Implementing the Executive Orders: The DHS Memo

by Jason Dzubow on February 23, 2017

Earlier this week, DHS Secretary John Kelly issued a memorandum describing how DHS plans to implement President Trump’s policies concerning “Border Security and Immigration Enforcement Improvements.” Here, I want to discuss how this memo could affect the asylum system.

First, for people granted asylum or who have obtained their residency (green card) or citizenship through asylum, the memo has essentially no effect. The only possible exception is that DHS plans to expand the Fraud Detection and National Security Directorate (affectionately referred to as the FDNS), and if DHS somehow discovers that a previously-granted case was, in fact, fraudulent, it could reopen that person’s case. Also, given the Trump Administration’s stepped-up enforcement, it is a good idea to carry proof of lawful status with you at all times, just in case you are stopped by the authorities (and in many cases, non-citizens are actually required by law to carry proof of immigration status).

Shade-enfreude (defined): The pleasure one gets knowing that someone with a darker skin tone is in pain.

For people with asylum cases currently pending–before the Asylum Office or the Immigration Court–the memo also has little effect. As I have written here before, a person with a pending asylum case cannot be deported from the United States without due process of law, meaning a hearing before an Immigration Judge and an appeal. So while the atmosphere for asylum seekers has become more toxic, the substantive law and procedure remains largely the same. As mentioned above, you should carry proof of your pending status (work permit, asylum receipt, court order) with you at all times.

One possible issue for people currently in the system is more delay. The DHS memo directs USCIS “to increase the number of asylum officers and FDNS officers assigned to detention facilities located at or near the border with Mexico to properly and efficiently adjudicate credible fear and reasonable fear claims and to counter asylum-related fraud.” The memo also envisions a “joint plan with the Department of Justice to surge the deployment of immigration judges and asylum officers to interview and adjudicate claims asserted by recent border entrants.” Assigning more Asylum Officers and Immigration Judges to the border (either by physically sending them there or by having them adjudicate cases remotely), obviously means that those adjudicators will not be available to work on the hundreds of thousands of cases in the backlog, and that could mean more delay. In addition, the memo calls for hiring thousands more immigration officers, and for stepped up enforcement and detention. If all that happens, many more people will be channeled into the Immigration Court system, and unless more judges (lots more judges) are hired, the influx of people into the system will cause further delay. On the other hand, the memo also calls for expanded use of “expedited removal,” which may end up removing certain cases from the system and cause the remaining cases to move more quickly. How all this plays out, only time will tell.

Another possible issue for people with pending asylum cases is the increased focus on fraud. The Immigration and Nationality Act and the REAL ID Act, along with the Code of Federal Regulations, and case law set forth the standards for evaluating credibility. The DHS memo calls for “enhancing” asylum referrals and credible fear determinations. While this would not directly impact people with pending asylum cases (as asylum referrals and credible fear determinations occur prior to a case being sent to Immigration Court or to the Asylum Office), it might signal DHS’s intention to subject asylum cases to greater scrutiny. Also, of course, expansion of the FDNS points towards a greater focus on asylum fraud, which could impact pending cases (personally, I think DHS should be doing more to combat asylum fraud, as long as they are doing so effectively, as I discuss here).

For people inside the United States who plan to seek asylum here, but have not yet filed, the memo may affect you. If you entered lawfully with a visa, you should be able to apply for asylum as before. Indeed, even if you entered unlawfully, you should be able to seek asylum as before. However, if you entered the U.S. without inspection or based on some type of fraud (how broadly “fraud” will be interpreted is not yet known), and you are detained by ICE (Immigration and Customs Enforcement) before you file for asylum, you could be subject to “expedited removal.” People crossing the border illegally who get caught or who surrender to ICE agents may also be subject to expedited removal.

People facing expedited removal are permitted by law to request asylum. If they indicate a fear of harm in their country, the law requires that an Asylum Officer perform a “credible fear interview” where the person must demonstrate a “significant possibility” that they could establish eligibility for asylum. If they meet this standard, their case will be referred to an Immigration Judge for an asylum hearing. If they do not demonstrate a “significant possibility” of winning asylum, they can be removed immediately from the United States (subject to limited review by an Immigration Judge). The DHS memo indicates that the government will greatly expand the use of expedited removal, though the details of the plan have not yet been released.

As you might imagine, there are some major problems with the expedited removal process. For one, ICE officers often fail to inform aliens of their right to seek asylum (or ignore their requests to seek asylum). If this happens, people with a legitimate asylum claim may be removed from the United States before they have an opportunity to claim asylum or have a credible fear interview. The expedited removal process is quite fast and there is little chance to retain counsel and defend yourself, and no opportunity to see an Immigration Judge. In addition, the DHS memo seeks to expand the use of expedited removal and raise the evidentiary bar for credible fear interviews. All this will make it more difficult for asylum seekers who are subject to expedited removal from asserting their claims. I plan to write another post on this topic, but I will first wait for DHS to clarify its position on expedited removal (in the mean time, if you want to learn more, check out this excellent practice advisory by the American Immigration Council).

Per its campaign promises, the Trump Administration is ramping up immigration enforcement efforts. People who have won asylum, or who have already filed, are largely insulated from those efforts, and without Congressional action, it is likely to remain that way. But if you are in the United States and you plan to file for asylum, you should do so soon (at least before your lawful status expires). Remaining here lawfully is the best way to protect yourself from the Administration’s enforcement efforts.

{ 51 comments… read them below or add one }

XY March 7, 2017 at 6:14 pm

Hi guys
Finally I got asylum interview notice roday, scheduled for March-22-2017.
I filled asylum on Feb-09-2015, San Francisco.
Almost 2 year and a month wait.
Tnx

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rsv March 7, 2017 at 6:49 pm

Awesome. Hope everyone start getting theirs too. Thanks for sharing.

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Jason Dzubow March 8, 2017 at 11:13 pm

If you do not have a lawyer, I did a post on September 8, 2016 that may be helpful for the interview. Good luck, Jason

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XY March 5, 2017 at 5:09 am

Hi Jason,
Hope u r fine and doing well. I was reading the blog for updates and new comments, something came to my mind. You work hard on the blog and reply to every comment in details and give your time for free. I think if you add an option “donate” to the blog, it would be a good idea. That way you would be able and have more time to improve the blog to a big platfrom for asylum seekers in the US. I will be the first person to donate for the blog, even after granting my asylum I willd donate as much as I can.
Thank u

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Tina March 5, 2017 at 11:46 am

GOD bless you. Some people throw questions at him wth no courtesy, like he is under obligation to respond. We can start to donate to this blog. I am handling my case and this has been my “go to” reference point. I may not be able to hire him for now, but I could atleast donate my” widow’s mite”. Thanks for the suggestion.

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Jason Dzubow March 5, 2017 at 11:54 am

Thank you for the thought. I am happy to answer questions to the extent that I can. It gives me something to do and keeps me out of trouble, so it is a win-win. Thank you, Jason

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Haweken March 5, 2017 at 4:33 pm

This blog has been my lawyer for every matter I need. And I believe it is the case with most of us who direct our questions to this blog. If I put myself in to Jason’s shoes, even with the burden and frustration I am experiencing as an asylum applicant pending for almost 3 years, I am not sure if I could do what Jason is doing. So this point is a supportive idea towords Jason’s involvement in helping us. Let’s push it and try something. Atleast he knows how much we care about him.

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Mikey March 5, 2017 at 5:20 pm

I support this idea as Jason deserves any donation and at least this may be really helpful

Jason Dzubow March 6, 2017 at 7:41 am

I do appreciate it. And in fact, working on the blog is helpful for me too, as it is interesting and I learn from the people who post questions. Thank you, Jason

Jason Dzubow March 6, 2017 at 7:23 am

Thank you. I may do that one day, but in all honesty, donations would not enable me to spend more time on the blog (unless they were pretty big). I am happy to do it for as long as I am able, but thank you for the suggestion, Jason

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Allen March 8, 2017 at 11:03 pm

Any way, I will be one of the guys who pressed the donate button on the first day if such button is enabled.

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Jason Dzubow March 8, 2017 at 11:50 pm

You are really tempting me to make a donate button…

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Tina March 11, 2017 at 11:13 pm

You deserve more than a donate button.

John May 29, 2017 at 2:25 am

Greetings! Jason,

I’m John from India, the New Delhi dude.

Through this blog, I did my case expedition. In 2 days time,UNHCR called me for my credible fear interview and in two weeks time,I have a granted decision at hand.I too dare you to make a donate button!

Mack March 3, 2017 at 11:03 am

Thank you Jason for your extremely helpful contributions. Things are quickly changing how the Trump administration is thinking and I hope you will also write an article about the current developments especially based on the points he made during his speech to congress and also the revelations of the DHS report (links below) which concluded against Trump’s premises of sources of terrorist threats.

http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-trump-case-travel-ban

https://assets.documentcloud.org/documents/3474730/DHS-intelligence-document-on-President-Donald.pdf

http://bigstory.ap.org/article/39f1f8e4ceed4a30a4570f693291c866/dhs-intel-report-disputes-threat-posed-travel-ban-nations

Thank you and God bless you for your high dedication for your professional ethics!

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Jason Dzubow March 3, 2017 at 5:02 pm

Thank you – I will write what I can, but my focus will remain on asylum, as many people are writing about more general immigration issues. Take care, Jason

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mohamed March 3, 2017 at 9:57 am

Dear jason
Thanks for your articles , it help us alot
i have my EAD Card Will Expired end Of july
i want apply for renew to recive it before this one expired
do you think if i apply for one now and will issued after tow month the issue date will start first of august or when they give to me the new one ?

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Elena March 3, 2017 at 2:21 pm

I am not Jason, but I recently applied for renewal of my EAD, and you can do it 120 days before your old card expires. My old EAD expired on February 28th, and my new EAD was approved within 2.5 months, and its valid from the day they actually approved application-January 19th.

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mohamed rabih aljoujah March 3, 2017 at 6:38 pm

Thanks

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Jason Dzubow March 3, 2017 at 5:01 pm

I advise my clients to file 4 months before the old card expires. Once you have the filing receipt, which takes a few weeks, your old card is automatically extended for 180 days. Take care, Jason

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Ken March 3, 2017 at 2:02 am

Hi Jason,

Received a notice from USCIS stating “if you dont receive your EAD renewal before expiration of your current EAD, then you will get an automatic extension for 180 days”. Why are they delaying? And why not extend it for 365 days or more? Strange and very inefficient.

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Jason Dzubow March 3, 2017 at 7:25 am

Actually, this is a very good change. You should get your EAD within 180 days (it normally takes 2 to 4 months to get the renewal), and so this extension fills the gap in case your old EAD expires before the new EAD arrives. Take care, Jason

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Ken March 3, 2017 at 10:04 pm

I dont think it’s a good change. If someone has a court hearing more than a year from now, why not to renew their EAD for a year? They are going to be in the country for more than a year until their case is heard. Why are they delaying the renewal and giving automatic extension? Probably to put people under pressure and signal the potential employers to avoid hiring such individuals. Just an opinion. Hopefully my opinion is wrong and there is a real reform on the horizon.

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Allen March 8, 2017 at 11:08 pm

you should be happy they made some positive change, especially in the current immigrant hostile atmosphere. We don’t have any right to ask them for any changes in this country since we are not citizen.

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Stonal March 2, 2017 at 9:57 pm

Hi Jason thx for the greet work hia. Jst asking i applied in december 2016 and in January was sent the biometric notice that gave me 14 days with the last one being Jan 22. Bt when i went for the fingure prints the office manager said the office was too busy and told me to comeback 24th Jan two days after my 14 days had expired, i explained to him but ge told me as long as i do them the date doesnt matter so jst askin if doing them two days late will have an effect on my priority daye. Thx for all the help again

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Jason Dzubow March 3, 2017 at 7:10 am

We have seen a lot of people have similar issues, and I am not sure why this has become a more common problem lately. Anyway, I believe that you should be fine and there should be no effect on your case, as long as you got the biometrics done. Take care, Jason

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Stonal March 3, 2017 at 8:17 am

Appreciate all the knowlege u provide here sir. Thx

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Ishag March 2, 2017 at 2:02 pm

Dear jason
Thanks for your articles , it help us alot
Am one of the 7 countries i applied to travel docoments on August 16 ,2016 now they are working on setember 16 /2016 i call them beacuse they pass my number they ask me do you want to make an inquery i said yes , then they told me to call after 30 days if i didnt get response from USCIS , why do u thinkthey pass my number , beacuse am from 7 countries ???is that mean they are going to stop working also in my wife and kids I 730 too ?? Is better to me to leave US to other contry which. I Will be more welcoming ?
Thanks for your concern

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Jason Dzubow March 3, 2017 at 12:02 am

They delay may be because of your country, but it could be for another reason as well. Supposedly, USCIS is still processing cases from people from “banned” countries, but we cannot know for sure. As for the I-730, they should still be processing such cases, but Trump plans to issue another immigration order, and so we will have to see what affect that has. It is not a great time to be in the US because of all these orders, but I think you should wait a bit to see what happens – hopefully, your family can come here soon. If they cannot, maybe you will have to think of alternative countries, but for now, it may be worthwhile to wait and see what happens. Take care, Jasno

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ThereseLe March 2, 2017 at 2:01 am

Hi Jason,

On the website of USCIS, it says:

“The required times in which USCIS must make a decision on a Form I-765 are:

• Ninety (90) days of receipt of applications filed under categories other than asylum-based, or

• Thirty (30) days if filing for an initial EAD based upon a pending asylum case.”

However, I saw your reply to some people here that it takes from 2 to 4 months to get the first EAD. Why is it so? As according to their website, it only takes one month for USCIS to grant asylum applicants the work permit. Did they fail to update the rule or is there something that I misunderstand? Please help clarify this. Thank you so much!

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Jason Dzubow March 2, 2017 at 7:48 am

In my experience, the processing times on the USCIS website have very little relationship to reality. Take care, Jason

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Tati March 3, 2017 at 2:11 pm

Hi Jason,
I find your blog very useful instrument for us(asylum). Could you say
If the processing times more than 30 days (for c8) can I pretend to get interim ead?

Thanks

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Jason Dzubow March 3, 2017 at 5:07 pm

There are no more interim EADs, at least as far as I know. Take care, Jason

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Emi March 3, 2017 at 7:38 pm

Hi Jason . We ´re still on asylum pending status fircthe past 3 years . But my question is we recently got denied a car lease based on our asylum oending . We agrees on every single detail and rgen when we were about to sign the dealer expilcitly said your credit is good but it is your pending status tgat is the matter . I checked for regulations online i did not find any law that relates to it . What do you think ?

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Jason Dzubow March 5, 2017 at 8:31 am

It may be unlawful to discriminate against someone in this situation based on their immigration status, but I do not know. You might try contacting the consumer protection section for the state government for your state. Let us know what happens if you try that. Thank you, Jason

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Meli March 1, 2017 at 9:49 pm

Jason, first you will be glad to know, I won my asylum case hot granted.
Second, I would like to thank you for the informations you provide to us, I personally benefited a lot from it, and whenever I post a question you are quick to answer, I cannot say enough, I will continue to follow your blog, I wished to know you before so you could be my lawyer. Anyways I recommend everyone to hire you as their lawyer.

Thank you once again for the journey you are taking with us!
God Bless you Jason Dzubow!

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Jason Dzubow March 2, 2017 at 7:38 am

Congratulations to you on your win! It is especially good to hear such news these days, when things are more difficult. Also, I appreciate any referrals, I have to keep feeding my children (and they do eat a lot). Take care, Jason

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Nelam March 2, 2017 at 4:49 pm

Hi me meli.congratulation.can you tell that when and from where I applied ? When ur interview done and after how much period you got decision On which basis and from which country? Actually me also on Pending so wanna match. Thnx.

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Mikey March 1, 2017 at 9:17 pm

Hi to everybody,I have been to the DOT Office today to extend my CDL with new EAD Card (that had a new category A05) that means that my case was approved.And my new card was good for two years.Despite this fact the officer didn’t give me a new CDL.Saying that my info is not in the system.What does that mean?He said he needed additional verification from DOT.We never had a problem before.All my friends went to these offices with new EAD cards and were alright.Why PennDot is not issuing me any CDL?

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Jason Dzubow March 2, 2017 at 7:36 am

You should be eligible, and I think you will need to follow up with PennDOT to see what is needed. Good luck, Jason

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Ilyas MD March 3, 2017 at 12:29 am

New Commercial Licensing Requirements

Effective May 10, 2017, pursuant to federal law, the Department of Motor Vehicles (DMV) will require all new and existing commercial driver license (CDL) applicants to provide DMV with the following:

Proof of U.S. citizenship/lawful permanent residency.
Proof of domicile (residency).
These changes affect original and renewal CDL applicants, along with CDL cardholders requesting:

Corrections
Duplicates
License Upgrades
More information coming soon.

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Jason Dzubow March 3, 2017 at 7:22 am

Thank you – if this is accurate (and if there are no other rules), this is pretty bad. It means that people with an EAD cannot get a CDL; you have to have a green card. Thank you for sharing this, Jason

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Ilyas MD March 4, 2017 at 10:54 pm

Yes sir this information is available on DMV California web site

CEH March 1, 2017 at 9:05 pm

Hello Jason. I sent you an email describing my recent experience with filing for an affirmative asylum. I mostly agree with the conclusions in your post. However, the recent systemic problems with simply opening an A-file and getting an applicant fingerprinted may point to confusion within the USCIS and the Asylum offices. Frankly, my biggest fear is the change in the rules when the application not rejected within 30 days is presumed accepted. I think many applications can be rejected should they be validated against changing/unclear rules. For example, I am not brave enough to send fewer copies than prescribed in the published i589 instructions, even though the USCIS site clearly states that I could. I can imagine a world in which many more technical and purposefully confusing barriers may be erected. In such world, an applicant who had not received his receipt before his legal status expired can be easily found, apprehended, and possibly deported. This is just my two cents.

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Jason Dzubow March 2, 2017 at 7:35 am

You may be right, but I just don’t think we will see USCIS try to systematically confuse people in an effort to block people from seeking asylum. If there were evidence for this (and organizations do keep track of such trends), it would trigger a lawsuit. Anyway, I suppose we will see. Thank you for the comment. Take care, Jason

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True seeker March 1, 2017 at 8:43 pm

Dear Jason! I have a few questions and I hope that you can help. 1) do you think it’s gonna be safe to travel with advanced parole for ppl who waiting for the interview at the moment since everything changes now?
2) do you know if Boston sub office has a short waiting list that I can apply for?
Thank you for your help!

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Jason Dzubow March 2, 2017 at 7:31 am

1 – We do not know what the next EO will say, so I do not know if travel is safe. However, once we see the EO, we will know better. My guess is that if you are not from a “banned” country, it will be ok to travel, but we need to wait and see. 2 – I do not know. You can contact the Newark, NJ office (Boston is a sub office of NJ) and ask about that. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

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gunjan March 1, 2017 at 8:29 pm

hi jason, as you know, I applied for asylum on 28th October 2016, and still no fingerprint or anything else. my question is, am I eligible for EAD? or 150 days should be counted after I get fingerprint?

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gunjan March 1, 2017 at 8:27 pm

hi jason, as you know I applied for asylum on 28th October 2016 by myself, still no fingerprint or anything else. so these days count as 150 days for my EADor it should be start after I get fingerprint?

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Jason Dzubow March 2, 2017 at 7:27 am

The clock starts once the asylum application is received, but if you have not been fingerprinted, there may be a problem. If you have not done so, you should contact the local asylum office to ask about this. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

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Jason Dzubow May 29, 2017 at 6:55 am

I am glad it helped, though I don’t really write about UN stuff. Maybe I will make a donate button one of these days. Take care, Jason

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