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A DREAM Deferred: DACA Canceled, Time for Congress to Act

Tuesday, September 5th, 2017 by W. Scott Railton

Today the Trump Administration announced the cancellation of the Deferred Action for Childhood Arrivals (DACA) program, via Attorney General Jeff Sessions, a noted opponent of the program. Make no mistake—this was not the Administration’s only option. The Administration could’ve worked with Congress to get a law passed, without adding so much fear into the lives of immigrant families.

The AG issued a memorandum which describes the litigation history related to the program, and which concludes that the DACA program “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result.”

The threat of legal challenge by 10 states spurred action by the Administration, and highlights once again the divide among the States that confronts the U.S. on this and other issues.

The ACLU and many other immigrant rights groups have unsurprisingly come out in opposition to this action. The ACLU has said the Administration has turned the Dreamers into pawns in the immigration reform debate. Former President Obama even came out publicly against the measure, describing it as “cruel” and “self-defeating.”

While the program was never meant to be permanent, now the pressure is placed squarely on Congress to “get the job done.” This is worrisome, as the debate has already begun to shift from focusing on the Dreamers as persons, to cutting deals concerning other issues, such as border wall financing. I can remember visiting my Representative’s office in 2001–yes, over 16 years ago, advocating for Congress to pass a bill for the DREAMers.

These politics miss so much—the innocence of persons brought here by their parents, the investment America has made in these young people, the potential harm to employers and families, the trust of a community already in fear. I have great faith in the advocacy of the DREAMers–rarely have I seen such an effective interest group. Hopefully Congress will act. Hopefully…

Here’s how the Administration has said it will handle applications going forward:

  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.
  • Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
  • Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.
  • Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
  • Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
  • Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.
  • Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
  • Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

 

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Expect Delays: USCIS To Interview Employment-Based Adjustment of Status Applicants

Monday, August 28th, 2017 by W. Scott Railton

U.S. Citizenship and Immigration Services announced today that it will begin to conduct in-person interviews for employment based adjustment of status applicants. The agency explicitly cites an Executive Order from President Trump as the reason for this new policy. The intention is to better detect fraud in the process.

As this is the President’s order, he can take the credit or hit for the measure’s outcome. In theory, it sounds like a good idea to ask a few questions and lay eyes on all applicants for green cards. The concern is that this will really backlog the permanent resident application process. The agency is already slowing down in its handling of a number of applications. While national security has to be the paramount concern with every immigration process, I’m skeptical the agency is exacting efficiencies from the various application processes it administers. Most of the cliches about red tape and endless bureaucracy apply with USCIS. Nonetheless, similar concerns were expressed after 9/11 when the Department of State started interviewing all visa applicants.  Nonimmigrant visa processing since then has worked out, more or less. Hopefully, in time, this enhanced interview process will work out as well.

Here is USCIS’s announcement:

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) will begin expanding in-person interviews for certain immigration benefit applicants whose benefit, if granted, would allow them to permanently reside in the United States. This change complies with Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and is part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.

Effective Oct. 1, USCIS will begin to phase-in interviews for the following:

• Adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status).
• Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

Previously, applicants in these categories did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.

“This change reflects the Administration’s commitment to upholding and strengthening the integrity of our nation’s immigration system,” said Acting USCIS Director James W. McCament. “USCIS and our federal partners are working collaboratively to develop more robust screening and vetting procedures for individuals seeking immigration benefits to reside in the United States.”

Conducting in-person interviews will provide USCIS officers with the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States. USCIS will meet the additional interview requirement through enhancements in training and technology as well as transitions in some aspects of case management.

Additionally, individuals can report allegations of immigration fraud or abuse by completing ICE’s HSI Tip Form.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis) and Instagram (@USCIS).

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Adjustment of Status Applications Get Tougher

Wednesday, August 23rd, 2017 by W. Scott Railton

Applicants for adjustments of status to permanent resident are encountering new issues of late.

The basic application form, the I-485, available at USCIS, has been revised, and it now includes a whole lot more questions which can trip someone up. The new form weighs in at a full 18 pages. It used to be 6 pages. And it has questions…lots of questions, like:

Have you EVER been denied admission to the United States?

Have you EVER been denied a visa to the United States?

Have you EVER worked in the United States without authorization?

Have you EVER committed a crime of any kind (even if you were not arrested, cited, charged with, or tried for that crime?)

Have you EVER violated (or attempted, or conspired to violate) any controlled substance law or regulation of a state, the United States, or a foreign country?

Applicants can expect that these questions will be read, out-loud, and asked during an adjustment of status interview. We have heard of cases where people admit to use of marijuana, and that doing so leads to further interview questions, and even denial of the petition. Working without authorization, or overstaying a period of authorized stay, can also create serious issues.

Another development for adjustments of status, not quite as recent, is applicants sometimes have to get new medical examinations, due to processing delays, adding costs to the process.

We also understand that USCIS is now sometimes denying travel authorization applications, filed with the adjustment of status applications, if a person travels internationally (e.g. on an H-1B) after the parole application is filed but before it is adjudicated. Adjudications usually take about four months. This is completely new, and hopefully is a development that doesn’t last.

We will continue to monitor what the agency is doing on adjustments of status and other immigration matters, and advocate for a fair, efficient and transparent process. We are available of course to discuss any issues of concern. It is best to resolve difficult issues as much as possible, before presenting the case to the agency.

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Staying Admissible To The United States

Friday, July 28th, 2017 by W. Scott Railton

We frequently meet with Canadians and other nationals who are concerned about their admissibility to the United States. We also advise Canadian defense attorneys about the consequences of a plea or conviction on United States admissibility. Frequently, persons arrive at the border, seeking entry, only to learn that they are inadmissible (or so the government says), and that they will need a waiver.

Here are some tips on admissibility issues, from my perspective as an immigration attorney:

1. Foreign pardons and expungements do not typically help with U.S. immigration. A conviction vacated for substantive reasons might overcome inadmissibility.

2. The sealing of criminal records can present an obstacle for U.S. immigration purposes, as the burden of proof for admissibility is upon the applicant. The U.S. government will want to see those records, even if they’re under seal.

3. Temporary visitor waivers are available, but they are costly and take months to adjudicate, and must be renewed every five years. Permanent waivers for immigrants are more challenging, but are sometimes available, depending on the past offense.

4. The definition of a conviction under U.S. immigration law includes more than just convictions. Admissions of guilt in the record may count too.

5. Any conviction “related to” controlled substances is a basis for inadmissibility. U.S. immigration law is particularly hard on all controlled substances issues. Marijuana is still considered a controlled substance under federal (national) law, even though many states have legalized.

6. Drug abuse, drug addiction, and alcohol abuse are bases for inadmissibility without a conviction. When applicable, the U.S. Government may require an expert opinion from a U.S. authorized civil surgeon on whether a person is a drug or alcohol abuser prior to admission to the United States.

7. A person is inadmissible if the government has a “reason to believe” that she is or has been a drug trafficker.

8. In general, sentences of less than a year are better (e.g. 364 days or less) to avoid the possibility of having a conviction deemed an “aggravated felony” under U.S. immigration law.

9. Misrepresentation at the border is a basis for a lifetime ban from the U.S. They may search the phone or computer, interview friends and employers, and otherwise double-check to see if someone is lying. Lifetime ban if they make that determination, which in time can be overcome through the waiver process.

10. The U.S. law on inadmissibility is a complicated area of law even for U.S. lawyers, including U.S. immigration lawyers. If there are concerns, it is best to consult with us, or someone like us. If worse comes to worse, it may be better to stop answering questions, and ask to withdraw the application for admission.

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Immigration In A Time of Restrictions

Saturday, July 15th, 2017 by W. Scott Railton

Immigration restrictions are one of the defining characteristics of the Trump Administration, which is now about 6 months in. Each week it’s something new, but the overall picture is the Administration intends to restrict all immigration, however it can.

I know from talking with clients that there is a great deal of fear and concern. Know that despite all the restrictive activity, the agencies are still granting petitions and visas, at least outside of those directly subject to travel bans. There may be longer delays, and the likelihood of increased red tape has to be anticipated. Sometimes, caution is needed, and frankly, competent legal advice is sometimes very valuable. Understanding things ahead of time is more likely to lead to predictable outcomes. This is how we try to help.

Here are some of the latest developments:

  • The Supreme Court will take up the travel ban case this fall.  In the meantime, the Court permitted a revised, limited ban to go forward. Lawsuits immediately commenced, on just how to deal with the Court’s limitations, including whether grandparents could be exempt. As this drags on in Court, I can’t help but wonder if the emergency aspect of these orders is moot. So did SCOTUS, by the way, when they granted certorari. Meanwhile, consulates in certain countries aren’t issuing visas like they ordinarily have in the past. Consular officers have many ways to deny and/or delay visa applications, with or without an official travel ban. There is no judicial review of visa denials. Some consulates have always been tougher than others, but this is different. Recently, I’ve heard of some 35 Pakistani doctors who were unable to get visas for unexplained reasons. Long-time practitioners say they’ve never seen anything like it.
  • The U.S. Trade Representative notified Canada and Mexico that it wishes to renegotiate the terms of North American Free Trade Agreement (NAFTA). Public comments were accepted, and three days of hearings were held in Washington D.C. to gauge priorities. The focus of the discussion seems to be on trade (think Detroit/Toronto auto industry; softwood lumber), but trade in service and immigration was discussed. Some calls were made to update the list of NAFTA TN professions to include Software Designers, Financial Analysts, IT Consultants, Physician Assistants, and Nurse Practitioners. There is a need for an update, as the list is nearly 25 years old, but there is great fear that the list will be excessively limited. We will be monitoring NAFTA TN developments closely.
  • The Deferred Action for Childhood Arrivals (DACA) program continues for now. This program allows certain undocumented “Dreamers” to get temporary work authorization and avoid deportation. President Trump seems in favor of the program. However, several states have joined to challenge the program, and DHS Secretary Kelly says the program may need to end. Attorney General Sessions, historically an opponent when he was in the Senate, is equivocal on whether he will defend the program. Other Obama measures, such as relief for parents of U.S. citizens, have already been officially rescinded.
  • Temporary Protected Status (TPS) is a form of humanitarian relief provided to persons from certain designated countries, where great harms have occurred, or continuing dangers exist. For example, in recent years, citizens of Haiti and Nepal have been able to obtain TPS, due to earthquake and rebuilding. The Administration indicates it may soon cancel TPS statuses in a number of cases.
  • Sanctuary cities is another well-reported flashpoint. President Trump has issued an order to review defund designated as sanctuary cities, and AG Sessions has actively been speaking out on the subject.
  • The Pentagon is looking at canceling its Military Accessions Vital to the National Interest program, which provided a path to naturalization for persons who enlist and who are vital to the national interest. Examples include Iraqi interpreters and specialized medical workers for the military. Our colleague Margaret Stock has been a driving force in the success of this wonderful program. It would be a shame for the program to be pulled, since the troops get much needed support from certain persons with vital skill sets. It’s not hard to fathom that we should take care of interpreters who are helping us fight terrorism.
  • The President’s budget includes substantial funding for planning the wall, and for more boots on the ground for immigration enforcement. It includes $1.5 billion for added interior enforcement and $2.6 billion for Customs and Border Protection.  Expect a full-on debate on these figures soon in Congress.
  • Access to legal counsel is under attack, as the Department of Justice sent a cease and desist letter to NW Immigrant Rights Project, requiring that they file a Notice of Appearance if they are going provide counsel to persons in removal proceedings. NWIRP historically provides limited representation at the Detention Center. For example, they provide education sessions and initial case assessments. DOJ is trying to halt all that. NWIRP has filed suit in federal court.
  • The USCIS Field Offices and CBP Ports of Entry are asking many more questions about use and possession of legalized marijuana. Officers from each agency now have scripts, prepared by counsel, designed to extract disqualifying admissions (e.g. “Yes, I smoked pot, in Washington, where it’s legal.”). These admissions become the basis for denying admission, based on a violation of federal law. Persons with no criminal record denied visas, entry, green cards or naturalization–based only their admission to having used legalized pot at some point. Recently, a group of Congress representatives wrote the agencies for more information on these practices.
  • The Administration also recently suspended implementation of the International Entrepreneur Rule, which was designed to provide noncitizen entrepreneurs of Silicon Valley and elsewhere a pathway to stay in the U.S. and continue to develop their ideas and businesses. Basically, this was another bridge-gap administrative rule by the Obama Administration, to temporarily address a need, since Congress can’t get the job done. While I found the rule awkward, it’s not a bad idea, and would guarantee more American jobs. Its no secret that many, many of the tech companies in the United States have noncitizen founders. The American dream often starts in a garage somewhere. I fear that garage may end up in another country.
  • There has been a spike in persons entering Canada illegally, to claim asylum. This is well-reported, and happening right here in Whatcom County with some frequency. The Third Safe Country Agreement between the US and Canada prevents persons from claiming asylum at the ports of entry in most circumstances, as this would be deemed as forum shopping. However, if persons enter illegally, and arrive on Canadian soil via the U.S., they may claim asylum. There is a growing perception that Canada is more welcoming to refugees.

 

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Ninth Circuit Rules on Travel Ban/Refugee Order in Hawaii v. Trump

Wednesday, June 14th, 2017 by W. Scott Railton

The Ninth Circuit Court of Appeals ruled this week that President Trump went too far with his modified travel bans. Here is the opening summary of the Court’s decision:

State of Hawaii v. Donald Trump (excerpted)

We are asked to delineate the statutory and constitutional limits to the President’s power to control immigration in this appeal of the district court’s order preliminarily enjoining two sections of Executive Order 13780 (“EO2” or “the Order”), “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.” Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order preliminarily enjoining Sections 2 and 6 of the Executive Order.

The decision is an interesting read. The Court lays out the chronology of the President’s Executive Orders and the resulting suits by the States et al. The Court analyzes the alleged harms presented by Hawaii, with regard to standing: harm to proprietary interests and impairment of its sovereign interests. Ultimately, the Court cites the granddaddy of all cases on judicial review, Marbury v. Madison, and says it will not abdicate its obligation of judicial review.

From there, the discussion surrounds whether or not the President’s Order is clearly within the office’s congressionally delegated authority under 1182(f) of the Immigration and Nationality Act.

The Court examines then whether national security concerns are applied too broadly by exluding persons according to their nationality. The Court concludes, “the Order does not offer a sufficient justification to suspend entry of more than 180 million people on the basis of nationality.” (p.43). The Decision then looks at the Refugee program suspension, and finds the statute does not provide a mechanism for decreasing the statutorily mandated totals.

The Decision only upholds the District Court’s preliminary injunction, finding that lower Court did not abuse its discretion.

The back of the decision reads like screen credits from a movie, with seven pages of attorneys listed as counsel to the case. Many, many amicus briefs.

Of course, at some point, the Supreme Court will weigh in on the Executive Orders and travel bans. I can’t help but note several Constitutional Law 101 cases are cited in this decision. The Decision is grounded in the Immigration and Nationality Act and in an analysis of national security concerns.  The decision does not focus on intent to discriminate or President Trump’s campaign statements. The decision does find that there’s not sufficient legal justification to suspend the refugee program, and lower the number of refugee admissions.

I think the Ninth Circuit basically got it right. As this and other Circuit decisions come out, it becomes apparent that the Supreme Court can approach the issues in a number of ways.  They can look at the President’s bans in terms of Constitutional overreach, or as violating or not violating the First Amendment, or as actions within or not within the authorization of the Immigration and Nationality Act.  In the end, though, I think there needs to be some limit on how far the President can go when it comes to immigration.  In particular, I think the blanket travel bans and refugee suspensions went too far.

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Social Media and Immigration

Thursday, June 1st, 2017 by W. Scott Railton

It is a common refrain: “Be careful what you put on social media!” The idea, of course, is something might come back to bite you later, such as in a job interview.

The immigration authorities–including the consulates abroad, the border officers, and the USCIS interview officers–are interested as well. Through a series of Federal Register notices, the federal agencies have requested authority to collect social media information on persons seeking entry into the United States.

The Department of State today requested emergency approval of a supplemental questionnaire to be used in select visa interviews. Of course, the facial reason for the request is to identify true terrorist threats, which everyone wants. The questionnaire seeks information going back 15 years, instead of the standard 5 years, and collects information on family relatives, employment history, and travel history (including source of funding). The questionnaire also asks for “all social media platforms and identifiers, also known as handles, used during the past five years.”

Similarly, the Department of Homeland Security’s border security agency, Customs and Border Protection, published notice of its intent to collect social media information platforms and handles in February. The announcement garnered the attention of the American Civil Liberties Union and the Electronic Frontier Foundation, as well as many media outlets. In 2016, the agency added an optional field to its visa waiver form so that applicants could volunteer their social media handles.

Immigration authorities have a great deal of discretion in seeking information to make determinations of admissibility. It seems that the agencies are quickly moving in the direction of requiring that social media handles be provided as part of the application process.

As with all expansions of government authority, there will be intended and unintended consequences. Terrorists and zealots use social media to find new recruits. Theoretically, social media might help identify someone who should not be issued a visa or admitted. Of course, this presumes that the bad-actor volunteers their information in the first place. While unlikely, developing a repository of such information could theoretically provide security dividends.

There are other considerations. The ACLU and EFF point to privacy interests. The digital age feels different, when it comes to search and seizure, with so much information retained on devices, in the cloud, and on social media platforms. Some of the privacy issues will inevitably be litigated. In general, I expect the courts to favor the national security interests inherent in border searches, though not without some measure of reason.

We increasingly observ officers walking over to a computer to conduct “Google” searches of applicants for admission. In fact, this does seem to be more common with the new Administration. I expect there will be even more digital searches, as agents peruse social media histories, to form an opinion on the person before them. Intrusive, yes, but also at times inefficient. These searches take time, and lead to more questions, which also takes time, and leads to frustrations. Most people are on several social media platforms. It’s not hard to picture someone being penalized for failing to volunteer their Instagram account, while yet disclosing Facebook, Twitter, and Linkedin. It’s also easy to imagine that nonsensical lines of questioning will be more common. Fishing expeditions.

The agencies are really only formalizing something they already do in select cases. Every week I hear of persons who were asked for passwords to their computers and phones, as well as social media handles. The question with these Federal Register notices is whether this is going to be routine for all travelers. How often and how deep will they choose to dig? Hopefully, these requests for social media information handles catch terrorists and other bad guys, and don’t become just another burden on travelers to the U.S.

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NAFTA Renegotiations and the TN Professional

Thursday, May 25th, 2017 by W. Scott Railton

On May 18, 2017, the U.S. Trade Representative informed Congress that President Trump intends to commence negotiations with Canada and Mexico with respect to the North American Free Trade Agreement. On May 23rd, the Office of the United States Trade Representative published notice in the Federal Register, requesting comments on negotiating objectives regarding modernization of NAFTA.

The summary of the notice states that “NAFTA was negotiated more than 25 years ago, and while our economy and U.S. businesses have changed considerably over that period, NAFTA has not. The United States seeks to support higher-paying jobs in the United States and to grow the U.S. economy by improving U.S. opportunities under NAFTA.”

The Notice seeks written comments by June 12, 2017. A hearing will be held on Tuesday, June 27, 2017 in Washington D.C. Any intent to testify must be submitted by June 12th, 2017.

What do we know?

Trump originally said that he would pull the United States out of NAFTA, wholesale, but it appears advisors have prevailed upon him to renegotiate. America is quite ingrained in trade of all sorts with Canada and Mexico, and an abrupt cessation would be harmful.

Trump is serious about curtailing immigration, legal and illegal, by all indications. He’s also serious about trying to protect the U.S. worker. These facts do not bode well for the TN category as a whole.
The occupation schedule for TNs is roughly 25 years old, and way out of date. There is need for modernizing the schedule, provided such efforts are made in good faith.

Many sectors are impacted by the TN visa. Hospitals rely on the TN to employ nurses, physicians (research/teaching), recreational therapists, physical therapists, pharmacists, medical laboratory technologists, and others. Institutions of higher education use the TN to employ professors. Municipalities use the category to employ urban planners. Several professions in agriculture are represented, including soil scientists, sylviculturists, animal breeders, animal scientists, and horticulturists.

This Administration takes pride in disruption.

Ultimately, I expect many employers will push back on limitations, but there could be much debate. Unions and workers may have much to say. NAFTA involves all sorts of trade issues, and immigration may be pushed to the side, or not given sufficient discussion. There has been a tendency in recent years to limit immigration in trade agreements.

This is an important time for businesses and business organizations to be vocal on this point. Employees in TN status need to pay attention, as the prospective unavailability of a TN needs to at least be considered. Persons with paths to immigrate will need to consider the TNs nonimmigrant requirement, before making any application or traveling abroad.

We’ll keep monitoring developments with NAFTA and the TN professions, and are available to discuss.

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Marijuana and the Border

Friday, April 21st, 2017 by W. Scott Railton

Today is April 20th, or 4-20, as marijuana legalization proponents like to say. More than half of the states have passed some form of legalization, usually by popular vote. Eight states have legalized recreational marijuana, again by popular vote. It is an astounding development in my lifetime, as the concept of legalization was quite radical little more than two decades ago.

I’ve been interested in how state legalization impacts noncitizens, since immigration is my area of law practice. Washington State and Colorado were the first to legalize recreational marijuana, back in 2012, and I knew this would present issues at the border, eventually. It seems now the issues are also coming up at U.S. Citizenship and Immigration Services and the Department of State’s consulates abroad.

I periodically speak and write on this topic.  I am very pleased to say that this month the American Bar Association published an article I wrote, entitled “Marijuana and Immigration,” in its Criminal Justice magazine. I also received a Freedom of Information Act request back this past week, from USCIS, on its policies concerning legalized marijuana. The pdf is over 1700 pages, but 1500 pages or so are redacted. We will appeal.

The issues continue to develop, and, unfortunately, most of the news is not good for noncitizens. DHS Secretary Kelly and Attorney General Sessions say they want to crack down on marijuana. The specifics are lacking, but I am hearing some tough reports. These include:

-Adjustment of status applications being denied for spouses of U.S. citizens, because they worked for marijuana dispensary in a marijuana-legal state.

-Naturalization application denied to a permanent resident of over 10 years, because they worked in the marijuana industry in Colorado, a fully legalized state

-Denial of entry in many cases to the U.S., for admitting to having used marijuana at some undisclosed point in the past, in a foreign or U.S. jurisdiction where it was known to be illegal. No conviction is required–just a voluntary admission to a border officer, medical examiner, consular official, or other government worker. A lot of people, including former presidents, have admitted to as much in the past, and publicly. Once denied admission, a waiver must be obtained from CBP’s Admissibility Review Office, for life. Canadians have a $585 filing fee. The waiver takes months to adjudicate.

-More bad news: reportedly, they are not necessarily going to grant the waiver. We’ve just started to hear of denials for these types of circumstances.

-Also, the word on the west coast is the local ports of entry will not admit anyone working in the industry. Of course, this means accountants, who may also have other non-marijuana clients; scientists who need to test products; architects for greenhouses; and the list of professionals can go on. This is of course a multi-million dollar industry, which indeed, pays taxes, even if the standard deductions aren’t available.

-I don’t expect Consulates to issue investor visas for the industry.

The federal government is anything but transparent on these issues. The state governments need to get vocal, and force the issues, so that travel and business can be predictable. Legislators in legalized states need to fight for these businesses and opportunities, because right now at the administrative level, things are not going well for the industry or noncitizens. There is a basic lack of justice and fairness, as persons think they are ok by being truthful and are in compliance with state laws, but the federal government is playing “gotcha” with good people.

 

 

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A Time for Advocacy

Thursday, April 13th, 2017 by W. Scott Railton

NDA 2017-Murray

I visited Washington D.C. last week, to take part in the American Immigration Lawyer Association’s National Day of Advocacy. This is an annual event, where my lawyer organization encourages members to meet with Senators and Representatives to discuss immigration issues.

And there are issues. Many issues. Immigration continues to be headline news. Real policy and law-making requires consideration of details and implications. As far as I can tell, Congress is getting nowhere.

This is pretty much acknowledged by staffers. By now, they know the sad stories, such as the Dreamers and the emphasis on deportation. They are aware of the flawed system with H-1Bs and other worker authorizations. They know about the backlogs. Stalemate and non-cooperation leave these challenges for another day, again and again.

I had the opportunity to meet with staffers from the offices of Senator Murray, Representative Larsen, Representative Del Bene, and Representative McMorris Rodgers. Senator Murray and Representative Larsen were able to meet briefly as well. I and my colleagues greatly appreciated the meetings, and we had some good discussions.

Our office stays in close contact with our elected officials.  Last week, my comments focused on things I’m seeing in practice lately, which might not be getting the attention they deserve. CBP officers are taking statements from applicants for admission on past marijuana use, and then barring them for life after people answer truthfully that they did, in fact, inhale. They are also doing extensive searches of people’s phones and computers, without reasonable suspicion. USCIS is issuing requests for evidence on cases without justification, at ever increasing rates. Physicians are getting caught up in the administrative dysfunction, with the suspension of premium processing and rotations turning over mid-summer. Also, the Conrad program for physicians who serve underserved communities is caught in the undertow of the more controversial EB-5 renewal. And of course, our national security has been harmed by some of the thoughtless policies that have been proposed. I also see that clients are just plain concerned.

It is a time for advocacy. I believe that America is still a nation of immigrants. America has gone through phases before. I also believe our Bill of Rights protects people from injustice, including noncitizens and immigrants. So, it’s a good idea to keep calling on our elected officials, and be engaged. That’s what we’re doing.

(Photo taken by our colleague Erin Zipfel, with Senator Murray and other colleagues)

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