Articles Posted in Immigration Court

ysidro3_t800-300x150On November 9, 2018, President Trump issued a broad Presidential Proclamation drastically changing when individuals who enter the United States through Mexico may apply for asylum. The new restrictions are scheduled to last 90 days, at which point the President has the authority to renew the restriction

Under current U.S. law (and in compliance with numerous international treaties that the U.S. is a party of), all individuals who enter the United States (either legally through an official port of entry, or illegally), are entitled to apply for asylum within a year of entering the United States. Under President Trump’s proclamation, all asylum seekers who cross into the United States across the U.S./Mexico border must apply for asylum at an official point of entry. Individuals who cross the U.S./Mexico border illegally (without going through an official point of entry), will be barred from applying for asylum.

The new policy has some important limitations. First, it only applies to individuals who cross into the United States along the U.S./Mexico border. Individuals who legally enter the United States through another avenue (such as an airport), still have the right to apply for asylum within a year of entering the United States. These individuals can continue to file for asylum by filing an asylum application with U.S. Citizenship and Immigration Services, or in immigration court (if they are served a Notice to Appear in immigration court.

On May 17, 2017, U.S. Attorney General Jeff Sessions, issued an order to prevent immigration judges from administratively closing immigration court cases in most circumstances. The Attorney General’s decision will have a major impact on many immigration courts, as well as many immigration cases.

Administrative closure is a procedure regularly used by immigration judges to temporarily halt immigration proceedings. When a case is administratively closed, an immigration judge removes the case from the active docket. Cases are usually administratively closed so that an immigrant can obtain an immigration benefit that is not available while an immigration case is active. Examples of this include adjusting status to a lawful permanent resident (Form I-485), or filing an I-601A waiver. Generally, either the immigrant or the Government may move to administratively close a case. Once a case is administratively closed, the case can be re-opened by a motion of either the Government or the immigrant.

On January 4, 2018, the Attorney General directed the Board of Immigration Appeals to refer Matter of Castro-Tum (27 I&N Dec. 271 (A.G.2018)) to the Attorney General, so that he could review and rule on the decision. In Mater of Catro-Trum, an immigration judge ordered a case administratively closed over the objection of DHS. In his decision, the Attorney General held that immigration judges and the Board of Immigration Appeals, do not “have the general authority to suspend indefinitely immigration proceedings by administrative closure”.  Id. at 271. Instead, the Attorney General found that a case may only be administratively closed where either: (1) a previous regulation; or (2) a court settlement allows. Id.

sunlight-behind-clouds-1331154On October 4, 2016, Hurricane Mathews, a category 4 hurricane, devastated southern Haiti. To date, close to 1,000 Haitians have been confirmed dead. In addition, much of the crops and buildings in the southern part of the country have been destroyed. Based on the large scale humanitarian crisis, on October 12, 2016, U.S. Department of Homeland Security Secretary Jeh Johnson, announced that the United States would temporarily suspend all deportations to Haiti.

On January 10, 2010, Haiti was struck by a devastating 7.0 earthquake which killed at least 160,000 people and displaced another 1.5 million people. In the aftermath of the earthquake, the U.S. Department of Homeland Security (“DHS”) took steps to help Haitians in the United States. On January 13, 2010, DHS announced that it would be suspending deportations to Haiti. In addition, on January 15, 2010, DHS announced the designation of Temporary Protected Status (“TPS”) for Haitians who were in the United States as of January 12, 2010. TPS allowed Haitians who qualified to remain and work in the United States for a temporary amount of time, until conditions in Haiti improved.

In the years following the earthquake, DHS continued to extend TPS for Haitians, and continued to suspend deportations to Haiti for Haitians who had not been convicted of a serious crime and did not pose a national security threat. However, on September 22, 2016, DHS Secretary Johnson announced that deportations to Haiti would immediately resume. Secretary Johnson made clear that Haitians in the United States on TPS may remain in the United States until their current TPS status expires July 22, 2017.