This post is by Mikayla Minton, a senior from Linfield University in McMinnville, Oregon. Ms. Minton is originally from Humboldt County, California and is majoring in Law, Rights, and Justice and minoring in Journalism and Media Studies. During the spring 2024 semester, she interned at Dzubow & Pilcher and attended American University. Ms. Minton plans on continuing her studies and passions in law school.
Last month, the Supreme Court ruled to allow a controversial immigration law to take effect in Texas. The ruling concerns Texas Senate Bill 4 (2023), known as SB4, which allows state officials to arrest and deport migrants who enter the state illegally. While the Court’s ruling involved a preliminary issue in the case, it telegraphed the Justices’ views on state–as opposed to federal–oversight of immigration.
Many conservative lawmakers in the Lone Star State and across the country see the Court’s decision as a win. Meanwhile, the Court’s liberal Justices as well as officials at the Department of Homeland Security described the possible effects of SB4 as “chaos.”
What is the significance of SB4 and of the Supreme Court’s ruling? How might it affect immigration law and states’ rights? And what impact will it have on immigrants?
Senate Bill 4 make unauthorized entry into Texas a state crime. It allows local and state police in Texas to arrest undocumented immigrants and people suspected of being in the U.S. illegally. It also allows state law enforcement to send undocumented migrants to Mexico–regardless of their country of nationality. Under SB4, crossing the border illegally is a “Class B misdemeanor, carrying a punishment of up to six months in jail.” “Repeat offenders could face a second-degree felony with a punishment of two to 20 years in prison.”
The Texas Legislature passed SB4 without input from Mexico. According to a press release from the Mexican government, “Mexico will not accept, under any circumstances, repatriation by the State of Texas.” Mexicans also worry that the law will lead to increased tension with the United States, their largest trading partner.
Liberal Supreme Court Justices, DHS, and the Mexican government are not the only groups opposed to SB4. Some police chiefs and local officials in Texas explained that it would be difficult to enforce SB4 given other law enforcement priorities and community concern. The mayor of El Paso noted that they would always enforce the law, but their police department was short staffed: “Our law enforcement responses are always priority-driven,” he said, “and our number one priority has and will continue to be public health and safety, not enforcing immigration law.”
The Biden Administration also opposes SB4, and in January of this year, the Justice Department sued Texas to block the law. DOJ’s position is that immigration is exclusively the province of the federal government, and that if individual states are allowed to regulate migration, it will create 50 different foreign policies. Also, state and local law enforcement does not have the expertise to determine whether a particular non-citizen is “illegal.” That’s because there are dozens of different types of lawful statuses in the United States, including for example, asylum pending. In addition, the Administration is concerned about the law’s impact on people of color and others who might appear “foreign.”
The Justice Department lawsuit has been partially successful, in that SB4 is currently on hold and not yet being enforced. That’s thanks to the U.S. Court of Appeals for the Fifth Circuit, which stayed implementation of the law until it can issue a decision on the merits of the case (i.e., determine whether SB4 violates the Constitution). Texas appealed that ruling to the U.S. Supreme Court, which held that SB4 could go into effect while the Fifth Circuit considers the constitutionality of the law. Shortly after the Supreme Court’s decision, the Fifth Circuit again put SB4 on hold, which is where things stand today.
Whatever the Fifth Circuit decides, the case is likely to return to the U.S. Supreme Court. Given that a majority of Justices have already held that SB4 could go into effect while the Fifth Circuit reviews the case, it seems likely that these same Justices would find the law constitutional. For non-citizens and anyone who might appear to be a non-citizen, that is a frightening prospect.
If SB4 is ultimately allowed to go into effect, the damage will not be confined to Texas. Other Republican-led states would likely pass similar legislation, and so anyone perceived as foreign will be at risk. Racial profiling will likely become worse. Mistrust between non-citizens and police will increase. Immigrants, who already face employment and housing discrimination, will become even more vulnerable. Relations with Mexico (and maybe other countries) will be damaged. And our country’s ability to pursue a unified foreign policy will be impaired.
We are currently waiting for a ruling from the Fifth Circuit on SB4. If the court blocks the Texas law, it will likely reach that decision based on a U.S. Supreme Court ruling from 2012 in the case, Arizona v. United States. There, the Supreme Court struck down Arizona’s “show me your papers” law that allowed state law enforcement to check a person’s documentation if there was “reasonable suspicion” to believe that the person was in the U.S. unlawfully.
While the Fifth Circuit is bound by Supreme Court precedent, the Supreme Court itself is not. The make-up of the Court has changed since Arizona v. United States, and the new conservative super-majority has shown itself willing to overturn precedent decisions that it opposes (see for example, Roe v. Wade). If Arizona v. United States is overturned, and if SB4 is permitted to go into effect, we can expect that immigrants and minorities in Texas and throughout the country will be harmed. Adding insult to injury, they will know that they are not just unwelcome, but that they are viewed as criminals.
For now, we will stay tuned for a decision from the Fifth Circuit, and hope that the court does not allow SB4 to go into effect.
Hi jason
I am a refugee outside the USA and my case is closed by USCIS refugee officer. And my case is not a sylum. I am a refugee from the camps. I am very anxious to know if us immigration lawyer can help to reopen my previous refugee case witch was denied due to false accusation. The refugee office made an error and denied me due to false accusation. How can lawyer assist us? I hope alot of details about my situation.
Thanks.
Thank you!
I am not sure, but I would guess that most US immigration lawyers would not know about this. I do not. The only office I know overseas that maybe can help with a referral or some ideas is here: https://stars-egypt.org/. You might also reach out to some of the refugee resettlement agencies in the US, such as HIAS, Friends Service Committee, Lutheran Immigrant and Refugee Service, Catholic Charities. Maybe one of those could at least point you in the right direction. Take care, Jason
I have questions again…
I sometimes, when I read immigration advocates’ articles or blogs…the contents give me the feeling that these immigration advocates think that they are better than the immigration law and adjudicators of different levels…They (the incumbent DHS/EOIR people) are so incompetent that the immigration/asylum system is a mess…it’s a disgrace that they (the incumbent DHS/EOIR people) are running the system instead of them (the immigration advocates)…And it makes readers like me feel like they (the immigration advocates) believe they (the immigration advocates) can do a better job if they(the immigration advocates) are running the system…
I would like to ask…if all our current incumbent officials are replaced by immigration advocates writing blogs criticizing and giving suggestions…is that really a given that the immigration/asylum system will be better than the current ones ? …
Because when I check the people who are designing immigration laws and those who are enforcing and implementing, their credentials…They all seem to be rather…decently … clever people ?
Like Garland went to Harvard (Bill Barr went to Columbia,), Mayorkas went to Berkeley, and different IJs, which are all appointed by Garland and different AGs. I know many immigration advocates also went to good schools…But, that’s only noninferior to…not better than…incumbent immigration officials of different levels…right ? I am curious what are the immigration advocates’ writing trying to achieve at the end of the day sometimes…I am genuinely curious…because I would imagine, policies designed by these relatively clever and smart people (current immigration officials) can’t be … that foolish/bad ? they must have served valid purposes ? And if they are bad policies, they wouldn’t have passed that easily or if passed, would stir big backlashes, right ?
For example, immigration advocates have criticized immigration backlog for as long as I remember, but why it seems to me that, immigration backlog keeps growing against all the criticism ? Is there something valid inherently with this phenomenon ? Because I would imagine if immigration backlog is such a bad thing as described, there would have been enough impetus to drive it down ? The fact that is still stubbornly exists…what should I make of this ? Is it that the immigration advocates’ good criticism is too little to overcome the powerful bad thing called immigration backlog ? or is it because…there is some rightness in the existence of immigration backlog (aka supposed to be ?)
Do I think if advocates were in charge, we could do better? I do not know, but I do know that the system is failing, in part for lack of creativity and boldness, but also because those running the system seem to have little understanding of how their actions affect immigrants and lawyers who work in the system. I wish more people with practical experience had more power to influence the system, as I think there could be substantial improvements. Take care, Jason
Hello Jason,
I traveled to Canada via road and since I don’t have a Canada visa they returned me back. The usa border stumped a visa and changed my i94 before returning my travel document the officer canceld my visa on travel document still my I94 shows the new entry with visa. Can I use the updates i94 or how do I know if the officer write remark on the i94?
Thank you!
I am not sure what you use the I-94 for. It just shows your entry into the US. If they canceled the visa, it would normally mean that you have no status here, so you would be deportable. You may want to talk to a lawyer or check to make sure that they did not give you a paper called a Notice to Appear, that would require you to appear in court. Take care, Jason
I have TPS, but the reason why I want this new i94 is the I entered first time to usa with different than the new one
You intend to obtain a lawful entry in order to obtain future adjustment of status eligibility ? Do you think the CBP officer can’t see through your dirty little trick ?
You are paroled into the U.S. under CBP discretion. But that doesn’t count as a lawful admission, (I hope) you remain ineligible for adjustment of status
I do not really get this assumption, as there is not enough info here to know. If the person had TPS and Advance Parole, and entered that way, it is perfectly legit. Without AP, I am not sure and we would need to see the entry documents. Take care, Jason
You can Google “I-94 locator” and maybe find your I-94 on that website, but I am not sure. Otherwise, maybe you can try a Freedom of Information Act request. There is a link under Resources called FOIA USCIS where you can try that. Take care, Jason
Hi Jason, My Court is in person so can I apply for FOIA EOIR by myself and is it mail to my address? How long approximately will take to receive it? And there would no harm in my case if I applied for FOIA EOIR too plus my lawyer, right?
Thanks,
Pat
Hi Jason and Hi Great Asylum fellow community,
I am in Northern California and have a court hearing scheduled for end of next year and I need your fellow asylum community and friends if someone had a great lawyer very experienced in Immigration COURT cases in Northern California Area and can help me with referring the Lawyer name to me since I need to change my lawyer as quick as possible as he has horrible personality and no integrity to his clients.
Thanks, Rec
I don’t know anyone there, but you might search here: http://www.ailalawyer.com. Lawyers listed there are probably better than average, though you still need to vet them to make sure they are ok. Take care, Jason
Jason,
Thank you for your work. I am a fan of your blog for years. Tons of useful information here. Thank you again for that.
I wanted to ask you if you could share a few sources that you monitor to get all the information? Maybe some other attorneys, blogs of judges And officers, official sources, etc?
I just wanted to follow as many sources as possible
To stay up to date on immigratin news And asylum in particular?
For immigration sources, I get some info from AILA. There website is AILA.org, but I am not sure how much is there, as it is a membership organizations for lawyers and I get emails from them. Also, USCIS.gov has news. There are periodic asylum office meetings, and I think USCIS news has info about that. I am not sure whether they are all public. I also like Immigration Law Profs Blog. At the EOIR website there is an online library where they have new published cases. Also, I sometimes search for news using Google Scholar. For blogs, I also like Immigration Courtside and Jeffrey Chase’s blog. Also, of course, TRAC Immigration is an excellent source of data, especially about the Immigration Courts. Take care, Jason
Hi Jason,
FYI, I have my individual hearing scheduled for FEB 2025, I have a lawyer and I need to know if I can apply for FOIA from USCIS by myself too, it has only $25 cost, right? I am wondering if there is any harm to applying for FOIA when my lawyer may or may not been still apply for that? Please advise? Also, can you a little bit get me more details what kind of information USCIS will provide to you? Is it included the interview question and answers which I had at Asylum office, or is it including of eg. National security reports or backgrounds reports about the person and dependent who applying for FOIA, can you enlighten us a bit?
God Bless you for all of your support the asylum community.
Thanks, Pat
FOIA is normally free. For a FOIA to get your USCIS/asylum office file, follow the link under Resources called FOIA USCIS. To get your court file, you can follow the link called FOIA EOIR, but if your court case is online, your lawyer should have access to the file. In terms of what you get, you should get a copy of everything that you submitted. You may get a copy of your interview questions and answers. The analysis is usually redacted, and I doubt you will get any security type documents, as that is all redacted. Take care, Jason
My Court is in person so can I apply for FOIA EOIR by myself and is it mail to my address? How long approximately will take to receive it? And there would no harm in my case if I applied for FOIA EOIR too plus my lawyer, right?
Thanks,
Pat
You can do it, but I would coordinate with your lawyer, as it is not a great idea to take action on a case without telling your lawyer. I do not see how it would affect the case, and I believe you will receive the file electronically by email. I forget how long it takes, but I do not think it is too bad – maybe a couple months. Take care, Jason
Jason,
Thank you for all you do. I have been scheduled for my Asylum I-485 Interview next month. Please what should i expect in an interview like this based on your recent experience. Thank you.
Did you receive RFI for medical exam ? And when did you submit your application?
Thanks
@NAB,
Submitted my application June,2023 and did filed with my medicals at the same time. No RFE, just interview invitation.
Did you send i-485 after a year or before approval?!, thank you.
I applied 10 months after Asylum granted,
Thanks and good luck
Hello French,
May I know which office you applied in?
They ask many of the questions listed on the I-485 form and verify the info on the form. They could ask a bit about your asylum case, but that is not so common. Nevertheless, it is good to be familiar with the asylum case. Also, you might compare your I-485 and your I-589, and if there are any discrepancies, you should be prepared to explain those. Usually, such interviews are pretty easy, unless you have criminal issues or maybe immigration issues, such as prior fraud or something like that. If that is your situation, you might want to talk to a lawyer to help you prepare. Take care, Jason
Hi Jason
I filed for I485 Nov 22 and recently submitted “Outside Normal Processing Times”.
My online status still shows “As of Nov xx, 2022, fingerprints relating to your Form I-485, Application to Register Permanent Residence or Adjust Status, Receipt Number xxxxxxx, have been applied to your case.”
Today I got a response saying “On 02/21/2024 , we mailed you a request for evidence (RFE). We have not received a response from you. We have enclosed a copy of the RFE notice for your convenience.”
First, I have not received any RFE, second online status doesn’t show anything about RFE, USPS informed delivery doesn’t have anything from USCIS and finallythere is no attachment about this RFE in their reply which they claim they enclosed.
I am getting little worried on how to handle this situation? Is there a way to get the RFE notice if there is or could it be a simple mistake by USCIS providing wrong status? How can I confirm the current status?
USCIS makes many mistakes, and maybe this is one, but it is very stressful. First, if you have moved, make sure you filed a change of address for the form I-485 (and any other pending applications). You can do that online through your USCIS account if you have one, or using form AR-11, available at http://www.uscis.gov. Second, if you have an online account, maybe you want to submit a letter through that explaining exactly what happened. Otherwise, I think you will need to try to call USCIS and reach a person (800-375-5283), which is very difficult. I suppose if none of that works, you can send a case inquiry explaining the problem to the USCIS Ombudsman (there is a link under Resources). Hopefully, one of those ideas will help. Take care, Jason
Hi Jason, I have my individual hearing scheduled for end of 2025 and I got a letter from my Doctor who I am under his supervision for years, I have sent copy of Dr letter and asked my lawyer to file a motion to advanced/ Expedite my individual hearing but it seems he filed it without attaching my Dr letter when file it and I don’t know why!!! (His office staff who is my friend informed me exactly when Attorney ordered him/office staff to do that without Dr Letter) so then IJ declined it after one day and now my question is, can I go myself to Immigration court and explain my health situation to Court clerk and apply an appeal for the IJ decision which did not grant me earlier individual hearing? and then submit my Doctor letter explaining my severe condition to Clerk and do they let me appeal it there in person when I have lawyer? Please advise how I can submit my Doctor letter and appeal this decision? I would appreciate if you let me know the possible ways and please help me, God Bless you for all of your support the asylum community. Thanks, Rex
Hi Jason, I have my individual hearing scheduled for end of 2025 and I got a letter from my Doctor who I am under his supervision for years, I have sent copy of Dr letter and asked my lawyer to file a motion to advanced/ Expedite my individual hearing but it seems he filed it without attaching my Dr letter when file it and I don’t know why!!! (His office staff who is my friend informed me exactly when Attorney ordered him/office staff to do that without Dr Letter) so then IJ declined it after one day and now my question is, can I go myself to Immigration court and explain the situation to Court clerk and apply an appeal for this IJ decision to not grant me earlier individual hearing? and then submit my Doctor letter explaining my severe condition to Clerk and do they let me appeal it there in person when I have lawyer? Please advise how I can submit my Doctor letter and appeal this decision? Thanks, Rex
Maybe you want to ask why the lawyer did not submit the doctor’s letter, as there may be a good reason (for example, it may just be that the judge does not care about that and advances cases if there is an open slot regardless of the reason). I would definitely not go around the lawyer – if the lawyer will not do what you want, maybe you need to find a new lawyer. If you advance the case without telling the lawyer, the lawyer may not be available to do your case, or even if he is available, he may withdraw from the case. In short, you and your lawyer need to be on the same page, and if your lawyer is not providing the service you need, you should find a new lawyer. Take care, Jason
Hi
I will send my Medical exam next week after applying my GC application in April/2023
Last month I received RFI so thats why Im sending my Medical exam next month ?
After that how long should I wait to the next step ?
Is there an interview?
In the interview is the officer will ask about my vaccination record? Mine ( the pepper ) is so old but the doctor says it’s acceptable, I couldn’t get a new copy , usually officer will ask about the vaccination record or this form I-693 ?
Some people get interviews and some do not. For most cases we see, it probably takes 1 to 2 years to get the GC based on asylum. Sometimes, they ask for the medical early in the process and sometimes, they ask later in the process, is it is hard to predict, but if you filed a year ago, hopefully, it will not be that much longer. Take care, Jason
Hello sir,
Thank you for all your support through this medium. My individual hearing was stated for May 8th 2024 after been push out several times since 2018 at LA court. But today, the location and the judge was changed to visiting judge 3 instead of the previous judge. My question, is this the practice nowadays or it is unusual?
Thank you
I do not know about LA, but we would see that sometimes here (in the Washington, DC area). It may mean that they are changing judges, but whether that will affect the date, I do not know. My experience with LA (for my one case currently there) is that they postponed it two times so far. You can try to call the court to ask about the case status – you can find their phone number if you follow the link under Resources called Immigration Court. Take care, Jason
Thanks for your reply, the date was not changed. They only change the location and judge to visiting judge 3. My only apprehension is that I do not know who the visiting judge will be, whether it will be an immigrant friendly one or not because the previous judge was sympathetic to our cause when we attended previous hearings and only told us to add more material supports. I guess we have to keep our fingers crossed and hope for the best since 11 years ago.
Probably it just means that they are changing judges. Most of the new judges are good, so hopefully, it will be a good judge. Take care, Jason
Hello,
I have obtained my green card based on asylum. I don’t have a travel document and I need to travel for An urgent matter to Mexico (not my home country).
1- Is it ok to leave to Mexico using my green card without RTD?
2- I will probably enter Mexico using my home country’s passport. Am I safe to return to the US based on the above facts?
Thank you very much
If you have a valid passport and green card, you can go to Mexico and return. That should be no problem. In theory, when an asylee uses their passport, they could be asked about that, since it is from a government that wants to persecute you (assuming you fear the home government and not a non-state actor). In reality, probably the most that would happen is that you would be asked to explain why you used your passport (because it is difficult and slow to get a Refugee Travel Document). I wrote more about this issue on May 25, 2022, where I discuss the potential (but remote) risks in more detail. Take care, Jason
I just feel so sad recently…The world seems to have abandoned us…
Hello my name is ram mangat. I have ead based on asylum . My first ead came with correct name and date of birth but now i got my renewal ead of 5 years and uscis messed up my name and dob. I applied for replacement uscis eas card. Can i still work ? Or no .
You should still be eligible to work, but your only proof of that is the card with the errors, and so I do not know whether your employer will accept that. If it was a USCIS error, they usually send the new card pretty, so hopefully that will happen in your case. Take care, Jason
Hi Jason,
Happy Passover, and thank you for tirelessly supporting and providing guidance to the asylum-seeking community. I have a complex question to ask. My case is currently in removal proceedings, and I recently received approval for an EB-2 NIW. I have consulted multiple attorneys, and almost all of them have stated that adjusting my status without winning my asylum case first is not possible. What has been your experience? Have you heard of anyone who went through consular processing and successfully returned to the USA? Thank you.
Thank you. If you are in removal proceedings, it is almost never possible to get a GC based on employment. There are rare exceptions, but they are very rare. One involves INA 245(i). Another possibility, though I really do not know, is INA 245(k). Otherwise, an option would be to get voluntary departure or dismissal, leave the US, and try to consular process overseas – assuming you have no bars to returning here, that should be possible. Maybe a middle option would be to try to win the asylum case but list voluntary departure as an alternative (assuming you are eligible). That way, if you lose asylum, you can leave and try to consular process and return. Take care, Jason
It’s a very serious matter. And may I ask what do you think caused it ? because I feel that only we identified the cause that we can tackle this.
Are the private american citizens more anti-immigrant ? Or republican politicians become more anti-immigrant and better and lying ? (I remember you said that immigration issue is exaggerated because of their lying…to hurt the Biden administration)…is it because of Trump ? is it because the 3 justices themselves are anti-immigrant ?
Have Roberts, Alito, Clarence been historically anti-immigrant ?
I applaud you for writing about this because this should be written and covered and distributed.
At the same time, is there anything asylum advocates can do ? Is getting rid of (aka vote out) those lying republicans the only option ? (I do not consider cave to republican demands in shutting border will work…because those republicans are insatiable, if you fulfill their demand A, they will have a demand B…it will just be nonstop)
What would help is if Congress passed comprehensive immigration reform and we made some hard decisions about who we want to help and how many people we want to help. I have long said that I think this needs to be done democratically and not through litigation, but since nothing has happened for decades, we have all sorts of (sometimes bad) actors stepping into the void. The new Texas law is not a surprise. As I see it, the law is unconstitutional, but the Supreme Court is stacked with hyper-partisans who view advancing their agenda as more important than following precedent. I guess we will see what they do, but the above article does not make me feel optimistic. Take care, Jason
I still would like to reiterate that the ultimate solution to asylum crisis is to punish foreign persecutors, which is the root cause of why people seek asylum…
Continued criticism of asylum system could backfire. Because if I am doing a right but imperfect thing and all I face is criticism about how I am not doing enough, I might as well withdraw my efforts…
Republicans need to be voted out…I think it’s a mistake of many people to give them a platform. They don’t deserve one.
I applied for adjustment of status and now the USCIS requests me to give proof of initial evidence, which I don’t understand. I’ve never left the USA since I applied for asylum in 2015. In the meantime my EAD issued when I got the asylum in 2021 is expired. I don’t know which other document I could submit to prove this initial evidence.
Jason, I wish to get an idea about what I can do
Thanks in advance
The USCIS should be more specific than just requesting “initial evidence,” as that has really no meaning. Maybe read the letter carefully to see what is needed. It is common for USCIS to request the medical exam, if you have not submitted that previously. I guess they could also ask for proof that you have been in the US for 1+ years after winning asylum, but usually they do not ask about that. In terms of the EAD, an asylee does not need an EAD to work (see https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/70-evidence-of-employment-authorization-for-certain-categories/73-refugees-and-asylees). However, it does make life easier. The entire green card process usually takes 1 or 2 years, and so if you think you need to renew your EAD, you can file for that using form I-765, available at http://www.uscis.gov. Take care, Jason