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In His Own Words: A Kuck | Baxter Paralegal Shares His Personal Immigration Story

6/29/2018

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By: Charles Kuck, Past ABIL President
​Musings on Immigration
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The identity of the United States is firmly rooted in the idea that this country is a “nation of immigrants.” In fact, up until February 22, 2018, the mission statement for the U.S. Citizenship and Immigration Services governmental agency (“USCIS”) described “America’s promise as a nation of immigrants.” While the wording of this mission statement has been changed, this country nonetheless continues to be a nation of immigrants and a nation of nations. No revision to a mission statement will change this.

While we may be a nation of immigrants, no two immigrants have the same story. Rather, each of their unique stories help make up the multicultural, melting pot narrative of our country.

For today’s post on the Kuck | Baxter Musing on Immigration Blog, we’re going to do something a bit different than our usual blog postings. At the immigration law firm of Kuck | Baxter, we have a diverse arsenal of attorneys and staff, including many with immigrant backgrounds. One of our amazing paralegals, Raymond Partolan, was born in the Philippines and came to the U.S. with his family at just fifteen months old. In 2012, he became a beneficiary of President  Obama’s Deferred Action for Childhood Arrivals Program (DACA). He was granted a two-year reprieve from deportation and was able to obtain a work permit and driver’s license. Mr. Partolan, who self-describes as a proud Filipino-American, has contributed in countless ways to his community. He was salutatorian of his high school class and student body president at Mercer University. After graduating from college with a near perfect GPA, he worked as a Program Associate for Atlanta’s Asian Americans Advancing Justice, the first nonprofit law and advocacy center dedicated to the civil, social, and economic rights of Asian immigrants and refugees in Georgia and the Southeast. In 2017, he left his role at Asian Americans Advancing Justice to pursue a career in immigration law and joined Kuck | Baxter Immigration Partners as an immigration paralegal. He works in the Family Practice Immigration Group, helping clients with a wide array of family immigration law matters.

Mr. Partolan says he first wrote down his personal immigration story right after the Presidential Election of 2016. After having so many people ask him about his immigration story and the challenges faced by being an undocumented immigrant in this country, he decided to write down his story in his personal blog—a story that he importantly and emphatically notes is still being written.

Click here to read Mr. Partolan’s immigration story as self-published on his blog named “Outside of the Shadows”.

*The above hyperlink will direct you to Mr. Partolan’s blog. The materials and blog posts on his website and any related links are provided for informational purposes only. They are not intended as and do not constitute legal advice and should not be acted on as such. The materials and links are neither the legal opinions of Kuck | Baxter or any of its attorneys, staff, or clients nor are the materials represented as being all-inclusive, correct, complete, or up-to-date. You should not rely on any information on this website or its links. If you hare having an immigration law issue we suggest you seek the advice of a skilled immigration attorney.

We are proud to have Mr. Partolan as part of the Kuck | Baxter team. While Mr. Partolan’s educational and professional success is exceptional, the fact that he is an immigrant is not. After all, foreign-born residents now living in the United States make up approximately 15 percent of the U.S. population.

Are you facing an immigration law issue and need legal guidance? With incredibly high stakes and an immigration law system that is both littered with bureaucratic red tape and is notoriously difficult for laypersons to navigate, we know how disruptive and stressful immigration law issues can be on individuals and their loved ones. We strongly recommend that no one try to go at it alone but rather work with an experienced immigration lawyer. The exceptional team of immigration attorneys at Kuck | Baxter handles a wide array of immigration law matters for individuals, families, small and large business, and investors.

We stand by you throughout the entire process, doing everything in our power to help you achieve a favorable outcome. While we cannot guarantee results, your chances of success are significantly higher when working with a skilled immigration attorney rather than going at it alone.

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The Supreme Court Upholds Trump’s Travel Ban 3.0

6/28/2018

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By: Courtney Sommer, Associate Attorney of Kirby Gamblin Joseph, ABIL Lawyer
​Joseph Law Firm Immigration Blog

In the span of 9 months, President Trump issued three separate versions of a travel ban, each one struck down by a federal court before it could do much damage.

The third travel ban was the last to be issued and struck down by a federal court. But on Tuesday the U.S. Supreme Court issued a decision upholding the travel ban, stating that it is within the President’s power to impose restrictions on certain countries when the President believes entry by citizens of those countries could be detrimental to the interests of the U.S.

This version of the travel ban now in effect applies to seven countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. For North Korea and Syria, all immigrants and nonimmigrants are blocked from entering the U.S. For Libya and Yemen, immigrants and nonimmigrants on a B-1/B-2 (temporary business visitors or tourists) are prohibited from entering the country. For Somalia, all immigrants are blocked from entering and nonimmigrants are subject to “enhanced screening.” For Iran, all immigrants and nonimmigrants, except for those on an F, M, or J visa, are prohibited from entering the country. Those nonimmigrants on an F, M, or J visa are subjected to “enhanced screening.” Lastly, for Venezuela, only government officials and their family members using a B-1/B-2 visa are prohibited from entering the country.

The travel ban does not apply to individuals from those countries with lawful permanent resident status or who are already in the country on the date it goes into effect. Additionally, dual nationals are able to use their passports from non-banned countries to travel to the U.S., and foreign nationals granted asylum, refugees admitted to the U.S., and those granted withholding of removal, advance parole, or protection under the Convention Against Torture are not subject to the ban.

The ban can be waived on a case-by-case basis for individuals affected by the ban if an officer determines that the individual meets three criteria: 1. Denying entry would cause the foreign national undue hardship; 2. Entry would not pose a threat to national security or public safety in the U.S.; and 3. Entry would be in the national interest. The last criteria requires a showing that a U.S. person or entity would suffer hardship if the applicant could not travel to the U.S. until after restrictions are lifted.

As part of the travel ban, the Secretary of Homeland Security and the Secretary of State are ordered to create a process for assessing whether the travel restrictions should be continued, terminated, modified, or supplemented based on whether the countries have improved their “vetting” procedures. The agencies are required to submit a report every 180 days to the President regarding these issues.


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Five Options TPS Holders Have to Remain in the United States When TPS Ends.

6/28/2018

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By: Charles Kuck, Past ABIL President
Musings on Immigration

Now that we know TPS is ending for Hondurans and El Salvadorans, it is essential that correct information about options be available.  Be very careful before choosing your path forward, and make sure you are talking to experienced immigration lawyers who understand both TPS and all of immigration law. 

1. It is essential that TPS holders obtain a “legal” entry into the United States.  Under TPS, a person is eligible for a travel document called an “advance parole.”  USCIS currently seems to be asking people to produce evidence of an emergency reason to travel (sick or dying close relatives, or urgent business outside the US).  But USCIS  has granted advance parole to TPS holders for years for any reason. USCIS appears to have changed their policy because a legal entry allows TPS holders to “adjust status” to lawful residence, under certain circumstances.  Apply for a travel document today, AND travel outside the US.  Do NOT fear denial of reentry.  So long as you have a valid TPS and have no criminal charges pending, you will be admitted.

2. TPS holders with a legal entry can “adjust status” in the United States through an “immediate relative,” a U.S. spouse or child (who is 21 or older).  Many TPS holders have children within 4-5 years of 21, if not much closer or at that age.  These TPS holders, even once TPS expires, will be able to obtain permanent residence in the United States through their children, so long as they have a legal entry, such as the one through advance parole.  TPS holders who are married to US Citizens can also adjust status, if they have that legal entry.  This is true anywhere in the United States.

3. TPS holders can also process for permanent residence through their employers, by a process called labor certification. That process takes at least a year, however, so plan accordingly. There are also issues of doing this in Georgia that you need to understand prior to undertaking the process, and it certainly requires that you have entered the US legally or traveled on an advance parole. In certain states, there is no need to travel beforehand and adjusting status is not a problem, in other states, doing so may be an issue, so you may need to move to another state to finish this “green card” process.  Talk to an immigration lawyer who does “labor certifications” regularly, not someone who started doing it recently because they thought they could make money!  This is a complicated process and processing times are long.  You must complete the labor certification process before your TPS expires, so if you are planning on doing this, you need to do it now.

4. It is substantially unlikely that USCIS will put all TPS holders into deportation proceedings when TPS ends, as the immigration court system is simply incapable, right now, of handling that number of new cases.  Most TPS holders, who do NOT already have a deportation order, have children born in the United States.  Most TPS holders will, if they are put into deportation proceedings, be eligible to apply for “cancellation of removal” or as some people call it “the 10 year law.”  The approval rate for these cases is low, but the processing times currently stretch into the years, and you will be able to get a work permit while the case is pending.  This option ONLY applies if you are in deportation proceedings, something you do not necessarily want.  Also, since your children are born in the U.S., if your case takes long enough, they will reach 21, and you will be able to get permanent residence, if you entered legally, or returned under and advance parole, even if you no longer have TPS.

5. If you already have an order of deportation, a new Supreme Court case, called Pereira, may help you in reopening your case. If you were not served with a “Notice to Appear” with a date for a hearing, there is an argument that the Notice was defective, and thus deprives the court of jurisdiction, and your case would then need to be reopened.  This is a brand new decision, and that means the arguments have not yet been tested, however, in some locations around the United States, case have been reopened and some terminated on this basis. It is important to obtain a copy of your immigration file and meet with an experienced immigration attorney to determine if this new case can help you undo your deportation order, and provide you either a termination, or possibly an another avenue for relief under any of the other options above.

The most important thing to remember is to NOT trust your future to an unqualified immigration lawyer.  There a lot of “new” lawyers out there willing to take your money, but who do not have the experience or the support to assist you properly. Do your homework, use the internet, and find an experienced immigration lawyer who can explain to you what can be done to assist you, or can honestly tell you that you have no options, so that you can make the appropriate plans.


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Another Brick In The Wall: New Public Charge Guidance Bodes Ill For American Families And Communities

6/27/2018

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By: Jennifer Howard, Associate Attorney of Kirby Gamblin Joseph, ABIL Lawyer
Joseph Law Firm Immigration Blog

The Trump administration is adding another weapon to its stockpile in the war on immigration by seeking to broaden the definition of who is likely to become a “public charge” and in effect to make it more difficult for immigrants to come to the United States.

Specifically, the U.S. Department of State changed the Foreign Affairs Manual (the “FAM”), which provides guidance to consular officers in deciding if an applicant is eligible for a visa. Under prior guidance, a qualifying I-864 “Affidavit of Support” signed by a U.S. citizen, national, or lawful permanent resident sponsor whose income was over 125 percent of the Federal Poverty Guidelines was almost always sufficient to establish that the applicant was not likely to be a “public charge” and thus was not inadmissible on public charge grounds (i.e., dependent or likely to become dependent on government benefits). However, the updated FAM instructs that the I-864 Affidavit of Support is only one of many factors to be taken into consideration. Other factors that will be taken into account are the applicant’s age, health, family status, assets, resources, financial status, education, and skills.

The new guidance also takes into account any U.S. citizen, national, or lawful permanent resident sponsor’s or family member’s receipt of certain “noncash” public benefits and assistance programs for themselves and, in many cases, for their U.S.-born, U.S. citizen children.

Such noncash benefits include, but are not limited to:

  • Supplemental Nutrition Assistance Program (SNAP) (formerly called “Food Stamps”;
  • the Medicaid Program (other than payment under Medicaid for long-term institutional care);
  • the Child Health Insurance Program (CHIP);
  • emergency medical services;
  • the Women, Infants and Children (WIC) Program;
  • other nutrition and food assistance programs; other health and medical benefits;
  • child care benefits;
  • foster care;
  • transportation vouchers;
  • job training programs;
  • energy assistance, such as the low-income home energy assistance program (LIHEAP);
  • educational assistance, such as Head Start or aid for elementary, secondary, or higher education;
  • job training;
  • in-kind emergency community services, such as soup kitchens and crisis counseling;
  • state and local programs that serve the same purposes as the Federal in-kind programs listed above; and
  • any  other Federal, State, or local program in which benefits are paid in-kind, by voucher or by any means other than payment of cash benefits to the eligible person for income maintenance.
This also applies to any co-sponsor or joint sponsor for an immigrant visa petition; and similar changes are expected soon for applications for adjustment of status through United States Citizenship and Immigration Service (USCIS).  As a result, this change greatly expands the range of benefits that can be used to issue a denial based on a public charge determination, such as whether a noncitizen parent’s U.S. citizen children receive certain health- or food-related aid.

Even though these rules have not yet been finalized, this new guidance from immigration authorities gives applications for immigrant visas and adjustment of status increased chances for complications and even denial. What this means is that where immigrant visa applicants and their attorneys previously only needed to worry about completing a qualifying I-864 Affidavit of Support with supporting documents, an application will now require a great deal of evidence addressing the rest of the factors mentioned above. In many cases, these applications will require lengthy legal arguments about why the evidence submitted should be sufficient proof that the applicant is not inadmissible on public charge grounds, why the positive factors in a case outweigh any negative factors, and why a person is not likely to become a public charge in the future even if they or a family member received public benefits in the past.

Worse even, this change also places at higher risk the many U.S. citizen children who have one or both parents seeking or hoping to seek lawful immigration status in the United States. In many cases, the U.S. citizen children, and perhaps spouse, depend on a combination of healthcare, nutrition and food assistance, and childcare and education benefits (for which they qualify), in addition to the intending immigrant parent or parents’ income, to make ends meet. In these cases, the family will be harmed beyond repair if the immigrant visa or adjustment of status application is denied on public charge grounds. This is particularly ominous for consular processing cases where there may be little to no recourse for a public charge denial once the applicant is outside the country for the purposes of attending his or her immigrant visa interview and is unlikely to be able to reenter following that denial.

Additionally, where these families already worry that using government programs could carry unintended immigration consequences or place them at risk for detention by Immigration and Customs Enforcement (ICE), this policy could essentially force millions of American families to choose between seeking lawful immigration status and going without necessary food, shelter, healthcare, and education services for their U.S. citizen children. As a result, the implementation of these changes and the associated misinformation and fear of accessing public benefits programs for which these families qualify are likely to exacerbate nationwide the problems of hunger, poverty, homelessness, lack of access to healthcare, illiteracy, poor academic performance, and community disengagement and disenfranchisement.


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Client Alert: US Supreme Court Upholds Trump’s Muslim Travel Ban

6/27/2018

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By: Josune Aguirre and Cliff Rosenthal, Associate and Partner of Bernard P. Wolfsdorf, ABIL Lawyer
Wolfsdorf Immigration Blog
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Today, the US Supreme Court in a 5-4 decision upheld Trump’s 3.0 travel ban, which targeted some Muslim-majority countries.  This is important for few reasons:

1. Chief Justice Roberts wrote in the majority opinion that the ban “does not exceed any contextual limit on the President’s authority.” Further, the Court held that Section 1182(f) of the INA exudes deference to the President in every clause.  This means the Supreme Court found that a President banning indefinitely (as the Court held the ban is constitutional as long as necessary) all citizens from a particular country is constitutional and within the authority of the executive branch.

2. The decision also held that the ban did not violate the First Amendment by denying freedom of religion to Muslims even though the President stated, “Donald J Trump is calling for a total and complete shutdown of Muslims entering the United States.” The Court held that the only perquisite of Section 1182(f) of the INA is that the “President ‘find[]’ that the entry of the covered aliens would be detrimental to the interests of the United States.’” As such, the Court was satisfied that the President’s travel ban was based on the finding that denying entry to foreign nationals who could not be vetted with adequate information was in the national interest and that the travel ban is facially neutral toward religion.

In summary, the US Supreme Court held that the executive branch has deference on immigration matters as long as the government produces some type of reasoning that is not discriminatory, even if there is contrary evidence.

Justice Sotomayor articulated the case for overturning the ban in her dissenting, stating:

“The United States of America is a nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.”

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Supreme Court Upholds Controversial Trump Travel Ban

6/27/2018

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By: Charles Kuck, Past ABIL President
Musings on Immigration
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On Tuesday, June 26, 2018, the Supreme Court of the United States upheld Trump’s controversial travel ban. The Supreme Court ruling in Trump v. Hawaii was divided 5-4 along partisan lines, with conservative justices in the majority and liberal justices in the dissenting minority. To read a copy of the entire opinion, click here.

In September 2017, President Trump issued Presidential Proclamation 9645 (the THIRD iteration of this idea), which has become known as the “travel or Muslim ban”. This Proclamation restricted immigration (to varying degrees) into the U.S. by citizens of seven different countries. Most of these countries (but not all of them) have predominantly Muslim populations. These seven countries are Iran, North Korea, Syria, Libya, Yemen, Somalia and Venezuela. Chad was initially on the list of countries subject to the travel ban, but it was recently removed after it met baseline security requirements.

The state of Hawaii argued that this September 2017 Presidential Proclamation exceeded the President’s authority under both federal immigration law and the U.S. Constitution. Hawaii also argued that the travel ban was discriminatory based on both religion and nationality. The state of Hawaii asked the Supreme Court to consider Trump’s speeches as well as his Twitter posts during his presidential campaign, with lawyers for Hawaii arguing that this rhetoric showed Trump’s desire to keep Muslims out of the U.S.

So why did the Supreme Court side with Trump? Chief Justice Roberts, who wrote the majority opinion, rejected Hawaii’s constitutional challenges to the September 2017 Presidential Proclamation. Chief Justice Roberts endorsed a broad view of presidential power, declaring that “The Proclamation is squarely within the scope of Presidential authority.” This is true, relying on an ancient provision in immigration law, created in 1940, as part of The Alien Act, and was used as a basis for denying visas to specific countries on national security grounds.  The Supreme Court held that the permanent entry restrictions for the seven terror-prone countries is consistent with the U.S. Constitution’s Establishment Clause and Congress’s Immigration and Nationality Act.

The court rejected the plaintiff’s argument that the travel ban was based on religious hostility. In the majority opinion, Chief Justice Roberts writes that the September 2017 Presidential Proclamation is “expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practice” and that the “text says nothing about religion.”

In a scathing, impassioned dissent, Justice Sotomayor compared the Supreme Court’s ruling in Trump v. Hawaii to the Supreme Court’s decision in the 1945 case of Korematsu v. United States, where the Court upheld the holding of Japanese-Americans in internment camps during World War II. Justice Sotomayor wrote that the Court’s decision fails to safeguard our Founder’s core promise that the United States of America is a nation build upon the promise of religious liberty. Sotomayor writes that, “Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.”

The Supreme Court’s decision in Hawaii v. Trump is considered a big win for the Trump White House. In reaction to this decision, protests have sprung up on the streets across the country. Some Democrats are already calling for Congress to overturn the decision. A lawyer for the American Civil Liberties Union, which challenged the travel ban, said, “The ruling will go down in history as one of the Supreme Court’s great failures.” California’s Attorney General, Xavier Becerra, tweeted in response to the decision, “#SCOTUS got this one wrong. One day this nation & court will look back and regret this ruling that legalized discrimination.”

What are the implications of this decision? As of now, the restrictions set forth in the September 2017 Presidential Proclamation 9645 will remain in place for the indefinite future. Also, additional countries may be added or removed from the list. For more specific information about the restrictions in the Presidential Proclamation, check out the U.S. Department of State website.

This Presidential Proclamation/travel ban has already and will continue to cause chaos for affected individuals and their families. If you are concerned about how the travel ban will affect you or your family’s ability to travel, immigration status, student visa, work visa, and etc., it is strongly encouraged that you seek out knowledgeable, experienced immigration law help. Attempting to navigate and challenge the ever-changing immigration laws and policies without a professional immigration attorney by your side is extremely difficult.




  1. https://www.cnn.com/2018/06/26/politics/travel-ban-supreme-court/index.html
  2. https://www.cnn.com/2018/06/26/politics/travel-ban-supreme-court/index.html
  3. http://www.breitbart.com/big-government/2018/06/26/supreme-courts-historic-immigration-decision-in-trump-v-hawaii/
  4. https://www.cnbc.com/2018/06/26/supreme-court-rules-in-trump-muslim-travel-ban-case.html
  5. https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf
  6. http://www.sandiegouniontribune.com/opinion/the-conversation/sd-supreme-court-upholds-trump-travel-ban-20180626-htmlstory.html



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How Trump Administration Officials Can Be Found Criminally Culpable For Separating Children From Parents

6/24/2018

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By: Cyrus D. Mehta, ABIL Lawyer and Sophia Genovese
The Insightful Immigration Blog

The Trump Administration has continued to perpetuate the falsehood that immigrants are criminals, despite overwhelming evidence that communities are safer when immigrants arrive. Trump’s recent spectacle to honor victims of crimes perpetrated by people who happened to be immigrants was designed to not just to spread hatred and fear of immigrants, but to counter criticism of his policies that have resulted in the cruel separation of children from parents. Trump cynically tried to show that Americans, whom he called “angel families,” have been permanently separated from their parents, thus attempting to deflect from the worldwide negative reaction he has received from the separation of immigrant families seeking asylum in the United States. While it is unfortunate that parents lost their children in crimes committed by immigrants, Trump has manipulated and exploited their unfortunate situation as justification for his inhumane policies.

The purpose of this blog is to continue to focus on the gross abuses that were perpetrated on children by the Trump Administration. These abuses were intentional and targeted against children from Central America that ought to make the architects criminally culpable. The separations did not arise from a policy that could not be avoided under law. Indeed, it was a deliberate policy to deter people from Central America from applying for asylum under US law by cruelly separating children, knowing that it would cause them trauma and permanent psychological harm.  Accordingly, the real criminals are not the immigrants. The real criminals are those in the administration who have separated families, subjected detained immigrants to inhumane and violent conditions, and who now seek to detain immigrant families indefinitely.  These officials may never be prosecuted under US law, but it is important to show how they can be held criminally culpable under international law so that they can be amenable to prosecution at some point of time in the future.

Article 7 of the Rome Statute of the International Criminal Court defines “crimes against humanity” as

[A]ny of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
​
  1. Murder;
  2. Extermination;
  3. Enslavement;
  4. Deportation or forcible transfer of population;
  5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
  6. Torture;
  7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
  8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
  9. Enforced disappearance of persons;
  10. The crime of apartheid;
  11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
(emphasis added).

The widespread and systematic separation of over 2,000 immigrant children from their families, the inhumane and torturous acts committed by the United States against them, and the ongoing incarceration of children potentially constitute crimes against humanity. The United States, especially Trump administration officials who established these children and toddler internment camps, ought to be prosecuted to the fullest to redress these egregious criminal acts.

The policy of family separation has been condemned by the Office of the United Nations High Commissioner for Human Rights, stating that the practice “amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child […] The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles.” High Commissioner Zeid bin Ra’ad al-Hussein further stated that such separation and incarceration of children constituted “government sanctioned child abuse.” The OHCHR statement also reminded that the United States is the only country in the world that has refused to ratify the Convention on the Rights of the Child (CRC), which specifies the civil, political, economic, social, health, and cultural rights of children, including Article 37, which provides, inter alia, that “[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily.”

Amnesty International has taken the criticism one step further and has argued that the “policy of separating children from parents is nothing short of torture…The severe mental suffering that officials have intentionally inflicted on these families for coercive purposes means that these acts meet the definitions of torture under both US and international law.” Indeed, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, defines torture as

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The US has adopted this definition of torture in 18 U.S. Code § 2340. The severe psychological and physiological effects of the separation of immigrant families rises to the level of torture under international and US law, as well as constitutes a crime against humanity given its widespread application against immigrant families, where such separation is used as a punishment for, and as a deterrence to, seeking asylum in the United States. This separation of asylum-seeking families constitutes impermissible, severe deprivation of liberty. Moreover, if reports regarding the forced drugging of detained immigrant children prove to be true, in addition to well-documented historical abuses of detained immigrant children including the denial of medical care and physical and sexual abuse, they too would rise to the level of crimes against humanity as “other inhumane acts.” Moreover, this separation, mistreatment, and incarceration violates the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”), which the United States has also ratified. Under the Genocide Convention, “causing serious bodily or mental harm to members of the group” and “forcibly transferring children of the group to another group,” with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” constitutes genocide.

On June 20, 2018, Trump issued an Executive Order misleadingly entitled “Affording Congress an Opportunity to Address Family Separation,” purportedly ending family separation. The EO maintains support for Sessions’ zero-tolerance policy at the border and mandates family detention during the pendency of proceedings for unlawful entry, as well as for the duration of the family’s immigration proceedings. This EO thus remains in contravention of international norms and standards in regards to the prolonged detention of refugees and children. The EO is also in violation of the Flores settlement, which requires that the government not detain children for more than 20 days, and which now the government seeks to amend. Moreover, despite a recent announcement by the Department of Homeland Security and the Department of Health and Human Services of a policy to reunite these families (indicating that no such reunification policy existed prior to the taking children from families), this reunification may only occur at the end of the parents’ removal proceedings, which can take several months. The reversal of family separation does not erase the fact that the children were abused  by the Trump administration’s separation policies in the first place.

The solution to family separation is not family incarceration. Indeed, the punitive incarceration of children and their asylum-seeking families not only violates the CRC and the Torture Convention as described above, but also violates the 1951 Refugee Convention and its 1967 Protocol. Under Article 31(1) of the Refugee Convention, contracting States “shall not impose penalties” on asylum-seekers, even if they entered without inspection. As Human Rights First explains, “refugees and asylum-seekers should also not be subjected to punitive or penal detention conditions […] While administrative detention is permitted in limited circumstances, the term ‘penalty’ certainly includes imprisonment […] UNHCR’s Detention Guidelines emphasize that, consistent with Article 31, ‘[t]he use of prisons should be avoided.’” The Trump administration under this EO now seeks to indefinitely detain asylum-seeking families, which is undoubtedly being implemented to deter future families from seeking refuge in the United States, which is in direct violation of international law.

Prosecution against the United States is unlikely to occur at the International Criminal Court, as it has yet to ratify the Rome Statute. Even an investigation at the ICC is unlikely because under Article 17 of the Rome Statute, the ICC can only open up an investigation in States that are unwilling and unable to genuinely carry out an investigation or prosecution. Moreover, even if the ICC opened up an investigation into the United States’ alleged crimes, the US would not cooperate, making prosecution unlikely. Advocates in the United States have been successful in suing the government over these egregious practices in domestic courts, and it thus appears that we have not exhausted all local remedies yet. Advocates ought to begin to raise these international law violations in their suits, and US judges ought to meaningfully adjudicate these violations.

Another option for the United States to be held accountable would be for another country to prosecute officials of the Trump administration in their domestic courts. Although he died before ever being convicted for his crimes, Pinochet was arrested by police in London for charges brought in Spain to punish him for crimes against humanity in Chile under the principle of universal jurisdiction. A similar action could occur here, where another country, such as Canada or Mexico, could lodge an investigation into and ultimately indict Trump or one of his cabinet members, and another country could subsequently arrest those members upon travel. While it may be impossible to do so if Trump travels to these countries as head of state, the indictment could be executed after Trump or other officials leave office and travel to other countries.

International human rights organizations and the ICC are correctly criticized for explicitly targeting and prosecuting African leaders for their human rights abuses, who rightfully deserve such prosecution but who are not alone in committing these atrocities. Recently, however, the Stanford International Human Rights Clinic and the Global Legal Action Network sought to reverse this discriminatory trend at the ICC. In February 2017, the two groups filed a Communiqué to the Office of the Prosecutor of the International Criminal Court under Article 15 of the Rome Statute, arguing that Australia’s offshore migrant and refugee detention practices constitute crimes against humanity. As documented in the Communiqué, the Australian government has systemically blocked boat refugees from accessing its shores and have instead diverted them to detention facilities on the Nauru and Manus Islands, where they are denied access to Australia’s asylum procedures. Stanford and the GLAN provided evidence to the ICC of widespread human rights abuses committed against these asylum-seekers at these offshore detention facilities, and showed that such abuses were committed for the sole purpose of deterring others from seeking asylum in Australia.

To no one’s surprise, the ICC has yet to take up the investigation into Australia’s crimes against humanity. Despite this, the Stanford Communiqué acts as guidance for a future filing against the United States, especially with regards to inhumane treatment of asylum-seekers for the sole purpose of deterring future asylum-seekers. The key difference between the Australian case and a future action against the US is that the US is committing widespread human rights abuses against asylum-seekers on US territory (in addition to preventing asylum-seekers who have lawfully presented themselves at Ports of Entry from entering the US and thus preventing them from claiming asylum, which is yet another international human rights violation). The significance of this is that it explicitly implicates the US’s international responsibilities for the fair treatment of refugees under the Refugee Convention and its Protocol, which Australia has arguably skirted by preventing asylum-seekers from entering its waters.

Advocates are far more likely to be successful in adjudicating these human rights claims in domestic courts. Indeed, our robust courts have proved effective at preventing some of Trump’s most egregious policies. While violations of international law can be raised in a lawsuit to block an egregious policy, it would not result in criminal liability for the perpetrators. Advocates should begin to look into criminal prosecution avenues to hold these officials accountable. Advocates should be cautioned, however, that they can only raise those claims that arise under treaties to which the United States has ratified. As explained above, the ability to raise these human rights claims in domestic courts prevents suit at the ICC under Article 17 of the Rome Statute. However, should advocates exhaust all domestic remedies, an ICC investigation (which is unlikely to ever result in a prosecution) remains an option. Another option is to pursue action in the Inter-American Court for Human Rights, which has the authority to make recommendations to, but not punish, the violating State. And finally, other countries may also bring suit against the Trump administration in one of their courts under the principles of universal jurisdiction.

The United States is not immune from liability for its wrongdoings. No one, not even the president or his cabinet, are above the law. Advocates should continue to consider these global litigation strategies should domestic litigation fail to find Trump administration officials culpable.


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Pereira V. Sessions: Supreme Court Rules For Immigrant In Case Huge Implications For Those In Removal Proceedings

6/22/2018

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By: Aaron C. Hall, Partner of Kirby Gamblin Joseph, ABIL Lawyer
Joseph Law Firm Immigration Blog

This week the U.S. Supreme Court ruled for Brazilian immigrant Wescley Pereira in Pereira v. Sessions, finding that the charging document was defective and did not cut off the time in the United States he needed to establish to apply for cancellation of removal.  Many thousands of immigrants in removal proceedings are likely to benefit from this landmark decision.

BackgroundOne of the most common defenses against deportation is called “cancellation of removal.”  To get cancellation of removal, among other requirements, an applicant must show that you’ve been in the U.S. for a certain amount of time.  The statute has a “stop time rule” that says that for purposes of cancellation, time in the U.S. gets cut off upon the service of a Notice to Appear (NTA) under 8 U.S.C. 1229 (which defines what an NTA must contain).

8 U.S.C.1229, in turn, says that an NTA specifying information including “the time and place” removal proceedings will be held “shall be given” to the noncitizen.

Mr. Pereira argued that the “stop time rule” only cuts off time if the NTA comports with requirements in law, including telling the person when and where he is supposed to show up.  In other words, if an NTA is served without the information required by section 1229, it’s not an NTA issued “under section 1229” and doesn’t cut off his time in the United States.

The Board of Immigration Appeals and deferring circuit courts said that it doesn’t matter if the NTA actually contains the information the statute requires. Mere service of the document, in the Board’s view, cut off the person’s time in the U.S. for purposes of cancellation of removal.

The DecisionThe Supreme Court found that the law was clear.  In order for the charging document to be considered an NTA, it must comply with the requirements of the statute defining NTAs and specifically must include the time and place of hearing.  Because of this, Mr. Pereira continued to accrue physical presence in the U.S. even after the issuance of the defective NTA.  He will now get the opportunity to apply to stay in the country through cancellation of removal by trying to convince an immigration judge that he meets all other legal requirements and deserves the chance to stay.

ImplicationsAs acknowledged by the government in its briefing in Pereira, NTAs almost never include the date and time of hearing.  This means that many thousands of people in removal proceedings who were previously deemed ineligible for cancellation of removal will now be able to apply.

Second, the Supreme Court’s strong language indicating that 8 U.S.C. 1229 was definitional may provide arguments to other noncitizens that their proceedings must be terminated.  It may also give new arguments to some people who already have removal orders that their cases should be reopened due to defective charging documents.


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Stop the Horrific Practice of Separating Children from Parents

6/19/2018

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By: Cyrus D. Mehta, ABIL Lawyer and Sophia Genovese
The Insightful Immigration Blog

The desperate sobbing of children who have been separated from their parents is horrific and shocking. As the children scream “Mami” and “Papa” over and over again, a Border Patrol agent booms above the crying: “Well, we have an orchestra here,” he jokes. “What’s missing is a conductor.”

The practice of separating families at the border is not only cruel and unconscionable, but it is in direct violation of the United States’ obligations under international and US law. As has been argued by the American Civil Liberties Union (ACLU) in its most recent lawsuit against the government, Ms. L v. ICE, this practice of forcibly separating families violates “the Constitution’s due process clause, federal law protecting asylum seekers, and of the government’s own directive to keep families intact.” The Texas Civil Rights Project, the Women’s Refugee Commission, the University of Texas School of Law Immigration Clinic, and Garcia & Garcia Attorneys at Law, P.L.L.C., have filed an Emergency Request for Precautionary Measures with the Inter-American Commission on Human Rights (“IACHR”), arguing that the United States is “violating internationally-recognized human rights and well-established Inter-American standards, including the rights to family, to seek asylum and protection, to minimum due process, among others.”

For those parents seeking asylum in particular, it is permissible under the Immigration and Nationality Act to apply for asylum even if you entered the US without inspection. Supporters of the zero-tolerance policy have decried that these asylum-seekers and migrants should “get in line” or “do it the right way” by applying at Ports of Entry (POEs). However, even when asylum-seekers present themselves at POEs, they are often prevented from making an asylum claim and are turned away. This is in direct violation of International Refugee law, where countries are required to refrain from “expel[ling] or return[ing]  (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Others ‘lucky’ enough to get through to credible fear interviews are systemically found to not possess such a fear and are swiftly removed from the United States despite being eligible for asylum. Attorney General Sessions has now made this even more difficult after he overturned Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and in a footnote gratuitously asserts that few claims based on domestic violence or gang based persecution would satisfy the legal standard to determine whether a foreign national has a credible fear of persecution. And now these individuals seeking asylum, both at the POEs and who have entered without inspection, are being violent separated from their families before they can even attempt to adjudicate their claims.

The Trump Administration understands that what they are doing is shameful, and has deployed every public relations stunt in the book to try and distract the public from what is really going on. From blaming Democrats and the Obama Administration for the existence of a supposed law that mandates this violent separation, to claiming that a separation policy does not exist, to then defending such a policy – it is difficult to keep up. No matter which way you paint it, though, the policy is disgraceful and unlawful, and the Trump Administration has the power to stop its enforcement.

There is no law that requires the separation of immigrant families. The Administration has made the explicit decision to prosecute parents who enter the United States without inspection and to separate them from their children in the process. The government has appeared to bunker down on INA § 275 and 8 USC § 1325, which allow for the prosecution of the misdemeanor violation of illegal entry. Under Session’s so-called zero-tolerance policy, every person who crosses the border illegally is now being prosecuted under INA § 275.  The rationale is that those being prosecuted must be separated from their children during the pendency of the trial. Despite supposedly only separating those families who enter without inspection, there are also a number of caseswhere immigrant families are being separated after lawfully presenting themselves at POEs. Indeed, in  Ms. L v. ICE, supra, the federal judge presiding over the case determined that the plaintiff-parents had asserted sufficient facts and legal basis to establish that separation from their children while they are contesting their removal and without a determination they are unfit or present a danger to their children violates due process under the Fifth Amendment.

This Administration has made the choice to immediately subject asylum-seekers to prosecution prior to adjudicating their asylum eligibility. The UN and human rights advocates have rightfully called this practice unlawful. But more than that, the combination of being punished for fleeing violence and being violently separated from one’s children takes an ineffable mental toll and prevents them from effectively adjudicating their asylum claims, with one recent story of a father taking his own life under the stress of this policy and others discussing the developmental consequences of this separation to children. Once an asylum-seeker finally gets to adjudicate their asylum claim, after weeks or months of separation from their children, they are often so broken down that they cannot effectively argue their claims. If they do not have access to counsel, their chances of obtaining relief – despite clear eligibility – are next to none.  What also makes this practice so egregious is that the underlying motive of the Trump administration is to use the children as political fodder so that Trump can get what he desires in an immigration bill, including his wall and a reduction in legal immigration.  The whole crisis has been manufactured by Trump himself and he has the power to stop it right now.   Indeed, the separation of children as young as eight months old is so horrific that it is important to start viewing them as crimes against humanity, punishable under an international tribunal, rather than a shift in policy.

If you’re like us, and believe that this separation is wrong, we urge you to put pressure on your Congressperson to propose/support emergency legislation to stop the Trump Administration from cruelly separating children from the parents. Call the congressional switchboard at (202) 224-3121. There’s a Senate bill (S. 3036 – Keep Families Together Act) and a House bill (H.R. 5950 – the HELP Separated Children Act), which you can ask your Senators and Representatives to support. If your member is conservative and not likely to support any of these bills, then at least have the member speak out in order to urge the President to reverse the policy.  This violent policy of separating families at the border is not in line with the law and is not in line with American values. The United States has historically taken in hundreds of thousands of refugees from Eastern Europe, the Soviet Union, Haiti, Cuba and Vietnam, among many other countries. We can easily take in people fleeing persecution and violence in Central America once they qualify for asylum under our laws.  The Trump Administration and its supporters ought to take a good, long look in the mirror and ask themselves whether they in good conscience believe that separating children from their families is in-line with those values.

Update: The solution to family separation is not family incarceration.

On June 20, 2018, President Trump issued an Executive Order misleadingly entitled “Affording Congress an Opportunity to Address Family Separation,” purportedly resolving the issue of the separation of immigrant families. The EO maintains support for the zero-tolerance policy at the border and mandates family detention during the pendency of proceedings for unlawful entry, as well as for the immigration proceedings themselves. This EO is in contravention of international norms and standards in regards to the detention of refugees and children. The EO is also in violation of the Flores settlement, which requires that the government not detain children for more than 20 days. Although the Flores settlement only applies to children, past practice (admittedly, inconsistent practice) has been to release the whole family after 20 days to ensure family unity. The EO directs the Attorney General to file suit in the Central District of California to modify the Flores settlement to allow for indefinite detention of children.
​
The struggle to end mass incarceration of families is not over, and the new EO should not be seen as a victory. Practitioners should continue to litigate these detention practices in the courts and allies should continue to advocate for the eradication of this egregious practice. Nor should President Trump gloat and claim victory. He along with his cabinet members  and advisors who masterminded a gulag for children, toddlers and infants – with the goal of using them  as political fodder – have inflicted irreparable damage on them and should ultimately pay the price.
​
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MORE IMMIGRANTS WILL GET IN-STATE TUITION UNDER A NEW COLORADO LAW

6/19/2018

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By: Alexander D. McShiras, Senior Attorney of Kirby Gamblin Joseph, ABIL Lawyer
​Joseph Law Firm Immigration Blog

A new Colorado state law will help immigrants who helped the United States military to afford to go to college. The law will help an estimated 300 students in its first year and will continue for years to come. The law will benefit immigrants who came to the United States through the “Special Immigrant Visa” (SIV) program and will also benefit refugees. This program includes staff members who worked for the United States military abroad, including translators and interpreters. For example there are many Iraqi and Afghan interpreters who worked for the United States army, at significant peril to themselves and to their families.  The SIV program allows these immigrants to come to the United States on a visa and then become permanent residents (and eventually citizens once they qualify), after living in the United States as a permanent resident for at least five years.

In addition to giving in-state tuition to SIV participants as soon as they arrive in Colorado, the program will also benefit newly resettled refugees. Approximately 1,200 refugees are resettled in Colorado each year and this new law will also grant them in-state tuition immediately. The new law will make life a little easier for these two categories of immigrants. Education is so important to succeed in American society. This law is a step towards leveling the playing field for immigrants who often arrive in Colorado with very little, but who are very hard working. By reducing the amount that these students have to pay each year, Colorado has lowered one big hurdle that immigrants face in getting an education. The law goes into effect immediately and should be implemented by the time the fall semester begins at most colleges and universities across Colorado.

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