All posts by Cheng, Cho, & Yee, Immigration Lawyers

Deciding the Fate of DACA

A Supreme Court ruling that will decide the fate of DACA is likely to come late this spring. On November 12, the Supreme Court seemed in favor of the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) program, which has enabled almost 700,000 undocumented children and young adults to live and work in the U.S. without fearing deportation.

Over the course of an 80-minute exchange in the Supreme Court with some threatened immigrants in attendance, multiple conservative justices argued in favor of the Department of Homeland Security’s reasons for the decision to cease the DACA program. While he acknowledged the impact the decision would have on immigrants based on the “sympathetic facts” of the case, Associate Justice Neil Gorsuch stated that the justices also considered how ending the DACA would affect communities and employers.

Questioning the Legality of DACA

When it came to voting on the decision to end DACA, the court’s four liberal justices made the argument that the program’s fate should ride on the Trump administration’s controversial claim that DACA was illegal.

Chief Justice John Roberts’s vote appeared to be the most influential. Prior to the DACA hearing, Roberts voted in June with the four liberal justices to vote “no” on the administration’s desire to include a new citizenship question on the 2020 census. However, Roberts said that the attorney general may be right in declaring the DACA illegal following a connected U.S. Court of Appeals ruling for the 5th Circuit, which the Supreme Court upheld after a 4-4 vote three years earlier in 2016.

The Supreme Court won’t likely make a ruling until this spring as the 2020 presidential election campaign continues. However, even if the court decides to end DACA, a majority of recipients will still remain protected for the two-year period until January 2021, when either President Donald Trump or a new Democratic candidate is in office.

There’s no question that the Trump administration has the ability to rescind the program, but the purpose of the November hearing was to determine if the reasons for ending DACA were valid. While some conservatives had questions for U.S. Solicitor General Noel Francisco regarding the administration’s considerations for current DACA recipients and others the program affects, the liberal justices expressed a desire to rule against the administration.

Associate Justice Sonia Sotomayor was particularly vocal regarding the decision, stating that “this is not about the law. This is about our choice to destroy lives.”

Conflicting Administrations

The Obama administration started DACA in 2012 following faltering negotiations with Congress to create citizenship. President Barack Obama wanted to provide extending protections to over 4 million undocumented parents of legal permanent residents or citizens, but the federal courts decided against the motion.

With the establishment of the Trump administration, Texas threatened to sue regarding DACA if the program didn’t end. Following the removal of the program from Texas by the Department of Homeland Security, several states from New York to California filed lawsuits, followed by two federal judges’ decision to block the ending of the program nationally.

If individuals want to qualify for DACA every two years, the recipient must either be a student, high school graduate, or serve or have served with an honorable discharge from the military. Individuals convicted of significant misdemeanors, felonies, or more than three lesser crimes are don’t qualify for DACA.

On behalf of these recipients, civil rights organizations and immigration groups, along with groups representing educators, labor unions, big business, law enforcement, religious institutions, and national security groups, collectively submitted almost three dozen legal briefs.

President Trump also represented a post-facto justification for the ending of DACA by tweeting that many who are protected under DACA are hardened criminals, which is a reversal of his previously expressed sentiments regarding DREAMers, which were complimentary and supported protecting these recipients. 

Why the Case Matters

Apart from maintaining the benefits that DACA provides to DREAMers, there are several other reasons why this case is important.

  • It’s representative of a significant conflict between the legislative and executive branches of government.
  • It forwards the Trump administration’s continued dismantling of Obama administration-era policies.
  • It serves as the third significant Supreme Court battle around immigration in which the current administration has changed justifications for its decisions and motions, following the travel ban put in place against multiple majority-Muslim countries and the introduction of the new 2020 census question regarding immigration.
  • The Trump administration’s win in the court could culminate in continued negotiations with Congress to increase funding for the border wall as a favor for extending the DACA program. DACA would then become a major issue in the 2020 presidential election.

Ultimately, ending DACA could present certain hardships for younger immigrants who are otherwise eligible to live and work in the U.S. 

Understanding the Legal Responsibilities of Immigrant Sponsors

Significant financial responsibilities come with immigrant sponsorship if immigrants are unable to support themselves. The U.S. Citizenship and Immigration Services (USCIS) highlights these responsibilities, which could influence immigrants’ ability to obtain citizenship. The USCIS Presidential Memorandum regarding Enforcing the Legal Responsibilities of Sponsors of Aliens in May 2019 states the specific requirements that apply to individuals who have sponsored or will sponsor immigrants, and those who plan to make assets or income available in an effort to help sponsor an immigrant.

Since 1997, the U.S. has required immigrant sponsors to file and sign an Affidavit of Support Under Section 213A of the Immigration and Nationality Act that pledges financial support for immigrants who are sponsored. In the process of signing and submitting either the affidavit or a binding Contract Between Sponsor and Household Member, sponsors are agreeing to utilize finances to support the sponsees appearing on the forms and to cover the cost of means-tested public benefits that sponsees receive when legal agreements are in effect.

Immigrant sponsors may file one of the following affidavits or contracts:

  • Form I-864: Affidavit of Support Under Section 213A of the INA
  • Form I-864EZ: Affidavit of Support Under Section 213A of the Act
  • Form I-864A: Contract Between Sponsor and Household Member

Legal Responsibilities of Sponsors to Reimburse Public Benefits

Occasionally, sponsored immigrants will apply for and receive what are referred to as means-tested public benefits from tribal, local, state, or federal agencies. These benefits can include Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, and the State Child Health Insurance Program.

In some cases, sponsees will be ineligible for some means-tested public benefits once the agency assesses all assets and resources, along with those of household members, when determining the immigrant’s eligibility through a process known as “income deeming.”

Immigrant sponsors may be responsible for reimbursing these means-tested public benefits if an immigrant appearing on the affidavit receives the benefits when the affidavit is in effect. If the sponsor fails to reimburse the agency, that agency may be able to obtain a court order to ensure that the sponsor repays.

This makes it necessary for immigrant sponsors to make sure that they can reimburse any means-tested public benefits that sponsees receive prior to filing an affidavit or contract. Otherwise, sponsors may face legal repercussions that could, in turn, affect the sponsored immigrants’ ability to obtain citizenship in the U.S. 

Do You Want to Become an Immigrant Investor in the US?

U.S. Citizenship and Immigration Services (USCIS) published a final rule regarding changes to the EB-5 Immigration Investor Program that applies to immigrants who want to become U.S. investors. The rule became effective on November 21, 2019.

What Is the EB-5 Immigration Investor Program?

The EB-5 program allows individuals to apply for conditional lawful permanent residence within the United States if they make a qualifying investment in a U.S. commercial enterprise and either preserve or create 10 permanent full-time jobs for U.S. workers who are also qualified.

As of November, USCIS made changes to this program, including:

Increased Minimum Investment Amounts

The USCIS’s final rule for the EB-5 program raised the standard minimum investment level from $1 million to $1.8 million to account for inflation, which is the first time it’s seen an increase since 1990. This rule also maintains a 50% minimum investment differential between a targeted employment area (TEA) and non-TEA, increasing the TEA amount from $500,000 to $900,000. Subsequently, the minimum investment amount will further adjust for inflation once every five years.

TEA Designation Reform

The final rule also outlined certain changes to the EB-5 to cover the gerrymandering of areas with high unemployment, i.e. manipulating electoral constituency boundaries. Historically, gerrymandering of these areas was achieved by merging a number of census tracts in the attempt to link prosperous project locations to less prosperous communities in order to achieve the qualifying average unemployment rate. The rule would ensure that the Department of Human Services (DHS) would directly make TEA designations to help maintain fairness and consistency.

Detailed Procedures for Removing Permanent Residence Conditions

The final rule also revised regulations to clarify that derivative family members who are also lawful permanent residents are required to independently file to remove permanent residence conditions. This requirement isn’t applicable to family members who appear in a principal investor’s petition for the removal of conditions.

Enabling Petitioners to Maintain the Priority Date

The final rule grants more flexibility for immigrant investors with an EB-5 immigrant petition that’s already been approved. When filing a new petition, these individuals will now be able to keep the priority date of the previous petition with a few exceptions.

Individuals interested in becoming immigrant investors in the U.S. can visit the USCIS website to learn more about the changes that the new EB-5 final rule will bring.

The Backlog for Pending Immigration Cases Has Nearly Doubled

While the Trump Administration has made numerous attempts to curb legal and illegal immigration, the immigration court backlog has swelled from 542,000 cases in Jan. 2017 to more than 1 million as of Sept. 30, 2019, leaving people in Chicago waiting years to have their hearings before an immigration court judge. This backlog of cases has resulted from several factors and it poses problems for people who are left in limbo waiting for their cases to be heard. There are not enough immigration law judges to hear all of the cases. Former Attorney General Jeff Session’s change of policy directing immigration courts across the nation to reopen closed cases has also greatly contributed to the backlog. Trump’s ramped-up efforts to reduce the number of people who are granted asylum have also contributed to the problem. A combination of these factors has resulted in a large increase in pending cases and the resulting problems the backlog has caused.

Lack of Judges

While the Trump Administration has taken a hardline approach to immigration and has prioritized all people who are in the U.S. unlawfully for deportation instead of prioritizing those who have committed crimes, the government’s efforts have been focused on enforcement rather than on providing resources to the nation’s immigration court system. There are not enough immigration law judges to hear all of the cases that are pending, so the courts’ calendars are set out for several years. In some cities like New York and Chicago, the backlog is close to four years. 

While the Justice Department has hired more immigration law judges, there are still only approximately 400 immigration law judges working in the U.S. today. This is an increase from the 280 who were working during the Obama Administration. However, given that the number of pending cases has nearly doubled to more than 1 million, the increase in the number of judges has simply not been enough.  

Prioritizing All Undocumented Immigrants

During the Obama Administration, the government took an approach to the removal of undocumented immigrants of prioritizing those who had committed crimes of moral turpitude. These people would be targeted for removal and deportation procedures while law-abiding people who had established roots in the U.S. were largely left alone. The Trump Administration has taken the opposite approach and has instead prioritized everyone who is in the U.S. with undocumented statuses. There has been a substantial increase in the number of people with deportation and removal cases pending in the courts, including many people who have lived in the U.S. for years and have set down roots in the country. 

Change in Policy from the DOJ

Another major contributing factor to the immigration case backlog is a decision that was issued by former Attorney General Jeff Sessions in May 2018. Sessions announced a policy change and ordered the immigration judges across the U.S. to stop removing cases from their dockets without issuing decisions. This meant many previously closed cases were subsequently reopened, adding thousands of cases to the already clogged immigration court system. According to TRAC, a clearinghouse that tracks immigration court data, this decision has contributed more to the backlog than all of Trump’s efforts to reduce the numbers of people who are granted asylum at the southern border.

Crackdown on Asylum

The Trump Administration has focused on tamping down the number of people who are granted asylum at the southern border. To process the claims of asylum, the government has set up tent courts along the border that are closed to the public and has forced many people to wait on the other side of the border for their petitions to be heard. The number of people who have been granted asylum has substantially decreased in the past couple of years.

Problems the Backlog Has Caused

The backlog of immigration court hearings has caused multiple problems for people, including:

  • Long waits in detention facilities
  • People who establish roots that may be torn away by the time they have their hearings
  • Removal of people who are not dangerous 
  • Criminals have a lowered chance of removal 

People who are placed in detention facilities may wait months or years for their hearings. People who are not detained but who have pending immigration cases may establish roots in their communities while they are waiting for their hearings, only to have them ripped away if their petitions are denied. Focusing on deporting everyone who is undocumented, including people who have lived in the U.S. for years, means that families are torn apart. Since criminals are no longer prioritized above others, their chances of deportation are now reduced with the backlog in the system.

Coming Soon: New Naturalization Test

Immigrants will be required to undergo a new naturalization test in the near future. The U.S. Citizenship and Immigration Services (USCIS) is currently revising the existing naturalization test to make improvements to increase accuracy. Specifically, these revisions will help ensure that the test accurately measures the applicant’s knowledge of civics and that it exhibits best practices for assessing adult education.

What to Expect with the New Naturalization Test

In spring 2019, the former director of USCIS signed the Revision of the Naturalization Civics Test Memorandum, which details the revision of the naturalization test along with the revision of the schedule based on best practices in adult education.

The revision began in December 2018, when USCIS put together a naturalization test revision working group that included members from the agency. Following the formation of this group, members worked together to review and update the questions included in the naturalization test. The team was also responsible for assessing any potential changes to the speaking element of the test.

In addition, the agency has sought the input of various adult education experts to maintain fairness and transparency throughout the test. Following both officer training and analysis of the pilot, USCIS plans to implement the revised naturalization test in December 2020 or sometime in early 2021.

Requirements for Naturalization

The Immigration and Nationality Act, Section 312 covers the various civics and English requirements in place for naturalization. Candidates for naturalization are required to have a fundamental understanding of the English language, which includes the ability to speak, read, and write words using ordinary English. The Act also requires candidates to possess knowledge and comprehension of the fundamentals of U.S. history along with the form of government and its principles.

The revisions made to the test will be in compliance with all regulatory and statutory requirements, helping make sure that legal immigrants are prepared to meet their responsibilities as citizens of the U.S. and fully exercise their rights.

Keeping all of this in mind regarding the new naturalization test, applicants for naturalization will be able to prepare for the requirements of the test based on these revisions. For additional information about the new naturalization test and the specific revisions, individuals can visit the USCIS website and read the memorandum.