UPDATES ON RECENT EXECUTIVE ACTIONS IMPACTING IMMIGRATIONPresenters:Kate Lincoln-Goldfinch, Lincoln-Goldfinch LawCaroline Tang, Ogletree Deakins

Austin Bar AssociationFebruary 6, 2017

IMMIGRATION 101 & COUNTRY-SPECIFIC BANSCaroline TangOgletree Deakins

Agenda• Brief Immigration Law History• Government Agencies• Immigrant vs. Nonimmigrant Visas• Refugees vs. Asylees• Security Clearances• Executive Order targeting seven Muslim-majority

countries• Darweesh v. Trump• States of Washington and Minnesota v. Trump

• What’s Next?

Brief History of Immigration Laws

• 1776 – 1875: Open Door Policy• 1875 – 1917: First Immigration Restrictions• 1917 – 1951: First Quota Systems• 1952 – 1985: Immigration & Nationality Act (and revisions)• 1986: Immigration Reform and Control Act (IRCA)• 1996: Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA)• 2008/2009: Special Immigrant Visa Programs for Iraqi and

Afghan Allies

Immigration: Government Agencies• U.S. Department of Homeland Security or “DHS” (formerly

Immigration & Naturalization Service or “INS”)• U.S. Citizenship and Immigration Services (“USCIS” or “CIS”)• U.S. Customs and Border Protection (“CBP”)• U.S. Immigration and Customs Enforcement (“ICE”)

• U.S. Department of State (“DOS”)• U.S. Department of Labor (“DOL”)

• Employment and Training Administration (“ETA”)• Board of Alien Labor Certification Appeals (“BALCA”)

• U.S. Department of Justice (“DOJ”)• Executive Office for Immigration Review (“EOIR”)• Board of Immigration Appeals (“BIA”)

Immigrant Visas• Lawful Permanent Residence or

“Green Card” holders• Can become U.S. citizens

(naturalization)• Categories:

• Family-Sponsored• Employment-Sponsored (includes

professionals, investors, and certain special immigrants – including Iraqis and Afghans who have worked on behalf of the U.S. government)

• Wait Times for Immigrant Visa Approval:• 6 months to 20+ years

Nonimmigrant Visas• Temporary status in the United States

• Categories: INA 101(15)(A) through (V)• (B): Visitors (Business and Tourism)• (F): Students• (H): Temporary Workers• (L): Intracompany Transfers• (O): Aliens of Extraordinary Ability• (P): Performers and Athletes• (Q): Cultural Exchange (“Disney visa”)

Refugees• INA 101(a)(42)

• Generally: “any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”

Refugees• Process is inherently governed by Executive Branch,

which, every year:• Reviews the refugee situation or emergency refugee situation.• Projects the extent of possible participation of the United States in

resettling refugees.• Discusses the reasons for believing that the proposed admission of

refugees is justified by humanitarian concerns, grave humanitarian concerns or is otherwise in the national interest.

• Following consultations with cabinet representatives and Congress, a determination is drafted for signature by the President. The Presidential Determination establishes the overall admissions levels and regional allocations of all refugees for the upcoming fiscal year.

Asylees• INA 208• Already in the United States• Seeking admission at a port of entry• No safe third country to which alien can be removed

(deported)• Burden of Proof: Refugee standard

Security Clearances• Department of State (consular posts) use the

Security Advisory Opinion (SAO) (security clearance, administrative clearance, or administrative processing) in deciding to grant or deny a visa.

• Consular post sends request to DOS HQ in Washington, D.C., to investigate case for possible espionage, terrorism, and illegal export of technology out of the U.S.

• Processing time can take a few days to over a year.• H-1B employees: Typical 2-6 weeks after visa

interview• Lebanese national (engineer/Ph.D.) who was

stuck outside the U.S. for over a year

Security Clearances• Visas Mantis: potential illegal transfer of sensitive technology• Visas Bear: for foreign government officials, representatives to

international organizations, and their families• Visas Donkey: name hits, certain nationalities• Visas Merlin: refugees and asylees• Visas Eagle: certain nationals of Cuba, China, Russia, Iran, Vietnam• Visas Condor: certain nationalities – e.g ., Afghanistan, Algeria,

Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Turkey, the United Arab Emirates, Yemen

• Visas Hawk: immigrant visas• Visas Horse: diplomatic visa holders of certain nationalities• Visas Pegasus: officials of Commonwealth of Independent States

Executive Order: “Protecting the Nation From Foreign Terrorist Entry Into the U.S.”• Banned Countries:

• Suspends admission and visa issuance for 90+ days for nationals of: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen

• Directs Secretary of DHS to “conduct a review to determine the information needed from any country for adjudication of any visa, admission, or other benefit under the INA adequate to determine that the individual… is who the individual claims to be and is not a security or a public-safety threat.”

• Directs Secretary of State to request that foreign governments supply “information” on their nationals.

• After a 60-day period, DHS submits to President a list of countries recommended for prohibition of entry if countries do not provide the requested “information” regarding their nationals.

Executive Order: “Protecting the Nation From Foreign Terrorist Entry Into the U.S.”• Predicting Who Will Be a Terrorist:

• “Implementing Uniform Screening Standards for all Immigration Programs”

• Goal: to identify individuals seeking to enter the U.S. on a fraudulent basis, with the intent to cause harm, or who are at risk of causing harm subsequent to admission

• Suggests in-person interviews, database of identity documents, amended application forms, “process to evaluate the applicant’s likelihood of becoming a positive contributing member of society” (sic)

• “Mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States”

Executive Order: “Protecting the Nation From Foreign Terrorist Entry Into the U.S.”• Impact on Refugees:

• Realignment of US Refugee Admissions Program FY2017• Period of 120-day additional review of refugee applicants• After this period, resume USRAP admissions only for nationals of

TBD countries• “Prioritize refugee claims made by individuals on the basis of

religion in the individual’s country of nationality” as long as individual is “minority religion” in that country

• Ceases refugee admissions from Syrians “until such time as I have determined that sufficient changes have been made to USRAP” for “national interest”

• Establishment of “safe zones” in/around Syria

Executive Order: “Protecting the Nation From Foreign Terrorist Entry Into the U.S.”• Impact on Permanent Residents

• Plain text of the EO applies to LPRs as well.• DHS clarified that LPRs would be reviewed on a “case by case”

basis.• Practical impact: Cannot guarantee that LPRs would be allowed to

re-enter the U.S.

• Actual Case Study:• Iranian national – Ph.D., energy engineer researcher – unable to

travel to Europe to present at conference• Researcher does work that is clearly in national interest – electrical

grid infrastructure• Loss of time, money, business opportunity

Executive Order: “Protecting the Nation From Foreign Terrorist Entry Into the U.S.”

Arguments For

• Increase background checks

• Obtain intel from other countries’ governments

• Relatively minimal inconvenience

• President is given broad discretion over refugee program

Arguments Against

• Already lengthy/thorough background checks

• Trying to escape oppressive regimes

• Lack of notice caused extreme inconvenience

• Stated purpose of program is to address humanitarian crises

Executive Order: Darweesh v. Trump• Eastern District of New York• Violations of Due Process, Equal Protection,

Administrative Procedure Act, INA, U.S. Convention Against Torture, and Foreign Affairs Reform and Restructuring Act (FARRA) implementing regulations

• Temporary Stay Granted – blocked deportation of people stranded at airports• Stay extended until February 21, 2017

Executive Order: WA & MN v. Trump• States of Washington and Minnesota

filed suit against administration, seeking TRO to preserve the status quo

• Western District of Washington granted TRO due to lack of rational basis to target the seven countries

• DOJ appealed, requesting emergency stay on the TRO

• 9th Circuit denied request for emergency stay

• DHS/DOS are back to “status quo”… for now

What’s Next?• For now:

• DHS has stated that they’re back to operating as before the Executive Order

• U.S. Consulates have stopped revoking visas• Airlines have stated they’re back to booking flights

• Litigation will continue• More EOs to come? Leaked EO: “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs”

INTERIOR ENFORCEMENT & SANCTUARY CITIESKate Lincoln-GoldfinchLincoln-Goldfinch Law

AgendaThe concerns1. Increased Detention2. Everyone is a priority3. LEAs enforcing immigration4. Use of summary deportation for people apprehended

Ways to help• Money (Litigation, Advocacy, Direct Services)• Time and Talent• Stay Active

EO: Border Security and Immigration Enforcement Improvements• Section 4. Physical Security of the Southern Border of the

United States• (a) In accordance with existing law, including the Secure Fence Act

and IIRIRA, take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border, using appropriate materials and technology to most effectively achieve complete operational control of the southern border;

• (b) Identify, and to the extent permitted by law, allocate all sources of Federal funds for the planning, designing, and constructing of a physical wall along the southern border

• PROBLEM: COST• Senate Majority Leader Mitch McConnell estimated the cost to be

between $12 billion and $15 billion.• Secure Fence Action – 700 miles of fencing cost 2.4 billion

Border Security and Immigration Enforcement Improvements• Section 5. Detention Facilities

• (a) The Secretary shall take all appropriate action and allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico. • (b) and (c): assign asylum officers and immigration judges to the facilities

• PROBLEM: COST, LOGISTICS, ACCESS TO COUNSEL• ICE's annual budget for immigration detention is about $2 billion. The

daily cost of detention is about $164 per person. The federal government spends more than $5 million daily to detain immigrants. ICE holds up to 34,000 immigrants on any given day. (Human Rights First)

• DHS detains 400,000 annually. BOP half that amount. (Center for American Progress)

• Facilities are deliberately remote

Border Security and Immigration Enforcement Improvements

• Section 6: Detention for Illegal Entry• The Secretary shall issue new policy

guidance to all Department of Homeland Security personnel regarding the appropriate and consistent use of lawful detention authority under the INA, including the termination of the practice commonly know as “catch and release,” whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law.

• PROBLEM: FIXES SOMETHING NOT BROKEN

Border Security and Immigration Enforcement Improvements• Section 7: Return to Territory

• The Secretary shall take appropriate action, consistent with the requirements of section 1232 of title 8, United States Code, to ensure that aliens described in section 235(b)(2)(C) of the INA are returned to the territory from which they came pending a removal proceeding.

• PROBLEM: REMOVING KIDS OUTSIDE THE US PENDING REMOVAL HEARINGS

Border Security and Immigration Enforcement Improvements• Section 10. Federal-State Agreements

• (b) To the extent permitted by law, and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action; through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary.

• PROBLEM: COMPLEXITY OF IMMIGRATION LAWS, BURDENS LAW ENFORCEMENT AGENCIES

Border Security and Immigration Enforcement Improvements• Section 11. Parole, Asylum, and

Removal• It is the policy of the executive branch

to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of aliens• (c) Pursuant to section

235(b)(1)(A)(iii)(I) of the INA, the Secretary shall take appropriate action to apply, in his sole and unreviewablediscretion, the provision of section 235(b)(1)(A)(i) and (ii) of the INA to the aliens designated under section 235(b)(1)(A)(iii)(II)• PROBLEM: NO DUE PROCESS

Border Security and Immigration Enforcement Improvements

• Section 11. Parole, Asylum, and Removal• (d) The Secretary shall take appropriate action to ensure that

parole authority under section 212(d)(5) of the INA is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.

• PROBLEM: HUMANITARIAN RELEASE, NO RELEASE FOR ASYLUM SEEKERS WHO DO IT “the right way”

EO: Enhancing Public Safety in the Interior of the United States• Section 1: Purpose: Tens of thousands of removable

aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation.• PROBLEM: PROLONGED DETENTION FOR CERTAIN

NATIONALS

Enhancing Public Safety in the Interior of the United States• Section 5: Enforcement Priorities: In

executing faithfully the immigration laws of the United States, the Secretary of Homeland Security shall prioritize removable aliens who: • (a) have been convicted of any criminal

offense; • (b) Have been charged with any criminal

offense, where such charge has not been resolved;

• (c) Have committed acts that constitute a chargeable criminal offense

• PROBLEM: EVERYONE IS A PRIORITY

Executive Office for Immigration Review• Priorities under Obama

1. Unaccompanied minors2. Adults with children3. Detained

• Priorities under Trump• Detained• Unaccompanied children with no sponsor• Individuals released on a Rodriguez bond after prolonged detention

• PROBLEM: BACKLOG IN COURTS

Enhancing Public Safety in the Interior of the United States• Section 6. Civil Fines and Penalties

• As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect fines from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.

• PROBLEM: UNCLEAR MEANING

Enhancing Public Safety in the Interior of the United States• Section 9: Sanctuary Jurisdictions

• (b) To better inform the public regarding the public safety threats associate with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens. • PROBLEM: SOUND FAMILIAR?

HITLER DID THIS

Enhancing Public Safety in the Interior of the United States• Section 10: Review of

Previous Immigration Actions and Policies. • (a) The Secretary shall

immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program knows as “Secure Communities” referenced in that memorandum.

• PROBLEM: RIPS APART FAMILIES

Enhancing Public Safety in the Interior of the United States• Section 13. Office for Victims of Crimes Committed by

Removable Aliens• The Secretary shall direct the Director of U.S. Immigration and

Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

• PROBLEM: DUPLICATIVE. DEPT. OF JUSTICE OFFICE FOR VICTIMS OF CRIME OVERLAP

Leaked Drafts of Executive Orders1. “Ending Unconstitutional Executive Amnesties”

• Ends DACA• Allows for natural expiration of existing work permits• Nail in the coffin on DAPA• PROBLEM: FUTURE OF THE DREAMERS

2. “Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility”

• Would ask DHS to issue a rule saying that an immigrant can’t be admitted to the US if he’s likely to get any benefit “determined in any way on the basis of income, resources, or financial need.”

• Prevents Child Tax Credit• PROBLEMS: GOES AFTER LEGAL IMMIGRANTS AND SPONSORS

Sanctuary Cities• SB4

• Requires that cities or municipalities comply with ICE detainers or lose state grant funding

• Permits 287(g) agreements and local immigration enforcement• County or municipality liability for damages resulting from a felony

committed by a person if county or municipality ignores ICE detainer, or had probable cause the person was not a citizen and the person had a prior conviction of a class B misdemeanor or higher.

• Includes campus police departments• PROBLEM: WARRANTLESS DETAINERS ARE UNCONSTITUTIONAL,

COMPLEXITY OF IMMIGRATION LAWS, STUDENTS NOT SAFE, REDUCES PUBLIC SAFETY

What to advise • RAIDS and RAID preparedness

• Require warrant• ILRC Red Cards

• Family planning• Custody• Passport application• Passwords

• What to carry at all times: • 2 year proof• Proof of status

• Memorize important phone numbers• Report RAIDS: 1-844-END-1ICE (United We Dream)

What can we do?• Give Money

• #StrongerTogether for Travis County• Litigation

• ACLU, Equal Justice Center, American Immigration Council (AIC)• Advocacy

• Grassroots Leadership, AIC, RAICES• Direct Services

• Am. Gateways, RAICES, Casa Marianella, Bernardo Kohler Center, Catholic Charities

• Give Time• American Gateways• RAICES• Casa Marianella• Karnes trips with Lincoln Goldfinch Law• TX Here to Stay – clinics Saturday 2/12 3-6pm and 2/25 11-2pm

Thank You!Kate Lincoln-GoldfinchLincoln-Goldfinch Law

512-599-8500kate@lincolngoldfinch.com

Caroline TangOgletree Deakins

512-344-4704Caroline.Tang@ogletree.com