The past few months have been a busy time in the world of immigration law. We know many people are struggling to filter truth from rumor. In a climate like this, it can be hard to know what to believe and how to plan for the days ahead. Here is what we know today, and possibly expect tomorrow under the current administration.
The Travel Ban(s)
The Executive Orders addressing refugees and issuing visas has understandably caused a lot of confusion. The situation with this order is changing as litigation continues around the country to stop the travel ban(s) and at the moment the enforcement of the order has been suspended by the 9th Circuit. However, many people remain nervous about traveling or are confused about how this order could impact their immigration cases in the United States, and so we wanted to draw attention to a few key points:
- Impact on Asylum Applications: Refugees and Asylees are two different groups of people. Although the standards for getting benefits are the same, the Executive Order was talking about refugees (people who apply from overseas), not asylees (people who apply within the United States at either an asylum office or immigration court). Limitations on refugee applications or admissions do not impact asylum cases at the asylum office or immigration court. In other words, if you are in the United States and have an asylum application pending, that case will continue going forward regardless of what happens with the Executive Order. See #5 in USCIS Scialabbo Memo from February 2, 2017. Asylum applications are still be accepted and will continue being accepted from anyone who is in the United States or reaches the U.S. port of entry.
- Entering the U.S. on a visa or traveling on a non-immigrant visa or travel document: The travel ban only impacts visa holders who are traveling on passports from one of the following 7 countries: Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. The Department of State is reporting that there are no plans to expand this list of countries at this time. The restrictions on entry for these countries are currently on hold and so entry in to the U.S. on a visa for people from these countries should be possible at this time, but that is subject to change. Visa holders from these countries who are currently in the United States should speak with a lawyer before traveling internationally, as the situation is very fluid and re-entry to the United States may become difficult if the Executive Order is upheld in later court hearings.
- Travel for green card holders: The travel ban does not impact green card holders, even for green card holders from one of the 7 impacted countries.
- Applying for benefits in the United States: On February 2, 2017, USCIS issued a memo instructing that the processing of immigration applications for people already in the United States is not impacted by the Executive Order, even if the applicant is from one of the 7 impacted countries. This means that family-based petitions (I-130), adjustment of status applications (I-485), U visa petitions (I-918) change/extension of status petitions (I-539), refugee/asylee relative petitions (I-730), naturalization applications (N-400), and other applications for immigration benefits will continue being decided through the usual process, as long as the person receiving the benefits of that application is already in the United States. See Scialabbo Memo
DACA is not dead
- USCIS is currently still accepting DACA renewal applications and first-time applications.
- There is a draft order circulating that would end DACA program, but it is unclear if or when this order will be signed. The draft order (which could change) allows people to keep their current work authorization until it expires or until 2019. In light of the possibility that the DACA program may be terminated, applicant may want to consider applying for renewal early. For example, if your DACA work card is expiring in October 2017, you may want to consult lawyer about if applying for renewal now is a good idea. For many people, it may be beneficial to renew now and ensure that your work card will be good for at least two years, rather than waiting and risking that the program will end before you renew.
- We are still actively encouraging those who qualify for DACA to continue to apply as they age into qualifying for the program.
Moving to Canada (or some other country)
Some people in the community have been considering going to Canada to seek asylum there or returning to their home country rather than risk deportation. While this is a personal choice, we do want to caution that re-entering the United States might be difficult in many circumstances if you leave now. Some things to keep in mind:
- If you leave the U.S. while in removal proceedings with the immigration court, your case is considered abandoned and the charges brought against you in immigration court become final. The immigration courts sometimes refer to this as “self-deporting.” In other words, you cannot continue an immigration court case from outside of the U.S., and it is very difficult, if not impossible, to reopen an immigration court case or ask the immigration to reconsider your case after leaving the U.S. This is particular true in the Eighth Circuit, which is the jurisdiction that Minnesota is in.
- The United States and Canada also have a treaty designed to prevent people who have been in the United States from also seeking asylum in Canada. It is unclear how this treaty will be enforced under the current conditions, but going to Canada after spending time in the U.S. might mean forfeiting an asylum claim here and also being barred from applying for asylum in Canada.
- Even if you are not in removal proceedings, leaving the United States may make it more difficult to ever return. Some forms of immigration relief, such as cancellation of removal, are only available to people who are currently in the United States and have been here continuously for a certain amount of time. Other forms of relief, such as I-601A waivers and Asylum, Withholding of Removal and Protection under the Convention Against Torture, cannot be applied for from outside of the United States.
- There are also additional penalties under current immigration law for people who have entered the United States without status more than once. That means that if you are undocumented and leave the United States, re-entering without status again could mean forfeiting many immigration options in the future.
- Please also be aware that crossing into Canada on foot can be extremely dangerous, especially during the winter. Reports are circulating that people have been hospitalized at the border for frostbite and other serious conditions.
Enforcement (ICE) Operations
We have heard reports, both locally and nationally, that ICE enforcement priorities have changed in light of the Executive Order on Border Security and Immigration Enforcement Improvements. The situation is rapidly changing, but it appears that ICE operations, including detaining people, have increased and are impacting people who previously would not have been a priority for removal.
The main impacts at the moment appear to be:
- It has been reported that ICE has been picking up individuals who have overstayed their visas, particular F-1 student visas
- It has been reported that ICE has detained individuals who appeared at USCIS for an interview if those individuals had prior criminal convictions, such as a DUI
- It has been reported that ICE is detaining people who do not have legal status when those people just happened to be in the same area as someone that they were affirmatively looking for
- It has been reported that ICE is picking up people who have been arrested on criminal charges, even if those charges have not yet resulted in a conviction
- There have been reports that some people who have current cases pending with an Immigration Court have been detained at their check-ins with ERO
- It has been reported that ICE has been picking up people who have prior criminal convictions, particular convictions for violent crimes (including crimes involving domestic violence) and DUIs
- It has been reported that individuals with outstanding removal orders are being picked up by ICE or detained at their check-ins with ERO
At this time, we have not heard reports of:
- ICE targeting people who are seeking legal status, such as through the U visa process or a marriage-based case, unless the individual has a prior DUI or other crimes
- ICE targeting individuals with DACA, unless the individual has recent criminal convictions or is suspected of gang membership
What can you do?
- If you think you may have options for legalizing your status, you should speak with a lawyer about this as soon as possible. This includes if you have U.S. citizen relatives (spouse, parents, children over age 21), have been the victim of a serious crime, were brought to the US as a child and may qualify for DACA, or are afraid of torture or persecution in your home country. It is much easier to work with a lawyer to prepare your case prior to being detained, rather than waiting until removal proceedings have been started.
Know your rights
- You have the right to remain silent – you do not have to answer any questions ICE asks you, including questions about your status or where you were born. You have the right to tell ICE you wish to speak with a lawyer before answering questions.
- You do not have to let ICE into your home unless they have a warrant. You have the right to not open the door and to ask ICE if they have a warrant. If they say yes, you have the right to ask them to slide the warrant under the door so you can examine it. More information about examining warrants can found here (and in Spanish)
- You do not have to show an ICE officer your immigration documents or other papers. You have the right to tell them you want to talk with a lawyer before showing any documents.
- If you are detained, you have the right to contact an attorney immediately.
- You have the right to refuse to sign anything prior to receiving advice from an attorney
- CE may try to pressure you into signing paperwork saying that you are choosing to leave the U.S. If you sign this paperwork, you may be deported very quickly. You have the right to tell them that you do not want to leave the U.S. and that you wish to see an immigration judge about your case. Again, you can tell them that you do not want to sign anything until you have spoken with a lawyer and heard your options.
- Many organizations have created cards that you can print out and carry with you to show ICE to assert these rights. A few examples are available here, here, and here.
Have a plan!
- If you think ICE may be looking for you, make sure someone you trust knows where you are and that you know how to reach them in case of an emergency (keep their phone number with you).
- Make sure that person knows where you keep your important documents, such as your passport, immigration paperwork, proof of how long you have lived in the U.S., proof of U.S. citizen family members, and anything else that you think may be useful for an immigration hearing.
- Your emergency contact should also have information about what the plan is if you are offered a bond, including whether you have savings that can be used for that or who can be contacted to help raise money for a bond. Any immigration bond must be signed for by a U.S. citizen or permanent resident.
- If you are going to a check-in with ICE, make sure that someone you trust is aware of this in case you are detained at that meeting. You may wish to contact a lawyer prior to attending a check-in with ICE or bring contact information for a lawyer with you to the check-in in case there are any problems.
- ICE may try to remove people faster, including denying them access to an immigration judge, if they have been in the U.S. for less than two years. If you have been in the U.S. for longer than two years, you may want to consider gathering evidence of this and carrying it with you or keeping it somewhere where your emergency contacts will be able to easily access it.
- You may want to consider developing an emergency plan, including plans for childcare, in case you or a family member is detained by ICE.
- Carry contact information with you in case of an emergency. This information should also be shared with your emergency contacts (friends or family) so that they will know who to call if you are detained. The after-hours emergency contact information for Wilson Law Group is 612-554-5306.