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For the last few years, the "hot topic" in asylum has been the backlog--the very long delays caused by too many applicants and too few adjudicators. I recently wrote about the backlog at the Asylum Office and what can be done to expedite a case. One commenter suggested that I write a post about expediting cases in Immigration Court, and since I aim to please, here it is.
Courts are still wrapping up the last of Justice Marshall's immigration cases.
The first thing to note is that the backlog in Immigration Court is huge. According to recent data, there are over 542,000 cases pending in court (not all of these cases are asylum). The average wait time for a case in Immigration Court is 677 days. The slowest court is Colorado, where wait times average 994 days. That's a long time, especially if you are separated from family members while your case is pending. For what it's worth, I have previously written about some ideas for reducing the wait time in Immigration Court (you will be shocked to learn that EOIR has not yet contacted me to implement these ideas!).
Second, advancing a case is not easy. The Immigration Court Practice Manual, page 101, specifically notes that, "Motions to advance are disfavored." The motion should "completely articulate the reasons for the request and the adverse consequences if the hearing date is not advanced." Health problems or separation from family may good reasons to advance. I discuss these and other possible reasons here (the post relates to affirmative asylum cases, but the same logic applies).
Third, expediting a case in Immigration Court is not as straightforward as expediting a case at the Asylum Office. There are different approaches that you can take, depending on the posture of your case. For advancing a case (and for the case itself), it is very helpful to have the assistance of an attorney. Indeed, according to TRAC Immigration, 91% of unrepresented asylum applicants in Immigration Court have their cases denied (whether they get other relief, like Withholding of Removal, I do not know). If you can afford a lawyer (or find one for free), it will be to your benefit in expediting and winning your asylum case in court.
OK, before we get to the various approaches for advancing a court case, let's start with a bit of background. A case commences in Immigration Court when the Notice to Appear--or NTA--is filed with the court. The NTA lists the reasons why the U.S. government believes it can deport (or, in the more bowdlerized parlance of our time, "remove") someone from the United States. After the court receives the NTA, it schedules the alien for an initial hearing, called a Master Calendar Hearing ("MCH"). At the MCH, the alien--hopefully with the help of an attorney--tells the Immigration Judge ("IJ") whether the allegations in the NTA are admitted or denied, and whether the alien agrees that he can be deported. In most asylum cases, the alien admits that he is deportable, and then informs the Judge that his defense to deportation is his claim for asylum. The IJ then schedules the alien for a Merits Hearing (also called an Individual Hearing), where the alien can present his application for asylum, and either receive asylum (or some other relief) or be ordered deported from the United States. Depending where in this process your case is, the procedures to expedite vary.
If you have the NTA, but the MCH is not yet scheduled: In some cases, the alien receives an NTA, but then waits many months before the MCH is scheduled. In this case, the delay usually lies with DHS (Department of Homeland Security), which issues the NTAs and files them with the Court, rather than with the Court itself. The Immigration Court has an automated number that you can call to check whether your case is scheduled for a hearing date. The phone number is 1-800-898-7180. Follow the prompts and enter your nine-digit Alien number (also called an "A number"). The system will tell you whether your case is scheduled and the date of the next hearing.
If the system indicates that your "A-number was not found," this probably means that the NTA has not yet been submitted to the Court. Contact the local DHS/ICE Office of the Chief Counsel and talk to the attorney on duty. Perhaps that person can help get the NTA filed with the Court, so the case can begin.
If your A-number is in the system, but there is no MCH scheduled, contact the Immigration Court directly to ask the clerk for an update. If the Court has the case, it may be possible to file a motion (a formal request) to schedule the case. However, if an IJ is not yet assigned to the case, such a request may disappear into the void once it is filed. Most lawyers (including me) would generally not file a motion until a Judge is assigned, as it is probably a waste of time, but maybe it is possible to try this, if your lawyer is willing.
While you are waiting for the Court to docket your case (i.e., give you a court date), you can gather evidence and complete your affidavit. That way, once the case is on the schedule, you will be ready to file your documents and ask to expedite.
If the MCH is scheduled: Sometimes, MCHs are scheduled months--or even years--in the future. If your case is assigned to an IJ and you have a MCH date, there are a couple options for expediting.
First, you can file a motion to advance the date of the MCH. If the MCH is sooner, the final (Merits) hearing will be sooner as well. Whether the IJ will grant the motion and give you an earlier appointment is anyone's guess. Some IJs (and their clerks) are good about this; others, not so much.
Second, you can request to do the MCH in writing (in lieu of attending the hearing in-person). Check the Immigration Court Practice Manual, pages 70 to 72, for information about filing written pleadings. If the Judge allows this, you can avoid attending the MCH and go directly to the Merits Hearing. Just be sure that your affidavit and all supporting documents are submitted, so you are ready to go if and when the IJ schedules you for a final hearing.
Many attorney, including me, do not like filing motions to advance the MCH or motions for a written MCH. The reason is because they often do not work, and so what happens is this: You prepare and file the motion, call the Court several times, and ultimately have to attend the MCH anyway. When lawyers spend time doing extra work, it is fair for them to charge the client additional money. So don't be surprised if your lawyer tells you that filing a motion will cost extra.
At the MCH: Typically, when you go to the MCH, the IJ gives you the first date available on her calendar for a Merits Hearing. But there are a few things you can do to try to get the earliest possible date.
One thing is to complete the entire case (the affidavit and all supporting documents) and give them to the IJ at the MCH. That way, if there happens to be an early opening, you can take the date (and sometimes, IJs do have early dates--for example, if another case has been cancelled). Many lawyers (again, including me) don't love this because it requires us to do all the work in advance, and it often does not help. Don't be surprised if the lawyer wants to charge extra for getting the work done early (many lawyers--and other humans--prefer to put off until tomorrow what we do not need to do today).
Second, you (or your lawyer) can try to talk to the DHS attorney prior to the MCH to see whether any issues in the case can be narrowed (usually, it is not possible to talk to DHS about the substance of the case prior to the MCH, as they have not yet reviewed the file). If that happens, maybe you will need less time to present the case, and you can tell the IJ that you expect a relatively short Merits Hearing. It may be easier for the IJ to find a one-hour opening on his calendar than a three hour opening (normally IJs reserve a three-hour time slot for asylum cases), and so you may end up with an earlier date. Even if you cannot talk with the DHS attorney, you can tell the IJ that you expect to complete the case in an hour and try to convince him to give you an earlier date, if he has one.
Third, if you have a compelling reason for seeking an earlier Merits Hearing, tell the IJ. If you have evidence demonstrating the need for an earlier date, give it to the IJ. Maybe the Judge will not have an earlier date available immediately, but at least he can keep the situation in mind and accommodate you if an earlier date opens up.
Finally, if you simply arrive early at the MCH and get in line, you may end up with an earlier Merits Hearing date than if you show up late to the MCH since IJs usually give out their earlier dates first.
After the MCH, but before the Merits Hearing: Waiting times between the MCH and the Merits Hearing are very variable, depending on the Immigration Judge's schedule. Assuming that the IJ has given you the first available Merits Hearing date (which is normal - see the previous section), there is not much point in requesting an earlier date immediately after the MCH. Maybe if you wait a few months and if luck is on your side, a spot will open up and your request will be granted. Or--if the Judge has an effective clerk--you can file a motion to advance, and the clerk will save it until a spot opens up for you.
Another possibility is to talk to the DHS attorney to see whether issues can be narrowed, which might make it more likely that the case can be advance (see the previous section).
Some words of caution: Keep in mind that the Immigration Court system is a mess. Judges come and go. Priorities shift, which sometimes causes cases to be moved. It is quite common for court dates to change. Even if you do nothing, a far-off date may be rescheduled to an earlier day, or an upcoming hearing might be delayed. If you successfully advance your court date, it is possible that the Court will later rescheduled your case to a more distant date (this happened to us once). It is difficult to remain patient (and sane) through it all, but maybe being aware of this reality will somehow help.
Also, remember to make sure that your biometrics (fingerprints) are up to date. If not, you may arrive at the Merits Hearing only to have it delayed because the background checks were not complete.
Finally, do not give up. Immigration Judges are human. If they see a compelling reason to expedite a case, most of them will try to help. Explain your situation to the Judge, or let your lawyer explain, and maybe you will end up with an earlier date.
Originally posted on the Asylumist: www.Asylumist.com.
These days, the estimated wait time for an affirmative asylum case is somewhere between eternity and forever. It can best be expressed numerically as ∞. Or maybe as ∞ + 1. In other words, affirmative asylum cases take a long damn time. (OK, to be fair, you can get some idea about the actual wait time here).
Asylum seekcars waiting for their interview.
For some people, this wait is more of a problem than for others. For example, if your spouse and children are outside the United States waiting for you, and especially if they are living in unsafe or unhealthy conditions, the wait can be intolerable. A growing number of people are abandoning their cases simply because they cannot stand the separation. Others are moving to Canada, which apparently has a faster system than we have in the States. The problem is not simply that the wait is long—and the wait is long. The problem is that we cannot know how long the wait will be. Maybe the interview will come in six months; maybe in three years. Maybe the decision will come shortly after the interview; maybe it will take months or years. This unpredictability contributes to the difficulty of waiting for a resolution to the case.
For others people—single people without children or families that are all together here in the U.S.—the wait may be stressful, but it’s far more bearable. For my clients in this position, I advise them to live as if they will win their cases. What else can they do? To live under the constant stress of potential deportation is unhealthy. And the fact is, most of my clients have strong cases, and the likelihood that they will succeed it pretty high. So it is best to live as normally as possible. Find a job, start a business, buy a house or a car, go to school, make friends, get on with life. In the end, if such people need to leave the United States, they will have time to wind down their affairs and sell their belongings. For now, though, if I may quote the late, great Chuck Berry, Live like you wanna live, baby.
But what if you want to try to expedite your case? How can you maximize the chances that the Asylum Office will move your case to the front of the line?
First, before you file to expedite, you need to complete your case. The affidavit must be finished and all the evidence must be organized and properly translated (if necessary). If you expedite a case and the case is not complete, it could result in real problems. For example, I once had a client put himself on a short list without telling me. Then one day, an Asylum Officer called me and said that they wanted to schedule his interview for the following week. The problem was, the evidence was not submitted (or even gathered) and the affidavit was not done. The client insisted on going forward, and so (while I helped with interview preparation), I withdrew from the case. I did not want to remain affiliated with a case that was not properly put together, and I did not want to represent a person who took action on his case without informing me. In general, there is no value in expediting a case only to lose because you are not prepared for the interview, so make sure your case is complete before you try to expedite.
Second, you need a good reason to expedite. Remember, you are asking to jump your case ahead of hundreds--maybe thousands--of people who are also waiting for their asylum interview. Why should the Asylum Office allow you to do that? One common reason is that the applicant has a health problem (physical or mental). If that is your reason, get a letter from the doctor. Also, provide some explanation for how an early resolution of the asylum case might help improve your health situation (for example, maybe you have a health problem that is exacerbated by the stress of a pending case).
Another common reason to expedite (and in my opinion, the most legitimate reason to expedite) is separation from family members, especially if those family members are living under difficult or dangerous circumstances. If an asylum applicant wins her case, she can file petitions to bring her spouse and her minor, unmarried children to the United States. Many people come to the U.S. to seek asylum not for themselves, but because they fear for the safety of their family. Since it is so difficult to get a U.S. visa, it's common to see asylum seekers who leave their family members behind, in the hope that they can win asylum and bring their family members later. So when the wait for an interview (never mind a decision) is measured in years, that's a real hardship. For our asylum-seeker clients with pending applications, we have seen cases where their children were attacked in the home country, where family members went into hiding, where children could not attend school or get medical treatment, where families were stuck in third countries, etc., etc., etc. Such problems can form the basis for an expedite request.
To expedite for such a reason, get evidence of the problem. That evidence could be a doctor's note for a medical problem or an injury, or a police report if a family member was attacked or threatened. It could be a letter from a teacher that the child cannot attend school. It could be letters from the family members themselves explaining the hardship, or letters from other people who know about the problems (for advice on writing a good letter, see this article). Also, sometimes family members receive threat letters or their property is vandalized. Submit copies of such letters or photos of property damage. It is very important to submit letters and evidence in support of the expedite request. Also, remember to include evidence of the family relationship--marriage certificate or birth certificates of children--to show how the person is related to the principal asylum applicant.
There are other reasons to request an expedited interview: Until an asylum case is granted, applicants may not be able to get certain jobs, they cannot qualify for in-state tuition, they face the general stress of not knowing whether they can stay. While these issues can be quite difficult to deal with, I think that they do not compare to the hardships suffered by people separated from family members. Indeed, if I were in charge of the Asylum Division, I would allow expedited interviews only in cases of family separation.
Once your case is complete and you have gathered evidence in support of the expedite request, you need to submit the request and evidence to the Asylum Office. Different offices have different procedures for expediting. You can contact your Asylum Office to ask about the procedure. Contact information for the various Asylum Offices can be found here.
One last point about expediting asylum cases: The system for expediting cases is not well-developed, meaning that sometimes, a strong request will be denied or a weak request will be granted. There definitely seems to be an element of luck involved in the expedite request process. But of course, unless you try to expedite, you can't get your case expedited. If an initial request is denied, you can gather more evidence and try again (and again). At least in my experience, most--but not all--cases where there was a good reason to expedite were, in fact, expedited.
Besides expediting asylum cases, it is also possible to put your case on the "short list," which may result in an earlier interview date. You can learn more about that and a few other ideas here.
It is still unclear how changes in the new Administration might affect the speed of asylum cases, but I doubt that the asylum backlog is going away any time soon. In that case, for many people, the only options are to learn to live with the delay or--if there is a good reason--to ask for an expedited interview and then to hope for the best.
Originally posted on the Asylumist: www.Asylumist.com.
Possibly the most common question I hear at initial consultations with asylum seekers is, "What are the chances that I will win my case?" It's a reasonable question. People want to know the likelihood of success before they start any endeavor. The problem is, it's impossible to answer this question. Why is that?
The other Impossible Question: "Does this dress make me look fat?"
One reason is mathematical. Probabilities are tricky to calculate and even more tricky to understand. Also, it is very hard to apply probabilities in a meaningful way to a single event. What does it mean, for example, when the weather report shows a 30% chance of rain? If you run 100 computer simulations of the weather, it will rain 30 times. But in the real world, it will either rain or it won't. The problem is that we do not have complete information to start with, and that there are too many variables to predict precisely how the weather will evolve over time. Without sufficient information, we have to approximate, and we are left with a range of possible outcomes and probabilities. As Niels Bohr observed, "Prediction is very difficult, especially if it's about the future."
Another difficulty is that predicting case outcomes involves human beings, and we are a notoriously capricious species. At the outset of a case, the lawyer may not know whether the client can get needed evidence, or whether she can remember her testimony, or how a witness will behave. Also, the lawyer may not know who the fact finder will be (with Immigration Court cases, we usually know in advance; for Asylum Office cases, we never know until the day of the interview). Also, what if the fact finder is in a particularly good or bad mood on the day of the case? Or what if she is hungry during the case (one Israeli study famously correlated favorable parole decisions to whether the judge had recently eaten lunch!)? These "human factors" can greatly affect the decision, and few of them can be known in advance, which again makes predicting difficult.
That's not to say we know nothing about the likelihood of success. For Immigration Court cases, there is data available about the grant rates of individual Judges. Also, there is some data available about Asylum Office grant rates. Of course, all of this is very general and does not necessarily bear much relationship to the likely outcome in a given individual's case, but I suppose it's better than nothing.
As a lawyer, once you get a sense for asylum cases, you can at least give the client some idea about the outcome. I can tell a strong case from a weak case, for example. If the client has a lot of credible evidence, has suffered past persecution on account of a protected ground, and faces some likelihood of future harm, the client has a strong case. The most I will say to such a prospective client is that, "If the adjudicator believes that you are telling the truth, you should win your case." I might also say that since the corroborating evidence is strong, it is likely that the adjudicator will believe the claim.
I do think there is a basic human desire behind the question about the chances for success, and that is the desire for certainty. Asylum cases now take years, and it is very difficult to live your life for so long under the threat of deportation. When the clients ask about the likelihood of success, I know part of what they want is reassurance. Even if the case is weak, they want to feel like they have a chance. They want to feel that what they are building in the U.S. while they wait for a decision will not all be lost. How, then, do we balance the need for certainty with providing an honest evaluation of the case?
For my clients, I try to give them both honesty and hope. In the beginning, I give the client my honest assessment of the case and the likelihood of success. Knowing my assessment (whether it is good or bad), if the client decides to go forward, my focus shifts to creating the strongest case possible with the facts and evidence available, and to helping reassure the clients so they feel some hope. I try to encourage the client to do what is within their power to make the case better: Gather evidence, talk to witnesses, find experts, etc. At least this helps empower the client a bit, and it gives them some agency over their case outcome.
Different lawyers do things differently, and there are probably many "right" ways to balance realism and hope. There are also wrong ways. Any lawyer who "guarantees" you will win an asylum case is a lawyer you should avoid. No lawyer can guarantee a win because we do not make the decisions--the government does. Also, lawyers who make dubious promises ("I am good friends with your Judge, so I can get you a quicker hearing date") are probably lying to get your business. Be careful, and remember that offers that seem too good to be true probably are. For all its flaws, the American immigration system is largely free from corruption. Lawyers don't have special relationships with adjudicators that can change outcomes or speed adjudication. When a lawyer oversells hope at the expense of realism, you are safer to seek a different attorney; one who is more interested in telling the truth than in selling you his services.
So when a prospective client asks me the chances for success, I'll try to give the best evaluation I can, so that the person can make an informed choice about whether to file an asylum case. Once the case is started, I will try to address weakness and gather evidence to maximize the chances for a win. I will also try to encourage the client, so that she has some hope during the long wait.
Originally posted on the Asylumist: www.Asylumist.com.
After nearly 3,000 Americans were murdered on September 11, 2001, President Bush spoke to the nation and to the world. He assured us—Muslim and non-Muslim—that American was not at war with Islam. Would that President Trump had spoken similar words before instituting his immigration ban on seven majority-Muslim countries. But that is not Mr. Trump’s style.
Lord of the Zings: The President's hateful words may be worse than his harmful EOs.
The resulting firestorm may have been pleasing to the President’s most ardent supporters, who seem to relish the sight of suffering families and damaged government institutions, but for those of us concerned about national security, morality, and the rule of law, the President’s Executive Orders (“EOs”) were a frightening development.
The problem, though, was not so much the EOs themselves, the effect of which is not immediately obvious, and in any case, portions of which have been blocked by the courts, but rather the divisive rhetoric attached to the orders. Let me explain.
The EOs, which are currently blocked by the courts, would bar nationals of Iraq, Iran, Syria, Yemen, Sudan, Somalia, and Libya from entering the United States for 90 days. All refugees would be barred from entering the country for 120 days, and Syrian refugees would be barred indefinitely. On its face, this is not a Muslim ban. If you are from one of the listed countries, you are barred from entry, regardless of your religion, and if you are a Muslim person from another country, you are not barred from entry. But to me, this is a case of “That’s what it says; that’s not what it means.”
So what does it mean? First, in the context of campaign statements disparaging to Muslims, and some statements by Trump surrogates, it’s easy to see why many are interpreting the EOs as a first step towards a more general Muslim ban. Rumors are swirling that the list of countries will be expanded, to include more Muslim nations, such as Pakistan and Afghanistan. In addition, the EOs direct the government to track and publish information about crimes committed by aliens, with a particular emphasis on people convicted of terrorism-related offenses, people who have been “radicalized after entry,” and “gender-based violence against women or honor killings.” Further, the EOs call for a “realignment” of refugee admissions to focus on refugees who are from a “minority religion in the individual’s country of nationality.” It’s hard not to view all this as targeting Muslims.
But perhaps I’ve gotten it all wrong. There have been counter-arguments advanced by the President’s defenders. After all, the EOs do not directly refer to Muslims, and the listed nations are either chaotic (Iraq, Somalia, Yemen, Libya), malignant (Iran) or both (Sudan, Syria). Also, as the EOs require, we should be keeping track of aliens who engage in criminal behavior or who support or commit terrorism (indeed, I myself have argued for such transparency in this blog).
But here is why I don’t buy the counter-arguments and why I believe the EOs are designed to target Muslims: The President is very aware that many people view the orders as a Muslim ban, but he has said nothing to allay the fears of Muslims and immigrants in the U.S. or our Muslim allies abroad. He could easily have issued these same exact EOs and avoided the chaos by better explaining his intentions. He chose to not do that. Maybe it’s me projecting, but I can’t help but feel that he and his core staff are getting some sadistic pleasure watching the suffering and confusion that they are causing. I imagine they also view the mess they’ve made as evidence that they are fulfilling their promises to get tough on immigration and to protect the homeland.
It almost goes without saying that things could have been done differently. The ban could have been explained as a necessary and temporary policy adjustment to enhance our national security. President Trump could have expressed his sorrow that such orders were needed, and he could have reassured people that the ban was only temporary. He could also have made some positive statements about immigrants and Muslims, especially those who are serving with us in the war on terror. But he did not. So all of us are left to wonder whether this is a short-term measure targeting only the listed countries, or whether it is the beginning of something bigger. For American Muslims and immigrants, and for our allies abroad, the uncertainty of the EOs is probably worse than the EOs themselves.
The question, though, is what do we do from here? At this point, it would be naïve to expect any comforting rhetoric, or even common decency, from our President, so I think it is up to us—immigrants, advocates, and their supporters—to craft a response to the new reality.
For me, the protests are a good start. They show our solidarity and our strength (indeed, this is precisely why we held the Refugee Ball last month). There is some comfort in knowing that you are not alone and that the larger community is ready to defend you, and refugees and immigrants in our country are certainly not alone. Tens of thousands of protesters in the streets and at airports have demonstrated as much. We also see this as hundreds of elected representatives and other leaders have been speaking out in defense of our non-citizen neighbors.
Lawsuits—such as the lawsuits by the ACLU and several state governments—are also crucial. Thus far, they have blocked some of the most offensive portions of the EOs. The lawsuits show that the protections of our laws and Constitution extend to all non-citizen in our country and quite possible to some non-citizens who are outside our country. This will, I hope, provide some comfort to those in the Administration’s crosshairs.
Legislation in various states and municipalities is also important. Such action can serve to shield non-citizens from some provisions of the orders, particularly those that seek to encourage (or more accurately, coerce) local governments to help enforcement federal immigration law. They also potentially help build momentum for more positive legislative change on a national level.
Finally, volunteering to assist non-citizens--with housing, food, job search, English--helps such people integrate into our communities and feel more welcome in our country. If you are looking for volunteer opportunities, you might try contacting a local non-profit organization.
While these actions cannot fully allay the fear felt by refugees, asylum seekers, immigrants, Muslims, and many others in our country, they are all signs of the strong resistance President Trump faces to his policies and to his divisive world view. As we move through this difficult time, we must continue to resist hatred and work to support each other.
Originally posted on the Asylumist: www.Asylumist.com.
President Trump's Executive Orders ("EOs") on immigration triggered a series of lawsuits that are still playing out in federal courts across the nation. The lawsuits have resulted in orders barring certain portions of the EOs, at least for the time being.
Judge James Robart: Referees helping Refugees.
For those not familiar with the U.S. system, we have three (supposedly) co-equal branches of government: The executive (the President), the legislative (Congress), and the judicial (federal courts). The judicial generally acts as an umpire or referee, making sure that the other branches play by the rules, or in this case, the Constitution and laws of the United States. What has been happening with the EOs is that the President is asserting his authority over immigration (and the President does have broad authority over immigration), but he is constrained by the U.S. Constitution and the existing immigration law. The lawsuits argue that the President has overstepped his authority, and so far, most courts have agreed to issue preliminary orders blocking the EOs, at least until the courts can more fully analyze whether the orders comply with the law.
Probably the broadest decision thus far issued was by a U.S. District Judge in Seattle, James Robart. The lawsuit was brought by Washington State and the state of Minnesota in their role as "parens patriae of the residents living in their borders." The decision temporary stays several key portions of the EO related to terrorism based on the Judge's conclusion that the states' lawsuit was likely to succeed on the merits and that the states face "immediate and irreparable injury" as a result of the EOs. Specifically, the Judge found that the EO "adversely affects the States' residents in the areas of employment, education, business, family relations, and freedom to travel." In addition, the Judge found that, "the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injuries to the States' operations, tax bases, and public funds." Thus, the Judge issued a temporary restraining order against the EO. The order blocks portions of the EO nationwide, and will remain in effect until the Court can reach a decision on the merits of the lawsuit (or until it is overturned by a higher court).
The President, through the Department of Justice, filed an appeal, but the U.S. Court of Appeals for the Ninth Circuit has thus far refused to overturn the District Judge's order. So what does all this mean?
First, according to its website, USCIS "continues to adjudicate applications and petitions filed for or on behalf of individuals in the United States regardless of their country of origin, and applications and petitions of lawful permanent residents outside the U.S. USCIS also continues to adjudicate applications and petitions for individuals outside the U.S. whose approval does not directly confer travel authorization. Applications to adjust status also continue to be adjudicated, according to existing policies and procedures, for applicants who are nationals of countries designated in the Jan. 27, 2017, 'Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States.'" This means that even if you are from one of the "banned" countries--Iraq, Iran, Syria, Sudan, Somalia, Libya or Yemen--your case will be processed as before the EO. So USCIS should continue to issue decisions for nationals of such countries, at least for the time being.
Second, the State Department will resume issuing visas for people from the listed countries, including refugees. U.S. visas for nationals of these countries that were "provisionally revoked" are now "valid for travel to the United States, if the holder is otherwise eligible." Meaning that if you are from a banned country and you have a valid U.S. visa, you should be able to enter the United States. Again, the Judge's order is temporary, and it may be overturned, so if you have a visa and wish to come to the United States, you should do so immediately, since we do not know for how long the Judge's temporary restraining order will remain in place.
Third, DHS/Customs and Border Protection is also following the Judge's order, even if it is doing so reluctantly. From the CBP website:
In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States." This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President's Executive Order, which is lawful and appropriate. The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.
So all people with valid visas and who are otherwise eligible to enter--including nationals of the banned countries--should be able to board planes, travel to the United States, and enter the country. In short, the Judge's order restores the situation for such travelers to how it was prior to the EOs.
Finally, I wrote in an update to last week's post that additional countries may be added to the banned list. As long as the Judge's order is in place, I doubt that will happen, and--more importantly--the State Department informed the American Immigration Lawyer's Association that there was no "addendum, annex or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in [the] Executive Order." Hopefully, this means that we will not see additional countries added to the "banned" list.
The legal fight over the EOs is a rapidly moving target, so before you make any travel plans, please check the news or check with a lawyer to make sure there are no additional changes affecting you. I will also try to keep posting updates here.
Originally posted on the Asylumist: www.Asylumist.com.