U.S. and Iraq Reach Impasse on Return of Iraqi Nationals

On September 11, 2018, Stephen Dinan of The Washington Times published an interesting report about Iraq's purported recalcitrance in accepting the return of its nationals who have been ordered removed from the United States [link].[1] In this article, we will discuss Dinan's report and include additional citation to and analysis of relevant source materials.

As we have discussed extensively on site, President Donald Trump has issued three Executive Orders restricting the entry of nationals of certain countries, commonly known as the “travel bans.” On January 27, 2017, President Trump issued the first of these three Executive Orders (13769), which included Iraq among the seven countries subject to restrictions [PDF version]. On March 6, 2017, President Trump issued the second “travel ban” Executive Order (13780), which removed Iraq from the list of seven countries subject to restrictions and leaving the provision that Iraqi nationals should be subjected to additional scrutiny [PDF version] [see section].

Executive Order 13780 listed several factors that influenced President Trump's decision to lift the restrictions on entry of Iraqi nationals. Among these, he stated that “the Iraqi government has expressly undertaken steps to enhance … the return of Iraqi nationals subject to final orders of removal.”

After the issuance of Executive Order 13780 in March 2017, the U.S. Government pursued the removal of Iraqi nationals that it had not previously been able to remove, evidently acting on the basis that a perceived understanding had been reached with the Iraqi Government. However, Dinan reports now that “evidence has emerged suggesting that either Iraq has backslid or the deal was never what the administration said it was in the first place.” Specifically, he reported that “Iraq has told the U.S. Immigration and Customs Enforcement [(ICE)] that it will not take back any deportees who don't volunteer to go back [to Iraq].”

Nevertheless, the third version of President Trump's “travel ban”, issued on September 24, 2017, contained a note on Iraq similar to the March 6 Executive Order. However, while it discussed many factors, it specifically credited Iraq with making strides in accepting the return of its nationals ordered removed, while also providing that nationals from Iraq should be subjected to additional vetting scrutiny. It is possible that if the U.S. Government was no longer satisfied with Iraq's progress in accepting the return of its nationals, it began to reweigh the equities in exempting Iraq from entry restrictions in light of other negative factors.

Dinan reported that in June 2018, ICE registered a protest with the Iraqi Government regarding its reluctance to accept the return of its nationals who are subject to final orders of removal. The Iraqi government responded by stating that it would only accept those who volunteer to return to Iraq, and it relayed these instructions to all of its embassies and consulates around the world.

While we do not know exactly what understanding had been reached between the U.S. and Iraqi Governments between February 27, 2017, and March 6, 2017. However, there is evidence beyond President Trump's Executive Order 13780 that the U.S. Government had, in fact, believed that this agreement included a provision that the Iraqi Government would accept the return of its nationals ordered removed. Dinan noted that a Department of Homeland Security (DHS) official stated at the time that “Iraq has agreed to the timely return and repatriation of its nationals who are subject to final orders of removal.” Furthermore, this DHS official described it as “a very, very important provision,” perhaps indicating its significance in President Trump's decision to remove Iraq from the countries whose nationals were subject to entry restrictions.

Dinan noted that, notwithstanding the language of Executive Order 13780 and statements from DHS officials, no further details about the Iraq agreement were released at the time. Furthermore, in ongoing court proceedings which have stymied DHS's attempt to remove hundreds of Iraqi nationals, Dinan stated that “[d]uring the legal discovery process, it became clear that Iraq and the Trump administration had no formal written agreement. Instead, they shook hands on a deal on which they no longer share the same view.” In on-going court proceedings, the American Civil Liberties Union (ACLU) is alleging that the Government lied about its deal with Iraq. The ACLU is seeking sanctions against certain DHS officials, and is also pursuing the release of more than 100 Iraqis because the Government cannot remove them to Iraq within six months, as required under current Supreme Court precedent. (Dinan notes that some of these Iraqi detainees have serious criminal convictions on their records, including rape, drug trafficking, and murder). The government has not yet submitted a formal response.

Regardless of the nature of the original agreement reached between the U.S. and Iraqi Governments, Iraq may be subject to several visa penalties if it continues to refuse to accept the return of its nationals who are subject to final orders of removal. There are two potential types of sanctions that could be imposed.

First, section 243(d) of the INA allows the DHS and U.S. Department of State (DOS) to place visa sanctions on countries that refuse to accept the return of their nationals ordered removed. The Trump Administration has made liberal use of section 243(d), thus far having imposed sanctions of varying severity on six countries [see blog and see blog].

Second, President Trump could impose entry restrictions similar to those that he imposed in Executive Order 13769 by invoking section 212(f) of the INA, which requires only that the President find that entry of certain individuals is not in the interests of the United States.

Finally, we cannot discount the possibility that the dispute could be resolved through other means. For example, in October 2017, we discussed negotiations between the United States and China on resolving similar issues [see blog]. Thus far, China has not been subjected to section 243(d) sanctions. Furthermore, the Trump Administration has stated that it has worked with other countries to resolve these issues without resorting to section 243(d) visa sanctions.

In conclusion, it is impossible to know at this time what actions, if any, will be taken against Iraq for its unwillingness to accept the return of its nationals in a reasonable timeframe. Regardless of the nature of the agreement reached between Iraq and the Trump Administration, the conduct described in the article has resulted in section 243(d) sanctions for several other countries. The issue will bear watching going forward, and we will update the website with new information as it 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. Dinan, Stephen. “Iraq reneges on travel ban deal with Trump, refuses to accept deportees.” The Washington Times. Sep. 11, 2018. https://www.washingtontimes.com/news/2018/sep/11/iraq-trump-administration-disagree-terms-travel-ba/

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USCIS to Begin Implementing New Referral/NTA Policy on October 1

On September 26, 2018, the United States Citizenship and Immigration Services (USCIS) announced that its new guidance titled “Updated Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” will take effect on October 1, 2018 [PDF version]. The Policy Memorandum, which had been issued in late June, was delayed while the USCIS worked on completing operational guidance for implementing its new notice to appear provisions.

To learn more about the new policy, please see our full article on the subject [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

USCIS Publishes Draft of Proposed New Public Charge Rules

On September 22, 2018, the Department of Homeland Security (DHS) announced that, in the near future, it will publish an extremely consequential proposed rule revising the definition of “public charge” under the Immigration and Nationality Act (INA). We have uploaded the DHS news release [PDF version] and the draft rule [PDF version] for your convenience.

The most prevalent public charge provision in the INA is found at section 212(a)(4) of the INA. This provision renders an alien who does not establish that he or she is not likely to become a public charge inadmissible. It is mainly relevant in the context of family-sponsored immigrant visa and adjustment of status applications. You may read a detailed walkthrough of the current public charge rules here [see article]. In addition, there is a public charge deportability provision found at section 237(a)(5) of the INA. However, as we discuss in our full article, the public charge deportability provision has been construed narrowly and is seldom invoked [see article].

Before discussing the draft rule, it is important to remember that the rule has not yet been published in the Federal Register. Once the proposal is published in the Federal Register, it will be open to public comment for 60 days. After the 60 day notice and comment period, DHS will consider the comments and work on drafting a final rule for publication in the Federal Register, at which point the rule will take effect. It is likely that any new public charge rules would not take effect for several months, at the earliest.

While we expect that the proposed rule that the DHS intends to publish “in the coming weeks” will be substantially similar to the draft rule, the DHS may make alterations before publication. For that reason, we will summarize the key points of the draft rule here and write a longer post once the DHS publishes a proposed rule for public comment in the Federal Register.

Under the current public charge rules, a consideration of whether an alien is likely to be a public charge is most relevant in the family immigration context. Nearly all family-sponsored immigrant visa or adjustment of status applicants require an affidavit of support in order to have their applications approved. Under current rules, a properly submitted affidavit of support that comports with all of the legal requirements is generally sufficient to overcome the presumption of public charge.

Under the draft rule, the DHS would instead determine whether an applicant is likely to become a public charge based on the “totality of the circumstances.” This would require adjustment of status applicants to file a new Form I-944, Declaration of Self-Sufficiency, along with the Form I-485 adjustment of status application. The rule would also introduce new procedures for evaluating whether a nonimmigrant seeking change of status or extension of status has already become or has been a public charge during his or her stay and/or whether the petitioner is likely to become a public charge in the future, except in categories exempt from the public charge ground of inadmissibility. Significantly, the rule would also revise implementing regulations for section 213 of the INA, which allows the Secretary of Homeland Security to accept a public charge bond from certain individuals seeking adjustment of status.

Receipt of certain benefits would be weighed as “highly negative factors” against finding that an alien is not likely to be a public charge. Under current rules [see section], receipt of the following three means-tested public benefits are considered adverse factors in public charge determinations:

• Supplemental security income (SSI);
• Cash temporary assistance for needy families (TANF), but not including supplemental cash benefits or any non-cash benefits provided under TANF; and
• State and local cash assistance programs that provide for income maintenance.

The draft rule would also include the receipt of the following benefits significant adverse factors in public charge determinations in addition to the three that are already considered:

• Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education);
• Medicare Part D Low Income Subsidy;
• Supplemental Nutrition Assistance Program (SNAP, or “food stamps”);
• Institutionalization for long-term care at government expense;
• Section 8 Housing Choice Voucher Program;
• Section 8 Project-Based Rental Assistance; and
• Public Housing.

The draft rule requests public comments on whether the Children's Health Insurance Program (CHIP) should also be included in a final rule. However, CHIP is not currently among the public benefit programs in the draft rule.

The draft rule includes a 36-month rule under which the receipt of the public benefits listed above (exempting CHIP, at least in the draft rule) within 36 months of an application would be a heavily weighted negative factor in the public charge context. Prior receipt of such benefits — i.e., prior to 36 months before submission of the application — would still be a negative factor but not a heavily weighted one. Other factors that would be considered would include how much the alien received in benefits, how many individual benefits he or she received, and the duration for which he or she received benefits, along with other factors.

In another important point, the draft rule would not count as negative factors any public benefits that were not covered under the previous public charge regulations and which were received before January 1, 2019. However, any such benefits received after that date would count as negative factors.

The draft public charge rule will constitute, if implemented, one of the most significant changes in immigration law in recent years. The provisions in the rule are categorically unfavorable to aliens seeking immigrant visas, adjustment of status, change of nonimmigrant status, and extension of nonimmigrant stay, and who are not otherwise exempt from the public charge provisions. Its consequence would be especially felt in the family immigration context, where many applicants for immigrant visas or adjustment of status may have a significantly higher bar for establishing eligibility to become lawful permanent residents. Furthermore, the rule's expansion of public benefits that would be encompassed under the public charge regulations would potentially imperil many immigrant visa and adjustment of status applications.

In one final note before we conclude, the draft rule proposes no change to how the DHS interprets section 237(a)(5) of the INA — the public charge deportability provision. That means that section 237(a)(5) should continue to be an uncommonly charged deportability ground. Please see our full article on section 237(a)(5) for more information [see article].

As we noted earlier, it is too early to tell what the ultimate outcome of this draft rule will be. It is possible that the Final Rule — if any is published — will be significantly watered down from the draft rule that we have discussed in this article. Furthermore, it is uncertain when the DHS will publish a proposed rule and start the 60-day comment period, much less when DHS would publish a Final Rule, assuming it ultimately does so.

Those with questions about how the proposed rule may affect them should consult with an experienced immigration attorney for a case-specific consultation. Furthermore, an experienced attorney may provide up-to-date guidance based on developments in the process toward the draft becoming a Final Rule. It is important to reiterate that family-sponsored immigrant visa applications and adjustment of status applications will, for the time being, continue to be adjudicated under the current public charge rules, not the draft rule or future proposed rule in the Federal Register. You may read about the current rules in our main article on the subject [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

USCIS Publishes Revised Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

The United States Citizenship and Immigration Services (USCIS) announced that it has published a revised version of the Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative [PDF version].

The edition date of the new Form G-28 is 09/17/18. However, the USCIS will continue to accept the 05/05/16 and 03/04/15 editions of the Form G-28 through November 18, 2018. Beginning on November 19, 2018, the USCIS will only accept the 09/17/18 edition of the Form G-28.

The 09/17/18 edition of the Form G-28 “removes the geographic requirement for sending an original notice to a U.S. address for attorneys and representatives…” The geographic requirement had been added in the 05/05/16 and 03/04/14 editions of the Form G-28.

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