2018 was an overwhelming year with news relating to immigration, and sadly 2018 started with the threat of government shut down because of the expiration in protection for applicants under Deferred Action for Childhood Arrival (DACA), and now it will end with a threat of government shutdown again relating to funding for the border walls. Although no new immigration legislation passed from Congress, 2018 was a year filled with policy changes from the Department of Homeland and the U.S. Department of Justice. It is an exhaustive year of immigration news and changes. Here is the look back of 2018:
DACA AND IMMIGRATION LEGISLATION
We begin the 2018 year with members of Congress worrying about the midterm election and fearing the termination of DACA could have a political liability, the Senate agreed to take up immigration legislation while there was no movement in the House of Representative. The President explicitly expressed its offer of the 4 pillars immigration legislation: (1) up to 1.8 million DACA applicants would be granted protection for 10-12 years and a path to citizenship; (2) $25 billion payment be made into a border security trust fund; (3) elimination of the visa lottery program (50,000 applicants/year); (4) elimination of the family based immigration system that would only allow the continuing petition for spouse and children under 21 years (this is a significant reduction of the number of relatives that could legally immigrate to the USA). Unable to find a mutual ground, the Senate’s attempt for immigration legislation quickly failed, and the urge of immigration reform diminished when the federal court blocked the termination of DACA and the looming of the midterm election.
ZERO TOLERANCE POLICY
In April 2018, the Trump administration implemented a 'zero tolerance policy", which resulted in the widespread separation of parents and children arriving together at the United States southern border between ports of entry. This "zero tolerance policy" mandates the prosecution for illegal entry of everyone apprehended between ports of entry, including asylum seekers.
Under the Administration's family separation policy, while people were in federal custody and being prosecuted, their children were taken away with no clear requirement that they be returned after the prosecutions. This de facto family separation policy inflicts trauma on separated family members, restricts due process, and violates fundamental norms of family unity and decency. No law or court decision required such separation.
On June 20, 2018, President Trump issued an Executive Order (EO) purporting to address the family separation crisis that it created by expanding the use of family detention, while reaffirming his commitment to a "zero tolerance" policy of border prosecutions, even for those who lawfully claim a fear of persecution and are entitled to seek asylum in the United States.
POLICY GUIDANCE ON ACCRUAL OF UNLAWFUL PRESENCE FOR F, J, AND M
On May 10, 2018, U.S. Citizenship and Immigration Service (USCIS) issued a policy memorandum and sought public comment on the changes to accrual of unlawful presence for foreign nationals who are presently in the United States pursuant to the F, J, or M student visas. Since 1997, foreign national who has accrued unlawful present in the United States and departed to the United States will face immigration penalty for a period of 3 or 10 years bar or a severe “permanent” bar. The severity of the penalty will depend on the amount of the accrual of the unlawful present in the United States when the foreign national has overstayed the period of authorized stay. For those who enter under the F, J, or M student visa, the period of authorized stay is for the “duration of the status” or “D/S” in which the student complied with the requirement of the prospective visa. Unlawful present does not accrual until the student failed to comply with the status or has violated the status AND there has been a formal finding by USCIS or immigration official. With the published policy memorandum, USCIS is changing its interpretation to take effect after August 9, 2018, as follow:
Individuals in F, J, or M status who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:
•The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
• The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
• The day after the I-94 expires; or
• The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).
POLICY GUIDANCES on RFE and NTA
In July, 2018 USCIS has quietly issued two policy memos which overturn this non-punitive approach to lawful immigrants’ applications for immigration benefits (work visas, green cards, citizenship etc.). On July 13, 2013, USCIS issued a Memo giving itself the right to outright deny immigration benefit applications without giving applicants an opportunity to respond to a request for additional information or a notice of intent to deny the application. Basically, there is no second chance. And on July 5, 2018 USCIS issued new policy guidance that mandates that the agency issue a Notice to Appear (NTA) when an application or petition for immigration benefits is denied. This shifts USCIS, which Congress established to focus exclusively on deciding requests for immigration benefits, to immigration enforcement, a role Congress gave to Immigration and Customs Enforcement (ICE).
These new policies change the U.S. immigration landscape tremendously. They set up a zero-tolerance approach targeting immigrants who endeavor to follow the rules and timely file proper immigration applications. With this new approach, if someone’s status lapses for even one day, (even if the government’s denial was unjustified, and will be overturned on appeal), the person will likely be issued an NTA.
PROPOSED RULE ON PUBLIC CHARGE
On September 22, 2018, the Trump Administration announced a proposed rule to make changes to “public charge” policies that govern how the use of public benefits may affect individuals’ ability to enter the U.S. or adjust to legal permanent resident (LPR) status (i.e., obtain a “green card”). The preamble to the proposed rule indicates that its primary goal is to ensure that individuals who apply for admission to the U.S. or for adjustment of status are self-sufficient. The preamble also identifies a range of consequences on the health and financial stability of families as well direct and indirect costs associated with the rule.
1. The proposed changes to public charge policies would primarily affect immigrants who are applying for a green card through a family-based petition. The proposed rule would affect lawfully present immigrants seeking to become LPRs or “green card” holders and individuals seeking to immigrate to the U.S.1 Most individuals seeking to adjust to LPR status or to immigrate to the U.S. are immediate relatives of U.S. citizens or have a family-based sponsor. In 2016, 1.2 million individuals obtained LPR status, including over half a million who were already present in the U.S.2 Some immigrants, including refugees and asylees, remain exempt from public charge determinations under law. Public charge policies do not apply to LPRs seeking to obtain citizenship.
2. The proposed rule would broaden the programs that the federal government would consider in public charge determinations to include previously excluded health, nutrition, and housing programs. The proposed rule would redefine public charge as an “alien who receives one or more public benefits” and would define public benefits to include cash assistance for income maintenance, government-funded institutionalized long-term care, and certain health, nutrition, and housing programs that were previously excluded from public charge determinations. These programs would include non-emergency Medicaid, the Medicare Part D Low-Income Subsidy Program, the Supplemental Nutrition Assistance Program (SNAP), and several housing programs. The proposed rule does not include CHIP or subsidies for Affordable Care Act Marketplace coverage as public benefits. DHS specifically requests public comment on whether to include CHIP as a public benefit.
3. The proposed rule would establish thresholds for use of public benefits to determine an individual to be a public charge. These thresholds would be tied to the value of the benefits received and/or total months a benefit was received. Specifically, for benefits that have a cash value or that can be translated into a cash value (e.g., cash assistance, SNAP, housing vouchers, or rental assistance), the threshold would be 15% of the federal poverty level (FPL) for a single person in a 12-month period ($1,821 as of 2018). For benefits that cannot be translated into a cash value (e.g., Medicaid and public housing), the threshold would be receipt of the benefit for 12 months within a 36-month period or 9 months if an individual receives both types of benefits (i.e., those with a cash value and those without a cash value). Public charge determinations would only consider the value of the benefit going toward the individual and would not take into account benefits received by family members.
PRESIDENT’S PROCLAMATION ON ASYLUM
On November 9, 2018, President Trump issued a proclamation that, in combination with a rule promulgated by DHS and DOJ, bars from seeking asylum any individuals who enter the United States from Mexico between ports of entry. While affected individuals may still seek relief in the form of withholding of removal or protection under the Convention Against Torture, those forms of protection are at once weaker and more difficult to obtain than asylum. The proclamation will remain effective for 90 days—subject to extension— or until the establishment of a so-called “safe third country” agreement with Mexico. The federal court has blocked this proclamation and is currently pending for the U.S. Supreme Court to decide should it takes the appeal.
ICE IS RE-NEGOTIATING THE 2008 REPATRIATION AGREEMENT WITH VIETNAM
On December 13, 2018, The Atlantic news outlet is reporting that the U.S. government official under President Trump is requesting the Vietnamese government to accept the repatriation of all Vietnamese nationals who had a final order of removal regardless of when they have entered the United States. The request is based on the 2008 memorandum of understanding that the agreement would cover all of the individuals with the final order of removal and not just those who had entered the United States after the normalization date of July 12, 1995. There has not been news from the Vietnamese government.
