Although Congress has not changed the immigration law for several years, President Trump has implemented a series of policies that have serious implications for immigrants and the processing of immigrant applications with U.S. Citizenship and Immigration Services. This article lists and explains some of the most important changes in policy, with the aim of empowering immigrants to make educated decisions about their lives, their security, and their immigration cases.
This information is intended for general use, and is not intended as legal advice.
Increased Interior Enforcement
In February of 2017, The Department of Homeland Security announced a new enforcement policy that drastically expanded the category of people to be prioritized for removal.
Under previous policy, immigrants who had been convicted of serious crimes were prioritized for deportation.
In contrast, the new policy authorizes federal agents to detain any immigrant suspected to be in the country illegally, regardless of criminal record. At the same time, ICE has stepped up its enforcement operations, and in 2017 ICE arrests of immigrants reached a three-year high.
Cooperation Between Local Law Enforcement and Immigration Officials
The Trump Administration’s February 2017 policy changes encourage local law enforcement to cooperate in enforcing federal immigration law and purport to punish localities that refuse to cooperate.
If you are arrested or detained, you have the right to remain silent. Do not answer any questions about your place of birth or immigration status, do not sign anything that you do not understand, and ask to speak to a lawyer.
Furthermore, if you are the victim of a crime – including domestic violence – you may qualify for immigration relief if you report the crime and cooperate in the investigation or prosecution of the crime. Victims of crime should not hesitate to report; in our experience, most law enforcement authorities are great advocates for crime victims, regardless of immigration status.
Travel Bans and Extreme Vetting
The Supreme Court has upheld the most recent version of President Trump’s travel ban restricting travel into the United States by individuals from Chad, Iran, Libya, Korea, Somalia, Syria, Venezuela, and Yemen. The travel ban essentially halts the issuance of all visas to nationals of the designated countries, with limited exceptions. Immigrants from the affected countries should consult with a qualified attorney before traveling abroad or filing any application for an immigration benefit.
The executive order imposing the travel ban also orders extreme vetting of all immigrant applicants deemed to be a potential security threat, regardless of whether they are from one of the seven designated countries. As a result, additional screening procedures are being added to the already rigorous vetting of immigrant applicants, and applicants should be prepared to respond to requests for additional information, interviews, and significant delays in the processing of applications.
Termination of Deferred Action for Childhood Arrivals (DACA)
The Trump administration attempted to terminate DACA as of March 2018, but whether the President has the authority to terminate the program is unclear and is still being litigated in federal court. Right now, individuals who have already been granted DACA can apply to renew their status and continue living and working in the United States legally. First-time applications, however, are not being accepted at this time.
The future of DACA remains uncertain. In the absence of comprehensive immigration reform, however, the program affords valuable protection and security for hundreds of thousands of young immigrants. It is exceedingly important that DACA recipients and potential new applicants stay informed about the status of the program and consult with a qualified immigration attorney to determine their eligibility for the program.
Termination of Temporary Protected Status (TPS) for Five Countries
TPS is a humanitarian program that allows certain individuals from counties facing natural disasters or extreme violence to remain in the United States lawfully. The Trump administration has announced the termination of the program for five countries: El Salvador, Haiti, Nicaragua, Sudan, and Honduras. As a result, more than 400,000 individuals—many of whom have lived in this country for over 20 years—could be put at risk of deportation.
Whether the government has the authority to eliminate TPS protection for these countries is being litigated in federal court. While the litigation is pending, a federal judge has ruled that the government must maintain TPS for immigrants from El Salvador, Haiti, Nicaragua, and Sudan. This means that some TPS recipients may be eligible to continue to lawfully live and work in the United States, at least temporarily.
TPS beneficiaries are encouraged to speak to a qualified immigration attorney to determine how their case may be affected by this litigation. Furthermore, an experienced immigration attorney can help TPS beneficiaries assess eligibility for other immigration benefits.
Increased risks and consequences for denied applications
U.S. Citizenship and Immigration Services (U.S. CIS) recently announced a revision in policy which makes it easier for reviewing officers to deny an application without warning if they deem it to lack sufficient evidence to establish eligibility for the benefit.
The new policy also states that individuals whose application for an immigration benefit have been denied may automatically be placed in removal proceedings, forcing them to appear before an immigration judge.
The practical result of these policies is that more applications will be denied and the consequences of being denied are significantly increased. However, as scary as these new policies may sound, eligible persons should not be deterred from applying for immigration benefits. The passage of increasingly antagonistic policies against immigrants highlights the importance of obtaining legal status, if possible. Working with an experienced immigration attorney can significantly reduce the likelihood that an application will be denied. In some cases, immigrants may actually benefit from appearing before an immigration judge since judges have the authority to grant relief in some cases that would not otherwise be available.
Longer Processing Times and Increased Application Fees
The number of applications for immigration benefits has increased significantly in recent years, and at the end of last year, U.S.CIS had a backlog of approximately 5.6 million pending applications. This backlog and the resulting delays in processing applications have been exacerbated by new policies requiring heightened scrutiny of all applications. In some cases, processing times have more than doubled.
In response to longer processing times, U.S. CIS—which is funded almost exclusively by application fees—increased application fees by an average of 20 percent in 2016. The agency is once again reviewing changes to its fee structure, and additional increases can be expected in the near future.
Proposed Rule Could Make it Harder for People Who Receive Government Assistance to Get Immigration Benefits
A new rule proposed by the Trump administration could make it harder for immigrant families who have relied on public assistance to receive legal status in the United States. This rule still has not been adopted, but if it goes into effect, it could allow some immigration benefits to be denied to immigrants who have received, or who have dependent family members (including U.S. citizen children) who have received, any public service, including non-emergency Medicaid, CHIP, SNAP, WIC, Section 8 housing vouchers, the Low-Income Home Energy Assistance Program, the earned income tax credit, and financial assistance provided under the Affordable Care Act.
Increased Hurdles to Citizenship for Members of the Military
Immigration law provides a special, expedited path to citizenship for immigrant members of the armed forces. However, in 2017, the Department of Defense announced that immigrant military personnel would be required to undergo extensive background investigations and would be required to serve for a longer period of time before applying for this benefit. As a result, this policy makes it significantly more difficult and time-consuming for military personnel to take advantage of the immigration benefits of serving in our armed forces.
Increased Obstacles for Asylum Seekers
Asylum is a well-established legal principle in American and international law grants protection to foreign nationals in the United States who have a well-founded fear of persecution in their country of origin. The Trump administration, however, has characterized it as a “loophole” in the immigration laws, which it accuses asylum seekers of exploiting, and the administration has attempted to sharply restrict the ability of migrants to request asylum in this country.
In April 2018, Attorney General Jeff Sessions announced a “Zero-Tolerance” policy, under which the Trump administration began separating families seeking asylum. Then, in June 2018, Jeff Sessions issued a legal ruling that made it much harder for migrants fleeing gangs or domestic violence to qualify for asylum. Both of these polices have disproportionately migrants from Central America and have made it significantly harder for them to exercise their legal right to request protection under the asylum laws of this country.
Animosity against asylum seekers has further increased with news of the “caravan” of migrants from Central America, and President Trump has doubled down on his efforts to prevent migrants from requesting asylum. For months, migrants seeking asylum have reported that U.S. Customs and Border Protection officers have turned them away at the border, telling them that the country is full and to come back later. Then, in November 2018, President Trump announced an executive order attempting to prohibit migrants caught crossing illegally from requesting asylum. A federal judge has temporarily blocked this order, however, pending litigation to determine its legality.
There are currently an estimated 5,000 migrants camped outside of Tijuana, Mexico—and many more along the rest of the U.S.-Mexico border—waiting to request protection under the asylum laws of the United States. Although these migrants have a legal right to request asylum, the United States government has prevented them from doing so and has even resorted to shooting tear gas into crowds including families and children. These actions violate both American and international law and are morally reprehensible.
Zero Tolerance and Family Separation
In June 2018, the Trump administration announced that it would end its former policy of separating children from parents accused of entering the country illegally, and instead began detaining the children with their parents in federal detention centers. However, under a twenty-year-old court settlement designed to protect immigrant children in government custody, the government is prohibited from detaining children for more than 20 days, unless the facility is a state-licensed child care facility.
In order to circumvent these standards regarding the treatment of children in detention, the Trump administration has announced a proposed rule that would authorize the government to obtain “alternative federal licensing” for facilities where children are incarcerated. If finalized, this rule would allow the federal government to set its own standards for detaining children with limited independent oversight of conditions. The elimination of protections for children in detention is extremely troublesome, particularly in light of repeated reports of widespread abuse and inappropriate conditions in federal family detention centers.
We at Walker Gates Vela strongly condemn these attempts by the federal government to detain children indefinitely in potentially unsafe and under-regulated facilities.
Elimination of “Administrative Closure” in Immigration Court
In May 2018, former Attorney General Jeff Sessions issued a legal decision that practically eliminated the practice of “administrative closure”, a mechanism that immigration judges have used for decades to control their caseloads by temporarily taking certain cases off their docket and prioritizing cases ready to be heard.
By eliminating administrative closures, the Attorney General undermined the independence of immigration judges to manage their dockets. More importantly, the end of administrative closures could have disastrous human consequences for immigrants in removal proceedings but eligible to apply for a visa or legal permanent residence, which can take years and thus are unlikely to be resolved before an immigrant is deported.
Erosion of Judicial Independence
On October 1, 2018, the Department of Justice, which oversees the immigration courts, instituted new requirements for immigration judges that have the effect of undermining judicial independence and the right of due process in immigration proceedings.
The new standards implement a quota requiring immigration judges to complete 700 cases each year, or approximately 3 cases each day. The standards, furthermore, institute a series of new performance metrics, including the imposition of penalties on judges whose decisions are overturned on appeal in more than 15 percent of cases.
These changes have been sharply criticized by immigration advocates as well as the National Association of Immigration Judges, the union representing immigration judges. Immigration cases can be highly complex, and it is inappropriate for judges to be pressured to resolve such cases quickly without due consideration of the issues, or for judges to consider how their career may be affected if the case is overruled on appeal. These changes, furthermore, jeopardize the due process rights of immigrants to a fair trial and the opportunity to be heard.
Do Not Be Deterred From Seeking Legal Status
As scary as these new policies may sound, eligible persons should not be deterred from applying for immigration benefits. The passage of increasingly antagonistic policies against immigrants highlights the importance of obtaining legal status, if possible.
Working with an experienced immigration attorney can significantly reduce the likelihood that an application will be denied. In some cases, immigrants may actually benefit from appearing before an immigration judge since judges have the authority to grant relief in some cases that would not otherwise be available. Thus, more than ever before, the advice and guidance of a trusted immigration attorney is of the utmost importance when seeking to change or legalize your immigration status.