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.  



LGBT, undocumented, and living in Trump's America. What to do?

Don’t panic

The Trump administration has been making a lot of noise, and that noise is beginning to have real consequences to immigrants who are already in the United States.  However, anyone who encounters an ICE agent is entitled to the due process of law, which, for most people, means that you cannot be removed unless an Immigration Judge orders you removed in Immigration Court — and Immigration Court offers many types of possible relief from deportation, including asylum or withholding of removal for LGBT immigrants who fear persecution in their home countries.  However, we have been seeing more reports of ICE raids throughout the country, which brings us to our second point…

Don’t delay

If you have any potential forms of immigration relief, now is the time to consider pursuing it.  For instance, if you have a spouse or partner who is a U.S. citizen, you may want to explore the possibility of obtaining permanent resident through marriage.  If you have fear of returning to your home country, you may want to explore the possibility of filing for asylum.  If you have been the victim of a violent crime in the past, you may want to explore the possibility of filing for a U-visa.   These processes can be much less stressful when you are working with USCIS, and not with the Immigration Court.

If you already have a final order of removal (an order directing your deportation), or suspect that you might have one, it is extremely important to speak to an immigration attorney who can advise you about your legal rights and options, if any, you might have to reopen your removal proceedings.

If you would like to discuss your immigration options with one of our attorneys, please contact us.  

Know your rights

If you are undocumented, it is possible that an encounter with an ICE agent could lead to your detention.  If you ever encounter an ICE agent, remember these three key items:

A. Do not answer any questions.  You have the right to remain silent under our constitution.  Simply tell the agent that you wish to speak to an attorney immediately.  

B. Do not open your door.  You do not need to open your door unless the ICE officer has a warrant signed by a judge.  They almost never have such warrants.  If they do have a warrant, ask them to slip it under the door.   

C. Do not sign anything.  In other words, DO NOT SIGN ANYTHING, especially without your attorney reviewing it first.  

D. Do not lie or give the agents false documents.  This is not only a crime, but could later be used against you in court during your removal proceedings.  

Make a plan for what would happen if you were detained

First, memorize the phone number of the person you would call first if you were detained.  You won’t have your iPhone in detention!

Second, give your vital information to a trusted friend or family member in case someone needs to help you if you are detained.  This information should include:

A. Your vital information (date of birth, A-number, copy of passport)

B. The names and numbers of anyone you would want to be notified or cared for in the event you were detained.  For example, if you have children that will need to be picked up from school or elderly parents who would need care, you need to have a plan for who would help them if you were detained.  You may want to also contact a family law attorney about establishing a power of attorney to care for your loved ones in your absence.  

C. The name and number of your immigration attorney, if you have one.

D. A copy of an executed G-28 Notice of Appearance form, which will help your attorney communicate with ICE on your behalf.  You can execute a blank copy if you might need to find an immigration attorney in the event of detention.  This form is available here:  

It is also important that you do not carry any false documents with you, as these could be used against you in criminal or immigration proceedings.  

If you'd like to read more about your rights in an ICE encounter are many great resources available from public interest organizations for how to best manage ICE encounters: