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Jason Dzubow on Political Asylum

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  1. Updates on the Executive Orders: The Umpire Strikes Back

    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.
  2. Update on President Trump's Immigration Orders

    Since President Trump began issuing executive orders ("EOs") on immigration last week, there has been outrage, confusion, and chaos within the immigration community. The EOs were clearly not very well thought out, and seem to have been written by someone lacking a comprehensive understanding of America's immigration law. As a result, several courts have blocked portions of the EOs, and the Administration has walked back one of the more problematic elements of the new rules. There will be time later for an analysis of how all this affects our country's security and moral standing, but since we are still in the middle of it, and since the situation is rapidly changing, I wanted to provide an update to my post from last week, to help non-citizens understand their situation.
    I've never felt so proud to be Canadian! Oh, right, I'm American. Woo-f'n-hoo.
    As I wrote last time, the EOs' most damaging effects are on people trying to come to the United States. For people who are already here, the effect is less dramatic (and not all-together clear). Also, I believe nothing I wrote last week is obsolete, so if you have not read the previous posting, please do, as today's posting is meant to supplement what I wrote last time.


    Lawful Permanent Residents from Countries of Particular Concern
    : In some ways, the worst part of the EOs is how they affected lawful permanent residents ("LPRs" or people with green cards) who are from "countries of particular concern,” meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya (perhaps more countries will be added to this list later).

    DHS originally interpreted the EOs to mean that LPRs from these countries would be turned back at the border. Apparently, at least some LPRs were rejected at the airport and sent back to their point of origin (Customs and Border Protection or CBP claims that only two LPRs were turned back). However, after (partially) successful litigation by the ACLU and others, DHS Secretary John Kelly issued a statement that "the entry of lawful permanent residents [is] in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations." This means that if you are an LPR from one of the listed countries, you should probably (but not certainly) be able to re-enter the United States, but you should expect delays upon arrival, as your case will be individually reviewed to determine whether you present a threat to the United States. Whether you will, in fact, be able to enter the U.S. is not guaranteed, and how long the delay will be at the airport is currently unknown (DHS claims that entry into the U.S. should be "swift").

    Given all this, it is clearly a bad idea for anyone with lawful status in the U.S. who is from one of the listed countries to travel outside the U.S. at this time. If you are from one of the listed countries and are currently outside the U.S., you should be able to return if you are an LPR (if you have some other status in the U.S., especially a non-immigrant status, you likely will not be able to return at this time). Because there is so much uncertainty for people from these countries, it is best to remain in the United States or, if you are outside the country and are able to return, to return as soon as possible.


    People from Countries of Particular Concern Waiting for an Immigration Benefit
    : For people in the U.S. who are from “countries of particular concern” and who are waiting for an immigration benefit, such as asylum, a work permit or a green card, the situation is also unclear.


    Section 3 of the EO on terrorism is titled, “Suspension of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern” and states that the U.S. government should conduct a review to determine whether additional information is needed to adjudicate visas, admissions, and “other benefits under the INA (adjudications)” for people from countries of particular concern. The reference to “other benefits under the INA" or Immigration and Nationality Act – the immigration law of the United States --would presumably include benefits such as green cards, asylum, and work permits, though the EO does not specifically define what it means. Also, while the EO suspends immigrant and non-immigrant admissions for 90 days for people from countries of particular concern, it makes no other mention of suspending immigration benefits to such people who are already in the U.S. As a result, it is unclear whether, or for how long, USCIS (the agency that administers immigration benefits) will suspend such benefits for people from the listed countries.


    Unfortunately, some leaked--but thus far unconfirmed--emails from USCIS indicate that the agency has decided to suspend all final decisions in cases for people from the listed countries. According to one news source:

    "Effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya," wrote Daniel M. Renaud, associate director of field operations for DHS’s office of U.S. Citizenship and Immigration Services. "Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made."

    In other words, while interviews can take place for such people, no decisions--to include approval, denial, withdrawal, or revocation--will be made "until further notice." I can report that USCIS is conducting interviews for people from countries on the list--my Syrian asylum client was interviewed yesterday--but I have not heard anything official yet about whether decisions will be issued. If this is accurate, it means decision will be suspended, at least for a while, on asylum cases. Whether it will affect applications for work permits, which are issued while waiting for a final decision on an asylum case, is less clear. Hopefully, it will not, and hopefully, this suspension will be temporary.


    I-730 Petitions
    : If a person is granted asylum, she can file an I-730 (follow to join) petition for her spouse and minor, unmarried children. For family members from countries on the list, the EO applies, and thus the State Department "has stopped scheduling appointments and halted processing for follow-to join asylee beneficaries who are nationals or dual nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. Further information on appointments for follow-to-join refugees will be available in the future." In other words, family members of asylees from the listed countries cannot currently come here based on I-730 petitions, but how long this prohibition will last is unknown. In contrast to the State Department website, CBP indicates that I-730 petitions will be adjudicated on a case-by-case basis. How this will ultimately play out, we do not know, but there is still hope that family members overseas will be able to join the principal asylee in the United States. Also, the visa ban is set to expire after 90 days, and so we can hope that once procedures are reviewed, travelers from "countries of particular concern" will be able to come to the United States to join their family members.


    People from Other Muslim Countries
    : At this point the EOs are limited to the seven listed countries. People from other Muslim countries are not affected. However, the EOs require government agencies to determine whether additional countries should be added to the "banned" list. For this reason, if you are a non-citizen, and particularly if you are from a predominately Muslim country, it is important to keep an eye on the news, just in case more countries are added to the list. A good source for up-to-date information about the EOs, and the lawsuits opposing them, is the American Immigration Council's website, here.


    So that is the update for now. It is important to understand that the "ban" described in the EO is temporary, and that the people mainly affected are nationals from "countries of particular concern." Of course, we will have to see how this plays out going forward, but it is important to remain calm and patient, and to keep hoping--and working--for something better.

    [Update for February 2, 2017: I have heard an unconfirmed rumor out of the State Department that additional countries will be added to the list of banned countries. This is not confirmed, but here is the message I received: "There is a draft order being circulated at the State Department. The order has language extending the list of banned countries to Egypt, Lebanon, Afghanistan, Pakistan, Philippines, Mali, Colombia, and Venezuela." I suggest people from those countries pay careful attention to the news, in case the countries are added to the list, and I suggest that people from these countries not travel outside the U.S. until we have some clarification.]

    Originally posted on the Asylumist: www.Asylumist.com.

    Updated 02-02-2017 at 08:32 AM by JDzubow

  3. President Trump's Immigration Orders: Some Preliminary Thoughts

    During the first week of his Administration, President Trump has signed two "executive orders" on immigration: Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States. At least one other order has been leaked to the press: Protecting the Nation from Terrorist Attacks by Foreign Nationals.
    This is how it looks when America compromises its values.
    The effects of these orders are already being felt. I have heard reports about Syrians with U.S. visas being rejected from a flight because the airline believed that the visa would not be honored and it (the airline) would face liability for bringing the family to our country. My Sudanese client--and a lawful permanent resident based on asylum--was on a business trip to a third country. When she called the U.S. embassy for advice, they told her to return to the United States immediately, as they were unsure how the vaguely-worded executive orders would affect her. A lawyer friend's client who had been released on bond after passing a credible fear interview was detained, even though he has a pending court date for asylum (though apparently, he also has a pending--and minor--criminal issue, and this may be why he was targeted). The practice of prosecutorial discretion--closing certain cases where the alien has no criminal issues and has equities in the United States--has been ended nationwide, and so now DHS (the prosecutors) can no longer close cases for aliens who are not enforcement priorities. These are some stories from Day 1 of the executive orders.

    Here, I want to make some preliminary observations. There will be time for a detailed analysis later, when we know more about how the executive orders will be implemented, but for now, there are some points that non-citizens should keep in mind:


    • Don't panic. The President has the power to issue executive orders ("EOs"), but he is constrained by the law and by the availability of resources to enforce the law, and so there are limits to what he can do. The asylum system and the Immigration Courts still exist, and while pushing more people into the system may cause further delays, at this stage we really do not know what the effect will be.
    • For people physically present in the United States, the government does NOT have the power to deport anyone without due process of law, meaning a court hearing and an appeal. So you can't just be thrown out of the country. Even an expedited process usually takes months.
    • Also, there is nothing in the EOs indicating people legally present in the U.S. will be targeted for removal, so aliens with asylum or green cards should be fine, as long as they do not commit (or get accused of committing--see below) any crimes.
    • For people with pending asylum cases, it does not seem that the EOs will have any immediate effect. The orders seem to impose some additional requirements on obtaining immigration benefits (and this may or may not include asylum), but these requirements are very similar to existing discretionary requirements, and I doubt we will see much difference. Asylum applicants from "countries of particular concern" (meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya, and maybe other Muslim-majority countries) may face extra delays because the EO's seem to temporarily suspend immigration benefits for people from those nations.
    • It is probably best to avoid travel outside the U.S. using Advance Parole, at least until we have a better idea about what is happening. If you do need to travel, talk to a lawyer first to be sure that you will not have trouble returning.
    • If you are from Iraq, Syria, Sudan, Iran, Somalia, Yemen or Libya, it is probably best to avoid all travel outside the United States, even if you have a green card. The situation for people from these countries is unclear, but this seems to be the list (so far) of countries targeted for "extreme vetting." Since we don't really know what that means, it is safest to stay in the United States until we have some clarity. If you must travel, talk to a lawyer before you go. If you are from one of these countries and are currently outside the United States, but have lawful status here, it is probably safest to return to the U.S. immediately. Or at least call the U.S. embassy to ask for their advice (though they cannot always be trusted to give the correct advice).
    • If you have a criminal conviction, or even a pending criminal charge, you should be aware that an EO directs the government to make your detention and removal a priority (the idea that people accused of a crime, but not yet convicted, should face an immigration penalty is very troubling). Other priorities include aliens who have engaged in fraud, abused public benefits, or who have a final order of removal (the full list of enforcement priorities is here). However, the government is restricted in its ability to detain and remove people due to limited prison space (though the EOs express an intention to increase detention capacity) and due process of law.


    In many ways, these EOs do not immediately change much of what has been policy for the last eight years. The tone is certainly different, which is an important and distressing change, but the laws are the same. For this reason, it is important to remain calm about the changes. For most people inside the U.S., especially people who are not enforcement priorities, the legal landscape today is not much different than it was prior to January 20.


    The more damaging affects of the EOs, at least in the short term, is on people who are outside the U.S. waiting to come in, such as Syrian and other refugees whose cases now face a 120-day hold (and what happens at the end of 120 days is anyone's guess). The EOs also temporarily suspend issuance of visas for immigrants and non-immigrants from "countries of particular concern." The vague language used in the EOs makes them even more problematic, as it is impossible to predict how they will be implemented.


    The longer-term effects of the EOs also look bad: Increased enforcement and detention, coercion of local authorities to end "sanctuary" jurisdictions, additional requirements for people to immigrate to the U.S., restrictions on travel for people from countries that do not (or cannot) supply "information needed for adjudications" of visas to the U.S. government, the border wall. Not to mention the overall tone of the EOs, which paints foreigners as a dangerous threat to our national security.


    So here we are. One week into the Trump Administration, and the government is moving to restrict immigration and step up enforcement. To anyone watching Mr. Trump over the last several months, none of this should come as a surprise. There will be time later to analyze the policy effects of Mr. Trump's actions (spoiler alert: They are terribly damaging to our national interests and our country's character), but for now, the flurry of activity counsels caution. Over the coming months, we will see how the EOs are implemented, and we will have a better idea about what to expect. For now, though, it seems the large majority of non-citizens in the U.S. will not be affected by the EOs. So keep an eye on the news, and speak to a lawyer before traveling or if your case is an enforcement priority (if you cannot afford a lawyer, you might look for a free attorney here). We shall see how things go, and of course, we will keep supporting each other in these difficult times.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. Work Permits for Asylum Seekers - Some Good News

    The new Administration has raised anxieties in immigrant and asylum seeker communities. In part, this is because of President Trump’s rhetoric (and rhetorical style) during the election. And in part, it’s because we just don’t know what to expect from a Trump Administration. Rumors have been flying: Will there be some sort of Muslim ban? Will the President repeal DACA? Or will he (and Congress) create a permanent legalization for DACA recipients? Mr. Trump will be issuing some executive orders later today banning Syrian and other refugees from coming to the U.S., and restricting visas for people from certain Middle Eastern countries. How this will all play out, we shall see.
    Filling gaps is a good thing.
    But amidst the uncertainty, there is some good news related to work permits—or Employment Authorization Documents (“EADs”)—for asylum seekers.

    First, last fall, the government started issuing two-year EADs instead of one-year EADs to people with pending asylum cases. This was a helpful development. It saves money since applicants now only have to apply for a new card every other year. It also makes it easier to obtain and retain employment, since employers feel more confident hiring people who have a longer period of authorized employment. In addition, many states issue driver’s licenses that correspond to the dates on the EAD, so a two-year card means a two-year license. All this helps ease the wait for people seeking asylum.


    Second, last week the government issued new (and long anticipated) regulations “to help prevent gaps in employment authorization”:

    DHS is providing for the automatic extension of expiring EADs (and underlying employment authorization, if applicable) for up to 180 days with respect to individuals who are seeking renewal of their EADs (and, if applicable, employment authorization) based on the same employment authorization categories under which they were granted.

    This means that when you file to renew your EAD, your card will be automatically extended for 180 days once you receive the receipt (it usually takes three or four weeks to get the receipt). This is an important development, since USCIS has been taking months to process EAD renewals, and people were losing their jobs and driver’s licenses while they waited for their new EADs.


    The automatic EAD extensions apply to refugees, people with asylum, and people who have pending asylum or withholding of removal cases, among others. You can see the new regulations here (see page 82491, the second to last page of the PDF) and here (page 82455, footnote 98, which lists the categories of people eligible for the automatic EAD extension).


    Also, remember that you can apply for a new EAD up to 120 days before the old card expires. Even with the most recent change, it is still a good idea to apply early for your new card, so you receive the replacement EAD as soon as possible.

    And here’s one last tip for today. If you cannot afford to pay for the new EAD (fees recently went up), you can request a fee waiver from USCIS, which—if granted—allows you to obtain a new EAD without paying the fee. To apply for a fee waiver, use form I-912, available here.

    I have written many times about the affirmative asylum backlog. It has been a real disaster for asylum seekers—especially those separated from their family members. The recent changes to the EAD process, during the waning days of the Obama Administration, have at least made one aspect of the wait easier, and for that, we can be thankful.

    Originally posted on the Asylumist: www.Asylumist.com.
  5. The Refugee Ball Post-Game Report: Why It Matters

    The Refugee Ball took place on Tuesday, January 17, 2017. It was wonderful to see hundreds of people from all different backgrounds and countries come together to celebrate America's humanitarian immigration system.
    Economist, talk show host, women's rights advocate, and amazing singer, Amal Nourelhuda (originally from Sudan), performs at the Refugee Ball.

    There were musicians from Ethiopia, Sudan, Uganda, the Democratic Republic of Congo, and Tibet. There was a Persian rapper. Our emcee was a journalist/asylum seeker from Ethiopia. We had Lebanese, Tibetan, and Ethiopian food, and Syrian cookies. There was artwork by a young Honduran asylum seeker and an Iranian refugee. Speakers included the former Chairman of the Board of Immigration Appeals (who now has his own blog), an asylee from Azerbaijan, and the president and CEO of HIAS, a non-profit organization that assists refugees. We also had a special guest appearance by Congressman Jamie Raskin. All-in-all, not a bad way to spend an evening.


    One message of the Refugee Ball is that asylum seekers and refugees contribute in valuable ways to our society. They bring their skills and talents to America, and we are stronger because of their presence here. Also, by offering asylum to those who work with us and those who share our values, we demonstrate to our allies that we are on their side; that we have got their back. This makes it more likely that people around the world will cooperate with us and work to advance the values that our nation aspires to: Democracy, freedom of speech, women's rights, LGBT rights, freedom of religion, equality, peace. When we have the cooperation of our allies, our country is safer and more secure, and our asylum system helps engender that cooperation.


    And of course, granting protection to those in need of assistance is the right thing to do. I know that if my family members had to flee the United States, I would want more than anything for them to receive a friendly reception in their country of refuge. Do unto others as you would have them do unto you.


    Another message of the Ball is that advocates for asylum seekers and refugees remain committed to assisting people who have come to our country for protection. And although the incoming Administration may create a more difficult environment for our clients, our commitment to those seeking our country's protection will not wane.


    For me, though, the most important message of the Ball was that of the courage and perseverance displayed by the refugees and asylum seekers who I saw there. Many of the people who participated in the event were themselves victims of terrible torture and persecution. But there they were at the Ball--singing and dancing, giving speeches, making art and food for us to enjoy. Each of them provides an example of how the human spirit can survive extreme adversity and go on to create beauty, and of how life can triumph over death. I can't help but be inspired by their examples.


    So while we really do not know what to expect in the days and months ahead, we can draw strength from each other, and from the examples set by the refugees and asylum seekers themselves, who have endured great hardships, but who still have hope that America will live up to the high ideals that we have set for ourselves.


    To those who participated in, supported, and attended the Refugee Ball, Thank you. Thank you for contributing your time, talent, energy, and money to supporting the cause of refugees and asylum seekers. Thank you for inspiring me, and for reminding me of why I work as an asylum attorney. I feel optimistic knowing that we are united in our goal of welcoming the stranger, and that we are all in this together to support each other.

    Originally posted on the Asylumist: www.Asylumist.com.
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