August 2021 Newsletter

by | Aug 30, 2021 | News

  • The Fall of Afghanistan: Visa Options for Those Who Can Depart
  • Federal Judge Halts Adjudication of Initial DACA Applications
  • Good News for F-1 Students: USCIS Eliminates Requirement for “Bridge” Applications During Pendency of I-539, Extension or Change of Nonimmigrant Status
  • Supreme Court Denies Bond Hearings to Individuals with Reinstated Removal Orders
  • AG Garland Restores Fairness to Asylum Law and Removal Proceedings
  • Another Trump Era Case Vacated by AG, Returning Administrative Closure to the Immigration Court’s Toolkit; Meanwhile, Court in Texas Blocks ICE’s Enforcement Priorities
  • ICE Directive Updates Treatment of Pregnant, Postpartum, and Nursing Mothers
  • NIEs Now Valid for 12 Months in Most Cases
  • News in Brief:
    • New I-485 Adjustment Application Form Required 10/13/2021;
    • Redesignation of Yemen and Somalia for TPS;
    • Extension of Initial Registration for TPS for Applicants from Venezuela, Syria, and Burma;
    • DED for Hong Kong Residents;
    • Administration Announces Policy of Expedited Removal at U.S.-Mexico Border;
    • USCIS Temporarily Extends Validity of Medical Exams;
    • Border Agent to be Required to Wear Body Cameras;
    • Work Authorization Available for Certain F-1 Students from Haiti and Somalia;
    • EO Suspends Entry of Certain Individuals Contributing to Situation in Belarus;
    • DV Visas from Last Year Ordered to be Issued

The Fall of Afghanistan: Visa Options for Those Who Can Depart

The most recent fall of Afghanistan to the Taliban is both stunning in speed and devastating for the tens of thousands who supported the U.S. mission over the last two decades. In a span of just 10 days, Afghans saw their hopes and dreams crumble. With many people stuck at the airport and others sheltering in place, the international community – the U.S. government, relief organizations, and immigration attorneys, among many others – have mobilized whatever support they can to Afghans who seek to escape and to resettle in the United States.

Legally, Afghans who seek to enter the United States can do so on immigrant visas, including the

the Special Immigrant Visa (SIV), P1 or P2 (see below) or humanitarian parole. The SIV program allows Afghans who work or worked “by or on behalf of the U.S. government in Afghanistan,” as well as family members, to qualify for visas and lawful permanent resident status in the U.S. To be eligible for an SIV, an Afghan national must have been employed for a minimum of two years by the U.S. government or the International Security Assistance Force, and the applicant must prove “faithful and valuable service” through a recommendation letter from a supervisor. Further, the applicants must provide evidence of continuing serious threat because of their service. (Before the current crises, DHS reported that it was taking the agency 996 calendar days – almost three years – to process SIV applicants as a result of bureaucratic red-tape for those eligible, such as securing proof of time-in-service and relevant documentation. As of early August, more than 18,000 Afghans were currently awaiting decisions on their SIV applications at the Embassy in Kabul.)

Under the U.S. Refugee Admission Program (USRAP), eligibility has been expanded according to two separate priorities (P1 or P2). First, Afghans such as those under especially severe threats – including women and girls, human rights defenders, journalists, and other civil society actors –can be P1-eligible if the United Nations High Commission for Refugees (UNHCR), a U.S. embassy, or NGO refers an applicant to USRAP. Secondly, those who do not qualify for an SIV can become P2-eligibile if they worked for contractors (and/or the broader Mission Resolute Support), a U.S. government funded program, or a U.S. based media or NGO organization. According to the estimates, Afghans who qualify for either of these program priorities number in the tens of thousands.

Humanitarian parole is another mechanism available to Afghans; it permits a person to be paroled into the United States for humanitarian purposes. Such applicants, however, normally must apply for a travel document (Form I-131), which must be issued in order for the person to board a commercial flight and then enter the United States. The rules regarding obtaining humanitarian parole in advance are changing by the day and it appears that some Afghans who are in transit already will be “port” paroled without applying first for humanitarian parole if they can get on a U.S. evacuation flight. Afghans with approved I-130s but who have not yet cleared the immigrant visa process also will be paroled in by CBP.

The Biden Administration has secured agreements with more than two dozen countries to help serve as transit points or other relocation points for people who are getting out of Afghanistan so that DOS can complete visa processing and security checks. This hopefully will alleviate some of the bottlenecks in the system. But the chaos remains: not only has the airport in Kabul been stormed by panicked Afghans, but others cannot get to Kabul and its airport, the last operational airport in the country.

At the very least, we have a moral obligation to fully and unequivocally protect our Afghan partners. This should include all the thousands of applicants who supported our mission in their home provinces but have been unable to reach Kabul. President Biden must abide by his statement to these Afghan nationals when he stated “we will stand with you just as you stood with us.” We cannot walk away from this tragedy.

Federal Judge Halts Adjudication of Initial DACA Applications

On July 16, 2021, Judge Andrew Hanen of the U.S. District Court in the Southern District of Texas concluded that Deferred Action for Childhood Arrivals (DACA) was illegal because it violated the Administrative Procedures Act (APA). The decision does not, however, have an immediate impact on current recipients of DACA, which is estimated to be around 616,300. Renewal applications for DACA benefits can be submitted and will continue to be processed by USCIS as will applications for advance parole for recipients of DACA. However, initial applications for DACA benefits will be impacted by the decision as they cannot be adjudicated. Currently, there are an estimated 81,000 initial applications pending before USCIS that will remain in abeyance as a result of this decision.

The decision hinged solely on procedural grounds, holding that DACA should have gone through a notice and comment period according to the APA. On June 17, 2021, DHS Secretary Mayorkas released a statement indicating his disappointment with the court’s ruling, and said “DHS remains focused on safeguarding DACA, and we will engage the public in a rulemaking process to preserve and fortify DACA. The Department of Justice also intends to appeal yesterday’s order. Moreover, we will continue processing DACA renewal requests, consistent with the ruling.” In addition to promising to challenge the legality of Judge Hanen’s decision and rectify procedural errors, the Biden Administration urged the passage of legislative reform to allow a pathway for DACA recipients to obtain permanent residence.

Beyond the 81,000 pending initial DACA requests, there is an estimated as many as 1.3 million DACA eligible individuals living in the United States who did not apply for benefits because of the Trump Administration’s attempt to rescind the program and prohibit initial applications. As of May 31, 2021, only 1,900 of the initial applications submitted since the reopening of the program in December 2020 had been adjudicated by USCIS. Earlier in July, the Biden Administration assigned more USCIS officers to adjudicate backlogged DACA applications.

The DACA program, which was enacted through executive order by President Obama in June 2012 after Congress failed to pass the DREAM Act, provides temporary protection and work authorization for certain persons who arrived in the United States prior to June 15, 2007 and under the age of 16, remain continuously in the United States, pass a criminal background check, and meet educational requirements or serve in the U.S. military. While only a temporary solution, DACA has transformed lives of recipients, allowing them to work, to pursue their education at the university level, and, in some cases, to travel abroad.

Despite the DACA program’s success, the decision magnifies its fragility and limitations. While urged by some politicians, long-lasting legislative reform to protect DACA recipients appears to be unlikely to pass the current Congress. While the Democratic House passed “American Dream and Promise Act,” in March of 2021, the bill has an estimated 29% likelihood of passing the Senate according to political analysts. As urged in previous newsletters, rather than rely solely legislative reform, DACA recipients and DACA-eligible individuals should consult and strategize with their attorneys to preserve and pursue legal options available to them to obtain permanent residence.

It is worth noting that Judge Hanen previously blocked President Obama’s 2014 attempt to enact protections through executive order for certain undocumented parents of U.S. citizen and lawful permanent resident children who arrived in the United States. The program was known as Deferred Action for Parental Accountability (DAPA), and also was stopped because of procedural errors in how it was implemented. The matter reached the Supreme Court the following year, which voted 4-4 on the issue. As the Supreme Court could not reach a majority, the lower court’s ruling stood, and the program was never able to be put in place, to the dismay of immigration advocates.

Good News for F-1 Students: USCIS Eliminates Requirement for “Bridge” Applications During Pendency of I-539, Extension or Change of Nonimmigrant Status

USCIS has announced that, effective July 20, 2021, eligible applicants awaiting a change of status to F-1 classification no longer need to submit subsequent, or “bridge” applications for extension or change of nonimmigrant status while the initial F-1 change of status application is pending.

A Trump policy required F-1 change of status applicants to continuously apply for and obtain nonimmigrant status up to 30 days before the respective program start date. This approach resulted in complications with processing and negative impacts on applicants. USCIS has finally recognized the layers of complications that resulted with the Trump era policy.

Applicants with change of status to F-1 are relieved of the pressure of falling into a gap in status because USCIS will now grant the change of status to F-1 effective on the day of the change of status approval. If the application is approved more than 30 days before the respective program start date, that applicant should not violate their F-1 status during that time (e.g., engage in unauthorized employment more than 30 days prior to the program start date).

All in all, this new USCIS pronouncement will improve F-1 change of status processing and alleviate some additional burdens imposed on these foreign nationals.

Supreme Court Denies Bond Hearings to Individuals with Reinstated Removal Orders

On June 29, 2021, the Supreme Court held, in Johnson v. Guzman Chavez, that those with prior removal orders are not entitled to bond hearings when they are detained after unlawful reentry. The decision reversed precedent from the Fourth Circuit that allowed individuals with reinstated removal orders access to bond hearings. Writing for the majority, Justice Alito found that individuals subject to a reinstated removal order are statutorily disqualified from these bond hearings because their removal orders are already final, even if they can ultimately be “withheld.”

The high court’s ruling precludes immigration judges from even considering issuing a bond, even if the foreign national could prove they have significant ties to the United States and are neither a flight risk nor a danger to the community. As a practical matter, many individuals who are detained have worse outcomes in immigration court because it is more difficult to gain access to legal representation and adequately prepare their case while in detention. Given that withholding-of-removal cases have significant consequences, the decision will likely lead to many foreign nationals wrongfully removed to countries where they could be killed. The decision will also keep thousands of individuals in detention for extended periods of time.

The decision particularly harms many people who are in withholding-only proceedings. In most cases, someone in withholding-only proceedings has been previously removed from the United States but returned out of fear of future persecution. Often foreign nationals seeking withholding of removal were previously deported without a full hearing, in a process known as expedited removal. Many of those seeking withholding of removal in court received a determination of reasonable fear of future persecution or torture by an asylum officer.

The 6-3 split of the Court along ideological lines signals that the Supreme Court will likely be a roadblock to expanding rights to vulnerable immigrants – in particular, undocumented persons and those seeking protection from persecution. The decision also magnifies the growing partisan divide in how to refer to foreign nationals, with most of the Justices writing in the majority referring to them as “aliens,” whereas the Justices writing in dissent and Justice Kavanaugh used the more humanizing “noncitizens.”

AG Garland Restores Fairness to Asylum Law and Removal Proceedings

In an attempt to restore fairness to asylum law, Attorney General Merrick Garland, in Matter of A-C-A-A-, vacated another of his predecessor’s decisions on July 26, 2021. Attorney General Garland’s most recent decision marks the fourth time he has vacated a precedential asylum decision. Under the prior decision, issued in September 2020, the previous administration prohibited the Board of Immigration Appeals from accepting the parties’ stipulations to elements of an asylum claim. The Board also did not have to show any deference to factual determinations made by immigration judges when finding that the elements of asylum claim were met. Lastly, the 2020 decision called for the Board to “scrutinize” acceptable particular social groups that were cognizable under the law and distorted the “on account of” component of asylum claims.

Prior to the 2020 decision, the use of stipulations and the BIA’s use of discretion to review only certain elements of an asylum claim used to be common practice. As Attorney General Garland mentions, the Immigration Court Practice Manual and federal law regarding immigration court operations both encourage parties to negotiate and narrow legal issues before an individual hearing. Under this new decision, stipulations between parties can withstand appellate review, which will help preserve asylum grants based on agreements between DHS trial attorneys and respondents.

In addition, this latest decision, alongside others issued this summer by Attorney General Garland, will particularly benefit cases of persons seeking asylum based on their gender and also as result of being victims of domestic violence. The previous Trump-era Attorney General decisions intended to create excessively rigid requirements for qualifying, often running afoul from established legal precedent. Specifically, the prior decision imposed requirements that persecution will occur solely because of the applicant’s protected ground, rather than just the protected ground being merely a “central reason.” Attorney General Barr specifically called for the BIA to scrutinize asylum grants based on particular social groups that were large, essentially in an attempt to eliminate the possibility that applicant’s receive asylum on account of their gender. The previous administration’s animus to asylum, especially its hostility to issuing asylum to victims of gender violence, was among the vilest components of its immigration policy.

While this decision helps reverse some of the worst precedent established by the previous administration, it does not require that trial attorneys negotiate with respondent’s counsel. The decision also does not speak to legal remedies for parties when immigration judges do not honor stipulations or joint motions between the parties, which will likely be an issue, since many hostile immigration judges appointed by the Trump Administration still remain on the bench.

Another Trump-Era Case Vacated by AG, Returning Administrative Closure to the Immigration Court’s Toolkit; Meanwhile, Texas Court Blocks ICE’s Enforcement Priorities

In mid-July, Attorney General Garland officially brought back the immigration court’s tool of administrative closure in Matter of Cruz-Valdez, vacating former Attorney General Jeff Sessions’ Matter of Castro-Tum. Administrative closure was long used prior to Castro-Tum in place of termination to allow the court to pause removal proceedings and allow individuals to seek relief outside of the immigration court, through USCIS and otherwise.

This decision from the AG means that administrative closure can now be used nationwide at an immigration judge’s discretion. Previously, federal circuit courts ruled differently on the use of administrative closure. The Third and Fourth Circuits, for instance, allowed for administrative closure while the Sixth Circuit would only administratively close in very limited circumstances.

While administrative closure has been a tool used for years to manage court resources and is a form of prosecutorial discretion, another form of prosecutorial discretion – this time in the form of enforcement priorities – was blocked by a federal judge in Texas. The policy at issue was the Biden administration’s February 2021 immigration enforcement priorities, which directed ICE to focus on those it considers to be a threat to public safety or national security. The case arose from a challenge to ICE’s ability to arrest, detain, and deport those outside the scope of the February directive. Judge Drew Tipton of the U.S. District Court for the Southern District of Texas ordered ICE to formulate new policies by September 3, and to provide the court with the names, addresses, and criminal histories of anyone in the U.S. who is released from criminal custody and not transferred to ICE custody. Judge Tipton also declared that the President does not have discretion to choose not to detain certain immigrants. The administration plans to appeal.

ICE Directive Updates Treatment of Pregnant, Postpartum, and Nursing Mothers

ICE released a directive on July 1 that dictates particular treatment for pregnant, postpartum, and nursing mothers. Namely, ICE should only issue a detainer for these individuals under “exceptional circumstances,” and is directed to assess all available information to determine whether a potential detainee is pregnant, postpartum (defined as within a year of giving birth), or nursing. In these scenarios, or when an already detained individual is found to be pregnant, ICE is directed to notify the appropriate authorities to assess whether detention is necessary or ensure proper care. This, on its face, appears to be a marked departure from the highly publicized family-separation policies of the Trump Administration.

National Interest Exceptions Now Valid for 12 Months in Most Cases

DOS posted updated guidance on its website regarding the validity of approved National Interest Exceptions (NIEs). Previously, an NIE was valid for only 30 days. Now, NIEs are granted for 12 months and NIEs issued in the last 12 months are being automatically extended for 12 months from the date of approval, and for multiple entries, as long as they are used for the purpose under which they were granted. National Interest Exceptions allow nonimmigrants to travel to the U.S. from countries subject to the COVID travel ban in limited circumstances. The extension applies to NIEs for travelers subject to Presidential Proclamations 9984 (China), 9992 (Iran), 10143 (Schengen Area, U.K., Ireland, Brazil, and South Africa), and 10199 (India).

News in Brief

New I-485 Adjustment Application Form Required as of 10/13/2021: Effective 10/13/2021, USCIS will only accept the 3/29/21 edition of Form I-485. Additionally, USCIS announced that applicants filing for lawful permanent resident status are now able to apply for a Social Security number (SSN) or SSN replacement card as part of the adjustment application process. Previously, these individuals had to apply for an SSN at a Social Security office. Following approval of Form I-485, USCIS will, in most cases, electronically transmit the data to the Social Security Administration (SSA). SSA will then automatically assign an original SSN or issue a replacement card, as appropriate.

Redesignation of Yemen and Somalia for TPS: DHS announced a new 18-month designation of Yemen for TPS, enabling Yemeni nationals, and individuals without nationality who last resided in Yemen, currently residing in the U.S. as of July 5, 2021, to file initial applications for TPS. DHS also announced a new 18-month designation of Somalia for TPS, enabling Somalian nationals, and individuals without nationality who last resided in Somalia, currently residing in the U.S. as of July 19 file initial applications for TPS.

Extension of Initial Registration for TPS for Applicants from Venezuela, Syria, and Burma: DHS has announced extensions of the initial registration periods from 180 days to 18 months for new TPS applicants from Venezuela, Syria, and Burma.

DED for Hong Kong Residents: President Biden recently issued a memo directing DHS to defer for 18 months the removal of Hong Kong residents present in the United States as of 8/5/21 (with certain exceptions), having determined that providing safe haven for Hong Kong residents who have been deprived of their guaranteed freedoms in Hong Kong furthers United States interests in the region.

Biden Administration and DHS Announce Policy of Expedited Removal at U.S.-Mexico Border: On July 26, 2021, DHS issued a statement indicating that migrant family units crossing the United States–Mexico border will be subject to an “expedited removal” process. A family unit that is interviewed after being apprehended, and who is not found to have a credible fear of persecution in their home country, can be removed without a formal removal hearing. It is unclear right now how the policy will be carried out or what potential ramifications may be.

USCIS Temporarily Extends Validity of Medical Exams: On August 12, 2021, USCIS announced that the validity period for Form I-693, Report of Medical Examination and Vaccination Record, will be extended from two years to four years due to COVID-related delays in processing applications for adjustment of status. Medical reports still must be submitted to USCIS within 60 days of being signed by the civil surgeon.

Thousands of Border Agent to be Required to Wear Body Cameras: CBP announced in early August that agents will wear body cameras on the front of their uniforms and that the cameras will run continuously. The agency is expected to issue 6,000 cameras by the end of 2021. As there are approximately 20,000 CBP officers, not all officers will have a camera. CBP stated that it will first deploy the cameras to locations along the southern and northern borders and then later to field operations and ports of entry.

Work Authorization Available for Certain F-1 Students from Haiti and Somalia: DHS has suspended certain regulatory requirements for F-1 students from Haiti and Somalia who are experiencing severe economic hardship as a result of the current crises in their countries.

EO Suspends Entry of Certain Individuals Contributing to Situation in Belarus: President Biden on August 9 issued an Executive Order imposing sanctions on those determined to have contributed to the suppression of democracy and human rights in Belarus. The EO suspends the entry of certain immigrants and nonimmigrants into the United States.

DV Visas from Last Year Ordered to be Issued: A federal court ordered the U.S. to issue 9,095 diversity visas from FY2020 that the court reserved nearly one year ago.