Recently, there have been numerous reports about ICE appearing in Immigration Courts across the United States and detaining people at their hearings. It’s another way the Trump Administration is terrorizing non-citizens and trying to intimidate them into giving up their due process rights.
Here, we will look at what is happening, who is at risk, and what you can do to try to protect yourself.
So far, we’ve heard about raids at many different courthouses, including in Sterling, Dallas, Orlando, San Francisco, Chicago, Phoenix, and Miami. How many people are being detained, we do not yet know.
It’s also not entirely clear who is being targeted, though it seems mostly to be people subject to “expedited removal.” Expedited removal (ER) is a procedure to deport recent arrivals more quickly and with fewer due process protections. In the past, it applied to people who had been in the U.S. for less than two weeks and who were within 100 miles of the border. However, the Trump Administration has expanded ER (perhaps unlawfully) to include anyone who has been in the United States for less than two years, or who was apprehended within two years of arriving in the U.S., including at the Mexican border, even if the person has now been here for more than two years. Also, the procedure applies to non-citizens no matter where they are in the United States.
Lately, DHS (the prosecutor in Immigration Court) has been moving to terminate Immigration Court hearings so that non-citizens can be placed into ER. After the case is dismissed, ICE agents (some in plain clothes and some wearing masks) are waiting to detain the non-citizens.
Thanks to some recent changes, many asylum seekers who are detained are subject to mandatory detention.
If you are detained and/or placed into ER proceedings, you would want to request a credible fear interview (CFI) as soon as possible. A CFI is an initial evaluation of asylum eligibility where you have to explain why you fear persecution in your home country. If you “pass” the CFI, your case would be referred to Immigration Court (where you started this whole ridiculous journey) for a full asylum hearing. If you “fail” the CFI, you can be deported quickly, subject to limited review by an Immigration Judge (IJ).
If you are detained, you might have to present your asylum case from jail, which can be very challenging. It is more difficult to communicate with your family and your lawyer, or to gather evidence. Also, detained people are often moved to other parts of the U.S., where the Immigration Judges have higher denial rates.
If you have an upcoming court hearing and you think you might be subject to ER and/or detention, what can you do?
First, talk to a lawyer, The Immigration Court process is complicated. Even in the best of times, it is important to have an attorney to help you. Lawyers often have more up-to-date information than the general public, and they can evaluate your case, assess the risk, and advise you about being prepared for a CFI or a request for release from detention. If you are represented, make sure your lawyer has an original signed form G-28. This form allows the attorney to represent you during a CFI or with ICE (this form is different from the form used by the court, and it must have an original signature–not a copy).
Second, prepare your asylum application, including form I-589, and gather as much evidence as you can. If you are prepared for your asylum case, you can try to use the same evidence for a CFI, which will strengthen your claim. Also, if you are in custody, it will be more difficult to present your case, and so if you can prepare now, you will be better positioned in the event that you are detained.
Third, you can try to postpone an upcoming hearing or attend by video. If the IJ allows you to postpone (a big “if”), you will buy more time to hopefully get a clearer picture about what is happening. If you can attend by video, it will reduce your odds of being arrested, since ICE will need to come find you.
If you are in court and DHS asks the judge to dismiss your case in order to start the ER process, you can object to the dismissal or ask for more time to respond (or to get a lawyer if you don’t have one). Maybe the IJ will refuse to dismiss or delay the dismissal so you can respond. If that fails, you can tell the IJ that you want to appeal, which automatically stays (puts on hold) the dismissal. While these tactics may not prevent the case from being dismissed or keep you out of ER, some judges may respond favorably and at least you will preserve the issue if there is ever an appeal.
Finally, if you think you may be detained when you go to court, you can talk to a lawyer about filing a habeas corpus petition. Some detained non-citizens will be eligible for release by an IJ; others will not. For those who are ineligible, the only option may be a habeas petition filed in the U.S. District Court. A habeas petition is a request to have the legality of your detention reviewed by an independent federal judge. You can ask to be released (if the detention is unlawful), or at least try to prevent ICE from moving you to a far-away detention facility. If you are detained, and if a habeas petition is appropriate, it is important to file quickly, before you are moved to another jurisdiction, and so arranging for help from a lawyer prior to the hearing is crucial.
It is obviously very unfortunate that non-citizens are now at risk simply for appearing in court. Although the courthouse arrests are getting a lot of attention, my sense is that most people can still go to court safely. We will learn more as time goes on, but for now, the more you can prepare for the worst, the safer you will be.
Mr. Jason. Thank you for all the great work.
Would arrests that made me qualify for asylum (political prosecution) cause an issue in my N-400 process? I know that it shouldn’t, but I feel this administration would look for anything to disqualify you even if those same arrests were the subject core of my approved asylum claim (Green card approved too.). Should I be ready to explain everything again?
Assuming they were political arrests, I do not think that would have a negative impact on an N-400. You do need to mention the arrests, as they were already mentioned in the I-589 and hopefully also in the I-485. You can provide an explanation at the end of the N-400 form on the supplement page, and note that it was a political arrest (if that is the case) and that you discussed this in your asylum case. Take care, Jason
Hi Jason,
I was granted asylum in 2021 and received my Green Card in 2023; however, it incorrectly states “Resident Since 2023.” From what I understand, it should’ve been backdated to 2022. I’m unsure if I should submit a correction through Form I-90 or leave it as-is.
Would applying for the correction be wise, or could it risk bringing unnecessary attention to my case given the current situation?
Thank you for your insight.
This sometimes happens. It is up to you, but I have encouraged client with this problem to not correct it. To correct it, I think you need to send in the original card, and given how dis-functional USCIS is, I fear that trying to correct the error would lead to worse problems. However, it is their mistake and if you want to try to fix it, you can use form I-90. There is more info on this website, but you have to scroll down to where it talks about Permanent Resident Cards: https://www.uscis.gov/tools/uscis-tools-and-resources/immigration-documents-and-how-to-correct-update-or-replace-them. Take care, Jason
Hi Jason,
I saw some videos that people were detained because they overstayed their visas. To type of people this apply? I also overstayed my legal stay before filling my asylum on 2018, and I was B1/2 visa. My case is pending decision in asylum office, and I am originally from Afghanistan.
There are very few examples that I have heard about where people with pending asylum cases are detained, and most of those involved people with either some type of prior immigration violation or a criminal conviction. I do think it is a good idea to gather your evidence and have your case prepare, just in case you are detained, but I think it is unlikely to happen, and I do not know of an example where a B visa person was detained while they had a pending asylum case. Take care, Jason
Hi Jason,
I just read the new executive order banning travel for nationals of 12 countries. I know it’s too early to know the full extend of the application of the ban. But are immediate family members, such as children of naturalized citizens, who are still nationals of those countries, still able to get visas? There are exemptions to direct family members of green card holders etc… but I’m not sure if the exemption only applies to direct family members who already possess visas.
I have only read it briefly, but it looks to me like minor, unmarried children of US citizens from banned countries are exempt from the ban. Also, spouses of US citizens would be exempt (minor unmarried children, spouses, and parents of adult US citizens are “immediate relatives” under the immigration law). However, it looks like they will want additional information about the familial relationship, such as a DNA test. Take care, Jason
Yeap finally he dropped a bombshell 😢
https://www.bbc.com/news/live/cvgqwyxxpzgt
Hi Jason, do you think this new travel ban will effect travel for green card holders from those countries?
What about asylee who has green card pending and has refugee travel document is it safe to travle?
It seems like people with asylum are not affected by the rule, but I think it is not 100% clear and so maybe wait a bit to see how the file is applied. Take care, Jason
I really appreciate for your response, can you please let us know cause i am going to turkey embassy next week to grt visa and i want ti book a flight its been 10 years have not seen my family, thank you so much. I have pending i-485 .
I plan to write more next week, but if you have a green card, it seems that the ban does not apply. I do think we need to see how it is implemented to have a better idea, but at least at this point, it seems that GC people are not affected. Take care, Jason
I only looked at it briefly so far, but my understanding is that green card people are not affected. I am not yet sure about asylees, people with Advance Parole or people who already have visas. Take care, Jason
Hello,
I’m an asylee and i have GC pending. How legit is my status?can IcE do anything to me? I have A5 EAD and i-94 copy with me.
You have a stable status in the US, and I do not think USCIS can do anything to you, unless you commit a crime or they determine that you previously committed immigration fraud. Take care, Jason
Congratulations ME for your green card application approval. Your asylum based green card approved with or without interview?
Thank you
No interview at all, just an approval.
Hi Jason. They previous administration had allow people to submit their green card application right after asylum is granted. Do you think this rule is still in effect? I am at 8 month after asylum grant but I am afraid they might change the rules after submitting my application.
Also, how do you prove one year presence after asylum, I never left the country and I have no intention to travel but what document would prove the one year residency?
Rule is still in effect, if you apply and it accepted, even if the rule changes you will be fine, it doesn’t work retroactively.
You Do Not have to prove your 1 year presence if you have never left the country….yoy will provide i94 and or other proofs and that will be sufficient, if they have questions about it,unlikely, they will RFE to you.
The rule is the same, and I wrote about that on February 8, 2023. We have never submitted proof of the physical presence in the US, and USCIS has never asked. If they ask, you can submit your passport, work or school records, taxes, letters from people who know you, etc. I doubt you will have a hard time proving your presence in the US, and I doubt USCIS will ask for that. Take care, Jason
My green card based on asylum was approved this week card being produced, despite the pause on those application, it took a bit of year.
Can I apply for reentry and RTD at the same time?
Congratulations!!! It looks like a lot of people grt it! Were you asylum granted in court or office?
Now about your question,
You CAN apply for both, but the problem is that for reentry permit you need passport. You can try, why not?
Also, the tricky thing is here that as a GC holder you shouldn’t be out of the country for more than 6months, but RTD is valid for 1 year and you can get back in the US until the last day on your RTD….I don’t know if that fixes the 6 month issue…
What state you applied for your Gc in?
It was granted by asylum office,I think my application was in Missouri service center as it has MSC
Congratulations ME for your green card application approval. Your asylum based green card approved with or without interview?
Thank you
I did not do interview .
If you have asylum or refugee status or you have a GC based on either status, you can apply for an RTD at any time. Use form I-131, available at http://www.uscis.gov. Take care, Jason
Congratulations!!! When did you apply? Glad to hear this.
Hi Jason, saw this: https://www.cbsnews.com/news/asylum-seekers-work-permits-trump/ — looks like a new rule may block work permits for asylum seekers. If it passes, do you think it can be challenged like the Trump-era 365-day rule? If not, any idea what options we’d have — benefits, health coverage, agencies to reach out to? USCIS won’t hit 180-day processing anytime soon, and without EAD we’ll be left with no means to support ourselves.
We will have to see, but I do think such a rule could be challenged. Whether the Supreme Court (the ultimate decider) will block such a rule, I have my doubts, but we will have to see. Take care, Jason
The doubts you have could be trivial or significant.
Would you be able to fit your feelings towards S.C.’s attitude on this matter into the following categories:
Likely ruling in favor asylum seekers, Lean, completely neutral, lean in favor of the govt, or likely ruling in favor of the government ?
Not able to work is a big deal. Based on your opinions, I can prepare better.
I really do not know, but the Supreme Court has been pretty deferential to the President on many immigration matter (but not all immigration matters). I would say that if your work permit is expected to expire in the next year or two, you may want to apply to renew now, so you can (hopefully) get the 5-year card before/if the rules change. Take care, Jason
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Hi Jason, thank you for your reply, I have a follow up question – can DHS revoke existing work authorizations? Mine expires in 3 years, can they implement a rule and my ead gets revoked before that?
They can try, but that will be difficult, as you have the physical card. I think they will not do that, as it will likely be ineffective, but I guess we will see. Take care, Jason
Hello Jason,
Thank you very much for your time. As you know, this potential rule change is a major issue for many of us. Would you mind sharing a bit more of your thoughts on the following?
1. Will the change to the adjudication timeline in the proposed new rule apply retroactively to individuals whose initial or renewal work permit applications (based on pending asylum) have already been submitted and are currently pending? This was largely not the case during the last administration when similar changes were attempted.
2. Based on the CBS reporting, how quickly do you think the new rule will be implemented?
3. What are your thoughts on the future of the Rosario class action case?
Much appreciation for all you do!
Best,
Bill
I have no info on when or if there will be a rule change. At this point, we just don’t know and we will have to see what happens. However, I do think there could be reasonable court challenges to stop them from eliminating work permits for asylum seekers. I worry that ultimately, the Supreme Court might allow the government to end work permits, as the court seems pretty willing to defer to the Administration, but we will have to see. Take care, Jason