Important Notice Regarding Changes In U.S. Deportation Policies

The USCIS released a Policy Memorandum on June 28th, 2018 that affects aliens that are removable/subject to deportation.

For one, the Federal Government is no longer able to excuse certain groups of deportable foreign nationals from potential deportation as they could in the past. This means that every alien that is technically deportable (for any reason), can be deported.

Secondly, the immigration authorities are now making it their general priority to deport (remove) aliens that have committed serious crimes or who are otherwise security risks to the U.S., aliens that have committed fraud or misrepresentation*, and any alien that is already subject to “expedited removal.”

Thirdly, if you are an alien who is currently removable for any reason (not just the reasons listed in the second paragraph), please pay careful attention: DEPORTATION WILL BE PRIORITIZED BY THE AUTHORITIES, FOR ANY REMOVABLE ALIEN, WHO:

  • Has been CONVICTED of ANY criminal offense (this could mean misdemeanors and potentially even minor traffic violations);
  • Has been CHARGED with ANY criminal offense that has not yet been resolved (so even minor traffic violations, potentially);
  • Has done something that is illegal (even if they haven’t been charged);
  • Has engaged in fraud or willful misrepresentation in any official matter or application with a government agency (such as immigration applications);*
  • Has abused any program providing public benefits;
  • Has received a final order of removal, but has not departed; or,
  • In the judgment of an immigration officer, is a risk to public safety or national security.

Asylum Applicants: Notices to Appear and Removal Proceedings will proceed as they did previously, and there do not appear to be any changes to the deportation policies for foreign nationals with Pending Asylum claims. However, Asylum Applicants who cancel or withdraw their applications may be subjected to deportation proceedings if they don’t have a valid lawful status in the United States.

Citizenship Applicants: If you are considering applying for citizenship, you should be aware of the following. If you have something in your record that makes you removable (such as a serious crime), removal proceedings will now be initiated against you automatically if your N-400 (Citizenship Application) is denied, because of a finding that you have poor moral character due to that crime. Also, if you have something in your record (certain crimes) that makes you deportable (but you still are found to have Good Moral Character), removal proceedings may be initiated against you if you apply for citizenship, anyway. Finally, removal proceedings may be initiated against applicants for citizenship, if it is determined that they were inadmissible when they got their Green Card or were admitted to the United States.

Out of Status Aliens with Pending Petitions/Aliens Not Lawfully Present in the United States: if you apply for a benefit, or file an application or petition (such as an extension of nonimmigrant status–say your status expires while your extension request is pending); if you are denied on that application, then removal proceedings will be automatically initiated against you (with the filing of a Notice to Appear).

*Fraud, Misrepresentation, and Abuse of Public Benefit Programs: the authorities are making it a priority to target and deport aliens that are removable because they believe the aliens have engaged in fraud or misrepresentation, or abused public benefit programs. When USCIS believes an alien has committed fraud (or the similar offenses above), they will issue a Notice to Appear for Removal Proceedings, to any alien who is denied an immigration petition or application. This is true even when the immigration petition or application, is denied for an unrelated reason to the fraud (or related violation). This means that foreign nationals must be extremely careful to not accidentally misrepresent themselves when dealing with the Immigration Authorities and when applying for benefits. Even more upsetting, USCIS IS NOT REQUIRED to put on the Notice to Appear for Removal Proceedings, the charges of fraud or misrepresentation against the alien (though they are supposed to include it).

Conclusion: At Zontlaw we very much appreciate and emphasize the tough times that the U.S. immigrant population is experiencing under the Trump administration. In many cases, it isn’t fair or right, but it’s sadly the world we are all living in. It is important to note that because many of these policy changes are so new, we do not know exactly how these policies are going to be used in reality. One of the only positive things included in the USCIS policy memorandum is a commitment to implementing many of these changes with some degree of prosecutorial discretion. This means that agencies enforcing U.S. immigration laws are supposed to use their heads a little and think rationally, about when and when not to initiate deportation proceedings based on the severity of offenses and humanitarian factors. We will see how that works out too, with time. If you need our services at any time in regard to these matters, or any other immigration matter, please do not hesitate to contact us. Thank you.

Can I ask for political asylum from outside the US?

NO. To apply for political asylum, you must be in the United States (embassies or diplomatic missions outside the US will not help you in this matter). Being outside the US, you can only apply for refugee status and this procedure is also a complicated procedure.

Can I apply for asylum when crossing the border?

This is possible, and such cases often occur at the border crossing with Mexico. The application directly on the border is an extreme measure. A very important point is that when you cross the border without the necessary permission (US visa) and asylum application, you are most likely to be detained and placed in an immigration prison where you will conduct initial inquiries and check all the facts you previously stated. The decisions of the border service can be delayed for weeks or even months.

Can I apply for political asylum if I am illegally in the US?

You have the right to defend and examine your application, even if you are in an illegal status. It is very important that this happens in the first year of your stay in the country. Otherwise, you have to argue, there are compelling reasons why you did not do this before.

How long does it take to get an interview for asylum?

Beginning on January 29, 2018, the Immigration Department for Asylum (USCIS Citizenship and Immigration Service Group) will give priority to the newest applications when assigning interviews.
Such a change in the schedule of interviews will make it possible to weed out those applicants who use groundless statements and try to use this process solely to obtain a work permit and will enable the USCIS to immediately identify such persons and begin the process of their deportation. In reality, the new Priority will allow the USCIS to make decisions on qualified asylum seekers more quickly and efficiently.

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