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  1. The "New" Travel Ban and How It Affects Asylees and Refugees

    Late last month, the U.S. Supreme Court issued a decision allowing the Trump Administration to begin enforcing its travel ban against all refugees and against individuals from six "banned" countries--Iran, Libya, Somalia, Sudan, Syria, and Yemen.

    Travel Ban Redux, or Once More Into the Breach (of Decorum), Dear Friends

    Since the Court's decision is (to put it kindly) a little vague, it was initially unclear how exactly the Administration would enforce its executive order ("EO"). Now, the Department of Homeland Security and the State Department have issued some guidance, and so we have a better idea about the effects of the EO. Of course, given that the Supreme Court's decision is subject to interpretation, we can expect more litigation in the weeks and months ahead, but for today, I want to discuss how the EO will likely be enforced with regards to asylum seekers, asylees, and refugees.

    Asylum Seekers
    : Asylum seekers are people who are physically present in the United States and who have a pending asylum case. The short answer for asylum seekers from banned countries is that the EO has essentially no effect on your case (the longer answer is here). Cases will move forward and be adjudicated as before (i.e., slowly). I should note that since the beginning of the Trump Administration, we have had several cases approved, including cases from Muslim countries and banned countries.

    Asylees and Refugees Who Have Already Been Resettled in the United States
    : Asylees are people who have been granted asylum by the U.S. government. Refugees in this section refers to people approved for refugee status overseas who have already been resettled in the United States. According to a DHS FAQ sheet (question # 11):

    Returning refugees and asylees, i.e., individuals who have already been granted asylum or refugee status in the United States, are explicitly excluded from this Executive Order. As such, they may continue to travel abroad and return to the United States consistent with existing requirements.

    This means that if you already received asylum, or if you were already resettled in the U.S. as a refugee, you can travel outside the U.S. and return, and the EO does not affect you. However, if you are from one of the "banned" countries, it is a good idea to keep an eye on the news to make sure there are no future changes that might affect your ability to return (one helpful website is the American Immigration Council).

    Also, according to DHS (question # 22), people who received a green card based on asylee or refugee status are not affected by the EO.

    Asylees and refugees can file for their family members (spouses and minor, unmarried children) to come to the United States, and the EO does not block those family members from coming here. According to DHS (question # 34), "Family members planning to join refugees or asylees are only approved for travel if a bona fide relationship to a spouse or parent in the United States exists. Therefore, if the relationship were confirmed, the travel suspension would not apply." (see also question # 36). So asylees who have filed I-730 petitions should not be prevented from reuniting with their family members in the U.S.

    Refugees Who Are Waiting to Come to the U.S. for the First Time
    : It is important to note that all refugees, even people from countries that are not banned, are affected by the EO. According to DHS (question # 31), "Under the Executive Order as limited by the Supreme Court’s decision, any refugee, regardless of nationality, is prevented from admission to the United States unless he or she (1) demonstrates a bona fide relationship with a person or entity in the United States or (2) obtains a national interest waiver from the Department of State or CBP [Customs and Border Protection]."

    The EO blocks admission of all refugees (other than those who meet an exception to the rule) for 120 days. According to the U.S. State Department, there are exceptions for "those refugees who are in transit and booked for travel," though these people will likely all be in the U.S. by now.

    According to DHS (question # 29), refugees can still come to the U.S. if they have a "close" family relationship with someone already here. DHS interprets this to mean:

    [A] parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships. However, “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law and any other “extended” family members.

    Certainly we can expect this interpretation to be the subject of litigation. Why is a half-sibling a close relative, but a grandparent is not?
    Also, a refugee with a bona fide relationship to an "entity" in the United States is still eligible to travel here, but what this means is also unclear. According to a senior official at the State Department:

    As regards relationships with entities in the United States, these need to be formal, documented, and formed in the ordinary course of events rather than to evade the executive order itself. Importantly, I want to add that the fact that a resettlement agency in the United States has provided a formal assurance for refugees seeking admission is not sufficient, in and of itself, to establish a bona fide relationship under the ruling. We’re going to provide additional information to the field on this.

    I expect we will see litigation on this point as well. Litigation means delay, and so the likely effect of the EO on refugees will be to greatly reduce the number of people coming to the United States.

    Blocking refugees from resettling in the U.S. has been a goal of the Trump Administration since the beginning, and it is one reason why Mr. Trump was elected in the first place. So, like it or not (and obviously, I don't), this is what democracy looks like. But of course the result is that innocent people will die, and it is all the more reason for those of us who support our refugee program to try to convince the general public on this point, to work with our representatives in Congress, and to litigate in court.

    The EO's impact on nationals of the six banned countries and on all refugees is temporary, at least for now. The Supreme Court will take up the merits of the EO this fall, and the President may issue new EOs (and Congress may pass laws that impact immigration). In essence, all this is a moving target, and so asylees, asylum seekers, and refugees need to keep abreast of any changes. We also have to keep working hard, in order to protect victims of persecution and to defend our nation's values, which these days seem in grave jeopardy.

    Originally posted on the Asylumist:
  2. Despite Hiring, Immigration Court Backlog and Wait Times Climb

    by , 07-06-2017 at 08:18 AM (Matthew Kolken on Deportation And Removal)
    Via Syracuse University's TRAC:

    As of the end of April 2017, the number of cases waiting for a decision had reached an all-time high of 585,930. See Figure 1. On average individuals have currently been waiting 670 days, and may have to wait much longer before their cases will be heard. Nine courts that currently account for a quarter of this backlog require some individuals to wait for more than four additional years from now before a hearing is scheduled. The Immigration Court in San Francisco with nearly 42,000 backlogged cases has some individuals waiting for more than five additional years—as much as 1,908 days longer—for their July 21, 2022 hearing date.

    During the past 18 months, the court has been adding new judges. In contrast to 2013 and 2014 when few judges were added to court ranks, a total of 79 new immigration judges have been sworn in since November of 2015. See Figure 2. Funding for a modest additional 10 judges also has just been approved by Congress.

    But there is little evidence that this increase in hiring is sufficient to handle the incoming caseload, let alone make a dent in the court 's mountainous backlog. Before this hiring spurt began, the backlog at the end of August 2015 stood at 456,644 cases. Then the average number of days individuals had been waiting was already at 635 days, with hearings for some scheduled as far as 1,766 additional days in the future. See earlier TRAC report.

    Today the situation is significantly worse. As noted above, by the end of April 2017 the backlog had increased by 28.3 percent to 585,930. Individuals with pending cases already have waited an average of 670 days, up from 635 days. And for some their hearings are now scheduled as many as 1,908 days into the future, up from 1,766 days before this hiring spurt began

    Click here to read the full report.
  3. Muslim Ban Continues Long Tradition of Racial/Religious Discrimination in US (and German) Immigration and Citizenship Law. Roger Algase

    I have written extensively about various legal issues arising from Donald Trump's Muslim entry ban orders (often misleadingly and euphemistically referred to as a "travel ban", despite the fact that the nearly 200 million people in six countries with more than 99 per cent Muslim populations who are targeted by his latest order are free to travel anywhere they want - just not to the United States!).

    In my previous comments, I have focused on the entry ban orders as they affect Muslims in particular, since that is obviously the main purpose of the orders, in view of the fact that less than one percent of the six countries' citizens affected belong to any other religious group or practice any other faith. Moreover, the lawsuits in US federal courts challenging the Muslim entry ban orders, in including IRAP v. Trump now before the Supreme Court, are based on the claim that the ban orders infringe on the Constitutional rights to freedom of religion of American Muslim citizens.

    However, Muslim US citizens constitute only about one percent of the total US population. Does this mean, therefore, that any comment on the issue of the legal validity, or lack of it, concerning Donald Trump's Muslim ban orders are necessarily written only from the standpoint of advocacy on behalf of the interests of a small and limited group of people in America, namely American Muslims?

    Obviously, such a limited view of the significance of the Muslim ban orders would be untenable. Opposition to the infamous Chinese exclusion laws of the late 19th and early 20th centuries, to the ban on entry to America by Jewish immigrants trying to escape Hitler's gas chambers and ovens during the Holocaust, to the incarceration of Japanese Americans during WW2, and to the segregation laws against African-Americans, was based on the fact that injustice, discrimination and persecution against any group of people based on their race or religion affects the rights and freedom of all the people of America.

    This comment, therefore, will look at the president's Muslim ban orders, not just from the standpoint of their effect on people who happen to belong to this major world religion, but rather in the context of America's long history of legal enactments based on discrimination against racial and religious groups, as well as the influence that American legislation in this area had on laws adopted by one other country against its own minorities (one in particular) in another country, Germany, during the 1930's.

    In doing so, I will refer to an article dealing with this subject by one of America's most distinguished and respected scholars, Columbia University Professor Jeffrey Sachs. His article, dated March 19, is called:

    The Muslim ban and American history.

    This article should be required reading for everyone who is seriously interested in the legal foundation for and long legal history leading up to Donald Trump's Muslim ban executive orders.

    Sachs begins:

    "Donald Trump's revised executive order to bar entry into the United States from six Muslim-majority countries is the latest salvo in America's latest culture wars over race and American identity. As a matter of national security and law, the policy makes no sense, as the US District Court for the District of Hawaii has made clear."

    To the contrary, Sachs writes, Trump's objective in the Muslim ban executive orders is:

    " ...making Muslims a target of hatred among working class white voters, a strategy with a long and successful history..."

    At the outset, the decision of the District Court of Hawaii in the revised Muslim ban case, which Sachs refers to in above, contains a detailed discussion the reasons why, when Constitutional rights are involved, such as, in this case, freedom of religion and equal protection of the law for Muslim-American citizens, well settled case law allows the Courts to go behind the face of an executive order or decision in order to determine with it was motivated in whole or in part by impermissible bias.

    But even if the strained and untenable argument which had been made by some commentators that the Supreme Court's 1972 decision in Kleindienst v. Mandel, a visa denial case, precludes court interference with an executive decision or order refusing a visa or barring entry to the US if the decision or order is facially legitimate and bona fide - an argument shaky enough at the outset since the above Mandel "doctrine" was only dictum, because the issue of good faith in the denial decision was not before that court or involved in its decision - it is clear from Trump's Muslim ban orders, both first and second, that they were not even facially legitimate.

    The disconnect between the stated reason for these orders on their face, namely that further review of "vetting" procedures was needed for visitors and immigrants from the targeted countries, and the actual action taken by the orders allegedly intended to accomplish the purpose of more enhanced "vetting", namely banning the entire population, or close to it, of these countries from entering the US while the enhanced "vetting" procedures are being drawn up is so glaring and absurd, as to raise serious doubts as the the legitimacy and good faith of these orders purely by looking them on their face only, as some commentators claim that the non-legally binding Mandel dictum mandates the courts to do.

    In a forthcoming comment, I will go into more detail about America's long history of legal measures discriminating against various racial and religious immigrant groups, as Sachs describes it, as well as how, as Sachs also explains America's history of legal discrimination against immigrants on the basis of race and religion also influenced lawmakers in Germany during the 1930's to develop legislation against the Jews and other targets of the regime.

    Roger Algase
    Attorney at Law

    Updated 07-06-2017 at 12:04 PM by ImmigrationLawBlogs

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