Tag: President Donald Trump

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What’s in the Horizon for Filipino Officials and Individuals Subject to the U.S. Travel Ban?

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On December 20, 2019, President Trump signed a budget law known as the “Further Consolidated Appropriations Act of 2020” (Public Law 116-94). This law includes a provision that implements the Global Magnitsky Act which is a legislation that relates to significant steps that U.S. may take to protect and promote human rights and combat corruption around the world. Part of the sanctions under this Act is a U.S. travel ban of those individuals identified to have violated human rights .

The matter of applying this sanction on certain Philippine government officials responsible for the detention of Philippine Senator Leila De Lima is not mentioned specifically in the budget law signed by President Trump. However, it is found in the Senate Committee Report by reference stating that the Global Magnitsky Act provision banning from entry to the U.S. applies to Philippine government officials responsible for the detention of Senator De Lima. Committee Reports accompany most bills that become law and are sources of determining legislative intent. It can be inferred that the congressional intent is to include the officials responsible for the detention of Senator De Lima and apply the sanctions.

To expound further on the congressional intent, Senate passed S.Res 142 on January 8, 2020, “A resolution condemning the Government of the Philippines for its continued detention of Senator Leila De Lima, calling for her immediate release, and for other purposes”. Among the provisions of the resolution is the call to apply the sanctions of the Global Magnitsky Act to Philippine government officials responsible for the arrest and prolonged detention of Senator De Lima. Until resolutions are incorporated into a bill that becomes law, a resolution merely expresses the opinion of the Senate. They have no force of law.

But with the Committee Report and now the S.Res 142, it is more likely the sanctions of the Global Magnitsky Act will apply to government officials of the Philippines responsible for the arrest and detention of Senator De Lima. And if they apply, what is next?

Within 30 days from the date of the signing of the Consolidated Appropriations Act of 2020, the names of individuals that are included in the sanctions of the Global Magnitsky Act which includes a ban from entering the United States will be reported to the U.S. Congress and will be posted on the State Department website. This means those on the list will have visa applications denied, or be refused entry even if they have prior issued visas.

There will be no arbitrary process for inclusion in the travel ban list. The State Department should have “credible” information that government officials are involved in human rights violations or in the arrest and detention of Senator De Lima. The agency that decides who will be on the travel ban list is the Department of State. Assuming a government official and his/her family members are on the list, will this travel ban be a permanent bar?

Unless the grounds for denial of visas are based on espionage, sabotage or attempt to overthrow the U.S. government, most grounds of inadmissibility are subject to waivers. These include prior criminal convictions, public charge grounds, misrepresentation, fraud and prior removal. And if waivers are approved, the visa applicant may be approved for the visa and be allowed to enter the United States.

The same waiver may apply to those subject to the travel ban under the Global Magnitsky Act. The budget law specifically mentions that the Secretary of State, “may waive the application of paragraph (1) if the Secretary determines that the waiver would serve a compelling national interest or that the circumstances which caused the individual to be ineligible have changed sufficiently”. So if there is a compelling national interest or if the circumstances have changed, the travel ban will be lifted and visas may be issued again.

Since this will affect mostly government officials, there is also an exception to the application of the sanctions. The budget law states that the ban will not apply if the entry to the U.S. would further U.S. law enforcement objectives or is necessary to permit the U.S. to fulfill its obligations under the United Nations Headquarters Agreement and as long as it will not derogate U.S. obligations under applicable international organizations.

Given the above provisions, we can conclude that the travel bans are not absolute. To propose counter sanctions by requiring Philippines visas to U.S. citizens, including former Filipino citizens who are not dual citizens, is certainly within the exercise of prerogatives by the Philippine government. However, it may be fair game to ask if doing so is beneficial to Philippine interests considering that the majority of US citizen travelers to the Philippines would most likely be former Filipino citizens themselves and/or may discourage investments from US citizens or entities due to visa requirements.

(Atty. Lourdes Santos Tancinco, is an immigrant advocate, founder and a principal partner at the Tancinco Law Offices, 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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Deportation of “Millions” of Undocumented Immigrants?: Know Your Rights in Case of ICE Arrest

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President Trump’s tweet on June 17, 2019 that millions of immigrants are going to be deported beginning next week is once again a threat to hundred thousands of Filipino immigrants who are without legal status. While interior enforcement of immigration law has been Trump’s administration priority, mass deportation was not really fully effected perhaps because of lack of ICE resources or some constitutional issues. If indeed ICE is now ready to “remove millions of undocumented immigrants’’, revisiting their rights becomes of utmost importance.

The Immigration Legal Resource Center based in San Francisco CA released the Know Your Rights below which may be asserted if the inescapable ICE visit or arrest takes place.

You have the right to remain silent.
You can assert your fifth amendment right. You can refuse to speak to an ICE agent. Do not answer any questions, especially about your birth place, immigration status or how you entered the United States. Say that you want to remain silent until you speak with a lawyer.

You have the right to demand a warrant before letting anyone into your home.
The ICE agent may not enter your home without a warrant. You do not have to give permission for him to enter. It is okay not to open your door unless the agent shows you the warrant. If the warrant is presented to you, ask the agent to slip it under the door or through the window. Make sure it is signed by a judge with your correct name, address and date of birth.

You have the right to speak to a lawyer and the right to make a phone call.
It is important to have your attorney’s phone number handy. You will be entitled to make a phone call. If you do not know your attorney’s number, call a trusted friend or relative to coordinate with your attorney.

You have the right to refuse to sign anything before you talk to a lawyer.
There will be some documents that will be presented to you for signing after you are apprehended and taken into custody.. Do not sign anything. If you sign without understanding the nature of the document, it is possible that you are signing a waiver of your rights to a lawyer or to a hearing. And if you waive these rights, it may result in your immediate removal without a hearing.

You have the right to refuse to show any documents before speaking with a lawyer.
When you are visited by an ICE agent, you do not have to give permission to search any of your belongings unless there is a warrant. You can ask to speak with a lawyer before you submit any documentation.

Each case of an unauthorized individual is distinct and all non-U.S. citizens must be vigilant about their rights. Considering the threat of a mass apprehension, it is worth exploring legal options with a trusted professional immigration attorney and from there decide on an appropriate course of action to obviate fear of possible removal.

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

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Latest Court Ruling Orders USCIS to Accept New DACA Applications

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After President Trump announced the termination of the Deferred Action for Childhood Arrivals (DACA) on September 5, 2017, several lawsuits were filed questioning the validity of the termination. Two court injunctions were already issued by the federal courts in San Francisco and New York ordering the USCIS to continue accepting renewals for the DACA protection. On April 26, 2018, another federal court in the District Court of Columbia also issued an injunction against the termination of the DACA program. With the latest injunction the court ordered USCIS to also accept new DACA applications.

Who will benefit from this latest court ruling?

Joshua entered the United States when he was 7 years old. When the DACA was announced in 2012, Joshua was only 10 years old. When Joshua turned 15 in December 2017, he was not allowed to apply for a DACA application. No new DACA applications were accepted after the announcement of the termination of the DACA protection in September 2017. This is the reason why Joshua has not applied for the DACA protection. Last week, Joshua heard about this new court ruling and wants to apply for the DACA protection and for an employment authorization card. What can he do?

Requirements for DACA

DACA was available to any undocumented young immigrant who:

  1. came to the United States when she was under the age of sixteen;
  2. had lived in the United States continuously since at least June 15, 2007;
  3. was enrolled in school or had graduated from high school or been honorably discharged from the military;
  4. had not been convicted of certain criminal offenses and posed no threat to national security or public safety; and
  5. was under the age of thirty. Young immigrants who are out of status, who met these criteria were eligible for renewable, two-year grants of “deferred action” on their removal from the United States.

Termination of DACA and the Lawsuits

On September 5, 2017, then-Acting Secretary of Homeland Security Elaine C. Duke issued a five-page memorandum rescinding DACA program. USCIS would adjudicate any properly filed DACA applications that were pending as of September 5, 2017, as well as any new applications for the renewal of DACA benefits that were filed on or before October 5, 2017 by persons whose benefits were set to expire on or before March 5, 2018.

On September 8, 2017, the University of California filed a complaint challenging the rescission of the DACA program and asking the court to enjoin the implementation of the rescission. On January 9, 2018, the district court issued an order directing the government to partially maintain the DACA program. As a result, the USCIS issued guidance that they are accepting renewal applications.

On April 24, 2018, the U.S. District Court for the District of Columbia held that DHS’s decision to rescind DACA was “arbitrary and capricious” and vacated the termination of the program. The court ordered DHS to accept and process new DACA applications, as well as renewal DACA applications – however, it stayed its order for 90 days to give the government a chance to respond. The decision of the court differed from previous court rulings because it would affect new applications – i.e. initial applications from individuals who have never applied for DACA previously but who are eligible to apply.

After 90 days, Joshua will be able to file for a new DACA application as per order of the U.S. District Court by proving that he meets all the above eligibility requirements. While this is a positive development, DACA is only a temporary program and its future is very uncertain. It would be best if there will be a permanent path to citizenship for the Dreamers. At the moment, there are several bills before the U.S. Congress addressing this issue. The most appropriate bill that must be passed into law is the Dream Act (HR 3440 and S.1615). If passed into law, it will provide a path to naturalization to Dreamers after 5 years in conditional permanent resident status.

(Atty. Lourdes S. Tancinco is a San Francisco-based immigration lawyer and immigrant’s rights advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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End of DACA puts at risk up to 6,000 young Filipino recipients

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There are approximately 22,000 young Filipino immigrants who are eligible to apply for benefits under the Deferred Action for Childhood Arrivals. Only 27 percent of those eligible applied, or approximately 6,000. The rest of these young Filipino immigrants continue to wait for permanent solution to their status. With the announcement that President Donald Trump is ending the DACA program will those who took advantage of the DACA program be arrested and eventually be deported?

Unfortunately, those who are just in the process of filing their DACA applications for the first time, will no longer be able to do so. This will affect those who just became eligible to apply for DACA and those who took time or postponed the filing of their DACA applications despite the fact that they were eligible. After September 5, 2017, USCIS will no longer accept new DACA applications.

Future of DACA recipients

There is a short window afforded to existing DACA recipients to renew their expiring DACA employment authorization documents (EAD) if these EADs are expiring between September 5, 2017 and March 5, 2018. The request for renewal and application for employment authorization document must be received by U.S. Citizenship and Immigration Services no later than October 5, 2017. This is an important deadline because USCIS will reject all requests to renew ACA and associated applications for EADs filed after October 5, 2017.

Once the application for renewal is adjudicated, USCIS is expected to renew it for another two year period or until 2019. Unfortunately, for those whose DACA benefits are expiring after March 5, 2018, once their employment authorization document expires, USCIS will no longer be able to accept and adjudicate their applications for renewal. This means that beginning March 6, 2018, there will be DACA recipients who will be deprived of their protected status and will be reverted to their unlawful status.

Will DACA recipients be deported?

It was clearly mentioned during the announcement by Attorney General Jeff Sessions that the DACA recipients are not considered priority for enforcement. While this may sound favorable, there is no guarantee that ICE will not issue Notices to Appear for removal hearings. The USCIS confirmed that it will not share information obtained through DACA applications with the ICE agents. However, it is important to note that unless ICE is requesting that information based on certain factors like national security, public safety and fraud, the information may still be shared for enforcement. It will still be best for this DACA recipients to be vigilant about their situation and to be familiar with their rights especially their rights to a hearing and their right to counsel.

Congressional action

Terminating the DACA program within 6 months will afford the U.S. Congress time to enact a law benefitting the DACA recipients. At present there are two bills pending, the Dream Act (S.1615) before the Senate and the American Hope Act (H.R.3591) before the House of Representatives.

If these bills are passed into law, it will provide permanent solutions to protect DACA recipients and give them a pathway to lawful status. These young immigrants will have to take steps to ensure that they are safe from removal.

We also encourage compassionate members of our community, who believe that DACA recipients deserve a chance to build their lives in the country they call home, to work together towards the passage of the Dream Act by contacting their representatives in Congress.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)