Tag: immigration executive actions

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Updates

Latest Court Ruling Affects First Time DACA Applicants

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On July 16, 2021, a federal court Judge Andrew Hanen ordered the U.S. Citizenship and Immigration Services (USCIS) to stop the processing and approval of new DACA applications. What is the impact of this decision on DACA recipients and those with pending DACA applications?

Jose turned 18 years old in January 2021.  When Jose was 5 years old, he was brought to the United States by his Aunt and his immigration status was never legalized. He practically grew up in the United States and completed his high school education and dreams, one day, of becoming a physician.

When President Biden was elected, Jose filed for protection under the Deferred Action for Childhood Arrivals. This is the first time that he applied for DACA.  The U.S. Citizenship and Immigration Services acknowledged receiving his application but no action has been taken so far.  On Friday, July 16, 2021, Jose learned that the Federal Court Judge ruled against new DACA applicants. What are the chances that he will be granted employment authorization and protection under DACA?

The DACA Program

In 2012 President Obama created a policy called Deferred Action for Childhood Arrivals (DACA), calling for deferred action for certain undocumented young people who came to the U.S. as children. Applications under the program began on August 15, 2012. More than 800,000 DACA eligible individuals filed for protection and employment authorization under this DACA program.

Legal Challenges

DACA has always been the subject of legal challenges where certain States question the legality of the DACA program. When former President Trump took office, he immediately issued an order rescinding DACA. Several lawsuits were filed questioning the rescission of the DACA program.

On June 18, 2020, in Department of Homeland Security v. Regents of University of California,the U.S. Supreme Court struck down the Trump administration’s termination of the DACA program and ruled that the termination of DACA was “arbitrary and capricious” under the Administrative Procedures Act (APA). While it ruled against its termination, the Court did not rule on whether or not DACA itself is lawful, but merely held that the Trump administration did not follow the law when it tried to terminate the program. In Casa de Maryland v. U.S. Department of Homeland Security,  a federal judge in the U.S. District Court of Maryland ordered the Department of Homeland Security (DHS) to reinstate the DACA program to its 2017, pre-termination status and to start accepting new applications.

On July 16, 2021, Judge Andrew Hanen, a federal judge in the State of Texas, issued a ruling declaring DACA as unlawful since, according to his decision, the Department of Homeland Security has no authority to create DACA and to prevent immigration officials from enforcing the removal provisions of the law.

Impact of the Decision: First Time DACA Applicants Adversely Affected

Jose’s application as illustrated above will be put on hold as a result of the recent decision.

Those who have received prior DACA protections and employment authorizations are not affected by the decision. Unfortunately, first time DACA applications will be placed on hold by the U.S. Citizenship and Immigration Services which means that no new DACA applications will be approved at this time. The federal Court decision blocked USCIS from approving any new DACA cases. Hence, all individuals who have submitted DACA initial applications (those that never had DACA and are applying for the first time) and have not received an approval from USCIS will have their application held. This applies to all initial cases that were not approved prior to July 16, 2021.

What about individuals who already had prior DACA for the first time and are renewing? If an applicant was recently granted DACA for the first time, his/her DACA will remain valid and may be renewed.

Future of DACA

President Biden vowed to appeal the federal court decision. But while this is on appeal, the new DACA applicant’s fate will be put on hold. The more permanent solution is for Congress to pass the American Dream and Promise Act which bill is waiting to be passed.

President Obama emphasized the importance of passing legislation to protect our DREAMers.  On his Twitter posting, he said that “For more than nine years, DREAMers have watched courts and politicians debate whether they’ll be allowed to stay in the only country many of them have ever known, it’s long past time for Congress to act and give them the protection and certainty they deserve.”

Let us continue to strongly support our DREAMers, by calling and urging our representatives in Congress to pass the American Dream and Promise Act. Undeniably, our young DREAMers deserve better.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com , facebook.com/tancincolaw, or through her website www.tancinco.com)

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Updates

We’re now facing Trump’s harsh immigration policies

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After eight years of being accustomed to the Obama Administration’s compassionate and humanitarian immigration policies, we’re now witnessing a 180-degree. Enforcement of immigration law will soon be heightened not only against aliens with criminal convictions, but to practically all who are violators of immigration law, including those who have overstayed their visas and those who have committed acts that are considered misdemeanors.

The Executive Order signed on January 23, 2017 relate to border security, admission of refugees and immigration enforcement. Building a physical border wall that extends 2,000 miles along the border with Mexico will cost taxpayers billions. While President Trump says that Mexico will pay for the wall, the pronouncements of Mexico’s President show otherwise. How will this be feasible? Also with a provision in the Executive Order barring political asylum seekers, what will America do with those women and children escaping persecution?

More agents

On immigration enforcement, the hiring 10,000 more Immigration and Customs Enforcement (ICE) officers to arrest non-citizens who have violated immigration law, detain and remove undocumented immigrants already ordered removed in the past are also part of the Executive Order.

ICE together with CBP at the border will be turned into a deportation force with the power to remove any non-citizen without due process, who in the “judgment of the immigration officer” (not an immigration judge) is a risk to public safety or national security.

For the Filipino immigrant who has already fallen out of status, there is grave concern about this aggressive immigration enforcement. There is a marked distinction between former President Obama’s Executive Action and that of President Trump.

In former President Obama’s Memorandum on Prosecutorial Discretion, he categorized certain immigrants that should be subjected to removal. There is a list of priorities that were enumerated emphasizing that those with strong family ties in the U.S. are to be accorded deferred action and will be the last on the list of priorities for removal. ICE was instructed to prioritize those with serious criminal offenses, resulting in record high removal of immigrants with criminal offenses at the same time preserving family unity.

Broad range of targets

On the other hand, Trump’s Executive Order lists a broad range of individuals that are subject to enforcement. The list includes those who (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense, where such charge has not been resolved; (3) have committed acts that constitute a chargeable criminal offense; (4) who have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency; (5) Have abused any program related to receipt of public benefits; (5) Are subject to a final order of removal, but have not departed. There is no ranking or prioritizing in this list and no reprieve from removal is mentioned to those with strong family ties in the U.S.

The effectivity date of Trump’s Executive Orders is uncertain. It is possible that ICE is already immediately acting on it. A day after President Trump signed the Executive Order, a group of ICE Officers were spotted at a non profit child care center in San Francisco, to apprehend a criminal offender. The children and workers at the center were all taken aback and eventually the ICE officers left without arresting anyone. This is alarming considering that there is an existing 2011 ICE Memorandum instructing ICE officers to stay away from sensitive places like churches and schools.

Whether the presence of ICE officers in our cities will be a common sight in the coming days is horrifying to all of us not only to undocumented immigrants. But this is just the beginning. There are concrete steps we can take. We start by writing our legislators and urge them to oppose Trump’s immigration policies of indiscriminately prosecuting and removing immigrants. Legal challenges in court will be filed to attack the constitutionality of Trump’s Executive Actions. We stand in solidarity with all immigrants and stay firm with our principles and values that made America a strong nation of immigrants.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or 415 397 0808)

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Updates

USCIS proposes parole status for foreign entrepreneurs

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The U.S. Citizenship and Immigration Services (USCIS) released a proposed rule that will allow the individuals referred to as “international entrepreneurs” to enter the United States temporarily on parole.  The parole status is similar to the status given to children of Filipino war veterans in a recent policy implemented a couple of months ago but in a different context. This recent international entrepreneur rule is considered to be a significant public benefit parole program to promote entrepreneurship and job creation.

There is a gap in the current immigration law  that will permit start up entrepreneurs  who receive significant capital investment from U.S. investors to stay and operate their businesses in the United States. Foreign students who are potential entrepreneurs and founders of start-ups have limited ways  to stay on a temporary visa after they graduate. Young immigrants who are researchers, innovators specifically in new technologies are not afforded sufficient avenues to develop their own start up businesses within the United States. The proposed  policy allows USCIS to use its discretionary parole authority to fill this gap and grant parole to founders of start-up entities whose entry would provide “significant public benefit” and whose start-ups have potential to facilitate research and development , create jobs for U.S. workers or otherwise benefit the U.S. economy through increased business activity, innovation and dynamism.

The proposed rule will grant parole status to an applicant who is an “entrepreneur”  of a start-up who has an active role in the operations and growth of the business. This entrepreneur must have recently formed a new start-up entity within three years before the date of filing the initial parole application.

Unlike an investors visa where the entrepreneur must show infusion of capital to the business that is formed from his own resources, an international entrepreneur seeking parole must show that the start-up business has potential for a “rapid growth and job creation.”

There are 3 alternative ways to prove this: first, that the business has significant U.S. capital investment of $345,000 or from established U.S. investors such as venture capital firms, angel investors and the like who have a history of substantial investment in successful start-up entities; second, the business received government funding of grants totaling $100,000 or more; and, third, any reliable and compelling evidence that will prove significant public benefit to the United States.

It is expected that this proposed rule will be implemented before end of this year; and, as soon as the rules are final, the USCIS will start accepting applications on new USCIS Form 941. The filing fee for this application is $1200. Once the application is approved, the entrepreneur, his/her spouse and minor children will be paroled into the United States and will receive employment authorization documents. Parole will be granted for up to 2 years and may be renewed for up to 3 years.

Recently it is noticeable that the current administration has been releasing new immigration policies. Even with a few months left before President Obama leaves office, he has somehow made good his promise to use his Executive power to fill in the gaps that have been left open by the failure of a divided Congress to pass any form of immigration legislation that is responsive to the competitive new global economy.

(For inquiries, you may reach Atty. Lourdes Santos Tancinco, Esq., at 1 888 930 0808 or email law@tancinco.com. This article also appears in the Philippine Daily Inquirer.)

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Global Pinoy

Prosecutorial discretion as an option for the undocumented

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Ten years after arriving in the United States, Eva seems to have lost her hope of legalizing her stay. She was petitioned by her U.S. citizen fiancé, but after a few weeks of living together as a couple, her petitioner abandoned her. Her U.S. citizen fiancé never married her. She now has a child who was born in the United States from a subsequent relationship, but the father also refuses to acknowledge the child; and, neither is he marrying Eva.

In 2014 when President Obama announced the Executive Actions for parents of U.S. citizens (DAPA), Eva became hopeful that she would have an opportunity to stay and work legally. After an adverse ruling was rendered on June 23, 2016 by the U.S. Supreme Court upholding the injunction on the DACA+ and DAPA, Eva became fearful that this setback would have the effect of immediate removal/deportation from the United States for the millions of immigrants who were prospective beneficiaries of the DAPA and DACA+.

Secretary of the U.S. Department of Homeland Security Jeh Johnson, made a public statement that the enforcement priorities will be focused on those who have criminal convictions, threats to public safety and national security and border security. New immigration violators or those who just arrived and are now in unlawful status are second in priority for enforcement. Last in priority of enforcement are those with other immigration violations or those who are in the country in unauthorized status. This last category of immigrants is considered non-priority.

Despite these categories of enforcement priorities, there are recent cases where the DHS still placed in removal proceedings individuals who are in a non-priority category. This is quite troubling for those who are already in authorized stay. While there is no increase in the apprehension of undocumented immigrants, it is important to understand that if there is no immediate relief available, prosecutorial discretion may still be requested.

This prosecutorial discretion refers to different actions by the DHS to avoid removal, placing an individual in removal proceedings, dismissing an action, deciding to release a detained individual or whether to grant deferred action or parole. There is a broader deferred action policy that may be asserted in requesting for prosecutorial discretion.

There are different factors taken into account in order to warrant a favorable exercise of discretion from DHS. It may include, among others, the following: length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.

Eva may take still have the option of requesting for prosecutorial discretion if she ever finds herself in immigration court for removal proceedings. Whether or not she will be granted favorable exercise of discretion will depend on the circumstances of her case.

Absent comprehensive immigration reform as well as the DACA and DAPA programs, prosecutorial discretion remains good policy and may always be requested especially in humanitarian cases where removal will affect families with U.S. citizens or lawful permanent residents.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)

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Global Pinoy

Predicament of American daughter: Family separation

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Sonia was born and raised in San Jose, California. From the outside, Sonia seemed like your typical happy-go-lucky senior in high school getting ready to go college, but at home, Sonia lives a different reality.

Her parents, Edgar and Rowena, are from the Philippines. They came to the United States when Rowena was pregnant with Sonia and decided to overstay their tourist visa.

Refused to leave

When Sonia was very young, her parents were arrested by the Immigration Service and were to be deported. Edgar and Rowena, however, refused to leave the US and decided to stay. For years, they hid their status and tirelessly worked several under-the-table jobs so Sonia could study in the best schools and participate in after-school activities.

Illegal status

It was only recently that Sonia found out about her parents’ illegal status in the United States when she wanted to apply for private student loans for college. Since finding out the truth about her parents’ illegal status, Sonia has been worried that her parents can be taken anytime from her and she’s scared of what will happen when she leaves for college. She relies on her parents for everything, emotional and financial needs. In two weeks, Sonia will be turning 18 years old and instead of the usual birthday debut celebration, she told her parents not to prepare anything special.

Instead, she wanted to take steps to help her parents. Is there anything that Sonia can legally do for her parents?

Deferred action

More than a year ago, US President Barack Obama released two immigration executive actions that will provide immigration relief to undocumented parents of US citizens (called DAPA or Deferred Action for Parents of Americans); and, an expansion of the Deferred Action for Childhood Arrivals (DACA) for undocumented young immigrants.

The DAPA and DACA will affect more than 4 million undocumented immigrants.

Instead of the implementation of these reliefs, however, a lawsuit was filed by 26 states. Currently, the implementation of Dapa, the program which was supposed to allow undocumented parents with US citizen children to obtain an employment authorization document and be deferred from removal, is still suspended until the US Supreme Court decides on this case.

It is expected a decision will be reached by June 2016. Until then, parents with US citizen children will have to avail of alternative options.

US citizen children may only petition their parents after they turn 21 years old. Until Sonia reaches this age, there is really nothing much she can do affirmatively to help her parents with their immigration status. Even assuming that she turns 21 years old, there is a bigger hurdle that she has to overcome before she can file a petition for her parents.

The deportation order may be enforced anytime by the Department of Homeland Security (DHS) against her parents if they are found to be still present in the United States. Fortunately, there is “prosecutorial discretion” request that may be filed with the DHS to prevent this from happening.

Sonia’s case is very sympathetic and her desperation to help her parents is understandable considering that her parents are her only means of support. She represents many young immigrants who are in the same situation and who were afforded the opportunity to be integrated into the American system just to be threatened with family separation with no relief available.

Hopefully, the DAPA litigation will result in a favorable judgment for the Obama administration and her parents will be given temporary relief.