President Trump’s Immigration Orders: Some Preliminary Thoughts

During the first week of his Administration, President Trump has signed two “executive orders” on immigration: Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States. At least one other order has been leaked to the press: Protecting the Nation from Terrorist Attacks by Foreign Nationals.

This is how it looks when America compromises its values.

The effects of these orders are already being felt. I have heard reports about Syrians with U.S. visas being rejected from a flight because the airline believed that the visa would not be honored and it (the airline) would face liability for bringing the family to our country. My Sudanese client–and a lawful permanent resident based on asylum–was on a business trip to a third country. When she called the U.S. embassy for advice, they told her to return to the United States immediately, as they were unsure how the vaguely-worded executive orders would affect her. A lawyer friend’s client who had been released on bond after passing a credible fear interview was detained, even though he has a pending court date for asylum (though apparently, he also has a pending–and minor–criminal issue, and this may be why he was targeted). The practice of prosecutorial discretion–closing certain cases where the alien has no criminal issues and has equities in the United States–has been ended nationwide, and so now DHS (the prosecutors) can no longer close cases for aliens who are not enforcement priorities. These are some stories from Day 1 of the executive orders.

Here, I want to make some preliminary observations. There will be time for a detailed analysis later, when we know more about how the executive orders will be implemented, but for now, there are some points that non-citizens should keep in mind:

  • Don’t panic. The President has the power to issue executive orders (“EOs”), but he is constrained by the law and by the availability of resources to enforce the law, and so there are limits to what he can do. The asylum system and the Immigration Courts still exist, and while pushing more people into the system may cause further delays, at this stage we really do not know what the effect will be.
  • For people physically present in the United States, the government does NOT have the power to deport anyone without due process of law, meaning a court hearing and an appeal. So you can’t just be thrown out of the country. Even an expedited process usually takes months.
  • Also, there is nothing in the EOs indicating people legally present in the U.S. will be targeted for removal, so aliens with asylum or green cards should be fine, as long as they do not commit (or get accused of committing–see below) any crimes.
  • For people with pending asylum cases, it does not seem that the EOs will have any immediate effect. The orders seem to impose some additional requirements on obtaining immigration benefits (and this may or may not include asylum), but these requirements are very similar to existing discretionary requirements, and I doubt we will see much difference. Asylum applicants from “countries of particular concern” (meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya, and maybe other Muslim-majority countries) may face extra delays because the EO’s seem to temporarily suspend immigration benefits for people from those nations.
  • It is probably best to avoid travel outside the U.S. using Advance Parole, at least until we have a better idea about what is happening. If you do need to travel, talk to a lawyer first to be sure that you will not have trouble returning.
  • If you are from Iraq, Syria, Sudan, Iran, Somalia, Yemen or Libya, it is probably best to avoid all travel outside the United States, even if you have a green card. The situation for people from these countries is unclear, but this seems to be the list (so far) of countries targeted for “extreme vetting.” Since we don’t really know what that means, it is safest to stay in the United States until we have some clarity. If you must travel, talk to a lawyer before you go. If you are from one of these countries and are currently outside the United States, but have lawful status here, it is probably safest to return to the U.S. immediately. Or at least call the U.S. embassy to ask for their advice (though they cannot always be trusted to give the correct advice).
  • If you have a criminal conviction, or even a pending criminal charge, you should be aware that an EO directs the government to make your detention and removal a priority (the idea that people accused of a crime, but not yet convicted, should face an immigration penalty is very troubling). Other priorities include aliens who have engaged in fraud, abused public benefits, or who have a final order of removal (the full list of enforcement priorities is here). However, the government is restricted in its ability to detain and remove people due to limited prison space (though the EOs express an intention to increase detention capacity) and due process of law.

In many ways, these EOs do not immediately change much of what has been policy for the last eight years. The tone is certainly different, which is an important and distressing change, but the laws are the same. For this reason, it is important to remain calm about the changes. For most people inside the U.S., especially people who are not enforcement priorities, the legal landscape today is not much different than it was prior to January 20.

The more damaging affects of the EOs, at least in the short term, is on people who are outside the U.S. waiting to come in, such as Syrian and other refugees whose cases now face a 120-day hold (and what happens at the end of 120 days is anyone’s guess). The EOs also temporarily suspend issuance of visas for immigrants and non-immigrants from “countries of particular concern.” The vague language used in the EOs makes them even more problematic, as it is impossible to predict how they will be implemented.

The longer-term effects of the EOs also look bad: Increased enforcement and detention, coercion of local authorities to end “sanctuary” jurisdictions, additional requirements for people to immigrate to the U.S., restrictions on travel for people from countries that do not (or cannot) supply “information needed for adjudications” of visas to the U.S. government, the border wall. Not to mention the overall tone of the EOs, which paints foreigners as a dangerous threat to our national security.

So here we are. One week into the Trump Administration, and the government is moving to restrict immigration and step up enforcement. To anyone watching Mr. Trump over the last several months, none of this should come as a surprise. There will be time later to analyze the policy effects of Mr. Trump’s actions (spoiler alert: They are terribly damaging to our national interests and our country’s character), but for now, the flurry of activity counsels caution. Over the coming months, we will see how the EOs are implemented, and we will have a better idea about what to expect. For now, though, it seems the large majority of non-citizens in the U.S. will not be affected by the EOs. So keep an eye on the news, and speak to a lawyer before traveling or if your case is an enforcement priority (if you cannot afford a lawyer, you might look for a free attorney here). We shall see how things go, and of course, we will keep supporting each other in these difficult times.

Work Permits for Asylum Seekers—Some Good News

The new Administration has raised anxieties in immigrant and asylum seeker communities. In part, this is because of President Trump’s rhetoric (and rhetorical style) during the election. And in part, it’s because we just don’t know what to expect from a Trump Administration. Rumors have been flying: Will there be some sort of Muslim ban? Will the President repeal DACA? Or will he (and Congress) create a permanent legalization for DACA recipients? Mr. Trump will be issuing some executive orders later today banning Syrian and other refugees from coming to the U.S., and restricting visas for people from certain Middle Eastern countries. How this will all play out, we shall see.

Filling gaps is a good thing.

But amidst the uncertainty, there is some good news related to work permits—or Employment Authorization Documents (“EADs”)—for asylum seekers.

First, last fall, the government started issuing two-year EADs instead of one-year EADs to people with pending asylum cases. This was a helpful development. It saves money since applicants now only have to apply for a new card every other year. It also makes it easier to obtain and retain employment, since employers feel more confident hiring people who have a longer period of authorized employment. In addition, many states issue driver’s licenses that correspond to the dates on the EAD, so a two-year card means a two-year license. All this helps ease the wait for people seeking asylum.

Second, last week the government issued new (and long anticipated) regulations “to help prevent gaps in employment authorization”:

DHS is providing for the automatic extension of expiring EADs (and underlying employment authorization, if applicable) for up to 180 days with respect to individuals who are seeking renewal of their EADs (and, if applicable, employment authorization) based on the same employment authorization categories under which they were granted.

This means that when you file to renew your EAD, your card will be automatically extended for 180 days once you receive the receipt (it usually takes three or four weeks to get the receipt). This is an important development, since USCIS has been taking months to process EAD renewals, and people were losing their jobs and driver’s licenses while they waited for their new EADs.

The automatic EAD extensions apply to refugees, people with asylum, and people who have pending asylum or withholding of removal cases, among others. You can see the new regulations here (see page 82491, the second to last page of the PDF) and here (page 82455, footnote 98, which lists the categories of people eligible for the automatic EAD extension).

Also, remember that you can apply for a new EAD up to 120 days before the old card expires. Even with the most recent change, it is still a good idea to apply early for your new card, so you receive the replacement EAD as soon as possible.

And here’s one last tip for today. If you cannot afford to pay for the new EAD (fees recently went up), you can request a fee waiver from USCIS, which—if granted—allows you to obtain a new EAD without paying the fee. To apply for a fee waiver, use form I-912, available here.

I have written many times about the affirmative asylum backlog. It has been a real disaster for asylum seekers—especially those separated from their family members. The recent changes to the EAD process, during the waning days of the Obama Administration, have at least made one aspect of the wait easier, and for that, we can be thankful.

[Update 03/27/17: USCIS has published a helpful summary of the categories eligible for the automatic extension here. They also created a useful Fact Sheet, available here.]

The Refugee Ball Post-Game Report: Why It Matters

The Refugee Ball took place on Tuesday, January 17, 2017. It was wonderful to see hundreds of people from all different backgrounds and countries come together to celebrate America’s humanitarian immigration system.

Economist, talk show host, women’s rights advocate, and amazing singer, Amal Nourelhuda (originally from Sudan), performs at the Refugee Ball.

There were musicians from Ethiopia, Sudan, Uganda, the Democratic Republic of Congo, and Tibet. There was a Persian rapper. Our emcee was a journalist/asylum seeker from Ethiopia. We had Lebanese, Tibetan, and Ethiopian food, and Syrian cookies. There was artwork by a young Honduran asylum seeker and an Iranian refugee. Speakers included the former Chairman of the Board of Immigration Appeals (who now has his own blog), an asylee from Azerbaijan, and the president and CEO of HIAS, a non-profit organization that assists refugees. We also had a special guest appearance by Congressman Jamie Raskin. All-in-all, not a bad way to spend an evening.

One message of the Refugee Ball is that asylum seekers and refugees contribute in valuable ways to our society. They bring their skills and talents to America, and we are stronger because of their presence here. Also, by offering asylum to those who work with us and those who share our values, we demonstrate to our allies that we are on their side; that we have got their back. This makes it more likely that people around the world will cooperate with us and work to advance the values that our nation aspires to: Democracy, freedom of speech, women’s rights, LGBT rights, freedom of religion, equality, peace. When we have the cooperation of our allies, our country is safer and more secure, and our asylum system helps engender that cooperation.

And of course, granting protection to those in need of assistance is the right thing to do. I know that if my family members had to flee the United States, I would want more than anything for them to receive a friendly reception in their country of refuge. Do unto others as you would have them do unto you.

Another message of the Ball is that advocates for asylum seekers and refugees remain committed to assisting people who have come to our country for protection. And although the incoming Administration may create a more difficult environment for our clients, our commitment to those seeking our country’s protection will not wane.

For me, though, the most important message of the Ball was that of the courage and perseverance displayed by the refugees and asylum seekers who I saw there. Many of the people who participated in the event were themselves victims of terrible torture and persecution. But there they were at the Ball–singing and dancing, giving speeches, making art and food for us to enjoy. Each of them provides an example of how the human spirit can survive extreme adversity and go on to create beauty, and of how life can triumph over death. I can’t help but be inspired by their examples.

So while we really do not know what to expect in the days and months ahead, we can draw strength from each other, and from the examples set by the refugees and asylum seekers themselves, who have endured great hardships, but who still have hope that America will live up to the high ideals that we have set for ourselves.

To those who participated in, supported, and attended the Refugee Ball, Thank you. Thank you for contributing your time, talent, energy, and money to supporting the cause of refugees and asylum seekers. Thank you for inspiring me, and for reminding me of why I work as an asylum attorney. I feel optimistic knowing that we are united in our goal of welcoming the stranger, and that we are all in this together to support each other.

The Refugee Ball: Why We Celebrate

Response to the Refugee Ball has been overwhelming. It looks like we have essentially reached capacity, and it should be a fantastic event with amazing musicians, artists, and food.

Here, though, I want to talk about what we are celebrating, and why. The “reason for the season,” as it were. The Ball takes place a day after the Martin Luther King, Jr. holiday. Dr. King famously said, the “arc of the moral universe is long, but it bends towards justice.” Of course, the arc does not bend by itself. People have to work hard to push it in the right direction.

One purpose of the Ball is to celebrate the people who help bend the arc by assisting refugees and asylum seekers: Lawyers, doctors, social workers, activists, students, and advocates.

But more than those of us who are helping refugees and asylum seekers, the purpose of the Ball is to celebrate the refugees and asylum seekers themselves; people who have worked and sacrificed and struggled for justice. Attending the Ball will be activists for democracy and peace and women’s rights, journalists who have stood up for free speech against tyrants, advocates for gay and lesbian rights, members of religious minorities who have risked their lives for their faith, members of oppressed ethnic minorities and oppressed nationalities, interpreters and aid workers who have stood shoulder-to-shoulder with our own country’s soldiers and diplomats in places like Afghanistan and Iraq. These people—asylum seekers and refugees—have risked their careers, their property, and their lives in order to help bend the arc of the moral universe towards justice.

And so the Ball will celebrate and honor their work. It also gives us an opportunity to express our solidarity with them, and our commitment to them.

Critics of our humanitarian immigration policies claim that asylum is a gift, given to needy people because Americans are nice. They say that we dole out this generous benefit and get nothing in return. This view of asylum is false.

Since its beginning—during the Cold War in the 1950s—asylum was about advancing America’s strategic interests. In those early days, it was about demonstrating our moral superiority to our Soviet adversaries. We celebrated famous dissidents, athletes, and artists who defected to the West.

Now, the Soviet Union is gone, but asylum remains an essential tool of U.S. foreign policy. We gain tangible benefits from asylum. And I am not talking only about the influx of talented, brilliant people who add to our nation’s strength.

When we give asylum to interpreters who served with our soldiers in Iraq or Afghanistan, we demonstrate our loyalty to those who work with us. When we grant asylum to women’s rights advocates, we show our support for the cause of gender equality. When we support journalists, we show that we stand for free speech. And when we grant asylum to religious minorities, we reinforce our founding principle of Religious Freedom.

Imagine for a moment what it would mean to deny asylum to Iraqi interpreters, woman’s rights advocates, journalists or members of religious minorities. Imagine what that would say about us, about our country. Imagine what message it would send to those around the world who are working for the values that we, in our best moments, embody.

But when we offer asylum to those who have stood with us, and who have risked their lives to advance the values that we cherish (and which we too often take for granted), we send a powerful message: When you work with us, when you work for the values we believe in, America has got your back. We are with you. And when activists around the world have confidence that America is on their side, it helps them continue their struggle for justice.

And it helps us too. If we want their cooperation and loyalty going forward, our allies need to know that we are there for them. That we will protect them if they need our help. If they do not have confidence in us, they won’t support us. Our asylum and refugee systems demonstrate –in a tangible way—our loyalty to those who stand with us, and this helps us advance our own national interests and moral values.

And so at the Refugee Ball, we will celebrate our humanitarian immigration system. We will celebrate the people who work within that system, and those who have come to our country through that system. We hope to see you there.

To learn more about the Ball, visit our Facebook page.

To donate, please visit our Go Fund Me page.