By: Claudia Lainez, Esq., Grossman Law, LLC
Far-reaching policy changes and judicial decisions issued over the last two months will broadly impact the due process rights of immigrants and American families and businesses. Below is a brief summary of some of the most important changes:
On May 17, 2018, Attorney General Sessions issued a decision in Matter of Castro-Tum revoking the authority of immigration judges and the Board of Immigration Appeals (BIA) to "administratively close" a case. For over 30 years, immigration judges used administrative closure as a docket-managing tool to temporarily suspend removal proceedings where an immigrant was pursuing another type of immigration relief before U.S. Citizenship and Immigration Services (USCIS), or where the person was not a priority for removal. Administrative closure gave certain eligible individuals an opportunity to pursue immigration relief outside the context of removal proceedings, which made financial and administrative sense.
Sessions' decision also gave the Department of Homeland Security the "green light" to request re-calendaring of previously administratively closed cases. Although the decision still permits judges to employ administrative closure in certain narrow circumstances, judges will be much less able to effectively manage their crowded dockets through this administrative tool. As a result, we can expect a worsening of the backlog of cases already pending in immigration courts across the country (more than 700,000 according to current statistics).
This decision will have the unfortunate consequence of adding more work and more cases onto already over-extended immigration judges. It will also likely mean that immigrants already seeking relief from removal before the immigration courts will face even longer delays before their cases are resolved. Grossman Law advocates for immigration policies which will protect the due process rights of immigrants, as well as the interests of U.S. citizens, including families and businesses. The Castro-Tum decision does neither and represents law-making that is punitive to immigrants, rather than supportive of American values.
Less than a month later, on June 11, 2018, Attorney General Sessions issued another decision in Matter of A-B. This time he overruled a 2014 decision of the Board of Immigration Appeals, which held that domestic violence victims could qualify for asylum in some circumstances. For example, under previous case law, a victim of domestic violence could show that the she feared persecution in her home country due to her membership in the social group of married women who were unable to leave the relationship.
Sessions claimed that harm perpetrated by a "private actor," as is the case in many domestic violence-based asylum claims, should not suffice to qualify a survivor for protection in the United States. An asylum applicant must now meet a higher burden and show that his/her government "condoned" the actions of the private actor or that his/her government "demonstrated an inability to protect the victims." This is a change from previous well established asylum law which requires that asylum applicants only show that the government was "unwilling or unable" to protect them from aggressors.
This decision will make it all the more difficult for survivors of domestic violence to establish their eligibility for asylum relief, especially those victims who do not have the benefit of counsel. Grossman Law decries decisions, such as this one, that have the effect of abrogating standards of international and national human rights and asylum law.
In April 2018, President Trump enacted a "zero tolerance" policy in immigration enforcement, which mandated that federal prosecutors bring misdemeanor criminal charges against any undocumented immigrant who illegally enters the United States. Because minor children are not permitted in federal criminal custody, immigration officers separated minor children who entered with their parents, in order to send the parents to federal criminal custody for prosecution. Officers detained the minor children alone, often sending them to centers across the country, hundreds or thousands of miles away from their parents. For six weeks, from April to May 2018, DHS officers separated more than 2,300 children from their parents.
After a media-uproar, public outcry, and the filing of several lawsuits, on June 20, 2018, President Trump issued an Executive Order (EO) which purported to address the family separation issue. While allegedly keeping the "zero tolerance" policy intact, Trump stated that children will no longer be separated from their parents, "to the extent permitted by law and subject to the availability of appropriations." Thus, the President replaced the family separation policy with a new one, requiring families (including those with young children) to be detained together upon entry to the United States, during the pendency of both criminal entry proceedings and immigration proceedings. The Administration is also making efforts to reverse Court-mandated minimum detention standards for children.
In response to an American Civil Liberties Union (ACLU) lawsuit, on June 26, 2018, the U.S. District Court for the Southern District of California ordered DHS to reunite all separated children with their parents within 30 days. For children under the age of 5, the Court ordered that DHS reunify the families within 14 days. DHS' deadline is fast approaching, and many families remain separated. It remains to be seen how the Court will respond to DHS' efforts if reunification is not completed by the Court's deadline. Grossman Law, LLC is analyzing other legal options such as filing a petition against the Administration's family separation policy before the Inter-American Commission of Human Rights. Grossman Law attorneys are also making plans to travel to family detention facilities with the goal of providing pro bono legal services to immigrants affected by the new policies.
On June 26, 2018, in a 5-4 decision, the Supreme Court decided that President Trump did not exceed his authority under the Immigration and Nationality Act in enacting Presidential Proclamation 9645, also known as the "Travel Ban." That Proclamation seeks to place entry restrictions against nationals of eight countries, whose systems for managing and sharing information about its citizens the President deems inadequate. In the first version of the Travel Ban, originally issued on January 27, 2017, just days after he took office, President Trump sought to immediately, temporarily ban citizens of certain majority Muslim countries from entering the U.S. based on alleged national security concerns.
Since January 2017, the Administration issued two amended proclamations, and the policy faced numerous legal challenges in federal court. A federal court initially halted the program, but in December 2017, the Supreme Court permitted the program to continue.
Ultimately, the Supreme Court's decision, written by Chief Justice John Roberts, held that a president holds statutory authority to make far-reaching policies about immigration. While the majority seemed bothered by some of the President's defamatory statements about Muslims, Roberts stated that Trump's apparent illicit motives and incendiary statements did not diminish his broad authority under the law to exclude certain categories of immigrants from the United States. Further, the Court found that the President fulfilled his obligation to show that entry of the covered foreign nationals "would be detrimental to the interests of the United States." For example, the Court pointed to the fact that the President had ordered DHS to conduct a comprehensive evaluation of every single countries' compliance with security measures previous to issuing the new Proclamation. Ultimately, the Court found that the Government had set forth a sufficient national security justification to survive any constitutional challenges.
In a passionate dissent read from the bench (a rare occurrence), Justice Sonia Sotomayor decried the decision, which she stated permits religious discrimination in violation of the First Amendment. She condemned the Travel Ban as "motivated by hostility and animus toward the Muslim faith." Justice Sotomayor drew a parallel between the President's actions against Muslims through the Travel Ban and the U.S.' shameful detention of Japanese-Americans in the wake of World War II. She stated that the Court's decision in the Travel Ban case effectively sanctions "a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security."
Unless eligible for a waiver, citizens from affected countries will now be ineligible for entry into the United States.
On June 27, 2018, Supreme Court Justice Anthony Kennedy announced he will be retiring from the bench effective July 31, 2018. Justice Kennedy was long-considered the "swing vote" on the bench, putting conservative judicial philosophy aside in siding with the Court's more liberal justices and authoring impactful decisions concerning reproductive rights, LGTBQ rights, and affirmative action, among others.
Justice Kennedy's retirement will provide the Trump Administration the opportunity to replace Justice Kennedy, effectively changing the liberal/conservative balance which has characterized the Court. While it remains to be seen, the Justice's decisions on pending and future immigration-related matters have the potential of impacting immigrants and their families for decades to come.
Grossman Law, LLC is committed to monitoring these major changes in immigration law and policy and will continue advocating for the rights of immigrants and their families.