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  1. Trump Ends the Rocket Docket for Refugee Children

    by , 02-01-2017 at 03:31 PM (Matthew Kolken on Deportation And Removal)
    By memorandum dated January 31, 2017, President Trump's administration has just put an end to Obama's rocket docket for unaccompanied minors.

    So if you are keeping score, President Trump in two weeks has already done more for unaccompanied refugee children than Obama did in two years.

    Click here for the memo.

    Updated 02-01-2017 at 04:21 PM by MKolken

  2. The Practical Realities of the Immigration Law

    by , 02-01-2017 at 11:23 AM (Matthew Kolken on Deportation And Removal)
    The question I keep getting asked over the past week is whether President Trump's executive actions temporarily suspending immigration from seven predominantly Muslim countries is legal. The short answer, generally, is yes. Practically speaking, the immigration law was designed to give as much discretionary authority to the executive branch as humanly possible, and to preclude the judicial branch from being able to review those decisions.

    Now for the long answer.

    The Department of State (DOS) has been afforded unfettered discretionary decision making power over the issuance of visas, their decisions in most instances are unreviewable in a court of law, and DOS doesn't have to give a reason for a denial to afford due process.

    Furthermore, even if a visa is issued, that does not confer a noncitizen a Constitutional right to entry. Visas may be revoked at any time, which includes at the time of the application for admission in the discretion of the inspecting officer, and very little if any explanation for the revocation is required as the applicant maintains the burden of proof.

    Moreover, at the time of the application for admission at the port-of-entry there is no right to counsel unless and until an immigrant is being charged with a violation of criminal law, and the inspecting officer in most instances is conferred the power to detain and deport you through a process called expedited removal, which is a summary decision by an immigration officer, not an immigration judge. That decision is also unreviewable in a court of law. Any immigrant whose inadmissibility is being questioned or who has become subject to an expedited removal order is detained. If the inspecting officers deem that the applicant for admission is inadmissible under other grounds contained in section 212(a) of the Act, they are required to take the immigrant into custody to institute deportation proceedings.

    Once deportation proceedings are instituted, the Department may add whatever other charges they want, and are not limited by what was alleged in the charging document called a Notice to Appear (NTA). The NTA provides due process to a noncitizen by giving them notice of the charges against them, and the scheduling of the hearing is their opportunity to be heard to assert defenses to removal. Frequently, the charges lodged against an immigrant in the NTA are legally deficient, and must be corrected by government's counsel in the context of the deportation proceeding. Meanwhile, the immigrant arriving at the border generally is detained, and when charged as an arriving alien, or deemed a threat to national security, no immigration judge has the power to set a bond so you may be stuck in deportation detention for the entirety of your immigration court case, which can take months, if not years.

    As for being able to restrict access to the country, INA ß 212(f) provides that the President may through proclamation suspend the entry of noncitizens whenever "entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States." The President may also impose restrictions on entry deemed appropriate. Since the Department doesn't have to give the reasons for the basis for the denial of admission it will be very difficult for any Court to assess if the denial of a visa, or refusal of admission is based on a Constitutionally impermissible basis.

    Here's the bottom line. President Trump has the legal, and Constitutional authority to instruct his officers to deny admission to any noncitizen (including Green Card holders) so long as the reason for so doing is related to a threat to national security, although the burden of proof shifts to the Department for Green Card holders, which is likely why the Trump administration clarified the executive orders as applied to lawful permanent residents.

    And I'm not the only one who has come to this conclusion.

    Nolan Rappaport, who previously served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years, and who wrote decisions for the Board of Immigration Appeals for 20 years shares my opinion that President Trump's executive order does not exceed his statutory authority.

    Immigration lawyer Scott Hick
    s also surmised that "Most of what the President is doing is in fact within his authority to execute the laws. This means that for real change to occur it must take place in Congress." He further explained that "The President is essentially taking the most aggressive interpretations and approach to enforcing laws that are already in the books." We are not alone in our thinking, although many like minded immigration lawyers are staying silent to avoid the derision of the established partisan groupthink of the private immigration law bar.

    That said, the American Civil Liberties Union (ACLU) disagrees stating that Trump's orders violate the establishment clause. I believe such argument is spurious at best as the three most populous Muslim countries in the world, Indonesia, home to 12.7% of the world's Muslims, Pakistan (11.0%), and India (10.9%), are not banned from admission.

    Lawsuits have already been filed challenging the executive orders, and maybe I'm wrong, but something tells me that with the balance of the Supreme Court soon to be returned to the conservative wing, the likely result will be that Trump's orders will be deemed Constitutional.

    We shall have to wait and see.

    Updated 02-08-2017 at 01:17 PM by MKolken

  3. 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:

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

  4. Trump's Supreme Court Pick, Neil Gorsuch, Has Upheld Judicial Power to Protect Immigrants' Constitutional Rights. Roger Algase

    In the wake of the nationwide Furor over the January 27 Muslim and refugee ban order of America's new Leader, Donald Trump, a ban which is so broad and which has such weak factual justification that there may be a good argument to the effect that Trump has exceeded even his admittedly very broad legal power to ban immigration under INA Section 212(f) - a topic I will be writing about in more detail shortly in an upcoming comment - there has been an understandable reaction by people who believe that Trump can do nothing positive on immigration, and that everything he does that might affect immigrant rights must be opposed knee-jerk style.

    This kind of thinking includes opposition to the nomination of US 10th Circuit Court of Appeals Judge Neil Gorsuch for the Supreme Court, announced on January 31. For the reasons below, opposing this nomination would be a big mistake.

    The reality is that Judge Gorsuch is on record in an important recent decision as standing up clearly and strongly for the power of the judiciary to resist attempts by the executive (in that case, the Obama administration) to infringe basic Constitutional rights of immigrants facing deportation. That decision is Gutierrez-Brizuela v. Lynch (10th Cir. August 23, 2016). In order to access a link to the full decision, see:

    The views expressed by Judge Gorsuch in his decision (and his concurring opinion supplementing his own majority opinion!) are an important and doubtlessly much needed antidote to the attempts to rewrite large parts of our immigration system by executive order which are now coming out of the White House, evidently influenced by advisers such as Steve Bannon and Jeff Sessions - discussed in my January 30 immigration Daily comment.

    In my next comment, i will present a detailed discussion of the above decision, which strongly attacks the Chevron doctrine of judicial deference to agency interpretation of its own regulations, no matter how unreasonable the interpretation may be, at least when applied in the immigration context.

    This discussion will show that Judge Gorsuch, at least within the area of immigration (other issues being beyond the scope of this site):

    a) Strongly believes in the separation of powers and rule of law and legal principles as a bulwark against the arbitrary rule of one branch of the government (or one person - the president), as opposed to using the law in order to impose any given ideology or attain a desired result, and,

    b) Is clearly aware of and responsive to the hardships and and difficulties that immigrants encounter when their basis Constitutional rights are infringed, and is willing to resist attempts by the executive branch to ignore or trample on those rights.

    Donald Trump may have now appointed exactly the kind of Supreme Court Justice who is best equipped to keep Donald Trump's current and anticipated future immigration excesses in check.
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing primarily in the area of work visas and green cards for skilled and professional immigrants for more than 35 years.

    Roger's email address is

    Updated 02-02-2017 at 04:55 AM by ImmigrationLawBlogs

  5. OSC Settles Immigration-Related Discrimination Claim Against J.E.T. Holding

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (just renamed the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice) reached a settlement to resolve claims that J.E.T. Holding Co. Inc. discriminated against U.S. citizens, lawful permanent residents, and certain work-authorized immigrants in violation of the Immigration and Nationality Act (INA). J.E.T. is a company based in Saipan, Commonwealth of the Northern Mariana Islands (CNMI), where it operates a restaurant, bowling alley and amusement center.

    The investigation found evidence that for approximately the first five months of 2016, J.E.T. engaged in a pattern or practice of refusing to hire U.S. citizens, lawful permanent residents, and other work-authorized individuals for several dishwasher positions. OSC concluded that J.E.T. failed to consider qualified U.S. citizen applicants and others based on their citizenship or immigration status because of a preference for hiring non-immigrant foreign workers with CW-1 visas. The CW-1 visa grants temporary work authorization to its beneficiaries and is only available in the CNMI.

    Under the terms of the settlement, J.E.T. will pay a civil penalty of $12,000, establish a backpay fund of $40,000 to compensate qualified claimants for any lost wages through a claims process, train its workers on the anti-discrimination provision of the INA, and be subject to department monitoring.
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