Month: August 2017

What Immigration Changes Can Trump Do All By Himself

Can Donald Trump change the US immigration system all by himself?

Hi, I’m Jim Hacking, immigration lawyer practicing law out of our office here in St. Louis, Missouri. At the time we’re shooting this video in August of 2017 there’s been a lot of noise, and circumstance, and news reporting about all the changes that Donald Trump he himself might bring into the immigration landscape, and we thought we would shoot this short video to dispel some myths and walk you through what he can and can’t do.

One of the things that’s been really interesting since Trump took office is that we’ve all gotten a lot of good lessons in the way that our civic system works and our system of checks and balances and that is the three branches of government, of course. We have the three branches of government which are the judiciary, the legislature and the executive branch, which is headed by President Trump. There have already been things over the course of his short administration that have impacted each of those branches of government and demonstrate the kinds of points that I want to make today.

The first thing to keep in mind is that there are three branches of the government and that the executive can only do so much. Now, one of the things that I often say about elections is that when a person becomes president, they put in people in charge of their departments, their administrators, their secretaries in the cabinet, and these people are making small tweaks to the law that you don’t see on a regular basis. They’re updating regulations. They’re changing things that most people don’t pay attention to.

Now, when it comes to immigration, we pay pretty close attention to changes in the regulations and the rules and of course any changes in the law. But, the executive’s job is to enforce the law. The executive can’t make new law and the executive can only direct the people beneath him or her to follow the law and to the extent that the executive tries to overstep the law and to do things that aren’t legal, that is going to be stopped and I’ll tell you how in a minute.

We saw an example of this with the so-called Muslim ban, President Trump’s attempt to keep people from seven predominantly Muslim countries and then six Muslim countries out of the United States while they supposedly figure things out with the immigration system and whether those countries were helping the United States vet those people to see if we should allow them into the country. You might recall that he released that program on a late Friday afternoon. And, by early the next week, there were lawsuits already on file challenging it, and we saw the three branches of government lay bare. The judiciary stopped President Trump and that executive order banning Muslims from those countries, so it’s important to keep in mind. I understand the fear, the consternation and the worry about what Trump can and can’t do, but there are checks on him. The courts will make sure that he’s following the law and that he’s following the constitution. As any good immigration student knows, that the constitution is a supreme law of the land and that the president has to follow the constitution and laws written by congress have to follow the constitution.

One point I really want to drive home is that the president can only do so much. If he tries to impose an executive order that is contrary to laws on the books or the congress overrides with a specific law, then it’s really a check on his power. He is not a king. He is not a dictator. He’s simply the president of the United States and he has to follow the law just like everybody else.

Another thing to keep in mind is that he does have a lot of flexibility though in how the law is interpreted. A lot of people criticize President Obama because he decided to halt deportations for young people who were brought here as minors, and he viewed the immigration deportation system as overly harsh on these young people, and so he directed the Department of Homeland Security to come up with enforcement priorities and to focus on deporting people who had either committed crimes or had been repeatedly entered in the United States illegally. That was all done by executive order. President Trump has not done away with that program yet. He could at any time. Congress has not acted and pass legislation to make that protection for those young people part of the law. The president could undo any executive order done by President Obama or any other prior president. Executive orders are not law. They have to follow the law, but they can definitely impact the lives of Americans as we can tell with the many people who have benefited from President Obama’s Deferred Action program.

The flexibility and the power that Trump has is, one, the fact that he can change executive orders and the other is his role as a mouthpiece and an advocate for change. Now, President Trump hasn’t been particularly successful in this realm. A lot of people are tuning him out. His popularity numbers are way low and so people in congress and around the country are not as afraid as they were as to the impact that he has.

Recently he and some Republican Congresspeople came forward and put forward legislation that would really roll back immigration, especially family based immigration. He really put a lot of fear in people. That’s the genesis of where this video is coming from is that we wanted to make sure that right now everybody knows that this only a proposed legislation. It hasn’t been put into law, that we’ll continue to monitor it. But, basically, that if he wants to roll back the way that immigration visas are given out and cut in half those numbers of immigrant visas, then he’s going to have to do it through congress. Pay attention to what’s going on. If you’re a US citizen, contact your senators or congress people and make sure that your voice is heard because this is really important. Again, the congress acting or not acting is another check on President Trump.

Overall, I want you to be confident. I want you to be educated. I want you to be paying attention to what’s going on. Understand that he’s not king and he can’t just snap his hands and make the changes to the immigration laws. That there’s a process and a procedure and that he has to follow the law. If he doesn’t follow the law, then people will take him to court. People like me and our firm and people like the ACLU and other great organizations will take him to court, hold his feet to the fire and make sure that he’s following the law. Don’t be afraid. Do not be afraid. There are people out here who will protect you, people who will help you.

If you have any questions about this, about the changes that Trump may or may not be able to put into place, be sure to give us a call at (314) 961-8200 or you can email us at info@hackinglawpractice.com. If you like this video, be sure to give it a like down below, share it with your friends and family and make sure to subscribe to us on all the social media channels, YouTube, Twitter, Facebook so that you get updated whenever we shoot videos like this one. Thanks a lot and have a great day.

Widow Files Lawsuit Over Pending Immigration Petition

 

Jun Cui Seman, a widow of an American citizen, has filed a suit against multiple U.S. government officials because she has waited over three years for USCIS to issue a decision in her pending immigration petition.

Seman has a pending I-360 petition as the widow of a United States citizen and an I-485 petition for adjustment of status.  When her husband of two years, Enrique Seman, died in 2014, she filed her petition.

The suit was filed in the District Court for the Northern Mariana Islands (NMI) on Thursday, August 17.  Seman would like the federal court to order USCIS to issue a decision in her petition.

Seman had an adjustment-of-status interview on August 18, 2014, and has not received a decision in the three years since.  USCIS never issued a request for additional information. Under the Administrative Procedures Act, applicants for immigration benefits can file suit against the U.S. Citizenship and Immigration Service to compel action on the agency’s behalf when the delay has been unreasonable.

The lawsuit was filed against multiple government officials, including USCIS acting Director James McCament, U.S. Department of Homeland Security Secretary John Kelly, and U.S. Attorney General Jeff Sessions.

Seman’s argues that there is not an administrative mechanism to address unreasonable delays in USCIS decision-making for an I-360 petition or I-485 application.  When Seman tried to find answers regarding the delay in decision-making, she was simply told that her file was pending with the USCIS office in Guam.  According to Mok, Seman is in no way at fault for the delay.

Normally, an I-360 interview decision is made within two to three weeks if no further information is requested.  By taking over three years to make a decision, the USCIS has caused Seman unnecessary anxiety and stress, putting her in “administrative limbo.”  The lawsuit also says Seman is in danger of removal by ICE since she does not have legal status.

For more information, click here.

 

When Do I Appeal a Bad Decision from the Immigration Judge?

To appeal a decision made by the immigration judge (“IJ”), you must affirmatively reserve that right when asked by the IJ if you plan to appeal. It’s safest to reserve your right to appeal, even if you aren’t sure whether you want to appeal. It doesn’t mean you have to appeal, but it leaves the option open for you to do so.

If you choose to appeal, the appeal must be received by the Board of Immigration Appeals (“BIA”) within 30 days of the IJ’s decision or else it’s automatically denied. The board does not observe the “mailbox” rule.

In other words, it’s not sufficient to have proof of postage that you sent the appeal before the 30-day deadline, if it doesn’t actually arrive by that 30-day deadline. Timeliness is ultimately based on the time stamp placed on the document upon its arrival at BIA.

When filing an appeal, make sure you have the correct filing deadline. The 30-day rule counts the day of the IJ’s decision as day 0. The day following the IJ’s decision is day 1 and so forth. Make sure to calculate your deadline correctly. You don’t want to miss your deadline because you miscounted!

The 30-day deadline also applies to DHS appeals. If you win a cancellation of removal or other type of defensive application, the government must appeal its decision within the 30-day window. Otherwise, its appeal is also automatically denied.

Finally, It’s best not to wait until the last minute to file. There can be unexpected delays, unfavorable weather conditions, etc. Such delays are not tolerated by the BIA (although if the cause of the delay was unavoidable because of a natural or man-made disaster, you can file a motion asking the BIA to make an exception).

So, file ahead of time and don’t miss your deadline!

Couple awaits word on whether they will be deported to Mexico

Oakland nurse and mother of four, Maria Mendoza-Sanchez, and her husband have lived in the United States for over two decades, but they do not have legal status.  Under a federal deportation order, the couple and their youngest child, Jesus, 12, will be flying to Mexico City on Wednesday, August 16.

Mendoza-Sanchez received a call on Tuesday afternoon from Senator Dianne Feinstein.  Praying that Sen. Feinstein’s call would bring good news in the 11th hour, Mendoza-Sanchez answered the phone with hopes that her family could remain intact.

Unfortunately, Sen. Feinstein apologetically told Mendoza-Sanchez that immigration authorities had denied the request for a stay and there was nothing more she could do.  Mendoza-Sanchez, her husband, and Jesus, a United States citizen by birth, will have to leave the United States and make a new home in Mexico.

Their three daughters, ages 16, 21, and 23, will stay behind in the United States.  The two older daughters will raise their younger sister, ensuring she completes her final two years of high school.  The two younger daughters are U.S. citizens and the oldest daughter is protected by DACA status.

Immigration attorney, Carl Shusterman, represents the family.  He termed Tuesday’s denial of the stay request a “tragedy.”  ICE officials refused to make an exception for Mendoza-Sanchez and her family because, “if they did, they would have to make an exception for other people, too.”  

Maria Mendoza-Sanchez is a nurse at Highland hospital in the oncology and cardiology wing.  Her husband, Eusebio Sanchez, is a truck driver.  Neither Mendoza-Sanchez nor her husband have a criminal record.

According to an immigration expert, the denial of the stay reflects a shift in the government’s deportation approach.  When cases received high levels of media attention and local political involvement in the past, ICE would shy away from the negative publicity and alter their response.  Santa Clara University School of Law professor, Pratheepan Gulasekaram, says that ICE “is sending a message with this removal…Everybody is potentially a target.”

For more information, click here.

DACA’s Fifth Year Anniversary, But Will the Program Survive?

This week marked the five year anniversary of the Deferred Action for Childhood Arrivals (DACA) program.

Under DACA, young people brought to the United States as minors have been able to halt their deportation temporarily and to obtain work authorization cards.

These work cards have allowed them to obtain drivers’ licenses and social security numbers.  It has also allowed them to work or to attend college.

President Barack Obama implemented DACA without an actual law being passed by Congress.  The basis of DACA was Obama’s belief that federal immigration officials had limited resources and could only deport so many people.

So Obama wanted the Department of Homeland Security to focus on criminals and people who had repeatedly entered the U.S. without authorization.  Although many immigration advocates criticized Obama for his agency’s definition of what constituted a “criminal” and felt that the definition was applied too broadly, thousands of young people benefited from the DACA program.

Recent estimates indicate that some 800,000 young people from around the world have benefitted from the deferred action program.

But because DACA was based on an executive order and not on legislation passed by Congress, it has always depended upon the willingness of the executive to maintain the program.

Enter Donald J. Trump.  Trump campaigned on a harsh anti-immigrant platform, promising to terminate the DACA program.

But so far, he has not.

Those who follow immigration policy point to his appointment of immigration hard-liner Jeff Sessions as Attorney General and Trump’s meetings with Kris Kobach, a noted xenophobe and anti-immigrant politician, as signs that DACA may be through.

By leaving DACA alone, Trump has angered his base, many of whom supported him based on his anti-immigrant stance and his promise to deport as many people as possible.

The Texas Attorney General is trying to challenge the DACA program’s legality in federal court and Trump can always cancel the program unilaterally.

Last month, Republicans and Democrats in Congressed reintroduced the Dream Act, a bill to give undocumented immigrants who came to the U.S. as children a path to citizenship, but the White House immediately shot it down. There are also bipartisan bills in the House and Senate that would provide temporary protections, but it’s unclear whether those could pass or if they would be signed into law.

Why Is My Asylum Case Taking So Long?

Why is my asylum case taking so long?

Hi, I’m Jim Hacking, immigration lawyer, practicing law throughout the United States at our office in St. Louis, Missouri. We’ve been getting a lot of calls lately from people who have filed for asylum in the United States or seeking refuge here in the U.S. and they’re wondering, “Why in the heck is my case taking so long?” They’re a lot of factors to this question and it definitely is worth shooting a video to discuss.

As we shoot this video here in 2017, it’s important to keep in mind that the number of asylum applications has skyrocketed over the last few years. We had the so-called mother and children surge across the southern borders back in ’15 and ’16 where a number of women and children were fleeing violence in places like Guatemala, Honduras, Nicaragua, El Salvador, and they had made their way through Mexico to the United States, and that has required a lot of work by asylum officers, and that has stretched an office that is already stretched to the breaking point even further.

The fact is that we do not have enough resources dedicated to adjudicating asylum applications in a timely manner. What does that mean in plain English? It means that the government doesn’t have enough money to process these cases properly and in an efficient manner. Another reason the cases are taking so long is because for many applicants, it’s simply impossible for the government to do what they consider to be proper background checks, and they’re really falling behind in processing these cases.

Asylum applicants from predominantly Muslim countries are seeing their cases take three, four or five years to be adjudicated, and one of the main reasons is is that places like Syria and Iraq, they are not good records that are still available and that prevents the asylum officers from doing their job and determining whether or not the person seeking asylum in the United States is a security risk or not.

Instead of deciding the cases, they’re simply sitting on the cases. We have seen these cases drag on and on. The people are having to apply for work authorizations over and over, and there’s really not any sense of urgency on the part of the asylum offices to get these cases adjudicated. Really in our office the only ones that we’ve seen get adjudicated are cases where the applicants are very old or it’s a female applicant, but basically men from Muslim countries who are seeking asylum are seeing their cases take a very, very long time to adjudicate.

What are the things that we can do to try to move those things along? Really there’s not that much to do. You can send letters. You can contact the asylum office. If you haven’t had your interview, you can ask for an expedited interview or to take a slot from someone whose asylum interview gets postponed because the applicant can’t attend. You can get on the short list and try to attend the interview on short notice.

This carries with it its own risk because you have to be ready to go on basically a moment’s notice, to go and plead your case as to why you think you need asylum in the United States. Short of that, really the only other thing that works is filing a lawsuit against the immigration service, against the asylum office, but because of the great discretion that asylum officers have in deciding these cases, we’ve been very reluctant to file lawsuits on these cases. I think federal judges are going to give the asylum office a lot more leeway then they might in other cases now.

Delays of three, four or five years might be on their very face unreasonable and that might allow a lawsuit to proceed. We’ve had some success with asylum lawsuits. We have another one pending now. We’ve had another one where a guy was waiting for four years. We filed suit, and we got him his asylum approved after two long interviews. For the most part, when you’re applying for asylum, you’re basically asking for a very generous gift from the United States government and they frankly have a lot of leeway in who they give it to. We can complain all we want about these case taking too long, but really there’s not that much leverage short of a lawsuit that lawyers or asylum applicants have.

If you have any questions about why your asylum case is taking too long, or if you’re thinking about applying for asylum and you have questions, be sure to give us a call at 314-961-8200. You can email us at info@hackinglawpractice.com.

If you liked this video, be sure to click on the like button below. Share it with your friends and family so they can find out about asylum as well, and make sure to subscribe to all of our channel on YouTube and Facebook. Join our Facebook group Immigrant Home so that you get updated as soon as we update all of our social media. Thanks a lot and have a great day.

 

 

Real World Effects of Cutting Family-Based Immigration


President Donald Trump and some conservative Republicans in Congress want to severely limit the number of family-based immigrant visas granted each year.

Legislation recently introduced by Senators Purdue and Cotton would cut the number of family-based visa petitions in half.

A recent piece in the New York Times highlighted how these proposed changes would affect the Guyanese-American community in New York City.

Over 280,000 foreign-born Guyanese live in the United States (0.9 percent of the total population).  More than half of those people live in New York City, making it the fifth-largest immigrant group in the five New York boroughs, and the second largest in the borough of Queens.

According to the piece, the Guyanese people bring in more family members through the immigration process than any other immigrant group in the city.  Thirty-seven percent entered as immediate relatives, a visa category with no numerical cap.

According to Joseph Salvo, the chief demographer for the City, Guyanese “are heavily reliant on family preferences – and reliant on categories that, under this proposal, would disappear.  There’s no question that they would be affected in a dramatic fashion.”

Trump’s bill would narrow the definition of immediate relatives – removing parents from the list and lowering the age of eligibility for children from 21 to 18. It would also eliminate the ability of U.S. citizens to sponsor their brothers and sisters for a visa.

While it remains unclear whether this bill will ever become law, it is very troubling for immigrants in the Guyanese community and around the country.

The Unlucky Undocumented: How Being in the Wrong Place at the Wrong Time is Getting Immigrants Deported

People often ask us how life for immigrants has changed since Donald Trump became President.

We tell them that one major change is the fact that Immigration and Customs Enforcement now routinely sweeps up immigrants during raids even when those immigrants were not the targets of the raids.

For these people, they just happen to be in the wrong place at the wrong time.

In these scenarios, ICE is raiding a house or work place to find a particular undocumented immigrant, but come into contact with additional, previously unknown undocumented immigrants.

And that is how they get caught.

As explained in this recent piece from Time magazine, “[u]nder the Trump Administration’s new enforcement priorities, Immigration and Customs Enforcement agents are instructed to detain and deport anyone who is in the country illegally, which means even so-called “non-targets” may end up in custody after a raid.”

As an example, Time cites a four-day operation in late July 23017 in which ICE arrested 650 people.  Of those, 457 were not targets of the raid.  This means that 70% of the immigrants were unlucky and got caught in the middle of a raid meant for someone else.

President Barack Obama had stated, defined priorities detailing who ICE should be looking for – namely criminals and people who had already been deported from the U.S. who were now back in America.  President Trump did away with those stated priorities.

ICE spokeswoman Danielle Bennett explained to Time that since the priorities have been eliminated, no classes or categories of removable undocumented immigrants are exempt from deportation.

“I think that our agency now feels that we can make arrests. They’re in compliance with federal law, there aren’t the restrictions,” she said. “It allows more flexibility for the officers to make decisions from their personal dealings with the person.”

As of now, based on raw statistical data, about 44% of those being deported under President Trump do not have criminal records.  This is a slight increase over the 42% of those deported during the Obama era.

Undocumented Dad Nabbed by ICE while Dropping Daughter Off at School Gets Another Chance

Last week, the Board of Immigration Appeals vacated a deportation order entered against Romulo Avelica-Gonzalez.  Romulo’s case drew nationwide attention after a YouTube video surfaced of his daughter weeping after his arrest by Immigration and Customs Enforcement.

In February, Avelica-Gonzalez was taken into custody by ICE while he was dropping off his daughters at school.

Here is the video taken in the moments after the man was taken into custody.

He has been held at the Adelanto Detention Facility in San Bernardino County since he was taken into custody.

Romulo has lived in the U.S. for 25 years, but had no way to obtain lawful permanent resident status in the States.  He has two misdemeanor convictions – one for receiving stolen car tags and one for driving under the influence.

Avelica-Gonzalez has four children who are U.S. citizens, according to National Day Laborer Organizing Network (NDLON). He was working as a cook at the time of his arrest.

“He should not be imprisoned just for trying to live a better life and stay with his family,” Avelica-Gonzalez’s 13-year-old daughter, Fatima, said in a prepared release.

Fatima is the daughter who videotaped her father’s arrest.

Avelica-Gonzalez’s immigration lawyer has successfully gotten those convictions vacated and the Board of Immigration Appeals then granted his request for an emergency stay of deportation while it reviewed his case.

His legal team has requested that ICE release Romulo while the deportation case proceeds.  A new bond hearing is set for August 30, 2017.

ICE has a long-standing policy instructing agents to  avoid conducting enforcement activities at so-called “sensitive locations” such as churches, hospitals and schools, unless absolutely necessary. But Avelica-Gonzalez’s arrest at his daughter’s school sparked renewed concerns that ICE is loosening that policy — an accusation that federal officials have denied.

With regards to the latest BIA decision in AVelica-Gonzalez’s case, Department of Justice spokesman Kenneth Gardner said officials had no official comment about the decision by the Board of Immigration Appeals. “The decision speaks for itself,” Gardner wrote in an email.

U.S. Universities Work to Help International Students Stuck by Trump Muslim Ban

U.S. colleges and universities are taking steps to help F-1 international students who fear returning home due to President Donald Trump’s Muslim travel ban.

After several attempts at implementing the ban, the current version of Trump’s plan bars citizens from Iran, Libya, Syria, Somalia, Sudan and Yemen from receiving visas to enter the U.S.

An exception exists if the foreign national can demonstrate a “bona fide relationship” with a citizen or entity in the U.S.

Most legal scholars and commentators believe that enrollment in a U.S. institution of higher learning would qualify as the necessary type of relationship, but many students are afraid to take the chance and return home.

Their concern is that while it would be very easy to leave the U.S., there is no guarantee that the embassy in their home country would issue them a new visa for re-entry into the U.S.


So instead of taking the risk and leaving the U.S., many students are playing it safe by remaining in the U.S. during summer and holiday breaks.

A recent story in the Washington Post highlighted the efforts of international student services offices as American universities to make life a little easier for their foreign national students.

The fact is that international students pay the highest tuition rates and many colleges have come to rely on the extra income that educating foreign nationals brings to the school’s bottom line.

“With the uncertainty that’s there, I think people have been thinking twice about some of these decisions and wanting to make sure that they don’t put themselves in situations that could complicate their lives,” said Fanta Aw, the interim vice president of campus life at American University in Washington, D.C. 

For now, the safest thing to do is stay in the U.S. as long as possible.  The risk of problems at the embassy is simply too great unless a true emergency requires the international student to return home.