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The People have spoken. Donald Trump will be the next President of the United States. He will enter office with a Republican House and Senate, though not a filibuster-proof majority, but certainly enough to enact much of his legislative/policy agenda. So what can asylum seekers, asylees, and refugees expect?
Sometimes white is a very dark color.
Of course, with Mr. Trump, it's often hard to know his plan. Will he keep his campaign promises to ban Muslims? Return Syrian refugees? Build a wall? Narrow the category of people eligible for asylum (as implied by the Republican Party platform)? Can these policies even be implemented in practice? It's far too soon to know which direction Mr. Trump will go with all this, but here are some initial thoughts, not so much about what he will do, but about what he has the power to do.
Banning Muslim Immigrants: The U.S. government has the power to block most anyone from coming to the United States. In previous eras, we have excluded Chinese, Southern Europeans, Jews, and all sorts of other "undesirables." More recently, after 9-11, we enacted Special Registration for people from certain majority-Muslim nations, though this was not a ban on Muslims, just a restriction on those already here.
Also, if you have ever applied for a U.S. visa, you know that the consulates exercise almost unlimited discretion to deny visas to people deemed ineligible. For people overseas seeking a visa, it would be easy for President Trump to deny visas to applicants from majority-Muslim countries, or to those who are Muslim. This could be done even without Congressional action.
The policy implications for such a move would be unpredictable. How would the "banned" countries react? What would this mean for our diplomatic relations with those countries and our ability to cooperate with them against the war on Islamic extremists? There are also economic implications for trade, business investment, and universities that enroll (and make money from) foreign students. I imagine the competing constituencies would weigh in on the efficacy of a Muslim ban, and so it is difficult to know how this would work in practice. But President Trump will basically have the power to block Muslims who are overseas from coming to the United States.
Refugees: This past year, we accepted about 85,000 refugees. Traditionally, the plurality of refugees we accept are Christian, but in FY 2016--for the first time since FY 2006--the plurality (44%) of refugees resettled in the United States were Muslim (the Pew Research Center provides some good data on this subject). This shift reflected President Obama's response (tepid, in my opinion) to the Syrian refugee crisis. In determining how many refugees to bring to the U.S., the President consults with Congress and comes up with a number. So Mr. Trump could reduce or eliminate the number of refugees coming to the U.S., or he could shift the focus away from Muslim refugees.
Again, there are policy implications for such a move. The world is facing the worst refugee crisis since World War II. What does it mean for the character of our nation to ignore the suffering of these individuals? How will our retrenchment affect the efforts of other countries to assist refugees? How will it affect our ability to wield moral authority and to continue our role as the leader of the Free World? Or have we as a nation decided to abdicate that role?
Asylees and Muslim Refugees Who Are Already in the United States: And what about those Syrian refugees (and other refugees and asylees) who are already here and have already been granted refugee status or asylum in the United States? Deporting people who are here, with lawful status, is much more difficult than excluding people from coming here in the first place. Such people have a Constitutional right to due process of law, meaning that they cannot be deported from the U.S. without a legal procedure. Currently, that procedure involves presenting one's case to an Immigration Judge, who then determines whether the person is eligible to remain in the United States. People who have already qualified for protection under U.S. law (which is based on our ratification of various international treaties) cannot simply be removed from the country. The procedure to remove them is long, and--given that they have already qualified for protection--under current law, they cannot be deported.
For these reasons, although Mr. Trump has vowed to send Syrian refugees back, I suspect that this will not be easily accomplished. First, it would mean a change in the law, and this requires the cooperation of Congress. As mentioned, while the Republicans have a majority of seats in Congress, there is still a powerful Democratic minority that could potentially block such a change. Also, it is likely that a significant minority of Republicans would oppose changing our humanitarian laws.
And even if the law related to asylum were changed, there are several other laws that people currently in the U.S. might use to avoid removal. For example, those who fear harm as defined by the UN Convention Against Torture might assert a defense based on that treaty. Those who have been here for longer periods of time might be eligible for other forms of relief, like Cancellation of Removal or adjustment of status based on a family relationship. In short, people who are living in the U.S. and who have refugee or asylum status have several layers of protection that will likely insulate them from any effort to have them removed. And any effort to make the sweeping changes needed to force such people to leave will require unified Congressional action, something that we are unlikely to see.
Of course, if such changes could somehow be made, there are policy implications here as well. What will it mean to send back Syrian refugees (mostly women and children) to that war torn region? How will it affect our moral standing in the world? What would it mean for international law in general if we abrogate our treaty obligations? And what would be the "ripple effect" of such a policy?
People with Asylum Cases Pending: People who are in the United States with asylum cases pending also have the benefit of due process protections. They cannot be deported unless and until an Immigration Judge determines that they do not qualify to remain in the United States. Under current law, even people from majority-Muslim countries benefit from these protections--which are "rights"--under domestic and international law. To change this regime, Congressional action would be necessary. Again, it is unclear whether President Trump will have the supported needed to enact such sweeping changes in this area of law.
The bigger immediate concern for people with pending asylum cases is how the Trump Administration will allocate resources towards the asylum system. I suspect that resources will be increased for Immigration Courts (which can deport people, but which can also grant relief and allow people to stay here). I am not so optimistic about the Affirmative Asylum System--these are the Asylum Offices that review asylum cases filed by people who are in the U.S. and who fear persecution in their home country. The Affirmative Asylum System is already beleaguered by long delays, and if the new Administration diverts resources from that system, it will only slow the process further. One option for a Trump Administration might be to eliminate the Asylum Offices and send everyone to Immigration Court. How this would play out in terms of delay or efficacy, I do not know.
The Wall and Restrictions on the Definition of Particular Social Group: Finally, Donald Trump has promised to build a wall to prevent people from entering the U.S. through Mexico. This seems to me more a fanciful campaign promise than a realistic or effective means of tightening the border. So I doubt he will build an actual wall. He could however, make it more difficult for people arriving at the Southern border to seek asylum by restricting the definition of those eligible for asylum. Specifically, many people who come to the border seek asylum because they fear persecution by gangs or domestic violence (in legal terms, they are seeking asylum because they fear persecution on account of their "particular social group"). Our current system allows such people to arrive at the border, "pass" a credible fear interview, enter the U.S., and then have their cases adjudicated by an Immigration Judge. If a Trump Administration restricted the definition of particular social group, and raised the bar for credible fear interviews, it could largely shut down the border without resorting to a wall, and probably without violating our treaty obligations.
Again, of course, there are policy concerns here. If relations with Mexico sour, that country could do less to interdict migrants traveling north through it's territory. That could result in a larger refugee crisis at our border. Also, if our country closes the doors to refugees in our backyard, other countries may follow suit, and the result would be a more severe worldwide refugee crisis, and the likely deaths of many innocent people trying to escape harm.
For now, all this is conjecture. Donald Trump will not assume office for another few months. During that time, he will (presumably) begin to articulate how he will translate his promises into actual policy. Given the campaign we just witnessed, it is difficult not to be pessimistic. However, to paraphrase John Donne, No policy is an island, entire of itself. To implement changes to the humanitarian laws will implicate many other important policy areas. Perhaps--we can hope--this will help mitigate the more radical plans raised prior to the election. Here's John Donne, once more, "Any man's death diminishes me / Because I am involved in mankind / And therefore never send to know for whom the bell tolls / It tolls for thee." Let's hope Mr. Trump recognizes the gravity of his proposed changes, and the effect they could have on innocent lives. Let's hope.
Originally posted on the Asylumist: www.Asylumist.com.
Updated 11-09-2016 at 11:41 AM by JDzubow
by Chris Musillo
The Department of State has just issued the December 2016 Visa Bulletin. This is the third Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month's Visa Bulletin.
December 2016 Visa Bulletin
Final Action Dates
Applications with these dates may be approved for their Green Card (Permanent Residency card).
MU Law Analysis
All Other: The EB-2 has been current for many years. The EB-3 progression continues. For Consular processing cases a July 2016 date is effectively Current.
China: The China EB-2 date moved up two months. The China EB-3 date progressed three months. The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.
India: EB-2 India had another impressive progression from last month, moving forward three months. EB-3 moved ahead by one week.
Mexico: Mirrors All Other in all aspects.
Philippines: EB-3 moved ahead by another two months. The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and half of the 2011 EB-2 visas in just three months. This is what we have expected. (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").
We expect more of the same fast progression in FY2017 for Philippine EB-3. We expect that the Philippine EB-3 number will progress at least three years in FY2017.
Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
Update: November 14, 9:12 pm.
The latest report is that Hillary Clinton won the popular vote by 2 million votes. How many millions of immigrants are at risk of having their lives disrupted or destroyed because of the long outmoded quirk (glitch would be a better word) in our voting system known as the electoral college which, for the second time in 16 years, has elected the popular vote loser as president?
How many millions of American will suffer having their immigrant husbands, wives or parents torn away from them by jackbooted police as a result? How safe will the freedoms of American citizens be in the America of popular vote loser Donald Trump?
Update: November 9, 10:33 am.
According to the latest reports I have seen, Hillary Clinton won the nationwide popular vote by over 200,000 votes. Our immigration policies for the next four years, which may affect immigration for the next generation or even half century, will have been decided by a less than perfect democracy, it would appear.
My original post appears below.
As this is written, Donald Trump has just made his victory speech as president-elect of the United States, using uncharacteristically generous and humble language and emphasizing his intention to serve and unify Americans of "all races and religions".
There was none of the vindictive and hostile language against immigrants and other racial/religious minorities which has been the hallmark of his campaign. However, his singling out Alabama Republican Jeff Sessions, arguably the strongest anti-immigrant voice in Congress, for commendation on stage, was an ominous sign that Trump may reward the overwhelmingly white voters who have propelled him to the presidency by pursuing the radical anti-immigrant agenda which he promoted during his campaign.
Let there be no equivocation about this. Trump will become president on January 20, 2017 with virtually dictatorial powers. despite the slim margin of his victory, which could, as of this writing, still possibly include losing the national popular vote to Clinton, as results from heavily Democratic Western states are not completely counted as of this writing.
Trump will control both Houses of Congress, all agencies of the federal government and, before long, the Supreme Court and most of the lower federal courts. The question is whether he will run the country as a benevolent strongman or dictator, or whether he will use his enormous power to divide America further along racial and religious lines, as he did successfully in order to become president.
Despite the humble, respectful and unifying tone of his victory speech, Trump has not renounced or modified any element of his extreme, radical anti-immigrant agenda. In case anyone didn't notice what that agenda was during his campaign, I will summarize the highlights:
1) Carry out mass deportation of up to 12 million mainly Latino and minority immigrants, something that would be on a scale unknown in America's history,
2) Involve state and local police in immigration enforcement, along the lines of Arizona's discredited 2010 "papers please" immigration law and now abandoned federal/state programs such as 287(g) and "Secure Communities", creating a virtual reign of terror in immigrant communities coast to coast,
3) Build a wall against Mexico and bar Muslims, either as a religion or by national origin from mainly Muslim countries from entering the US,
3) End or sharply curtail most, if not all, employment based, legal immigration by abolishing visa categories such as H-1B, J-1, and Labor Certification green cards,
4) End DACA and send Syrian refugees who are already in the US back (in violation of international law against refoulement) to their dictatorship and terror-plagued country,
5) Seek to amend (or maybe just reinterpret) the 14th Amendment to deprive millions of American-born children of birthright citizenship, leaving many of them stateless and all of them subject to deportation.
6) Appoint a special commission, which by all indications, would most likely be loaded up with extreme immigration opponents such as Jeff Sessions or Kansas Secretary of State Kris Kobach, in order to "review" our current immigration laws and, conceivably, return America back to the dark days of the whites-only Johnson-Reed immigration act of 1924.
7) Even though, unlike the above proposals which he has actually spoken about, Trump has not mentioned the following, it is not inconceivable that he might use his virtually unlimited powers to suspend immigration under INA Section 212(f) to halt all immigration, or large parts of it, while bringing about the changes mentioned above.
All of the above are dark and dangerous, if not horrifying, possibilities for immigration advocates and immigrant communities across America. But they are still very realistic possibilities based on Trump's campaign statements and the broad, if not almost unlimited powers he will have as president and virtual dictator, benevolent or otherwise.
No one should be happy at this prospect except the KKK and other white nationalist hate groups which have been giving Trump so much support and will inevitably be thrilled with his election.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from diverse parts of the world and ethnic/religious backgrounds obtain work visas and green cards.
Roger's email address is email@example.com
Updated 11-14-2016 at 08:11 PM by ImmigrationLawBlogs
By: Bruce Buchanan, Sebelist Buchanan Law
In the most recent E-Verify Connection, Number 33, released in November 2016, the United States Citizenship and Immigration Services (USCIS) has re-visited the issue of the “pre-population” or “auto-population” of employee data into section 1 of an electronic I-9 and offered clear guidance.
What is “pre-population” or “auto-population” of employee data? It is when portions of the I-9 form have already been filled out by a computer program before the employee or employer has started to complete the I-9 form.
The E-Verify Connection raised and answered the following question: can Section 1 be auto-populated in the case of an electronically prepared Form I-9? Answer: “Form I-9, Section 1, cannot be auto-populated by an electronic system that collects information during the on-boarding process for a new hire.”
Agencies have differed on Pre-population of Section 1 Data
Three different agencies have taken positions on whether an employer can pre-populate portions of section 1 of the I-9 form and provided differing views.
USCIS first addressed the issue in August 2012 and stated they were “not opposed to auto-filling Section 1 of Form I-9 by a company’s human resources system provided the employee and employer review and complete the attestation. Additionally, if Section 1 of Form I-9 is being completed on behalf of the employee, then the Preparer-Translator section must be completed.”
However, six months later, USCIS said that employers should not electronically pre-populate section 1, even if the employee has the opportunity to review the information before signing. Then, at a later date, the USCIS stated it was not taking a position on the issue.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) said in a Technical Assistance Letter (TAL), dated August 20, 2013, it discouraged the practice of pre-population because it "increases the likelihood of including inaccurate or outdated information.... (which) may lead an employer to reject documents presented or demand specific documents for Section 2 purposes.“ Additionally, the OSC noted that pre-populating section 1 may be a problem if the new hire was not proficient in English.
Immigration and Customs Enforcement (ICE) originally stated section 1 pre-population in an electronic I-9 was permissible if the employer also completed the preparer and/or translator section. In early 2013, ICE changed its position to that it was never permissible regardless of whether the preparer and/or translator section was used and regardless of whether the employee inputted the information that is pre-populated into the system. But in October 2013, ICE changed its position to it had no specific position on the issue and advised employers to simply follow the “regulations.” However, the regulations currently do not address the specific issue of pre-population in Section 1. Additionally, it stated it would evaluate the matter on a case by case basis.
Why is the Issue of Pre-Population Important?
In a Notice of Inspection, ICE analyzes an employer’s I-9 forms. If it deems the pre-population of section 1 to be a substantive violation, the employer is subject to a penalty. If all the employer’s I-9 forms were pre-populated, then that would be subject to a penalty of about $2000 (under new increased penalties) per I-9 form in error.
Some Section 2 Fields Can Be Pre-Populated
In this same E-Verify Connection, the USCIS stated the following fields can be auto-populated in Section 2: Employer’s Business or Organization Name, Employer’s Business or Organization Address (Street Number and Name), City or Town, State, and Zip Code.
This new guidance is just another example of the perils of the I-9 form and the need for employers to conduct internal I-9 audits under the supervision of an immigration compliance attorney.
Update: November 8, 3:50 pm:
For an extensive fact check of many of the false, inflammatory claims regarding immigration and immigration policy that Donald Trump made in his August 31 Phoenix immigration speech see: Washington Post, September 1:
Fact-checking Donald Trump's immigration speech
by Michelle Ye Hee Lee and Glenn Kessler.
(I am sorry that I am not able to find the complete link; the article can be easily accessed on Google.)
My original post follows:
It is not the function of this blogging site to take sides or comment on political matters, but as Immigration Daily points out in its November 7 editorial, today's election involves immigration policy issues which are arguably more prominent than they have been in over a century. It is no exaggeration to say that the outcome could have a major effect on America's immigration system and demographics for at least the next fifty years, just as the momentous 1965 immigration reform law, which is now under attack from some restrictionists and which Donald Trump, at least indirectly, criticized in his August 31 Phoenix immigration address by referring to "decades old", "outmoded" immigration laws, has done in the past half century.
Therefore it would be both a rejection of reality and, I sincerely believe, a disservice to Immigration Daily readers not to make a few observations about today's election and its potential effect on immigration, as well as the democratic institutions on which our immigration system is based.
There are, to be sure, those who believe that no matter who wins today, our immigration system, and our democracy, will somehow go on or muddle through as usual, without any major changes. With all due respect, this ignores the doctrine of plenary power by the "political branches" of government, namely Congress and the executive, which has been central to our immigration law ever since the late 19th century and its notorious Chinese exclusion laws.
It also overlooks the enormous power that the executive branch, namely the president, has in determining immigration policy through wide ranging regulations and "policy memos", not to mention agency decisions by the AAO, BIA, USCIS Service Centers, and various ICE and CBP officials. I have given some USCIS examples in my November 7 Immigration Daily comments.
No lawyer who has any immigration experience at all can dispute the fact of the extensive power that these officials, and the president who is responsible for appoint them, wield. True, their power is not unlimited. They are subject to control by Congress, and in many instances, by the federal courts, despite the plenary power doctrine.
Would it irrelevant to ask who controls at least one of the two parties in Congress and who appoints the federal judges who have at least some oversight over the immigration system? The president, of course. It is often pointed out, of course that our system of government is based on checks and balances.
But what kind of checks and balances will there on immigration policy when a president has the power, not only to appoint the official carrying out that policy, but when he has control over at least one, if not both Houses of Congress, and has the power to appoint not only the Supreme Court but the lower court judges who would (in some instances) be reviewing that policy?
We should also not ignore INA Section 212(f), which gives the president almost unlimited power to suspend any kind of immigration for almost any reason whatever. Could Donald Trump be relied on to exercise caution and restraint in using these enormous governmental powers?
How much restraint has he shown in his actions and comments during his campaign? According to the latest reports, Trump's own campaign advisers do not even trust him enough to let him continue to use his Twitter account.
It is also argued that a president can be reined in by the media, or by public opinion. How much a a check would the media be on a president who is now threatening to "open up" the libel laws to stifle criticism, who has said that he is "fine" with sending American citizens to Guantanamo and with using torture, and who is threatening to jail his opponent for the White House if he is elected?
Still, all of this might not create much concern for immigration advocates except for one thing: from start to finish, whether in talking about Mexican immigrants in June 2015 at the beginning of his campaign, or Somali immigrants just this past weekend, Donald Trump's attitudes to immigration from outside white Europe, have been characterized by just two words: fear and hatred.
Beginning with his characterization of Mexican (and by extension, other Latino immigrants) as "criminals", "rapists" and "drug dealers" at the beginning of his campaign, and continuing with his proposal to ban Muslims from all over the world from coming to the United States last December (now morphed into a ban from countries that "sponsor terror", i.e. Muslim countries), together with his attacks on Syrian refugees, not only as "terrorists" but as allegedly impairing America's "quality of life", whatever that means (and we know what it means - remember the segregationists who touted the "Southern Way of Life" before the civil rights era?), Trump has made it clear that immigrants from Latin America, the Middle East, Africa and Asia (whose leaders he also pillories as allegedly cheating on trade and currency issues beyond the scope of these comments), are not welcome in America under his administration.
In speech after speech, he has ranted against alleged "criminal" and "terrorist" immigrants who are "pouring" into the country, allegedly uncontrolled and unregulated, in order to kill American citizens and "destroy our country", "invited" in by an "open borders" administration (which has so far deported 2 million people, more than any other administration in US history).
However, even for those who believe that a return to the white, Christian, Nordics-only immigration policies of our pre-1965 immigration laws would be in America's best interests (such, as, evidently, columnist and Trump-supporter Ann Coulter, who on November 7, suggested that only Americans with four grandparents born in the US should be allowed to vote - which would mean that Donald Trump himself would be ineligible since he had a German-born grandfather and Scottish-born grandmother - see:
one has to ask - what would be the effect on our democracy of imposing these policies?
We have some examples from still-recent history - the Japanese-American internment policies of WW2. While Trump has never endorsed this policy or called for interning American Muslim citizens, ha has stated that we may have to do the "unthinkable" in order to "protect" ourselves. He has suggested that this could include surveillance of Muslim US citizens and their places of worship. What kind of respect for the Constitution does this show?
I could talk about many other aspects of our Constitution which would be in danger under a Trump administration - the right to due process under the 14th Amendment, whose guarantee of birthright citizenship Trump also wants to take away from millions of US born Hispanic, Asian, Middle Eastern and black children, the right to freedom from unreasonable searches and seizures, the right to counsel in immigration proceedings - already under assault from the Obama administration, which is also very arguably violating the Constitutional protections against cruel and unusual punishment of immigrants seeking asylum and related relief - I could go on and on.
But my point is clear, Trump's own stated immigration proposals not only violate the basic rights of immigrants, but they are the gateway to endangering, if not destroying the freedom and democracy of all Americans as well.
I will close by urging all readers who have not yet voted to do so today before it is too late. I voted earlier this morning - since this is a non-political blog, I will keep the information about whom I voted for for president myself completely confidential.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional workers from diverse parts of the world obtain work visas and green cards. His email address is firstname.lastname@example.org
Updated 11-08-2016 at 03:29 PM by ImmigrationLawBlogs