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.

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.

1. 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

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:

1. The Department of Homeland Security (DHS) does not have to accept or process new applications from applicants who have never received deferred action;
2. The DHS does not need to grant anyone advance parole under DACA; and
3. 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.

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

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:

1. The District Court should rule on the Government's threshold arguments; and
2. 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].

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

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.

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.

1. Hjelmgaard, Kim. “Iran's Supreme Leader Ayatollah Khomeini blames 'enemies' for meddling in protests.” USA Today. Jan. 2, 2018. usatoday.com
2. 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
3. Burke, Cathy. “White House Urges World-Wide Support for Iran Protesters.” Newsmax. Jan. 1, 2018. newsmax.com
4. Gehrke, Joel. “Nikki Haley: The UN 'must speak out' to support protesters in Iran.” Washington Examiner. Jan. 2, 2018. washingtonexaminer.com
5. Id.

Lawyer website: http://myattorneyusa.com