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Global Entry Enrollment on Arrival Expands to Sea-Tac Airport

Wednesday, November 15th, 2017 by W. Scott Railton

U.S. Customs and Border Protection’s Global Entry trusted traveler program has expanded it’s Enrollment on Arrival to include Sea-Tac airport.  Conditionally approved enrollees can complete their process now by interviewing at the airport.

The Global Entry application fee for a 5 year approval is $100. The agency is not transparent on adjudication standards, but there is little to no tolerance for past criminality. Canadian citizens and residents enrolled in NEXUS may also use the Global Entry kiosks.  The pass can be very helpful in dealing with airport processing times.

Here’s the CBP press release:

Global Entry Enrollment on Arrival Expands to 11 Additional International Airports
Release Date: November 14, 2017

Program is now available in some of the busiest Global Entry enrollment areas and will continue to expand through the remainder of 2017 and into 2018

WASHINGTON—U.S. Customs and Border Protection announced today the expansion of Global Entry Enrollment on Arrival to 11 additional international airports. Enrollment on Arrival enables conditionally-approved Global Entry applicants to complete their interview, the final step of the Global Entry enrollment process, while clearing CBP processing. The program is currently available at nine new locations including Dallas/Fort Worth International Airport (DFW), Detroit Metropolitan Airport (DTW), Minneapolis-Saint Paul International Airport (MSP), Phoenix Sky Harbor International Airport (PHX), Salt Lake City International Airport (SLC), San Diego International Airport (SAN), Norman Y. Mineta San Jose International Airport (SJC), Seattle-Tacoma International Airport (SEA), and Toronto Pearson International Airport (YYZ), and will launch later this week at Denver International Airport (DEN) and Philadelphia International Airport (PHL).

“Global Entry continues to be one of CBP’s most successful and popular programs and we have made it a priority to improve the enrollment process for those looking to join the ranks of Trusted Traveler,” said Acting Commissioner Kevin McAleenan. “Last month, we launched a modernized, mobile-friendly application website making the initial step of the process more user friendly and now with these additional Enrollment on Arrival locations we have added greater flexibility for those looking to complete the enrollment process.”

Since the program’s launch in July, more than 5,200 conditionally-approved Global Entry applicants have completed the final step of the enrollment process at an Enrollment on Arrival location. Enrollment on Arrival is also available at George Bush Intercontinental Airport (IAH), William P. Hobby Airport (HOU), Austin-Bergstrom International Airport (AUS), San Francisco International Airport (SFO) and Vancouver International Airport (YVR).

Conditionally-approved applicants looking to utilize Enrollment on Arrival do not need to schedule an interview appointment ahead of time.

Once a traveler is conditionally-approved, instead of scheduling an interview at a Global Entry Enrollment Center, the traveler can complete the enrollment interview during CBP primary inspection at a participating airport. Upon arrival, travelers will be directed to a primary booth designated specifically for Enrollment on Arrival. A CBP officer will conduct both the primary processing and Global Entry interview and collect the traveler’s biometrics to complete the enrollment. The traveler will then be cleared for entry into the United States and, if approved, will be a Global Entry member.

Currently available at 54 U.S. airports and 15 Preclearance locations, Global Entry streamlines the international arrivals process at airports for trusted travelers. The more than 4.7 million Global Entry members bypass traditional CBP inspection lines and use an automated kiosk to complete their admission to the United States. As an added benefit, Global Entry members are also eligible to participate in the TSA Pre✓™ expedited screening program.

U.S. citizens, U.S nationals and U.S. Lawful Permanent Residents may apply for Global Entry as well as passport holders from Argentina, Colombia, Germany, India, Mexico, the Netherlands, Panama, the Republic of Korea, Singapore, Switzerland, Taiwan and the United Kingdom. Canadian citizens and residents enrolled in NEXUS may also use the Global Entry kiosks.

Interested travelers apply through the Trusted Traveler Programs website. The non-refundable application fee for a five-year Global Entry membership is $100 and applications must be submitted online. Once the applicant successfully passes a background check, a CBP officer will conduct an interview with the applicant at one of the more than 100 Global Entry Enrollment Centers located throughout the U.S., Canada, and Qatar or at an Enrollment on Arrival location and then make a final eligibility determination.

While the goal of Global Entry is to speed travelers through the process, members may be selected for further examination when entering the United States. Any violation of the program’s terms and conditions will result in appropriate enforcement action and may result in the revocation of the traveler’s membership privileges.

Visit CBP’s Global Entry website for more information on the Global Entry Program and the Enrollment on Arrival website for an updated list of available locations.

U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation’s borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.

Last published:
November 15, 2017

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Military Naturalizations Halted

Wednesday, October 18th, 2017 by W. Scott Railton

Our colleague Margaret Stock is the leading authority on military and immigration. Unfortunately, she reports that the Department of Defense has put a hold on all military naturalizations. Here is her practice alert she sent out to the immigration bar:

Practice Alert!

On Friday, October 13, 2017, the US Department of Defense halted ALL military naturalizations for all currently serving members of the US Armed Forces (Army, Navy, Air Force, Marine Corps, Coast Guard, and their Reserve Components, including the National Guard). More details to follow. It is not clear when naturalizations will resume since every immigrant seeking to naturalize now needs the signature of a Service Secretary on Form N426 in order to file an N400. There is no procedure in place to get that signature.

https://www.defense.gov/News/News-Releases/News-Release-View/Article/1342317/

Please warn your clients seeking to enlist in the US Armed Forces that such enlistment will NOT allow them to naturalize for several years (estimated time for DOD to follow the new procedures). If they are a green card holder and they enlist, they will not be able to naturalize under the civilian statutes once they enlist, because they can’t naturalize while the new DOD background checks are pending.

 

COPYRIGHT Cascadia Cross-Border Law, 2017. All rights reserved.

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Premium Processing Now Available for All H-1B Petitioners

Tuesday, October 3rd, 2017 by W. Scott Railton

At long last, premium processing is back for all H-1B petitioners. The fee for 15 day service continues to be $1225.

Here’s the USCIS announcement:

Premium Processing Now Available for All Petitioners

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) resumed premium processing today for all H-1B visa extension of stay petitions. Premium processing is now available for all types of H-1B petitions.

H-1B visas provide skilled workers for a wide range of specialty occupations, including information technology, engineering, and mathematics. When a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-calendar day processing time. If that time is not met, the agency will refund the petitioner’s premium processing service fee and continue with expedited processing of the application.

In addition to today’s resumption of premium processing for H-1B visa extension of stay petitions, USCIS had previously resumed premium processing for H-1B petitions subject to the annual cap, petitions filed on behalf of physicians under the Conrad 30 waiver program, as well as interested government agency waivers and certain H-1B petitions that are not subject to the cap.

For more information on how the H-1B visa program is being used, visit the Buy American, Hire American: Putting American Workers First page. This page provides data and information about the hiring practices of employers who use H-1B visas to hire foreign workers.

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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USCIS and SSA Combine the Employment Authorization Document and Social Security Number Applications Into One Step

Monday, October 2nd, 2017 by W. Scott Railton

Good news. Today USCIS announced that foreign nationals can combine the social security number applications with the work authorization applications, at least in certain cases. Applicants will have to use the updated I-765 application form. Previously, this process has also required a visit to a local social security office.

Here’s USCIS’s press release:

WASHINGTON – Based on a new information-sharing partnership between U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA), foreign nationals in certain categories or classifications can now apply for work authorization and a social security number using a single form – the updated Form I-765, Application for Employment Authorization.

To lawfully work in the United States, foreign workers in some categories and classifications need both an employment authorization document (EAD) from USCIS, and a Social Security number (SSN) from the SSA. Previously, applicants needed to submit a Form I-765 to USCIS for an EAD, and then submit additional paperwork in-person at their local Social Security office to obtain an SSN.

The revised USCIS form includes additional questions that allow applicants to apply for an SSN or replacement card without visiting a Social Security office. Starting today, USCIS will transmit the additional data collected on the form to the SSA for processing. Moving forward, applicants who receive their approved EADs from USCIS should receive their Social Security card from SSA within the following two weeks.

EADs serve as documentation to show employers that an individual is authorized to work in the U.S. for a specific time period. SSNs are used to report wages to the government, and to determine an individual’s eligibility for certain benefits. USCIS encourages all U.S. employers to verify the employment eligibility of all new hires through E-Verify.

For additional information on applying for employment authorization, visit USCIS’ EAD page or call the USCIS National Customer Service Center.
For more information on applying for a Social Security card, see this fact sheet.

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

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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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