Keeping up with U.S. immigration news has certainly become a significant challenge lately since there is so much happening each and every day! As if May and June were not tumultuous months…it just keeps going – like a runaway train! Where should I begin? Well, here it goes:
THE FEAR FACTOR
I just read a very disturbing story that ICE entered a domestic violence court hearing in North Carolina and placed a Colombian woman who came to the U.S. in 2016 and overstayed her tourist visa and her 16 year old son who has been involved in a back and forth dispute with former fiance (who had previously filed a domestic abuse complaint against the former fiance in which he was accused of severely beating her son) in detention! This will surely have a chilling effect on foreign nationals who will be reluctant to report and prosecute domestic violence situations out of fear of becoming bait for ICE! It will also discourage defendants charged with minor criminal offenses from showing up in criminal court out of fear they will be apprehended by ICE-because this has happened in New York and elsewhere! We recently had a client from South Asia who was scheduled to appear for an arraignment in Staten Island after his criminal attorney had arranged a plea deal with the prosecutor to obtain a dismissal of the criminal charges-but was unable to appear in court because of a severe case of the flu! So what happened? ICE was there and simply apprehended the foreign national based on the pending charges and placed him in immigration jail in New Jersey – now, this particular client had a green card application pending based on marriage to a U.S. citizen! Yes, he had a pending green card application in the works but was still deportation bait for ICE!
The Trump administration is now saying that more than 900 immigrant parents are ineligible for reunification with their children after being separated at the U.S.-Mexican border! The administration says it has 2,551 immigrant children between the ages of 5-17 in its care, all of whom were separated from their families under Pres. Trump’s “zero-tolerance” immigration policy, which refers anyone detained at the border for criminal prosecution. Incredibly, only 364 have been reunited although the federal court order requires that unification be completed by July 26th! In a recent court filing, government lawyers stated that approximately 1,606 parents of those children are potentially eligible for reunification while nearly 908 may be out of luck!
THE TRUMP ADMINISTRATION IS NOW UPENDING THE ENTIRE U.S. IMMIGRATION SYSTEM!
Before proceeding further, I must say that the greater issue is the Trump administration’s overall scrutiny (and outright intervention) in regard to “legal” immigration – basically, radically overhauling the entire U.S. immigration system in a very short time-without the approval of Congress or following the rule of law! USCIS has just announced the formation of an agency to review suspected fraud in citizenship applications-that is, those who are suspected of having lied to adjudicators during the naturalization process. And, what is really disturbing is the new adjudication policy memo which says that starting September 11th (how fitting!) USCIS adjudicators will be authorized to simply deny benefit applications for green cards, E, H & L-1 working visas, student visas, etc., if there is missing or inaccurate information (or really for any reason!) without asking for more evidence or issuing a notice of their intent to deny, which has been common practice for many years! What differentiates immigration adjudications from standard legal practice is that we are generally not given the opportunity to present our case before an impartial adjudicator. That is, most benefit applications are handled by USCIS adjudicators in Vermont, Texas, Nebraska and California – without any opportunity for immigration lawyers to plead or discuss the particular case or application! Yes, this is about to happen-please remind me that we are not living in Nazi Germany! Yes, what started with the gazillion dollar Trump Border Wall has now become a runaway train affecting all aspects of U.S. immigration and policy! People often comment: “this must be good for your business!” And I respond, while it is certainly keeping us very busy lately, I am extremely concerned about the significant erosion of immigrants’ rights, the outright assault on the rule of law, etc. by the current administration as well as USCIS. Misery (and fear) does not make me happy!
EB-5 GREEN CARD INVESTMENT – A GREAT PROGRAM THAT IS OFTEN A MINEFIELD
In other news, the Vermont Attorney General announced a $2.1 million settlement (chump change!) of the state’s investor fraud case against developers Quiros and Stenger of the Vermont EB-5 Regional Center involving Jay Peak, etc. This could leave many EB-5 foreign national investors in limbo – and out of luck with respect to their $500,000+ investments! It is amazing how many innocent foreign national investors have been lured (and steered by highly compensated agents stationed abroad, especially in China) into very questionable EB-5 projects and how many established American immigration lawyers, including a past president of the American Lawyers Association, were getting very handsome kickbacks by EB-5 developers for referring foreign nationals to the various regional centers such as Jay Peak! Still, EB-5 has become a terrific mechanism for foreign nationals from India and China, generally facing lengthy waiting periods, to obtain green cards in a relatively fast manner! And, EB-5 brings a great deal of $ into our country!
THE END OF ASYLUM AS WE HAVE KNOWN IT!
As to other stories of note, we hear that immigrant shelters have used psychotropic drugs on detained teenagers without approval or consent from parents or guardians, very young children are being detained in cage-like concentration camp settings that are dirty and without clean water under strict supervision, other very young children who don’t speak English are being forced into immigration courts to defend themselves since there is no right to counsel in immigration proceedings (officially speaking, deportation/removal proceedings are not criminal in nature – hence, no right to counsel), the Trump administration is now considering further efforts to “shrink the asylum system” and discourage applicants from applying based on the belief that our country is taking in too many foreigners. Washington is radically trying to reshape America’s historical reputation as a safe haven for the politically oppressed! Part of this effort would eliminate the use of offices along the southern border which are known as ports of entry asylum centers. The administration will compel potential asylum seekers to remain in Mexico, amidst very dangerous conditions, while their applications are being reviewed and adjudicated – and likely denied! Apparently, the administration has instructed asylum officers to review potential applications according to much stricter standards then ever before! Interestingly, President Trump stated on Twitter that he wants the power to immediately reject applicants who have no clear basis for asylum at the border before permitting them to plead their cases in front of immigration judges! He said, “We cannot allow all of these people to invade our Country-when somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.” And, he is doing just that-without firm political opposition or judicial intervention! He is confident, having just won his “Travel Ban” case in the U.S. Supreme Court and having the opportunity to further conservatize the Court, that he will ultimately prevail even if temporarily blocked by the lower federal courts! Keep an eye on the Statue of Liberty – it may soon be history!
FULL FRONTAL ASSAULT ON THE RULE OF LAW!
Now, I have been engaged in immigration legal practice for 30 years and have never before seen such a full frontal assault on the rule of law! The president, Attorney General Sessions, and the leadership (as well as rank and file) of USCIS is using (and abusing) executive authority and bypassing Congress to radically reshape the nation’s immigration laws, rules and regulations – at every level! This is unprecedented in our nation’s legal history – and little is being done to stop this onslaught! Where is Congress while this onslaught is happening? Why are Republicans in Congress permitting this to occur and afraid to stop this seismic change to our historical legal system? Recent Gallup polls have demonstrated that most Americans actually support some form of legalization of the many thousands of illegal immigrants who represent a major lifeline to our great country. They are truly what makes Americans great! Yet, now they are being tossed out of the armed services after joining to fight for America based on the promise of obtaining U.S. citizenship and subjected to deportation and removal to countries, particularly in Central America, that are highly dangerous and unstable! Meanwhile, on the positive side, I meet so many foreign nationals each and every day who are still seeking to live, work and invest in America and establish companies here – but are now afraid because of these hostile policies! America and its leaders must recognize that foreign nationals have been and still are a tremendous resource for our country! It is no coincidence that most of the American Nobel prize winners over the years were born abroad! America was seen as a magnet for the best and the brightest – but will that continue?