How has COVID-19 affected U.S. Immigration?

By Jessica Suotmaa 0

The COVID-19 pandemic has resulted in a halt in our daily lives, and significant (temporary) changes to the U.S. immigration system.  In this article, we have compiled coronavirus related immigration changes by category, or circumstance.  However, we do not go into specifics as it would depend on your individual situation and would require our attorneys’ review.  Please contact our office if you’d like an experienced immigration attorney to review your specific circumstance.

COVID-19 Testing & Public Charge Rule

On March 13, 2020, the United States Citizenship & Immigration Services (USCIS) announced the “testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19” does not fall under the public charge condition. Therefore, certain nonimmigrants seeking an to adjust status or to extend stay can still test and treat COVID-19 via publically funded programs such as Medicaid or Medi-Cal. In fact, USCIS encourages anyone with coronavirus symptoms to seek medical treatment or preventative services, promising it will not negatively affect a foreign national as a part of its future public charge analysis.

To read more about public charge, and what it usually entails, click here.

COVID-19 Caused Unemployment & Public Charge Rule

In the same breath, USCIS has confirmed that it generally does not consider unemployment insurance receipt as part of the public charge determination.  Department of Homeland Security (DHS) stated it does not consider federal and state retirement, social security retirement benefits, social security disability, post-secondary education, and unemployment benefits as public benefits under the public charge inadmissibility rule. The reason is that these benefits are “earned” and to qualify for them one must have contributed via employment and specific tax deductions.

The USCIS policy manual for public charge inadmissibility determination also clearly states that unemployment benefits are an “earned” benefit are are not considered under this rule.

USCIS Office Closures

Since March 18, 2020, USCIS announced the cancellation of in-person visits until at least May 3, 2020. Check with your local office to see if they’re up and running, and whether you can reschedule your appointment, schedule a new appointment, and how to go about rescheduling.

Although in-person services with USCIS are halted, their lockbox is still open for receipt of applications and petitions.  Unfortunately biometrics and medical exams cannot be scheduled at this time, which may delay the processing of any application or petition that requires finger printing or interviews.  For example, the I-765 Employment Authorization renewal can still be mailed for processing, and USCIS has indicated it would process work permit renewals using previously taken finger prints.

On March 27, 2020, USCIS announced it will extend the deadlines to any Requests for Evidence (RFE) or Notice of Intent to Deny (NOID) dated between March 1st and May 1st, 2020 by sixty (60) days. This automatic extension also applies to Notices of Intent to Terminate (NOIT) and Notices of Intent to Revoke (NOIR). Certain field offices may have additional extensions that apply to even earlier notices. Check with your field office website or call the office for confirmation.

To contact USCIS, click here, or call (800) 375-5283. If you’d like assistance in the scheduling or rescheduling of your appointment, contact our office for advice.

ICE Office Closures

Immigration and Customs Enforcement (ICE) has announced that it will not be searching medical facilities, such as hospitals, for illegal immigrants.

Due to COVID-19, detention centers no longer allow “social” visitors to visit detainees.

Whether or not your specific field office is open, and whether you need to check-in depends on the location and your individual situation. If you have questions, please contact your designated office. If you need assistance in determining whether you need to make the visit, or someone to accompany you, please contact our office.

Immigration Court Closures

The Executive Office of Immigration Review (EOIR), or immigration court, in Los Angeles is currently only open for detainee hearings and filings.   If you have a pending case with the immigration court, and are not sure where you stand, you can contact the court or our office for additional support.

 

Finally, refugee entries have been restricted, and the asylum agreement with Guatemala has been stopped for the time being. If you have questions regarding how COVID-19 has affected your particular circumstances, do contact our office to speak with an experienced immigration professional.

Is immigration affected by the Government Shutdown?

By Jessica Suotmaa 0

With the recent (partial) government shutdown, many are left wondering what will happen once the holidays are over and everyone is back to business. We know a partial government shutdown affects federal employees, but how does it affect you? To answer your questions, we’ve collected key points from a variety of sources (listed at the end).

If by “immigration” we mean whether the United States Citizenship and Immigration Services (USCIS) agency is affected by the partial government shutdown, then the short answer is “no”.  USCIS is not funded by the government budget; it operates on its filing fees (which you pay).

USCIS tweet re government shutdown

The exception and long answer to the above question is when it’s a separately funded program under USCIS, such as the EB-5 investor program.  To make it easier for you, here’s a list of what is affected by the partial government shutdown:

  • USCIS EB-5 Regional Center Visa Program: Expired and not renewed as of yet. This means USCIS and Department of State will not accept any new EB-5 applications until the program is reactivated.
  • USCIS Conrad 30 Waiver Program: Also expired and not renewed as of yet. This means USCIS and Department of State will not accept any new EB-5 applications until the program is reactivated.
  • USCIS Special Immigrant Religious Workers Program: The Eb-4 non-minister special immigrant religious worker program expired and is currently not active.
  • E-verify: Currently not funded. Processing of E-verify application halted. Employers are advised to use traditional I-9 forms and manually verify employment eligibility.
  • Customs and Border Protection (CBP): While CBP is considered an “essential” agency, any visa or immigration-related application submitted at the border could be affected. The processing of any applications is not guaranteed.
  • Department of State (DOS): While DOS has not received funding as of yet, it too operates on fees and will actively process visas and passports as long as it still has “reserves” left.  Check with your local passport office to ensure it is not affected by a federal building shutdown.
  • Immigration Courts: As with previous furloughs (AILA resource), Immigration Courts handling non-detained immigrant cases will be closed, while Immigration Courts handling detained immigrant cases will continue to process. Details regarding exemptions from furlough as released by the Department of Justice are as follow:

“Executive Office for Immigration Review: Excepted employees are needed to process all immigration cases and appeals involving detained aliens, including criminal aliens; provide Headquarters oversight of excepted functions; provide administrative support for excepted functions; and preserve jurisdictional viability of discrimination cases within the Administrative Law Judge function”

 

Do you still have questions regarding the partial government shutdown? Or do you have questions regarding your immigration status? Contact our office to speak with an experience immigration attorney today!

Did your NOTICE TO APPEAR have a date time and place?

By Jessica Suotmaa 2

Since the Pereira v. Sessions decision in June 2018, immigration attorneys have been flooding the courts with variations of motions to reopen and terminate, with the most important being the Cancellation of Removal.  In this post, we’ll review the importance of this decision and how it may affect you.

What is a “Notice to Appear” (NTA)?

A notice of appear is a charging document the government sends or hands to you to inform you that you have been determined “removable” (a.k.a “deportable”).  An NTA will include the following:

  • biographical information
  • nature of proceedings
  • factual allegations
  • charge(s) of removability
  • date and place of proceedings (immigration court hearing)

Why is the Pereira v. Sessions decision significant?

The most significant takeaway from the Pereira v. Sessions decision is the Supreme Court’s decision that the NTA for Pereira was invalid because it failed to include an exact time and place for proceedings.

In the past, many NTAs were issued by other agencies (not the Department of Justice) so they would put “To be decided”, “TBD”, “To be set”, etc. on the NTA and let the immigration court send out a followup “Notice of Hearing” with an exact date, time, and location.  The Supreme Court ruled that a literal interpretation of the law means an NTA without a date, time, and location for proceedings is  invalid. An invalid NTA means that the immigration court has no jurisdiction, or power, over the alien.

In Pereira’s case, the decision means that his NTA was invalid so the immigration court did not have jurisdiction over his case. Since the department of justice (DOJ) did not have jurisdiction over Pereira, he was not technically in removal proceedings. Or at the very least, he should not have been in removal proceedings.

Pereira had been in the US approximately six years before receiving his NTA, which put a stop to his “time in the US” as time in removal proceedings does not count.  After his NTA was ruled invalid, Pereira had accrued enough time (ten years) to qualify for Cancellation of Removal.

What if my NTA didn’t have a time and place but I haven’t been here long enough?

It’s important for anyone with a similar NTA to be aware of the possible consequences. Just because the government served you an invalid NTA at some point, doesn’t mean you will suddenly be able to “get your papers” or live under the radar.  In fact, most likely they will serve you a new NTA with the date, time and location of your next hearing. If that happens, you will still be in removal proceedings.

As we discussed above, in Pereira’s case, he had prepared to ask for relief in the form of Cancellation of Removal.  If you are married to a U.S. citizen, or have a qualifying US citizen family member to petition for you, then you may be able to request relief in the form of allowing you to adjust your status.

A qualified immigration lawyer could analyze your situation and give you a clear idea of what your options may be.  Contact one of the qualified immigration attorneys at Lum Law Group today for a free phone consultation!

 

5 Things to Know About Sessions' Recent Asylum Decision re: Domestic and Gang Violence

By Jessica Suotmaa 0

We have been carefully following Attorney General Jeffrey Sessions’ review of the domestic violence asylum case (Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014)), which he overturned on June 11, 2018.  While our previous post on Sessions’ asylum decision was rather detailed, this post will outline the top five things you need to know from his decision.

  1. “Particular Social Group” category definition

Sessions states that persecution is usually government persecution, and while he did not define exactly what the catch-all “particular social group” includes, he does list all the boxes the particular case did not check.

The particular social group must…

  1. …be widely “understood to be a societal faction or a recognized segment of the population” in the applicant’s home country.
  2. …have members who share a “common immutable characteristic”, such as one “that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed.”
  3. …not be too wide in definition, such as “married women in Guatemala who are unable to leave their relationship”.
  4. …not be too narrow in definition, such as “El Salvadoran women who are unable to leave their domestic relationships where they have children in common”.
  5. …not be helped by the government (when not directly persecuted by the government).
  6. …must be the primary cause for asylum.

In the case of gang violence, Sessions explains how immigration judges have previously determined that victims of gang violence are not a “particular social group” but come from “all segments of society” and cannot be grouped together. So while it seems that gang members are a social group, victims of gang members are unfortunately not.

  1. Burden of Proof

Sessions highlights that the “burden of proof” lays with the applicant, meaning the applicant must show enough evidence to prove her need for asylum. The evidence must meet all the elements for asylum, which is determined by the asylum officer, immigration judge, or the Board of Immigration Appeals (BIA).

An example of bearing the burden of proof is by proving “group membership”. An applicant is expected to know the origins of the particular social group and be able to describe her membership.

  1. Credibility

Sessions has stated that if an applicant’s asylum claim is “fatally flawed in one respect, [then] immigration officers and judges need not examine the remaining elements of the asylum claim”. This basically means the applicant’s story must add up and be fool proof. If there are any question marks that constitute a “flaw” in reasoning, then the asylum application can be instantly denied without further review.

Applicants may notice the results of this decision at Immigration when observing asylum interviews that last mere minutes.

  1. Government’s Responsibility

To qualify for asylum, the applicant must prove that her government is unable or unwilling to protect her. However, if the government has made efforts but “may have problems effectively policing certain crimes”, then that reason alone is not enough to meet asylum requirements. Similarly, if “certain populations are more likely to be victims of crime”, then it is also not enough to qualify.

In the above case of domestic violence, Sessions states that for the applicant to show that the government doesn’t control private behavior well, e.g., the police don’t respond to 911 calls, is not enough. Rather, the applicant must prove that the government is not only aware of the private behavior, but also allows it to occur. If the case is that the government cannot protect the applicant, then the applicant must show evidence of the government’s inability to protect victims like her.

“The fact that the local police have not acted on a particular report of an individual crime does not necessarily mean that the government is unwilling or unable to control crime, any more than it would in the United States. There may be many reasons why a particular crime is not successfully investigated and prosecuted. Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.”

  1. Scope

Finally, Sessions reminds that applicants not only have to prove all of the above and any other requirements, but also has to provide evidence as to why escape to the United States is their only option.

“When the applicant has suffered personal harm at the hands of only a few specific individuals, internal relocation would seem more reasonable than if the applicant were persecuted, broadly, by her country’s government.”

 

If you have any questions about how Sessions’ decision reversal may affect your application for asylum or immigration hearing, contact us today to talk to an experienced immigration attorney!

Are Administratively Closed Immigration Court Cases still SAFE?

By Jessica Suotmaa 0

On May 17, 2018, Attorney General Jeff Sessions overruled a Immigration Judge’s decision in Matter of CASTRO-TUM, 27 I&N Dec. 187, clarifying that immigration judges and the Board of Immigration Appeals (BIA) does not have the authority to administratively close cases indefinitely. 

What does this mean?

In short, you can no longer request prosecutorial discretion (PD) for immigration court cases to be administratively closed.

If your case was administratively closed, commonly referred to as “having PD”, your case could be reopened by the court or BIA.

What does “Administratively Closed” mean?

“Administrative Closure” means the immigration judge has ordered the case off calendar for the time being.  Usually cases are administratively closed to allow the respondent to receive a decision from United States Citizenship and Immigration Services (USCIS),  e.g. an I-130 petition that would grant them the ability to adjust status in the U.S.

Sometimes, immigration judges have administratively closed cases because respondents did not show up to any of their hearings, and the immigration judge felt that the court did not have the correct address or means to contact the respondent.

For an individual respondent, administrative closure means their case is in limbo: they have no closure.  Respondents with administratively closed cases are not ordered removed, but their Notice to Appear (NTA) remains on file.  They (usually) do not qualify for work permits and cannot adjust for status through their original application (if applicable).  Not every respondent appreciates having their case administratively closed, as was the case in Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) where a Chinese national appealed his administrative closure because he wanted a decision on his asylum case.

Why do Judges “Administratively Close” cases?

The immigration courts have a huge backlog of cases. Transactional Records Clearinghouse identified 658,728 pending immigration court cases as of November 2017.  This total does not include administratively closed cases.  On January 5, 2018, The American Bar Association announced that there were around 350,000 administratively closed cases, making the total “pending” immigration court cases over 1 million. There are not enough judges or courts to handle all of the cases. Administrative closure is a tool for Immigration Judges to manage their case docket.

Why are “Administrative Closures” an issue?

Administrative closures have been argued to be a “cover up” for immigration courts to hide their unmanageable backlog.  The American Immigration Council connects “administrative closure” to “prosecutorial discretion” (PD), which is “the authority of an agency or officer to decide what charges to bring and whether to pursue your case”:

Administrative closure was used extensively as a form of prosecutorial discretion during the later years of the Obama Administration; in particular, the Department of Homeland Security (DHS) often joined in motions to administratively close cases that did not fall within its enforcement priorities.

Out of the 350,000 administratively closed cases (last 22 years), over 200,000 cases were closed during the last four years of the Obama administration. The Immigration Court backlog has also increased exponentially during the Obama years. The BIA has previously held in Matter of Ramirez-Sanchez that PD cannot be given by the Immigration Court or reviewed by the BIA:

The decision to institute deportation proceedings involves the exercise of prosecutorial discretion and is one which neither the immigration judge nor this Board reviews. Once deportation proceedings are commenced, the immigration judge must order deportation if the evidence supports the charge.  

In the more recent case, Matter of WYU-, 27 I&N Dec. 17 (BIA 2017), BIA held that an immigration judge does not have PD:

In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.

This decision prompted Attorney General Jeff Sessions to review old cases, such as the Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) and the Matter of Reynaldo CASTRO-TUM.

What’s important about Matter of Avetisyan?

In this matter, the respondent had an expired J-1 visa, was out of status, but she told the court that her husband was to be naturalized and could thereby file an I-130 Petition for Alien Relative soon. The Immigration Court gave her five continuances, but the respondent did not have proof of an I-130 approval. Speculating that the immigration court hearings were the reason why USCIS could not process her I-130 (as the physical file has to be sent back and forth between the attorney general’s office and USCIS), the respondent requested administrative closure, which the Immigration Judge granted despite government attorney objections.

Before January 31, 2012, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), immigration court cases could only be administratively closed if there was no opposition to the closure. If the individual respondent requested administrative closure, then both the immigration court judge and the government attorney had to approve the decision.  However, Board of Immigration Appeals’ (BIA) decision in Matter of Avetisyan overruled previous guidelines, stating that the immigration court or BIA could decide if a case warranted administrative closure. In doing so, the immigration judge and BIA overruled a previous decision in Matter of Gutierrez.

What’s important about the Matter of Reynaldo CASTRO-TUM?

By overruling the decision in Matter of Reynaldo CASTRO-TUM, Sessions has effectively overruled the decision in Matter of Avetisyan as well. Here’s what the decision basically states:

  • Immigration judges and the BIA do not have authority to “suspend indefinitely immigration proceedings by administrative closure” (overrules Avetisyan and W-Y-U-).
  • The only time immigration judges and the BIA can administratively close a case is “where a previous regulation or a previous judicially approved settlement expressly authorizes such an action”, e.g. when the settlement agreement in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) required BIA to administratively close all Guatemalan and Salvadorian deportation cases to allow them to apply for asylum under a new class.
  • By law, the Department of Homeland Security (DHS) decides whether to pursue a case and issue an NTA. Immigration judges and the BIA must resolve the case as quickly as possible.
  • If a case needs time, immigration judges are to issue continuances.
  • If a respondent doesn’t show up to their hearing (in absentia), then the immigration judge must order removal in absentia if DHS can prove that they’ve given written notice.
  • Cases that were administratively closed “without requisite authority” will be recalendered on the motion of either party.

In other words, Attorney General Jeff Sessions has decided that while administrative closure is abolished, it is not possible to reopen all the previously administratively closed cases due to the backlog of unresolved immigration court cases. However, any administratively closed case can be reopened by the court or BIA.

 

Feeling confused? Have questions? This blog is not legal advice. Contact our office to speak to an attorney for advice on your case.