What's New in the World of Immigration?

10/12/2017 - AILA: Trump Administration Erodes Integrity and Fairness in Immigration Courts

AILA Doc. No. 17101233

WASHINGTON, D.C. - The American Immigration Lawyers Association (AILA) expressed its strong opposition to the Trump administration's plans to impose numeric quotas on immigration judges in order to speed up deportations. The unprecedented effort to compel judges to complete cases under stricter deadlines threatens the integrity of the immigration court system and the independence of the judicial branch. The immigration courts are administered by the Executive Office for Immigration Review (EOIR), which is housed within the Department of Justice (DOJ).

"Subjecting judges to numeric case completion goals undermines one of the core principles of our judicial system - entitlement to a fair day in court. What the administration is proposing is akin to the assembly line justice that America has opposed in oppressive regimes around the globe," said Annaluisa Padilla, AILA President. "A system that evaluates immigration judge performance based on how fast they can churn through cases will simply pressure judges to rush through decisions, rather than give careful consideration to the law and facts in each case. Immigration judges already have among the highest caseloads of federal judges. Justice and fairness cannot be thrown out the window to meet an arbitrary quota."

"AILA members are in the immigration courts every single day," added Benjamin Johnson, AILA Executive Director. "They and their clients bear the brunt of a court system that is overworked, under resourced, and subject to the inherent conflict of interest that comes from immigration judges being employees of the nation's chief law enforcement officer instead of part of an independent court system. This new proposal will only make an intolerable situation worse. It is an affront to the foundation of American justice, which was built on the principles of equality before the law and an opportunity to have cases decided by independent judges. Immigration judges are making important, often life or death, decisions every day: whether a mother and child will remain together or be torn apart, whether a father is returned to a country where he was persecuted, or whether the dreams of an immigrant will be allowed to grow and flourish, or die on the vine. The primary focus for judges must be to make the right decision. Creating an environment where the courts care more about speed than accuracy and where judges are evaluated and rewarded based on quantity instead of quality is simply unacceptable."

09/20/2017 - 30/60 Day Rule is Dead

On Sept. 1, 2017, the U.S Department of State (DOS) updated the Field Adjudicators Manual (FAM) at 9 FAM 302.9-4(B)(3). The Field Adjudicators Manual (FAM) serves to guide consular officers in their adjudications process, and this particular section provides guidance regarding “misrepresentation” by applicants “at the time of visa application or to DHS when applying for admission or for an immigration benefit.”

The changes include the addition of a section entitled “Inconsistent Conduct Within 90 Days of Entry.” The new language effectively eliminates the prior “30/60 day rule” which found a presumption of misrepresentation only if an alien engaged in activity inconsistent with their nonimmigrant status within 30 days of admission, and generally no basis for misrepresentation if an action was taken after 60 days.

A finding of misrepresentation can have extreme consequences. With this recent change there are several things to keep in mind:

New guidance may have negative consequences for individuals who have relied upon the old rule as well as those who make immigrant filings in the future. Individuals cannot engage in any activity within a 90-day period of entering the United States that is inconsistent with the immigration classification under which they entered the country.

Those who do perform activities that are inconsistent with their status may be found to have made a willful misrepresentation when securing the visa at the Consulate or when entering the United States and being inspected by an immigration officer. Such individuals may be found inadmissible and barred from entering the United States for life.

Types of impermissible conduct:

- Getting married in the United States within 90 days of entering the country on a visa that requires an intent to return to your home country (e.g., B visa, Visa Waiver Program, J-1, F-1, etc.)

- Working without authorization

- Enrolling in school when such activity is not permitted by the visa (for example B visas and the Visa Waiver Program do not allow for school enrollment)

The new rule was announced without any warning or period of public comment. Public comment is not required but the sudden nature of the change increases the number of potential individuals impacted.

Under the old rule if an individual engaged in any of the above conduct within a 30-day period, a finding of fraud or misrepresentation could be presumed. Now that period is extended to 90 days.

09/05/2017 - DACA Termination: It's a Sad Day.

Today hundreds of thousands of DACA holders, their families and their supporters were left in shock as the DACA program was terminated by presidential announcement.

DACA was born from the Obama Administration's informed realization that, in order to keep the country safer, we need to prioritize certain groups for deportation and protect others. It currently takes years for illegal immigrants to move through the court system. We need to unclog the courtrooms by fast-tracking the removal of violent criminal aliens and placing others at the back of the line.

The Obama Administration granted "Deferred Action for Childhood Arrivals", also known as DACA, to kids who were brought into the country as minors prior to 2012 and through no fault of their own were without status in the USA. It was reserved only for those of the group who didn't have criminal records and finished school or served in the military. The cut-off date also predated the surge from Latin America of the past few years. Giving these kids a protected status cleared the clogged courtrooms so that Judges could focus on less-deserving groups.

Not only has this policy been effective, but it was and is completely within the powers of the president. Granting deferred executive action is a clear executive power, and the president is the head of the executive branch of the US Government.

I represent a lot of DACA holders. Many of these kids didn't even realize they were illegal until they asked their parents for their social security numbers for college applications. The US is their home, and study after study shows the positive impact these kids have on the community and US economy.

I can say first-hand that my clients who hold DACA are overachievers who absolutely do not deserve to be given the same deportation priority as criminals. Of the DACA holders I represent, the majority are currently in or are recent graduates of Masters Degree programs, about 10% own their own business and employ American workers, and about 40% are married to US Citizens but cannot qualify for the green card because their parents brought them here illegally.

If you voted for or currently support Trump because you want violent criminal aliens out of the USA, you should be extremely disappointed by today's news. I want violent criminals out too. However, I know that if we really want violent criminal aliens out, we need a system that prioritizes the removal of certain groups and places others at the back of the line.

When an illegal immigrant gets a notification to appear in court, the only thing accomplished at the first hearing is that the Judge schedules another hearing years later to actually hear their case. In the meantime, we spend our tax dollars housing criminal aliens in detention centers or letting them roam our communities. Now that these well-deserving kids are stripped of their deferred status, they will clog up the courts meaning it will take YEARS LONGER to get the violent criminals out. These kids will spend their time in lawyers officers and court rooms, stressed and uncertain, instead of the schools and businesses where they contribute and invest as active members of our society.

The American Immigration Lawyers Association today released the following announcement:

WASHINGTON, D.C. - In the wake of today's announcement by the Trump administration, the American Immigration Lawyers Association (AILA) condemned the cancellation of the Deferred Action for Childhood Arrivals (DACA) initiative and reiterated its support for Dreamers and DACA recipients with the following statement:

"While the administration has turned its back on the nearly 800,000 hardworking DACA recipients for whom this nation is the only home they know, AILA and its members continue to stand with them as they fight to realize their American dreams," said Annaluisa Padilla, AILA President.

"A countdown clock now hangs over the head of every Dreamer in America and it is incumbent upon Congress to act quickly before that clock runs out. The vast majority of Americans, on both sides of the aisle, are in favor of granting legal status and the chance to become citizens to the Dreamer population. These young people are making America greater every day, building stronger communities and contributing their talents to American industry. Congress must take up the mantle that President Trump has cast aside and champion Dreamers before time runs out."

AILA Executive Director Benjamin Johnson noted, "Make no mistake: this announcement kills the DACA program that has benefited so many Dreamers and the communities they live in, and our country as a whole. To add insult to injury, Attorney General Jeff Sessions used the announcement of this decision to accuse Dreamers of stealing jobs and threatening our culture. That is not only wrong, it is offensive. The administration is pandering to nativists and bowing to the threats of a few state attorneys general who fail to recognize the constitutional authority of the executive branch that past Republican and Democratic presidents exercised for decades. By abandoning these young people, the administration is conceding far more than it gains from fulfilling a reprehensible campaign promise. But that's the choice the President has made, to forsake America's future and the lives of these young people who aspire to be a part of that future. We now look to Congress to live up to America's fundamental principles and stand up for Dreamers."

08/29/2017 - AILA Condemns Presidential Pardon of Joe Apairo as "A Shameful Exercise of Presidential Power"

AILA Doc. No. 17082699.

WASHINGTON, D.C. — The American Immigration Lawyers Association (AILA) condemned President Trump's decision to grant a pardon to disgraced Sheriff Joe Arpaio in the following statement:

"By pardoning Sheriff Arpaio, the President has undermined the judicial branch, a core institution of our democracy," said Annaluisa Padilla, AILA President. "He has violated any sense of justice or equality under the law. While the administration is deporting people who pose no threat to their communities, the president now grants amnesty to someone who has been convicted of ignoring a court order and violating the civil rights of an entire community. That is the definition of hypocrisy."

Benjamin Johnson, AILA Executive Director remarked, "This is an offensive use of the power of the Presidency and an affront to basic principles of fairness and justice. Today, a convicted civil rights violator will walk free, while decent, hardworking people with deep ties to their communities will continue to be torn from their homes and separated from their families. Now is the time for real leaders to stand up for what is right and support legislation that will provide a permanent solution for the victims of our outdated immigration system."

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

08/21/2017 - USCIS Is Denying Pending Forms I-131 for Abandonment Due to International Travel

AILA Doc. No. 17081867 | Dated August 18, 2017

AILA has received reports from members that USCIS has been denying Form I-131 advance parole applications for abandonment in instances where the applicant has traveled abroad during the pendency of the application. The pending Form I-131 application is being denied even if the applicant has a separate valid advance parole document or a valid H, K, L, or V visa to return to the United States. In the denial notification, USCIS points to the Form I-131 instructions at page 6 where it states that "[i]f you depart the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned." In the past, USCIS has approved advance parole renewal applications for individuals who travel abroad during the pendency of the application with a valid Advance Parole Document or a valid H, K, L, or V visa.

In response to these reports, AILA contacted the USCIS Service Center Operations Directorate (SCOPS) to determine if this change of policy was intentional. SCOPS recently responded that the denials were proper; the policy is that traveling internationally while an application for advance parole is pending will result in the denial of that application notwithstanding prior practice to the contrary.

AILA will continue to pursue this issue in liaison discussions with USCIS. In the meantime, it appears that advance parole applications will continue to be denied if an individual travels abroad while the application is pending with USCIS. Please note that for adjustment applications filed after July 30, 2007, there is no additional fee to file a new application for advance parole following the denial of an application. Applicants may wish to consider submitting a new Form I-131 application to USCIS if a pending application is denied, as well as avoiding international travel during the pendency of the advance parole application. AILA will provide an update to members on this issue as soon as more information becomes available.