Supreme Court Tacitly Allows New Limits on Aliens’ Rights

 

By Attorneys Lorella T. Hess & Nancy E. Miller

Most aliens in the United States are entitled to a hearing before an Immigration Judge if the government seeks to remove them, however those who entered the country illegally and have been here for a short time are subject to a process called expedited removal.  As its name indicates, the expedited removal process is designed to move quickly.  Usually the alien is not even able to consult an attorney and the final decision is made by an immigration officer during one interview.  

Last month, the U.S. Supreme Court decided not to review a case which raised questions about whether aliens caught up in the expedited removal process have certain constitutional rights.  In that case, Castro v. D.H.S., the U.S. Court of Appeals for the Third Circuit ruled that families in expedited removal proceedings, who had applied for asylum, could not seek habeus corpus petitions to challenge their detentions in court.  A writ of habeas corpus (Latin for “you have the body”) requires the government to bring a prisoner into court and justify the legal basis for his or her detention. 

Immigration law scholars and human rights organizations filing amicus (“friend of the court”) briefs argued that the Supreme Court should take up this case because the Third Circuit’s decision threatens the rights of many people already inside the United States.  There are two main reasons for concern.  First, serious flaws have been documented in how the expedited removal system actually operates.  Also, the scope of that system is being expanded by the Trump administration, which plans to apply expedited removal over a much wider geographic area and to include aliens who have been present in the United States for up to two years.

For well over a century the Supreme Court has held that “even aliens shall not be . . . deprived of life, liberty or property without due process of law.”  Constitutional due process protections—which include the right to a hearing—apply to “all persons” within the United States.  The only exception is that aliens arriving at a port of entry, even though they are in fact geographically inside this country, are subject to the legal fiction that they were stopped before the border and have not yet entered the U.S. 

The Third Circuit’s Castro ruling classified women and children apprehended several miles inside the United States (who had avoided a port of entry) under the legal fiction that they had not yet entered, and then also held that they did not have the right to challenge their detention with habeas corpus petitions.

Habeas corpus scholars submitted another amicus brief urging the Supreme Court to take up this case, arguing that the right to file a habeas corpus petition “turns on the extent to which the government exercises control of the petitioner’s person and not on [the petitioner’s] status as a citizen, noncitizen, or alien seeking asylum.”    

Indeed, the very same Supreme Court decision which established the legal fiction that, for due process purposes, an alien at a port of entry has not yet arrived in the United States, also acknowledged that such an alien “may by habeas corpus challenge the validity of his exclusion.”

However, because the Supreme Court did not agree to hear the Castro case, the Third Circuit’s holding stands and is binding throughout that circuit, which includes Delaware, New Jersey, and Pennsylvania.  

Other U.S. Courts of Appeals have ruled differently in the past, and their rulings remain binding within their circuits.  California is in the Ninth Circuit.  The most recent rulings from the Ninth Circuit on this issue affirm the entry fiction as traditionally understood, and safeguard constitutional protections for people who have crossed the border into the United States, even if they have done so illegally.

The Third Circuit’s ruling could affect those in other Circuits.  Recent arrivals apprehended in the Ninth Circuit could be moved to the Third Circuit and held in detention there, where they would be subject to Third Circuit law and thus unable to file habeas corpus petitions to challenge their detentions.  The asylum seekers in the Castro case were taken into custody in Texas (in the Fifth Circuit) before being moved to detention centers in Pennsylvania (in the Third Circuit). 

For this reason, it is important to try to prevent DHS from moving recent arrivals from the Ninth Circuit to a Circuit where the law is more harsh.  Legal  motions need to be filed to prevent such moves.  Those subject to expedited removal due to their recent arrival in the United States, or their loved ones, should immediately consult a knowledgeable and experienced immigration lawyer to determine what help is available for them.

 

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Why Become a U.S. Citizen?

Some of the Many Good Reasons

By Reeves Miller Zhang & Diza, A PLC

Becoming an American citizen is the culmination of the American dream. A citizen can shape American politics through voting. Citizens have greater ability to convey immigration benefits to family members. In fact, in some circumstances, children automatically gain citizenship when their parent naturalizes. Unforeseen circumstances which cause one to be out of the United States for extended periods of time can result in charges of abandonment of immigrant status - but not of citizenship. It is also important to remember that non-citizens, even those who have lived here for decades, can be deported for violating American laws. U.S. citizens cannot be deported unless they lied to get earlier immigration benefits or they give up their citizenship.
To be eligible for naturalization, the immigrant must be a lawful permanent resident; be at least 18 years of age; have continuously resided in the United States as a green card holder for 5 years (3 years if married to and living in marital union with a U.S. citizen spouse or if green card was obtained because of battering or extreme cruelty); be physically present in the U.S. for at least one-half of the residency period; and be a person of good moral character. The immigrant must also demonstrate an ability to read, write and speak English and knowledge of American history and government (civics).
Absences from the U.S. as a result of military commitments or because of work for the U.S. government may not count against the residency or physical presence requirement. In addition, waivers are possible for some who are unable to learn English or civics.
Upon taking the oath of allegiance, the new citizen’s lawful permanent resident children under the age of 18 automatically become citizens as well. Citizens can file petitions for a parent, spouse, or unmarried child under the age of 21 without dealing with visa backlogs. These immediate relative categories allow the beneficiary to complete their immigration processing in the United States, even if they are currently out of status as long as they entered with inspection. In addition, citizens can file petitions to immigrate their siblings and their married sons and daughters. These categories have long been targets of those who would like to narrow immigration benefits. One who has family members in these categories should file for them while they can.
Some immigrants delay filing for citizenship under the mistaken belief that their unmarried adult children will face a longer visa waiting period as an unmarried son or daughter of a U.S. citizen than if the parent had remained a lawful permanent resident. This belief is erroneous because the unmarried sons and daughters may elect to “opt-out” of the U.S. citizen category to take advantage of the shorter waiting period. This “opt-out” benefit is only available where the parent filed the original petition before naturalizing.
Delaying an application for citizenship can have adverse consequences. A green card is not a permanent benefit. It can be lost. A green card holder who has spent more time out of the U.S. than in it can be denied admission for having abandoned their immigration status. They may have to fight in immigration court to keep their green card. However, U.S. citizens cannot be accused of abandonment.
Not everyone who has had their green card for 5 years and has lived here for more than half that time should apply for citizenship.
Certain criminal convictions result in a loss of green card and deportation. An immigrant with a criminal record may invite deportation by filing for naturalization. However, waivers may be available in some circumstances that would allow the immigrant to either remain a green card holder or even obtain citizenship. An immigrant who is convicted of an aggravated felony before November 29, 1990 and obtains a waiver may qualify for citizenship.
Someone who misrepresented a material fact to get a green card is not a lawful permanent resident for naturalization purposes. Continuing the misrepresentation in the naturalization process can result in more serious complications. Here again, waivers of the misrepresentation are possible. One granted such a waiver may be able to both keep their green card and become a citizen.
Many questions arise when deciding to file for citizenship. Is a conditional resident a resident for naturalization purposes? Does one who has spent much time out of the U.S. on business meet the residency and physical presence requirement? How do past actions affect the good moral character requirement? Will applying for citizenship lead to being placed in removal proceedings? One should consult a knowledgeable and experienced immigration attorney to learn the answer to these questions, and more, before applying for citizenship.

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TPS as a Pathway to a Green Card

By Attorneys Nancy E. Miller and Michael Bhotiwihok

In Ramirez v. Brown, the Ninth Circuit recently held that a Temporary Protected Status (“TPS”) recipient is eligible to adjust to legal permanent resident status in the United Status. The Ninth Circuit reasoned that receiving TPS deems an individual to be in lawful status and satisfies the nonimmigrant requirements, such as inspection and admission, for adjustment of status purposes.
In Ramirez, a dispute arose over whether being a TPS designee provided a pathway to obtaining lawful permanent residence status under the adjustment statute. The United States Immigration and Citizenship Services (“USCIS”) found Ramirez ineligible to adjust to lawful permanent resident status on that ground that he last entered the country without inspection therefore he had not been inspected, admitted or paroled as required by Immigration and Nationality Act (“INA”) Section 245(a). The Ninth Circuit held that being a TPS designee provides a pathway to a green card. Residents in the Ninth Circuit who are TPS recipients now can adjust to lawful permanent status in the United States instead of consular processing in a foreign country.
INA Section 245(a) requires that an applicant prove that he or she has been inspected and admitted (or paroled) before being eligible to adjust status to lawful permanent residency. Because of the Ramirez decision, TPS recipients who entered the United States without inspection are now considered admitted and qualify for adjustment of status under INA Section 245(a) provided they have an independent means of immigrating.
Prior to the Ramirez decision, adjustment of status to lawful permanent residency in the United States could be achieved by proof of a legal entry, an exception under INA 245(i), advance parole, or parole based on a family member in the United States Armed Forces.
The Ninth Circuit decision is significant because of the geographic reach of the large number of TPS recipients affected in California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska, and Hawaii. Further, TPS recipients do not have to leave the United States and consular process through a United States Embassy or Consulate. Families are kept together and lives continue in the United States.
The Ninth Circuit joins the Six Circuit in finding that noncitizens with a grant of TPS who entered the country illegally are eligible to apply for a green card in the United States. However, the Eleventh Circuit is at odds with the Ninth and Sixth Circuits thereby creating a split. Until the conflicting decisions are decided by the United States Supreme Court, there will be inconsistent application of immigration law among the Circuit Courts and throughout the country.
TPS may be granted by the USCIS to foreign nationals due to conditions in their country, such as a natural disaster or civil war, which prevent the foreign nationals who are living in the United States from returning safely to their country. The Department of Homeland Security has currently designated the following countries for TPS: El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, Syria, and Yemen.
TPS status allows foreign nationals to live and work in the United States without the fear of being removed/deported. TPS is a temporary benefit that does not directly lead to a green card. However, registration for TPS does not prevent one from applying for nonimmigrant status, adjustment of status based on an immigrant petition, or any other immigration benefit or protection.
For TPS recipients outside of the Sixth and Ninth Circuits, attention must be directed to monitoring current pending cases in their respective jurisdictions. For example this year, in Bonilla v. Johnson, the United States District Court, District of Minnesota, held that a grant of TPS satisfies the threshold requirement of admission for purposes of becoming eligible for adjustment of status to a lawful permanent resident.
In addition, TPS recipients should consider alternative routes to obtaining a green card. The Provisional Unlawful Presence Waiver (“Provisional Waiver”) allows beneficiaries of immigrant visa petitions who were not inspected and admitted to the United States to apply for a waiver of the ten-year bar that will be triggered by departing the country to apply for an immigrant visa abroad. The Provisional Waiver allows applicants to know whether their waiver is approved or not before departing the United States. Thus, the uncertainty and risks of leaving the United States to consular process are alleviated. The Provisional Waiver decreases the time that families are separated and keeps families together during the consular processing of an immigrant visa.
Any TPS recipient should seek the advice of an experienced and knowledgeable immigration attorney to discuss his or her immigration options and eligibility to obtain a green card in the United States.

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Spouses of Certain H-1B Visa Holders at Risk of Losing Work Authorization

By Attorneys Brittany M. Milliasseau and Nancy E. Miller

 

During the Obama administration, the Department of Homeland Security (DHS) enacted a rule that allows the spouses of certain H-1B specialty occupation workers to apply for employment authorization documents (EADs). Prior to the enactment of the rule, the H-4 spouse of an H-1B visa holder could live in the United States, but was not authorized to work. Thus, numerous highly-skilled and advanced degree individuals, who chose to accompany their spouses to the U.S. were unable to pursue employment opportunities in the U.S. The H-4 EAD rule which went into effect in May 2015, changed the long-standing regulation and allowed H-4 nonimmigrant spouses of H-1B workers to apply for work authorization if their H-1B spouse is in process of becoming a lawful permanent resident. Specifically, the H-1B holder must be the beneficiary of an approved Form I-140, Immigration Petition for Alien Worker, or have been granted H-1B status pursuant to certain sections of the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act, often referred to as “AC21.”
The H-4 EAD rule was initially aimed at reducing “personal and economic burdens faced by H-1B nonimmigrants and eligible H-4 dependent spouses during the transition from nonimmigrant to LPR status,” as well as “attracting and retaining highly skilled foreign workers and minimizing the disruption to U.S. businesses resulting from H-1B nonimmigrants who choose not to remain in the United States and pursue LPR status.”
While the H-4 EAD program has provided a much-needed pathway for H-4 visa holders to earn an income, it has also been challenged by certain groups claiming that the rule threatens the jobs of U.S. workers. Shortly after the H-4 EAD rule was announced, an organization of technology workers filed a lawsuit against the federal government arguing that DHS lacked the statutory authority to allow H-4 visa holders to work in the U.S. Further, the plaintiffs argued that the new rule injured its members as they would be forced to compete with both H-1B and H-4 workers for jobs. The case was initially dismissed but plaintiffs appealed the ruling. In February 2017, DHS was granted an additional 60 days to assess the rule and “allow incoming leadership personnel adequate time to consider the issues.” Earlier this week, after the 60-day abeyance which ended on April 3, DHS then asked the Circuit Court for additional time. This time, the request for was an additional 180 days to allow DHS time to “reconsider the H-4 Rule and whether issuance of a notice of proposed rulemaking relating to it is appropriate.” In its filing, DHS also offered to “update the court every 60 days concerning the Department’s review” and to “inform the Court promptly should it determine new rulemaking is or is not appropriate before 180 days elapse.”
Many H-4 spouses and their family members are now concerned about the future of their work authorization and their ability to earn an income. If the current administration revokes employment authorization for H-4 spouses, numerous families could be in economic jeopardy. Families may lose a household income and financial situations could be dramatically changed resulting in economic hardship for many, especially families that have become accustomed to dual family incomes. As of right now, there have been no changes to the H-4 EAD rule, but there is a possibility that DHS could amend the existing rule, publish a new rule, or even terminate the rule.
The challenge to the H-4 EAD rule is a stark reminder of the uncertainty that is present in the immigration system – uncertainty that has recently been heightened due to the new presidential administration.
If you believe that you may be eligible for work authorization under the H-4 EAD program, it is best that you speak with an experienced immigration attorney to discuss eligibility. Additionally, if you think that you may be eligible for another type of immigration benefit, you should consult with a knowledgeable immigration attorney who may review your immigration case history and determine whether you are currently eligible for any immigration benefits, particularly a benefit that may no longer be available in the near future.

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Trump, the Executive Orders & You!

Exactly one week after his inauguration, President Trump signed an executive orderwhich banned entry of noncitizens from seven Muslim-majority countries, halted U.S.refugee admissions, and suspended the nonimmigrant visa interview waiver program.Signed on January 27, 2017, the executive order seeks to protect the nation from entry offoreign terrorists, but consequently led to a series of nationwide protests, Constitutionalchallenges, and agency confusion at ports of entry and with the U.S. Citizenship andImmigration Services (USCIS). One week later, a District Court judge issued a nationwide temporary restraining orderwhich halted enforcement of certain provisions of the executive order, namely partsrelated to the travel ban on refugees and noncitizens from Muslim-majority countries.Subsequently, the Ninth Circuit Court of Appeals unanimously affirmed the DistrictCourt judge’s ruling and allowed the temporary restraining order to remain in place.While no immediate next steps have been confirmed, President Trump has expressedplans to challenge the ruling, potentially at the Supreme Court level, and has also notruled out the possibility of issuing an entirely new executive order.

Meanwhile, U.S. Immigration and Customs Enforcement (ICE) began enforcement raidsin several states across the nation aimed at apprehending undocumented immigrants,particularly those with criminal records. ICE has reported that 680 people were takeninto custody nationwide. 161 people were taken into custody in Southern California. Aslegal challenges ensue, expanded enforcement begins, and uncertainty continues to loom,it is now more important than ever to consult with an immigration attorney if you havequestions about how to obtain legal immigration status. Frequently Asked QuestionsI am from one of the seven restricted countries. Is it safe for me to travel outside of theU.S.? If you are a citizen or national of Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen andare not a U.S. citizen, you will not be permitted to enter the U.S. if the temporaryrestraining order is lifted. If the travel ban resumes, lawful permanent residents, as well as

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How Do DHS’s New Rules Affect You?

On February 21, 2017, the Department of Homeland Security (“DHS”) released two newmemoranda, which outline how DHS plans to implement President Trump’s recent executiveorders concerning the immigrant community. You are probably wondering how these newmemoranda may impact you or your family; Reeves Miller Zhang & Diza is here to help. The memoranda demonstrate that DHS intends to aggressively enforce removalprovisions against all who may have violated any immigration law. The first memorandum“Enforcement of the Immigration Laws to Serve the National Interest,” focuses on strictenforcement. Of particular note is that DHS is broadly expanding its enforcement priorities.DHS states that only those covered by the memoranda from DHS regarding the programcommonly known as Deferred Action for Childhood Arrivals, or DACA, are exempted fromenforcement. In conjunction with this, DHS is expanding enforcement priorities to include thosewho have “committed acts which constitute a chargeable criminal offense.” This is very broad. Itincludes those who have been charged with, but not convicted of, a crime or those whom thegovernment believes may have committed a crime even if they have not been charged. Furthermore, many entries into the United States that do not comply with the law(including reentry after removal without government permission) are violations of criminal law.Additionally, DHS states that anyone who is a priority is treated as having equal priority forenforcement actions. Thus, DHS now prioritizes anyone who has committed acts whichconstitute a criminal offense in the same category as those who have actually been convicted of acrime. The stated plan for enforcing these new priorities includes the hiring of thousands of newDHS officers, using local law enforcement as immigration officers, as well as requiring local lawenforcement to provide information to DHS about local communities to aid in carrying out theirenforcement priorities. Do non-citizens still have rights in this increased enforcementatmosphere? Yes, they do and it is important for them to know and exercise those rights as wellas to file for all immigration benefits for which they may be eligible. The second memorandum “Implementing the President’s Border Security andImmigration Enforcement Improvement Policies,” describes new DHS policies and proceduresto increase penalization of entry without inspection or with false documentation. A major portionof this memorandum emphasizes the importance of detaining persons as “the most efficientmeans by which to enforce the immigration laws,” and, as such, restricts the ability for detainedpersons to secure their release from detention. This memorandum also repeats the goal of hiringthousands of additional officers and agents, together with the use of local law enforcement to“perform the functions of an immigration officer,” including the apprehension and detention ofpersons. It is unclear how the local law enforcement agencies will respond to this command, butit appears safe to conclude that DHS’ overall strength in terms of numbers of officersinvestigating and detaining persons will increase dramatically.

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