Category: Service Areas

The Immigration Net is Tightening

President Donald Trump ran on a platform of America First.  As a candidate, he promised to Make America Great Again by, in part, making the United States less friendly to immigrants.

Several recent developments have made clear that Trump is following through on his campaign promises.

Employment Based Immigration

At our office, we have seen several signs that one of the Trump Team’s focus is employment based immigration.  The DHS has ramped up scrutiny of work visas and green cards through employer sponsorship.

Earlier this year, USCIS turned off premium processing for most H1b cases.  The agency also announced that it would be cracking down on the use of “computer programmer” as a specialty occupation as the basis of an H1b.

Two months ago, USCIS announced that it would now conduct face-to-face interviews on employment green cards.  USCIS always had this power, but rarely used it before Trump came into office.

We attended a naturalization interview recently with a client who came to America on an H1b, obtained a work based green card and then started his own information technology (IT) consulting company.

The N-400 interview included a whole lot of questions about our client’s work-based immigration history. The officer was extremely interested in whether our client and the companies that he worked for had complied with all of the rules regarding employment based cases.

Jim shot a short video about the interview in Tampa.

These changes represent a significant change in how employment-based visas are handled and it appears that these changes are here to stay.

Non-Immigrant Visas and Crimes

One way that we stay up to date on what’s going on across the immigration landscape is by participating in online forums and Facebook groups with other immigration lawyers.

One of those groups is called Cool Immigration Lawyers.

Earlier this week, one of our colleagues in Memphis reported that Immigration and Customs Enforcement had placed her H1b client in removal proceedings.

The basis of the removal proceedings was that the client had been charged with Driving Under the Influence of Alcohol.  The Department of State quickly revoked his visa and then when the man pleaded guilty, ICE issued him a Notice to Appear, which is the document that commences deportation proceedings.  ICE also took him into custody and only released him after he paid a $25,000 bond.

We believe that ICE’s aggressive position may ultimately fail.  But that is little consolation for the foreign national who thought he was all set on his immigration status but now finds himself facing deportation from the U.S.

It is not clear whether this new approach is an isolated incident by one ICE office or part of a nationwide policy.  It is also unclear as to whether this approach will apply only to DUI’s or to other crimes committed by immigrants.

The point for now is that ICE and DHS are not playing around.  These are serious times and immigrants are feeling the pressure.

 

Trump’s Muslim Ban 3.0 Halted by Federal Judge

President Donald J. Trump’s third attempt to ban people from predominantly-Muslim countries has been halted by a federal judge in Hawaii.

The newest version of Trump’s ban was set to go into effect today, October 18, 2017.

Judge Derrick K. Wilson, who ruled previously that the prior ban was unconstitutional, found that Muslim Ban 3.0 “lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States,’ ” evidence that he believes is necessary for the ban to be enforceable.

Judge Wilson’s ruling is directed to individuals from the six predominantly-Muslim countries – Syria, Somalia, Libya, Iran, Yemen and Chad.  Wilson allowed the limited portion of the ban on the two newly-added countries – North Korea and Venezuela – to go into effect.

For the six countries, a temporary restraining order has been issued, temporarily halting the ban.

The Department of Justice has made clear that it will appeal the ruling.

In a statement, the DOJ argued that the restraining order “is incorrect, fails to properly respect the separation of powers, and has the potential to cause serious negative consequences for our national security.”

Similarly, the White House issued a scathing statement: “The entry restrictions in the proclamation apply to countries based on their inability or unwillingness to share critical information necessary to safely vet applications, as well as a threat assessment related to terrorism, instability, and other grave national security concerns.  These restrictions are vital to ensuring that foreign nations comply with the minimum security standards required for the integrity of our immigration system and the security of our Nation.”

Two other federal courts are also considering the enforceability of this third version of the ban.

As a candidate, Donald Trump ran on a platform of banning Muslims from the U.S.  His pre-election statements and those issued while President have crippled the DOJ’s attempts to argue that the ban is not religiously based.

 

DOJ Wants Deportation Case Quotas to Speed Up the Removal System

Attorney General Jeff Sessions wants to instill “numeric performance standards” on our nation’s federal immigration judges.  The immigration courts are currently processing 600,000 cases, which is three times as many cases on the books in 2009.

The National Association of Immigration Judges called the move “unprecedented” and calls Sessions’s plan the “death knell for judicial independence.”

Dana Leigh Marks, who served as an immigration judge for 30 years, said the Sessions plan constituted a “huge, huge, huge encroachment on judicial independence.”

“It’s trying to turn immigration judges into assembly-line workers,” she claimed.

Sessions also claimed last week that frivolous and/or fraudulent asylum claims were also responsible for slowing things down in the Executive Office for Immigration Review (the formal name given to the immigration courts).

The judges’ union argues that the current contract that it has with the government prevents them from being rated based on the number of cases that they complete or the total time it takes for a final decision.

(Just as a point of reference, immigration judges are not actual Article 3 federal judges, but rather administrative law judges and part of the Department of Justice itself).

The Department of Justice is now trying to ignore that language and to compel cases to start moving.

One thing that Sessions is ignoring is that while Congress has allocated significant resources for capturing and detaining undocumented immigrants, the same amount of resources has not been allocated to the immigration courts themselves.

There simply are not enough judges.  Currently, our office is getting court dates two and three years away due to the backlog.  An average non-detained case takes two years or more to be decided.

President Trump apparently plans to request an additional 370 immigration judges, which would double the current number.

While a stated goal of an efficient immigration system is understandable, blaming immigration judges for the delay is simply wrong.  Immigration judges have enormous caseloads and are already stretched to the limit.  Most judges have more than 2,000 open cases.

The fact of the matter is that these judges are often making life-or-death decisions for the immigrants before them.  Literally, life-or-death.  Do we really want them just running the cases through as quickly as possible?

Seems like a really bad idea.

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!

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.

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.

Winning the Diversity Visa Lottery is Just the First Step

Winning the lottery is just the first step.

Back in the fall of 2016 we were approached by a family – mom, dad, and two adorable kids.  Mom had just won the diversity visa lottery.  The couple was originally from Iraq and were here in the United States studying on F1 visas.
This is an annual process in which the U.S. State Department accepts annual entries of people from countries that are underrepresented in immigration to the United States.  If they are selected, they are then eligible for immigrant visas for themselves, their spouse, and their kids.
If the winners are outside the country, the case is processed through an Embassy abroad.  If they are inside the country with a valid status, such as a student visa, they can apply for their green cards in the United States.
As with everything in immigration, however, there is a catch.
Winning the lottery gives you a number and that number gives you the earliest date at which you can apply for your green cards, in this case the middle of spring.  And the case needs to be completed by September 30, for a process that with other kinds of green cards frequently takes up to a year.  No room for error.
We worked with this family throughout the spring to gather all of the documents so that we could get it on file as soon as possible.  We filed four green card applications  in late April and requested expedited interviews.
On July 27, mom, dad, two kids, a toy dinosaur, and attorney Andrew Bloomberg went to the USCIS office here in St. Louis for a very thorough interview.  Later that day, we got word that all four cases had been approved.
Congratulations to our four new permanent residents, and a reminder that sometimes it pays to play the lottery!

I Became a U.S. Citizen Today!

It’s not often that you receive an email with a headline like this.

But that is exactly what one of our clients happily reported to us last week.

His name is Nurudeen.  He is a doctor in Wisconsin.

Here’s what else he had to say:

Can’t thank you enough for your professional advice and promptly filling my [writ of mandamus] which I believe expedited my naturalization interview.
I highly appreciate Andrew Bloomberg services and review with me..
It’s a glorious day in my life thanks. Attached is my picture and certificate.

Thank you and best regards.

Nurudeen also was kind enough to include the picture from his oath ceremony.

Nurudeen contacted our office two months ago.  He had been waiting for his naturalization interview for months and months.  He tried to get answers from USCIS but to no avail.

Nurudeen contacted his members of Congress and called the 1-800 USCIS number over and over.

Nothing worked.

We scheduled a Skype call to find out what was going on with Nurudeen and to ask him why he thought his case might be delayed.  Nothing made a lot of sense as he is a physician and is taking care of sick people in Wisconsin every day.

We decided to file a writ of mandamus lawsuit on Nurudeen’s behalf.  We filed the suit in the district court for the District of Columbia.  We served copies of the lawsuit on the Department of Homeland Security, US Citizenship & Immigration Services, John Kelly (DHS Secretary), Jeff Sessions (Attorney General) and the Federal Bureau of Investigation.

Things started happening quickly at that point.  Nurudeen finally received his naturalization interview notice.  Andrew Bloomberg from our office attended in the interview with Dr. Nurudeen last week and he was approved on the spot

He became one of our newest citizens last week and we could not be happier for him.

Congratulations, Dr. Nurudeen!

As Trump Eases Enforcement Priorities, Undocumented Immigrants Feel the Squeeze

If you want to understand what it feels like when Immigration and Customs Enforcement (“ICE”) comes to get an undocumented immigrant, read this article in Newsweek.

As a candidate for President, Donald Trump promised to round up the “bad hombres.”  His Attorney General has routinely called for stricter enforcement of our nation’s immigration laws.  John F. Kelly, the head of Homeland Security, has similarly promised that until Congress changes our immigration policies, his agency would enforce the laws on the books to the fullest extent possible.

Enter Jonatan Palacios, an undocumented man from Honduras.  Back in 2008, he was ordered deported by an immigration judge.  ICE recently found Mr. Palacios and took him in to immigration custody.

In an interview with Newsweek, Palacios said “I was so panicked.  I was trying to think through every little detail. Eventually, there was nothing else we could do and I just got out of the car, gave Lillie a hug and went with them.”

Immigration lawyers across the country explain that since Trump came into office, ICE has moved sharply away from the Obama-era policy of deporting criminals first.  Now, all undocumented immigrants are at risk.

Under Obama, agents were required to follow a specified list of priorities. Under Trump, ICE can investigate any undocumented immigrant they deem to be a “risk to public safety or national security” —a deliberately vague mandate, say immigration experts, that gives individuals in the agency a lot of leeway to make their own choices.  For better or worse.

This is contrary to candidate Trump’s promise to focus on “bad hombres.”

It should also spark a debate about what our nation’s immigration process should look like.

Do we really want to deport millions of people who have lived in the U.S. without proper authorization for years and years but who have committed no crimes?

Or, given the limited financial resources that ICE and other law enforcement agencies have, do we want to prioritize those who violate the laws?

In addition, the current approach under Donald Trump appears hostile, mean-spirited and destined to break up thousands of families.