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Chicago Immigration and Naturalization Law Blog

The Increased Level of ICE Enforcement and Arrests

  In the first few months under the new Trump administration immigration has remained a hot-button topic. One area that seems to be shifting dramatically is in the level of ICE enforcement. The media has been covering these instances and its important to stay informed. If you need to update your legal status or need an immigration consultation you need to seek counsel immediately.

EOIR Directed To Prioritize Removal Of Detainees And Unaccompanied Minors Without Sponsors

On January 31, 2017, the Trump administration released a memorandum-effective immediately-which orders the Department of Justice Executive Office for Immigration Review to prioritize deportation hearings for the following: (1) All detained individuals; (2) Unaccompanied children in the care and custody of Department of Health and Human Services, Office of Refugee Resettlement who do not have a sponsor identified; and (3) individuals released on a Rodriguez bond.

Chicago Immigration Judges Offer Valuable Bond Hearing Advice

On November 14, 2016 Immigration Judge Vinikoor and the new Chicago Immigration Judges joined the Chicago AILA chapter for our monthly meeting. Judge Rosche, Judge Cole, Judge Peyton and Judge DeAngelis were formally introduced and gave us some valuable insight regarding bond motions.

The Judges discussed the issue of filing a motion for bond hearing prior to being ready to execute the hearing. In some instances, the Judges noted that the attorney had not even spoken to the detained individual by the time the hearing was held. The Judges pointed out that a person's bond is generally only set once and for that reason it is important to put forward the best step. In some instances, the Judges also noted that a bond hearing is scheduled and an attorney ends up requesting a continuance to prepare for the hearing. Because of the number of detainees, this can result in a bond eligible individual spending more time in custody then necessary. The Judges also noted that sending exhibits in support of any motion as early as possible aids them in being prepared for the hearing. 

Preparing For the "Residential Jackpot" after Texas v. United States

On October 3, 2016, the U.S. Supreme Court denied the Obama administration's request to rehear United States v. Texas. The Supreme Court previously affirmed the Fifth Appellate Circuit's decision with a 4-4 vote in June of this year. This decision put a halt on the Deferred Action for Parental Accountability (DAPA) and Expanded Deferred Action for Certain Childhood Arrivals announced by President Obama in 2014.

We are already seeing separate lawsuits test the boundaries of the February 2015 injunction that was issued by a District Court in Texas. In New York, one question being asked is whether a single federal judge that presides over the federal court in Texas has the power to issue an order that affects New York. This is a territory we have not entered before and could lead to schism among the federal courts. Before explaining the schism, it may be best to explain how the Federal Court system works. 

Spectacles No Longer Allowed in Visa/Passport Photos

Starting November 1, 2016, Consular Affairs (CA) will no longer accept photos of applicants for visa and passport purposes that are wearing eyeglasses, except in rare, medically-documented circumstances. CA has stated that a soft one-month enforcement period will be implemented however after November 30, 2016 they will not accept any photographs with eyeglasses.

You may be wondering what the reasoning is behind this change. According to the CA, the decision to prohibit eyeglasses in applicants' photos is to increase the overall accuracy of their facial recognition software and decrease the likelihood of being misidentified. Eyeglasses can create glares, shadows, and/or retractions that obscure the eye(s) in photographs.

Ineffective Counsel Defense May Not Always Work

If you are an immigrant in this country, we cannot stress enough the importance of having adequate counsel when facing a criminal matter. In 2010, under Padilla v. Kentucky, the United States Supreme Court declared that criminal defense attorneys had to counsel noncitizen clients about the deportation risks associated with a guilty plea. When the deportation risk is clear the criminal defense attorney must give correct advice. However, when the deportation risk is not clear then the criminal defense attorney need only make you aware that pending criminal charges may carry a risk of unfavorable immigration consequences. Failure to do so was a violation of an individual's Sixth Amendment right to be advised by counsel.

In the world of immigration law this decision was a huge win for immigrants because it created a pathway for them to reopen a case where they were misadvised. However, the Supreme Court decision in Padilla v. Kentucky has been slowly eroded by further court opinions.

USCIS Processing Times vs Real Time

For those who have played the waiting game with U.S. Citizenship and Immigration Services (USCIS), you understand the frustrations encountered during the processing time. With the extensive volume of petitions and applications for immigration benefits coming through USCIS each year, the cycle time leaves all parties involved wondering when it will be completed. This often means that immigrants, their families, and even employers are left in limbo and at the mercy of USCIS.

USCIS established the Office of Performance and Quality (OPQ) to assist customers with an estimated timeframe of when their application would be completed. These are calculated and posted to the USCIS website every month by location or application type. In a perfect world, these cycle times would directly correlate with real time however it has been proven inaccurate more times than not. In fact, it has been confirmed that the moment processing times are posted; they are already out of date due to internal delays between the gathering and publishing of the data.

Calls for Temporary Protected Status for the Northern Triangle Increasing

Temporary protected status establishes a temporary safe haven in the U.S. for nationals of a foreign country where the Secretary of Homeland Security determines with respect to that foreign country that:

  • There is an ongoing armed conflict posing a serious threat to the personal safety of the country's nationals if returned there; or

  • There has been an earthquake, flood, drought, epidemic, or other environmental disaster resulting in a substantial but temporary disruption of living conditions in the area affected; the foreign state is unable temporarily to handle the return of its nationals and the foreign state has affirmatively requested designation; or

  • There exist extraordinary and temporary conditions in the foreign state preventing its nationals from returning safely, unless it is determined that it is contrary to national interest to allow those aliens to remain temporarily.

During a designated period, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases (prima facie eligible):

  • Are not removable from the United States

  • Can obtain an employment authorization document (EAD)

  • May be granted travel authorization

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