Reflections on 2018

Going into the holidays, and actually feeling caught up on work, I woke up this morning reflecting on the past year.

We’re still in a very fluid situation where we’re often up against an administration that arbitrarily invents new rules that potentially affect our clients — often rules that have no basis in law and are quickly struck down by federal courts. But despite these efforts, our clients’ cases fortunately keep getting approved: they just often take longer than they used to.

One group of particular need that our work has not often touched, however, is immigrants at the border, which is where I believe the administration’s most misguided policies are most acutely felt. We’d love to have the chance to be able to volunteer at the border at some point in the future, but the demands of a small busy law practice coupled with the demands of small children make it quite impossible to get away for a week, even for such important work.

But there has been plenty of important work to do for clients who are not in the volatile border region. This year, we have helped several clients obtain asylum from countries where they would almost certainly be persecuted. These countries span several different continents: for instance, we’ve recently had asylum victories on behalf of clients from Honduras, Nigeria, Russia, and Yemen. In each case, we’ve represented individuals who I would be proud to have as next door neighbors and as friends: wonderful people who I look forward to congratulating as U.S. citizens several years from now. I’d like to believe if even the most hardened anti-immigration Fox News viewer (well, maybe except one) spent a couple of hours with any of these clients, they would perhaps reassess, or at least soften, their hatred and xenophobia.

Another common development in 2018 that has been very fulfilling to us is seeing the very first clients we represented after the Defense of Marriage Act was struck down becoming United States citizens. In a few cases, we’ve been fortunate enough to represent these clients at each stage of their immigration journey. Often, these clients were undocumented or out of status for years, if not decades, in many cases simply because their marriages or life partnerships were not recognized by our federal government until 2013. While they should have been welcomed as U.S. citizens many years ago, we now congratulate them as fellow U.S. citizens.

If you’ve made it this far, thanks for reading this novella, and happy holidays to all. We are thankful for having had the opportunity to work with such a diverse, interesting, and all-around wonderful group of clients, and look forward to continuing to build relationships with you and with new clients in 2019.

Warmest regards,

Alex and Kate

DACA renewals are still available (for now)

This morning, the Supreme Court denied the Government's effort to have the Supreme Court directly review a decision from a federal district court judge requiring that USCIS continue accepting DACA renewal applications.  Instead, the Government will need to have the Ninth Circuit Court of Appeals initially review the decision.  

Due to the district court's decision (and a later decision from another district court judge), the administration is temporarily blocked from its efforts to end the DACA program by not allowing DACA renewals (and then letting the status of existing DACA recipients expire).  Now, individuals with DACA can continue to renew their status until a federal court says otherwise.  However, USCIS is not accepting new DACA applications -- only renewals.

If you are a DACA recipient whose status has expired or is going to expire soon, you should still be able to apply to renew your DACA status if you otherwise qualify.  However, the Ninth Circuit (or, later, the Supreme Court) can still reverse the district court, so you should keep a close eye on legal developments.  

USCIS doesn't shut down

Several clients have asked us whether the government shutdown means that USCIS is shut down as well.  Short answer:  NO.  And that's thanks to you, the immigration applicant, actually.  

Remember that large filing fee that you paid to USCIS when you filed your application?  That's where USCIS gets its money to operate -- not from Congressional appropriations.  So USCIS will keep operating almost entirely normally.  Your paperwork will still be processed (sometimes more slowly than ideal), and your interview will still take place.  USCIS asylum offices are also open for business, including holding regularly scheduled interviews.  

Immigration Court, however, will likely be shut down until the government reopens -- except for cases involving detained non-citizens.  But be sure to check with your local Immigration Court before you assume that a hearing will be postponed. 

As of now, U.S. consulates in foreign countries, as well as the National Visa Center, also appear to be operating normally.   

Big victory for Brophy & Lenahan P.C. in recent Third Circuit appeal

This was not an LGBT immigration case, but in a published opinion, we recently won a Third Circuit appeal on behalf of an individual who was seeking withholding of removal because he had been persecuted in the past in Honduras due to his political opinion.  The Third Circuit found that the case was so strong that it determined that this case deserved one of the "rare instances" where the Court would immediately grant our client's withholding of removal claim instead of remanding it to the Board of Immigration Appeals.  You can read more about it here.  

Edie Windsor: 1929-2017

Edith ("Edie") Windsor, the plaintiff in the seminal United States v. Windsor Supreme Court decision that struck down the Defense of Marriage Act, passed away yesterday at the age of 88.  The Windsor decision marked the beginning of not only family-based immigration rights for same-sex couples, but also rights relating to inheritance, taxation, and countless other rights that had been previously denied to same-sex couples.  Today's Times has Ms. Windsor's obituary as well as a moving op-ed, "Edie Windsor Gave Me My Life."  

Prosecutorial discretion by ICE becoming obsolete

Before the Trump administration, it was common for immigration attorneys to negotiate with ICE for "prosecutorial discretion," through which removal proceedings would be indefinitely suspended and foreign nationals would be allowed to stay and work in the United States (without a path to a green card).  

Unfortunately, the practice of prosecutorial discretion has all but ended, according to a recent article by the American Immigration Council.  This means longer backlogs in Immigration Court, as well as restricting the power of ICE prosecutors to use their discretion to determine which foreign nationals are priorities for removal (e.g. those with criminal records).  

The take-away from this:  if you take an action that might result in Immigration Court proceedings -- for example, filing a challenging asylum claim -- you can be guaranteed that the ICE attorney will be trying to remove you, no matter how sympathetic your case is and how good a member of the community you have been.  These are dark days.    

Disgraceful move by the Trump administration

Although this is not immigration-related, I thought I'd take a moment to express how disgusted we are by this morning's announcement by the Trump administration that transgender individuals cannot serve in the U.S. military in any capacity.  This action appears to be based purely on transphobia, and it is a huge setback to transgender rights.  

We stand with all of the transgender men and women of the military and thank them for their service.  We also stand with those who want to serve our country but will now be prevented from doing so.  Better days are ahead.  

EDIT 7/27/2017:  The military has announced that transgender service members can continue to serve until the White House officially changes the guidelines.  Stay tuned... 

Lawsuit challenges CBP treatment of asylum-seekers at border

We have had several clients over the past few years who were caught attempting to cross the Mexican border and prevented from claiming asylum by aggressive tactics of U.S. Customs and Border Protection ("CBP") officers.  While we never recommend attempting to enter the United States without inspection, individuals who are encountered crossing the border or inside the United States generally have a right to a "credible fear" interview, which typically leads to them being able to bring an asylum claim in Immigration Court.  

Fortunately, yesterday, the American Immigration Council and the Center for Constitutional Rights filed a lawsuit challenging this practice.  Here is one example from the lawsuit about CBP tactics:

One of the individual plaintiffs in the lawsuit is an asylum seeker from Honduras who fled with her daughter after they were threatened by a notorious gang and raped repeatedly in front of each other. The mother and daughter tried to seek asylum in the United States on three separate occasions at a POE in Tijuana, Mexico, but were denied access to the asylum process by CBP officers each time.
The first time, CBP officers misrepresented that there was no more asylum in the United States. The second time, CBP officers misrepresented that there was no more asylum in the United States for Central Americans and threatened the mother that if she came back to the POE, she and her daughter would be handed over to Mexican authorities and deported to Honduras. The third time, CBP officers separated the mother from her daughter by force and told the mother that she could proceed but would have to leave her daughter behind. When the individual plaintiff refused, she and her daughter were escorted out of the port.

Hopefully, this lawsuit will lead to necessary reforms at the border for how asylum-seekers are treated by CBP.  Read more about the lawsuit here.