Well we received “comforting” words from the Chief in Chaos, President Trump, ” just calm down and enjoy the ride.” I don’t know about all of that but what I do know is, 2018 was a rough year for all of us in immigration. More denials and RFE’s across the board. Restrictive and overly broad immigration policy changes. Overreach in presidential authority to change some laws, such as asylum law. And heart breaking and un-American treatment of children and families. That’s the summary in a nutshell. But here are the more specific developments in 2018.
Family and Employment Immigration Law in 2018
- Attempt to rescind Deferred Action for Childhood Arrivals (DACA): In 2017 Trump tried to hold DACA recipients hostage in his attempts to get the border wall and further change the immigration law. DACA recipients are individuals who came here as children and now have work authorization. Trump’s bid to rescind DACA was challenged shortly after. In January 2018, a federal judge in San Fransisco barred Trump from rescinding DACA, which was appealed. It is currently making its way up the appeal pipeline. This is such a consequential immigration benefit. Many lives on the line. I suspect it will get to the Supreme Court. That is, unless congress acts to protect DACA recipients and fix certain broken aspects of the immigration law. This has yet to become a reality despite past efforts. With Democrats holding control of the House, and Republicans controlling the Senate, I doubt we will see any positive overhaul of the immigration law in 2019. But we can always be hopeful.
- Loss of Temporary Protected Status (TPS) for certain countries: In the wake of Trump’s “shithole” countries remarks, hundreds of thousands faced the prospect of losing their TPS status after spending decades in the United States. Individuals from El Salvador, Haiti and Nicaragua and Sudan all faced the termination of TPS. Many had built lives in the U.S.A., were employed here, paid taxes, had children here and opened businesses. Many communities were built on the backs of these hardworking TPS recipients. To cruelly terminate TPS also meant to destroy lives, families, and a multiplication of local economies. Yet this is what the Trump administration recklessly did. This is also working its way through the court. In October 2018, a federal judge in San Francisco temporarily blocked the termination of TPS during the pending litigation. At this time, the the Trump move to end TPS for these countries has been enjoined until the court resolves it. This may be another Supreme Court issue in 2019.
- Sessions’ Zero Tolerance Policy and the mass family separations: One of the worst periods in American history will be the intentional separation of small children from their parents. This tactic was used as a weapon against illegal entry into the United States. Sessions’ “Zero Tolerance Policy” criminalized illegal crossing of the border, demonized catch and release and set the pace for the family separation that followed the announcement in 2018. By May 2018, the press caught wind of the mass family separations. Sessions and other officials tried to explain it away of necessary. They said parents who were being prosecuted for illegal entry had to be separated from the children. However, the shear inhumanity created national outrage. By June 2018, a Judge halted the family separations and ordered reunification. Trump also hesitantly signed an executive order to end family separations. In July, the litigation continued and so did the trauma. Despite the struggle to reunite families expeditiously, the Justice Department went ahead and appealed a federal court’s decision to bar family separations in August 2018. By December 2018, there were still 15,000 children in detention without their families. There were stories of trauma. Parents being deported without their children. Children being flown around the country, even further from parents. Audio of children crying and pleading was beyond heartbreaking. Yet the questions of accountability remain. Two children died on the Southern border in CBP custody in November and December. Trump ended the family separation policy but it still resonates into 2019. There was also a ban on asylum claims for those who crossed the southern border illegally. Two federal courts in December 2018 stopped this ban as excessive authority. These assaults against human dignity and the American way of opening its doors to refugees is alarming. It shows what we will be looking forward to in 2019. Most importantly it reminds us to continue to be vigilant and aware of changes in policies and how the devastating consequences that may come with it.
- Sessions bars asylum claims based on domestic and gang violence: Sessions’ used Matter of A-B- to implement a new restrictive asylum change. Session assigned himself this matter. It involved a woman from El Salvador who was seeking asylum based on rape and domestic violence. Sessions argued that domestic violence and gang violence were misfortunes, which does not meet the standard for asylum. Since the attackers are essentially private actors. Their acts of domestic violence or gang violence cannot be attributed to country’s government. This was one of the moves most disturbing. Domestic violence and gang violence are some of the most prevalent reasons people are fleeing central american countries. By barring asylum claims on these bases, Sessions’ tried to find a way to quickly stifle their claims. In December 2018, a federal judge barred Sessions’ order to reject domestic and gang violence asylum claims.This may just be an issue for the Supreme Court in 2019. So we must stay tuned because it affects so many in danger and fleeing.
- The Notice to Appear (NTA) and Public Charge Policy Memos: In June 2018, the USCIS announced it would issue NTA’s in denied Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status applications. In October 2018, the USCIS released a policy memo that detailed changes to their approach to who would be denied an immigration benefit based on being a public charge. Essentially, an applicant could be denied if they receive a welfare benefit, including medicaid and food stamps. This spurred outrage because to deny on this basis means many immigrants would be afraid to seek help with their medical and nutrition needs.
- Increased I-9 and E-Verify Audits, request for evidence (RFE), denials in employment visa applications: There has been an uptick in denials and request for more evidence, especially in H-1B and L-1 visa applications. The USCIS also announced changes to the H-1B selection process which requires electronic pre-registration of those who intend to apply for the H-1B visa. The change also includes a system that favors applicants with advanced degrees. However, there are serious questions about how quickly it is being implemented. I see 2019 as a tough year for employment immigration. This is no doubt an intentional increase in denials to push the Buy American and Hire American agenda. It will be very important to be diligent in order to avoid mistakes in the process. Be thorough to reduce the chance of an RFE request.
The Travel Ban
The battle over the Travel, AKA “Muslim” Ban continued in January 2018, with the Supreme Court agreeing to hear the case in Trump v. Hawaii. The Supreme Court agreed to hear the appeal from the Ninth Circuit decision that Trump exceeded the scope of his authority when he implemented the ban. However, later in June 2018 the Supreme Court decision took our breaths away when it held that President Trump was well within his authority to implement such a ban. In a way, this decision set the pace for other very rapid and bold moves to implement other restrictive policies.
Trump’s Immigration Plan Proposal
In late January, going into February 2018, there was fervent criticism of Trump’s proposed immigration plan. The plan included a path to citizenship for those brought to the USA as children. Approximately 1.8 million would receive the benefit. However, it also included a proposed $25 billion trust fund for his border wall. It proposed an end to the visa lottery system. And included an end to family immigration for parents and siblings. Liberals disagreed with the anti-immigrant policies within the plan. While conservatives disagreed with the path to citizenship for childhood arrivals. They called it “amnesty.” The immigration plan fizzled throughout 2018 as it became clear congress would never agree on the terms of such a drastic measure. Congress is now at odds more than ever. I doubt any such immigration plan will get through the house of representatives. Unless another more amenable plan comes to light, I doubt that there will be new developments related to this immigration plan in 2019.
What’s Next in 2019
In 2018, the Trump administration spent the year testing the limits of their authority to implement draconian and cruel policies. Family separation, broad asylum denials and rejections, detention of children in tent cities etc. will all be a mark on shame on the United States’ history. The above developments in 2018 shows that such outrageous acts will continue in 2019. The uptick in denials will continue in 2019. Stay vigilant in your own matter. Seek help in your matter. And don’t give up the fight!
NOTE: As always, the above information is for informational purposes only. It is not legal advice nor does it establish an attorney client relationship. Seek the advice of an immigration attorney regarding your specific circumstances.