com

Texas Service Center Begins Processing Certain H1B Cap-Exempt Petitions

On May 20, 2019, the United States Citizenship and Immigration Services (USCIS) announced that the Texas Service Center will begin processing certain Form I-129, Petition for a Nonimmigrant Worker for certain H1B cap-exempt petitions [PDF version].

The Texas Service Center will process certain H1B cap-exempt petitions requesting:

A change in previously approved employment;
A change of employer;
Concurrent employment;
Amendments;
A continuation of previously approved employment without change with the same employer;
A change of status to H1B; or
Notification to a U.S. Consulate or inspection facility (port of entry or pre-flight inspection).

The Texas Service Center will not, however, process:

H1B petitions for cap-exempt entities [see article];
H1B petitions that are cap exempt based on a Conrad Waiver [see article] or an Interested Government Agency waiver under section 214(l) of the Immigration and Nationality Act; or
Petitions where the employer is located in Guam and the beneficiary will be performing services in Guam.

The Texas Service Center will share processing responsibilities for certain H1B cap-exempt petitions with the California Service Center, Vermont Service Center, and Nebraska Service Center. The purpose of the USCIS's change in processing policies is “to balance workloads and provide flexibility as USCIS works toward improving processing times and efficiency.”

Petitioners filing an H1B petition should always file the Form I-120 at the addresses indicated on the USCIS is Direct Filing Addresses for Form I-129 webpage, Petition for a Nonimmigrant Worker page. Beginning on July 19, 2019, the USCIS may reject any H1B petition filed at the wrong service center.

To learn more about the H1B category and other work visa categories, please see our website's growing sections on Work Visas [see category] and AC21 [see category].

Lawyer website: http://myattorneyusa.com

Wednesday, July 3, 2019

President Trump Nominates Patrick Shanahan to be Secretary of Defense

On May 9, 2019, the White House Press Secretary's Office announced that President Donald Trump will nominate Patrick M. Shanahan to be the Secretary of Defense [link]. Shanahan has been serving as acting Secretary of Defense since January 1, 2019. Previously, he had been serving as the Deputy Secretary of Defense since July 19, 2017. Prior to serving in the Department of Defense, Shanahan was an executive at Boeing [PDF version].

Although the Department of Defense is not as significant in the immigration context as the Department of State, Department of Justice, or the Department of Homeland Security, it does affect immigration law in certain areas. The Department of Defense sets rules for aliens serving in the armed forces, as we have seen with the effective suspension of the MAVNI program over the last couple of years [see article]. The Department of Defense also advises the President on the national security and foreign relations implications of certain immigration decisions. In recent months, the Department of Defense has been assisting the Department of Homeland Security in enforcing the immigration laws along the Southwest border.

Lawyer website: http://myattorneyusa.com

Tuesday, July 2, 2019

Summary of ICE Director Nominee Mark Morgan Interview

On May 5, 2019, President Donald Trump announced that he would nominate Mark Morgan to be the next Director of the U.S. Immigration and Customs Enforcement (ICE) [see blog]. In light of the news, it is worth examining an interview Morgan gave to The Epoch Times on April 24, 2019, just under two weeks before President Trump's announcement [link].[1] In this article, we will discuss the key points from the interview, which is well-worth reading in its entirety.

The following are some of the noteworthy statements from Morgan in his interview:

Morgan described the current situation at the border as a “crisis.” 
Morgan supported President Trump's “Migrant Protection Protocol,” which requires certain individuals who seek asylum at a port of entry or after crossing the border illegally to wait in Mexico while their asylum applications are adjudicated. Morgan however agreed with the interviewer that if the Protocol is not applied across the entirety of the Southwest border, it will incentivize migrants to sneak across the border rather than apply for asylum at a port of entry. (The Migrant Protection Protocol is currently the subject of ongoing litigation.) 
Morgan blamed the Flores Settlement Agreement (limits the amount of time that children can be kept in detention) and the Trafficking Victims Protection Reauthorization Act for incentivizing adults to bring children with them when crossing the border in order to secure their release from immigration detention. He added that this incentivizes fraud and the exploitation of children. 
Morgan agreed with the interviewer that the uptick in border crossings from Guatemala, Honduras, and El Salvador is not attributable to increasing violence. He stated that the violence in those countries “ebbs and flows” while the number of crossings from those countries “continue[] to skyrocket.” He blamed Congress for its inability to address loopholes in the immigration system for the increasing number of crossings at the border from those Central American countries. He suggested that Congress' inaction is “based on their political agenda and their ideology.” 
Morgan agreed that many migrants are being coached on what to say to pass credible fear interviews. Morgan stated that Mexican drug cartels “own” the Southwest border and that “they'll take the caravans, no matter how big or small, and they'll direct them to certain areas, so the Border Patrol can be engaged, and they'll sneak criminal aliens in and bad things in.” However, Morgan stated that the migrant caravans themselves are not actually started by cartels, but by “nongovernmental agencies and other nonprofit organizations…” 
Morgan stated that despite the uptick in crossings of actual family units and unaccompanied alien children, many of the people crossing are “not all good.” For example, “[t]his year already, Border Patrol has apprehended as many gang members so far in the first six months [as] they did all of last year.” He added that the number of apprehensions does not tell the full story because “the border is still 60 percent wide open…” In addition to noting that the border does not have enough infrastructure, technology, and personnel, Morgan stated that “anywhere from 25 to 40 percent of Border Patrol resources are being pulled away and dedicated to the humanitarian side…” which allows cartels “[t]o bring drugs, contraband, and bad people in.” Morgan stated that when he was Border Patrol Chief during the final months of the Obama Administration, “about 15 percent of the Border Patrol agent resources were pulled off the line to do humanitarian tasks…” 
Morgan stated that enforcement on the interior is a problem as well. He noted that deaths of U.S. citizens at the hands of “illegal aliens that had ICE detainers … that should not have been here … could have been prevented.” 
Morgan stated that we should stop thinking that Mexico, Guatemala, Honduras, and El Salvador, and Congress are going to partner with the Administration in any short-term fixes to the crisis. He noted that the United States has given hundreds of millions of dollars to Guatemala, Honduras, and El Salvador and received no benefit in reducing the number of border crossings in return. He stated that Mexico has also not been a part of the solution despite repeated attempts by the U.S. government to work with them. He added that Congress has failed as well. 
Morgan stated that the Department of Homeland Security (DHS) should tighten the regulations on credible fear due to the overwhelming majority of claims that are ultimately found to be unsubstantiated. 
Morgan stated that DHS needs to pass regulations to allow ICE to detain family units while they are going through the immigration process. He called for the re-imposition of “port courts” to process claims at the border quickly and remove those with no viable claims for relief or protection “immediately.” 
Morgan stated that ICE must tighten interior enforcement to lessen the incentive for people from Guatemala, Honduras, and El Salvador to come to the United States. He restated his position that people from those countries come here primarily because of economic incentives or family reunification, not to escape conditions in their own countries. 
Morgan complained about “judicial activism” blocking many of President Trump's immigration enforcement initiatives. He stated that he would advise President Trump to litigate many of his policies, such as the Migrant Protection Protocols, all the way to the Supreme Court. 
Morgan took the position that the crisis at the border is worse than it was in the 90s despite lower overall numbers of crossings because of demographics. In the 1990s, the vast majority of border crossers were men who could be deported expeditiously, sometimes “being caught and sent back two to three times on the same day.” Due to current court orders and policies, family units and unaccompanied minors cannot be removed expeditiously, even if they ultimately have no viable claim for protection or relief. He added that many of the border crossers who are denied relief and protection and issued final orders of removal will remain in the United States and not comply with their final orders of removal.

Most of the interview with Morgan focused on border security. If he is confirmed as Director of ICE, his focus will be primarily on interior enforcement rather than border security. The interview does however highlight that Morgan sees interior enforcement as being intertwined with border security. For example, Morgan suggested that the prospect of remaining in the United States with better economic prospects is the primary cross of the large numbers of border crosses from Guatemala, Honduras, and El Salvador, rather than violence in those countries. Thus, he sees interior enforcement as a way to deter many individuals from trying to come to the United States in the first place. Morgan also advocates abrogating the Flores Settlement Agreement to make it easier to detain family units with children pending the adjudication of their immigration cases.

Although Morgan served briefly in the Obama Administration, he has consistently expressed support for many of President Trump's efforts to tighten immigration enforcement. In the interview, he called for numerous regulatory changes to increase immigration enforcement as well as the litigation of ongoing district court injunctions against certain immigration policies all the way up to the Supreme Court. We can only presume that Morgan's support for these policies is why President Trump has decided to nominate him for the position of ICE Director.

We will update the website with more information about the Morgan nomination if and when it becomes available. To learn more about some of the issues discussed in this article, please see our website's sections on asylum and refugee protection [see category], removal and deportation defense [see category], and immigration detention [see category].

Cuthbertson, Charlotte. “Obama's Border Patrol Chief: Border Crisis 'Worst in Our History.'” The Epoch Times. May 1, 2019. https://www.theepochtimes.com/former-border-patrol-chief-mark-morgan-border-crisis-worst-in-history_2896172.html

Lawyer website: http://myattorneyusa.com

Senate Confirms Two New Second Circuit Judges

On May 8 and May 9, the United States Senate confirmed two new judges to the United States Court of Appeals for the Second Circuit. The Second Circuit has federal appellate jurisdiction over New York, Connecticut, and Vermont, making it one of the more significant circuit courts for immigration cases [see article].

On May 8, the Senate confirmed Judge Joseph F. Bianco, 52, of the United States District Court for the Eastern District of New York to the Second Circuit by a vote of 54-42. Judge Bianco had served on the Eastern District since he was confirmed to that court in 2006. Prior to serving as a District Court Judge, Judge Bianco was a federal prosecutor, first for the U.S. Attorney's Office for the Southern District of New York, and second at the Criminal Division for the U.S. Department of Justice. Judge Bianco has a law degree from Columbia Law School.[1]

On May 9, the Senate confirmed Michael Park, 43, to the Second Circuit by a vote of 51-42. Park has spent most of his career in private practice, but he worked for two years as an Attorney Advisor for the Department of Justice's Office of Legal Counsel during the administration of George W. Bush. He is currently a law professor at the Antonin Scalia Law School at George Mason University. Park was a law clerk for then-Judge Samuel Alito on the United States Court of Appeals for the Third Circuit in 2001-02, and subsequently for Justice Samuel Alito on the Supreme Court of the United States in 2008-09. Judge-designate Park has a law degree from Yale Law School.[2]

Severino, Carrie. “Who is Joseph Bianco?” National Review Online. Oct. 10, 2018. https://www.nationalreview.com/bench-memos/who-is-joseph-bianco/
Severino, Carrie. “Who is Michael Park?” National Review Online. Oct. 10, 2018. https://www.nationalreview.com/bench-memos/who-is-michael-park/

Lawyer website: http://myattorneyusa.com