Navigating Uncertain Times: Friday Roundup - February 24, 2017

Navigating Uncertain Times:  Friday Roundup

Friday February 24, 2017

 

Welcome to our new effort  to keep you informed of the quick-paced changes in immigration – real and implied – that are taking place in our world today.  This regular feature titled “Navigating Uncertain Times: Friday Roundup” will summarize new developments that have occurred within the preceding week and to provide concise explanations of how these changes might affect you .  We hope to be able to provide a helpful summary each Friday – or as often as may be warranted by the pace of new developments in immigration law and practice.

We will continue to provide timely and thoughtful blogs on various areas of interest in immigration law from time to time, but we welcome you to this first installment of this regular feature.

On February 17, 2017, the U.S. Dept. of Homeland Security Secretary, John Kelly, issued two (2) new Memoranda addressed to the various departments within Homeland Security such as ICE (Immigration & Customs Enforcement) and CBP (Customs & Border Protection) implementing the enforcement priorities expressed in the recent Executive Orders issued by President Trump.

Border Security Memo

The first Memo, relating to ‘Border Security’ has, among many various provisions, some fairly significant changes to the manner in which immigration laws are enforced, including:

·         An effort to detain nearly all foreign nationals apprehended entering into the U.S. without inspection, rather than getting biometric information, and allowing them to remain in the country while awaiting the opportunity for a hearing on whether they are entitled to stay.  There are currently not enough detention facilities to house the anticipated number subject to this provision.

·         An effort to hire 5,000 more border protection agents.  At this point, Dept. of Homeland Security has been unable to fill the already-existing requirement that there be 21,370 border protection agents.

·         An effort to expand the process of deportation known as ‘Expedited Removal’.  [For clarification, the term ‘deportation’ is commonly used to refer to the forced removal of persons from the country; but the precise legal technical term is known as ‘removal’].   Expedited Removal is, as the name implies, a procedure that removes the individual without the opportunity to appear before an immigration court or hire a lawyer.  The present practice is to use ‘Expedited Removal’ only for foreign individuals encountered within 100 miles from the border within 14 days of entry.  The new provision expands this to include anyone anywhere in the U.S. who cannot prove they have been here continuously for the previous 2 years.

·         Those apprehended at the border not subject to expedited removal would be returned to the ‘contiguous country’ from which they entered, (i.e., Mexico or Canada), regardless of their nationality.  They would then have formal ‘removal’ proceedings from a facility across the border in the neighboring contiguous country.

 

Interior Security Memo

This Memo relating to enforcement in the interior of the country (beyond the narrow regions along the nation’s boundaries) may be more significant in terms of the breadth of applicability.  Because of the finite amount of resources available to remove foreign nationals who are not presently here lawfully, past administrations have focused enforcement priorities on removing persons with criminal records. 

The ‘Interior Security Memo’ describes various classes of persons who are removal ‘priorities’, but concludes with one class that includes anyone who has ‘committed acts that constitute a chargeable criminal offense’ could include anyone who simply arrived in the U.S. without inspection.  This is a vast expansion of persons subject to removal.

It also supports the ‘fast-track’ removal process for the removal of persons included in these new ‘priorities’.

 

Look for additional explanation of these Memos in days to come – there are lots of issues to explore - but this should provide a brief introduction to some of the changes prompted by recent Executive Orders.   

Keep Calm and Carry...your Papers

With the release of President Trump’s most recent Executive Order asserting travel bans on certain immigrants from certain countries, there is understandably much confusion and anxiety over what this and his prior executive orders mean to immigrants now living in the United States and foreign nationals hoping to travel here.

Unraveling all of these issues will take some time.  Federal courts were quick to identify the legal and constitutional flaws in various parts of the orders and variously enjoined the Department of Homeland Security from taking actions to deport persons who arrived legally.  The Department of Homeland Security also properly conceded that the ban should not apply to persons who are lawful Permanent Residents of the United States.  But as the legal entanglements continue and the Department of State and the Department of Homeland Security figure out how to process these measures, what are noncitizens in the U.S. to do?

Keep Calm and Carry…your Papers

At this point, most of the immediate confusion is taking place at the borders and ports of entry into the U.S. and relates to persons outside of the U.S. trying to return or get into the U.S.  If you are already here, it would make sense to avoid traveling abroad until the Administration, the Courts and the Agencies can give us a clearer definition of exactly what type of enforcement will be taking place.  Of course, the January 27, 2017 Executive Order deals primarily with Refugees and visitors from 8 countries, but reports of others being stranded abroad in the confusion would indicate that there is still some uncertainty in international travel to and from the United States for noncitizens for now.

The January 25^th Executive Orders deal with internal enforcement of immigration laws; like the January 27^th Order, there is still some room for the Courts and the Administration to figure out to what extent these provisions are legally enforceable.  However, it is a general conclusion among the immigration bar that Immigration and Customs Enforcement is not restrained by the executive memoranda from the previous administration giving clear enforcement priorities on who should (or should not) be placed in removal proceedings.  Thus, in this heightened environment of enforcement, if you are a noncitizen of the U.S., it would be prudent to make sure that you carry your authorizing documents, (e.g., ‘green cards’, copies of visas, etc.) with you at all times.

Finally, keep in mind the long-view.  Although this is a period of great uncertainty, anxiety and disorientation for immigrants in the U.S. – irrespective of one’s legal status – we are also an exceptional democracy that has mechanisms and tools to give balance and, ultimately, greater certainty to the legal rights and constitutional protections that have evolved and continue to improve through the testing of these principles that have shaped our nation for the past two centuries.

So Keep Calm, Carry On…and Be Careful until we can get this sorted out.

Troubling The Waters...New Executive Orders Challenge The Way We Look At Immigration

Troubling the Waters…

If you are even remotely keeping up with the news, you are aware that the Trump Administration has started its term with a swarm of Executive Orders, tweets and announcements that affect the millions of immigrants presently in the U.S. and those dreaming of one day entering our country.

This is just the beginning of what we expect to be a long and turbulent period of changes to the immigration system as it now exists and challenges to the law, regulations, policies and memoranda that immigration attorneys use to try to help guide clients to secure the benefits that the law offers to them.

The early waves of the expected sea-change in immigration policy began with a series of Executive Orders issued on Wednesday, January 25, 2017.

We will endeavor to process these developments as soon as they occur so that we can help explain how these changes affect all of us.   We will therefore be regularly providing blogs at this site to help you remain fully informed as to the actual substantive actions that are taken, as well as some context for understanding their significance.

 

PART I – Executive Order of January 25, 2017:

 

 Executive Order 1:  “Enhancing Public Safety in the Interior of the United States”

The basic purpose of this Executive Order is to tighten the enforcement of those immigration laws relating to unlawful presence and to more aggressively pursue foreign nationals who are unlawfully present for removal. 

Here are the provisions intended to do this:

1.       Prioritize for removal noncitizens who are present in the U.S. and who are inadmissible on the basis of criminal, national security, fraud, misrepresentation and other related grounds of inadmissibility.

 

2.       Promulgate new regulations to collect penalties from noncitizens who are unlawfully present… as well as “those who facilitate their presence” in the U.S.

 

3.       Hire 10,000 additional Immigration & Customs Enforcement, (‘ICE’) Officers

 

 

4.       Resurrect a Program known as the ‘287(g)’ Program that authorize state and local law enforcement officials to investigate, apprehend and detain noncitizens who are unlawfully present in the U.S.

 

5.       Declare the authority of the Attorney General to take enforcement actions against ‘Sanctuary Cities’ by challenging their eligibility for certain federal grants.  This provision also directs the Department of Homeland Security to publicize any criminal acts committed by ‘aliens’ in those communities where they are not detained for ICE enforcement.

 

6.       Pressure other countries that do not accept their nationals who have been removed from the U.S. by suspension of visas from those countries; this also threatens these countries with their acceptance of removed nationals as a ‘condition precedent’ to diplomatic negotiations.

 

7.       Creation of an ‘office’ to assist victims of crimes perpetrated by ‘removable aliens’.

 

 

8.       Exclude non-U.S. citizens from the protections of the Privacy Act.

 

9.       Direct the U.S. Dept. of Homeland Security and the Attorney General to provide quarterly reports on the immigration status of all noncitizens incarcerated by the Bureau of Prisons, state and local prisons and jails.

 

These are the basic provisions of this Executive Order.  Please stay-tuned for a context-driven analysis of these provisions in the days ahead.