Access to Immigration Files

 

USCIS and ICE Must Give People Access to Their Immigration Files After Losing Lawsuit

People who need access to their government immigration records scored a huge victory in the Nightingale et al. v. USCIS case on December 17.

A judge ruled that a nationwide class of individuals should have access to their immigration files—called A-Files—within the timeframes outlined in the Freedom of Information Act (FOIA) statute.

A-Files contain records of interactions with the Department of Homeland Security, prior entries in the United States, removal orders, statements made to immigration officials, and past applications for immigration benefits. This information allows immigrants to defend against removal, apply for immigration benefits, and naturalize. Individuals must submit a FOIA request to receive their files.

The judge ruled that the U.S. Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) must:

Adhere to the FOIA statutory deadlines, which mandates the agencies must respond to FOIA requests within 20 business days, with certain exceptions.

Make determinations on all A-File FOIA requests in USCIS and ICE backlogs within 60 days.

Provide the court and class counsel with quarterly compliance reports, with the first report due in 90 days.

The judge noted, “There is no adequate substitute for the information contained in an A-File and FOIA is the primary, if not the only, mechanism for accessing A-Files.”

DACA Reinstated

 

A Judge Fully Reinstated DACA, but Dreamers Are Still in Danger

A federal judge in New York has overturned the Trump administration’s latest effort to limit the Deferred Action for Childhood Arrivals (DACA) initiative.

DACA temporarily protects certain people without immigration status from deportation and provides them with a work permit. The Trump administration’s previous effort to end the initiative altogether was rejected by the U.S. Supreme Court. DHS responded by attempting to severely limit participation in the initiative, which the court in New York rejected. The latest decision means that starting December 7, hundreds of thousands of people should be able to apply for DACA for the first time.

History of DACA

In 2012, after years of pressure from immigrant youth, the Obama administration implemented DACA through executive action. Applicants must meet certain age, physical presence, and academic requirements to qualify, in addition to passing a criminal background check.

In 2017, the Trump administration attempted to terminate DACA, claiming it was illegal. Lawsuits forced the government to continue granting renewals from people already enrolled, but the administration was allowed to refuse any new applications.

In June 2020, the Supreme Court found that the Department of Homeland Security (DHS) did not adequately explain its decision to end DACA and its reasoning to do so was faulty. However, the Court left the door open to the Trump administration ending DACA so long as it did so properly.

Following that decision, U.S. Citizenship and Immigration Services (USCIS) should have—but did not—start accepting first-time applications after the Supreme Court decision. In July, DHS instead issued a memo severely limiting DACA. The memo excluded first-time applicants, required renewal annually instead of every two years, and eliminated most advanced parole, a procedure that let DACA recipients travel outside of the country.

Managing Immigration Dockets

 

How Two Proposed Rules Make It Harder for Immigration Judges to Manage Their Docket

The Executive Office for Immigration Review (EOIR) has proposed two rules that would significantly decrease the due process rights of people in immigration court. Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.

While the rules are not likely to be finalized by the time President Biden takes office, they demonstrate the Trump administration’s continued commitment to dismantling the immigration system.

The first rule would severely limit the reopening of immigration cases after a judge enters an order of removal. Respondents or their attorneys routinely file motions to reopen because of previously unavailable evidence, changed country conditions, or a lack of proper notice of a hearing. This opportunity is crucial for people who are eligible for relief but were ordered deported for reasons beyond their control.

The rule would limit the reasons for which a case can be reopened, requiring significantly more evidence. This means that fewer people could overturn a deportation order, even if they now had another way to remain in the United States. The respondent would have to include their application for relief with the motion. Once their case is reopened, they would be barred from applying for any other kind of relief.

EOIR’s new rule would further limit case termination, a tool judges used in the past to remove low-priority cases from their dockets. It would also end nearly all discretionary stays of removal, which temporarily prevent a deportation in emergency situations.

Immigrants Pay their Fair Share

 

Immigrants Pay their Fair Share

A recent study by the University of Florida shows that immigrants in Florida pay their fair share of taxes, and in some cases there are several immigrant groups that pay substantially higher taxes.

Why Florida?

A study conducted by the Bureau of Economic and Business Research at the University of Florida focuses 

on the economic impact of immigrants using Florida native-born residents and immigrants as their sample group. 

Florida provides an interesting area to study the immigration question, as it is the third-leading destination for immigration. 

Specifically Florida’s Miami-Dade County is a haven for immigration and an example of an area that has felt a profound effect 

of several generations of immigrants. One aspect that the study focuses on is comparing the level of taxes paid in Florida and 

Miami-Dade County by both immigrants and persons born in the United States.

Different Immigrants Studied

The study focuses both on Florida in general, and Miami-Dade County specifically and separates immigrants into several categories, 

including where they were born, when they arrived in the U.S., whether or not they are naturalized citizens, 

and which generation of immigrants they belong to. The study uses census data and examined federal income, 

FICA, property, and sales taxes, and in the end, researchers came to conclusions that were overwhelmingly positive.

U.S. Citizenship Test

 

New US Citizenship Test Makes It Harder for Immigrants to Become Citizens

Lawful permanent residents seeking to become U.S. citizens will now be required to take a more difficult and longer citizenship test. U.S. Citizenship and Immigration Services (USCIS) announced the change on November 13.

The new test increases the total number of questions from 100 to 128. Applicants will be verbally asked 20 questions and must answer at least 12 correctly, up from six out of 10.

A longer and more challenging test will likely prevent some immigrants from becoming citizens. It will also delay the citizenship process for hundreds of thousands more who are already waiting in months- or years-long backlogs.

The new test will apply to any person who files a citizenship application after December 1, 2020. These changes come on the heels of other targeted efforts that make it harder to become a U.S. citizen, including higher naturalization fees, increased vetting, and backlogs in citizenship applications.

The New Citizenship Test Questions Are More Complicated

Some of the questions have been made explicitly more difficult—even though there’s no evidence the old test wasn’t challenging enough.

While applicants previously may have been asked to identify one of the branches of government, they may now be asked to identify all three branches of government. Applicants who may have been asked to identify three of the original 13 states may now be asked to identify five of the original 13 states.

USCIS says one of the goals of the new test is to ensure applicants learn more about civics and history and aren’t simply learning names and dates.

For example, the old test asked, “What do we call the first ten amendments to the Constitution?” The new test asks, “What does the Bill of Rights protect?”

Targeted Sanctuary Cities

 

ICE Is Targeting ‘Sanctuary’ Cities With Increased Enforcement and Massive Fines

In the final run up to the presidential election, the Trump administration has reinvigorated its attacks on undocumented immigrants in the United States by targeting so-called “sanctuary” policies and jurisdictions.

These attacks have come in two forms. U.S. Immigration and Customs Enforcement (ICE) officials started to issue fines against undocumented immigrants who have sought “sanctuary” in U.S. churches.

In a somewhat different vein, ICE has also singled out so-called sanctuary jurisdictions for immigration enforcement actions.

Both tactics are part of a concerted effort by the administration to demonize undocumented immigrants. The agency aims to portray them as a threat to public safety despite an abundance of evidence to the contrary.

Immigrant rights groups recently released documents that show that ICE officials plan to levy massive civil fines against undocumented immigrants. ICE uses the fines to retaliate against outspoken leaders of the sanctuary movement.

Turn Back Policy

 

Challenging Customs and Border Protection's Unlawful Practice of Turning Away Asylum Seekers

This case challenges the government’s policy – the Turnback Policy – of turning away asylum seekers at ports of entry (POEs) across the U.S.-Mexico border since 2016.

The plaintiffs in the case are Al Otro Lado, a non-profit legal services organization that serves indigent deportees, migrants and refugees in Los Angeles and Tijuana, along with individual, courageous asylum seekers who experienced CBP’s unlawful conduct firsthand. Their experiences demonstrate that CBP has used a variety of tactics – including misrepresentation, threats and intimidation, verbal abuse and physical force, metering, and coercion–to deny bona fide asylum seekers the opportunity to pursue their claims.

In April 2018, the government issued guidance formalizing and focusing the Turnback Policy through a policy of metering. Under the metering policy, CBP officials assert a lack of capacity and refuse to inspect and process asylum seekers, forcing them to wait in Mexico.

The complaint alleges that CBP’s refusal to allow asylum seekers access to the asylum process violates the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), the Due Process Clause of the Fifth Amendment, and the doctrine of non-refoulement under international law.

Plaintiffs are represented by the American Immigration Council, the Southern Poverty Law Center, the Center for Constitutional Rights, and Mayer Brown LLP.

On August 6, 2020, the district court granted Plaintiffs’ motion for class certification, allowing the case to proceed on behalf of all asylum seekers along the U.S.-Mexico border who were or will be prevented from accessing the asylum process at ports of entry as a result of the government’s Turnback Policy. Specifically, the court certified a class consisting of “all noncitizens who seek or will seek to access the U.S. asylum process by presenting themselves at a Class A [POE] on the U.S.-Mexico border, and were or will be denied access to the U.S. asylum process by or at the instruction of [CBP] officials on or after January 1, 2016.” The court also certified a subclass consisting of “all noncitizens who were or will be denied access to the U.S. asylum process at a Class A POE on the U.S.-Mexico border as a result of Defendants’ metering policy on or after January 1, 2016.”