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Appeals Court Strikes Down Trump Administration’s Asylum Ban

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LOS ANGELES — A federal appeals court on Monday struck down President Trump’s policy that barred most migrants from seeking asylum in the United States if they had passed through another country, concluding that the government did “virtually nothing” to make sure that another country is “a safe option” for those fleeing persecution. A three-judge,

LOS ANGELES — A federal appeals court on Monday struck down President Trump’s policy that barred most migrants from seeking asylum in the United States if they had passed through another country, concluding that the government did “virtually nothing” to make sure that another country is “a safe option” for those fleeing persecution.

A three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco affirmed the decision of a federal judge who ruled last year that the so-called third-country transit rule was unlawful, with one judge calling it “perhaps the most significant change to American asylum in a generation.”

The ruling was an interim but important step. In September, the Supreme Court had allowed the Trump administration’s rule forbidding most Central American migrants from seeking asylum in the United States to take effect while the appeals courts deliberated its legality.

That stay remains in place until the Supreme Court takes up the case or the Trump administration abandons the policy. In the meantime, nearly all asylum seekers have been temporarily blocked from entering the country under a separate administration directive, issued as a result of the coronavirus pandemic, that closed the border to all but United States citizens and lawful permanent residents.

Still, Monday’s opinion was an important legal milestone, a 66-page opinion that found serious legal deficiencies in one of the administration’s signature immigration policies.

“The Trump administration is sure to appeal to the U.S. Supreme Court,” said Stephen Yale-Loehr, a professor of immigration at Cornell Law School.

The transit rule was issued jointly by the Departments of Justice and Homeland Security in July 2019, when thousands of migrant families were pushing toward the southwestern border, many of them seeking asylum from violence in Central America. Countering decades of law and policy, under which the United States had long provided refuge in such cases, it declared that any migrant who passed through another country en route to the border would be ineligible for asylum, with few exceptions.

The policy required migrants traveling over land from El Salvador, Honduras or other countries to apply for and be denied asylum by Mexico, Guatemala or another country through which they traveled before they could be eligible to make a claim for protection in the United States.

If they did not, those who managed to reach the United States would be automatically considered to lack a credible fear of persecution in their home countries.

The appeals court said there was evidence that contradicted the administration’s assertion that migrants could obtain safe protection in Mexico and other countries.

It also said the administration had not justified its assumption that a person who failed to apply for asylum in a third country was unlikely to have a meritorious claim.

Judge William A. Fletcher, appointed by former President Bill Clinton, wrote the opinion for the panel, which also included Judge Eric D. Miller, who was appointed by President Trump this year, and Judge Richard R. Clifton, appointed by former President George W. Bush.

Judge Miller concurred in part and dissented in part, writing that the federal agencies’ “deficient” justification for the transit rule was “particularly troubling because the rule represents such a major change to policy — perhaps the most significant change to American asylum in a generation.”

The main opinion said there was “no evidence in the record” to support the rule’s assumption that migrants who do not apply for asylum in Guatemala or Mexico en route from, say, El Salvador or Honduras, can be assumed to lack a credible fear of persecution in their home country.

“This ruling says very simply that Congress is in control of asylum, and the administration cannot act unilaterally to destroy our asylum system,” said Lee Gelernt, the lawyer with the American Civil Liberties Union who argued the appeal on behalf of several groups challenging the rule.

Neither the Justice Department nor the Department of Homeland Security had any immediate comment on the decision.

In a related case this month, a federal judge in the U.S. District Court for the District of Columbia ruled that the administration had illegally put into place the transit rule by not allowing public comment first.

That decision resulted in a suspension of the transit ban on more narrow grounds.

The order that effectively closed the border to asylum seekers, using the coronavirus pandemic as justification, is being challenged in a federal court in Washington.

 

Supreme Court Limits Failed Asylum Seekers’ Rights to Appeal

 

Source: Appeals Court Strikes Down Trump Administration’s Asylum Ban

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The Green Card Process Through the Lens of a DMV Visit

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As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful.  One analogy I’ve found to work well to explain the green card process beyond describing its mere,

As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful.  One analogy I’ve found to work well to explain the green card process beyond describing its mere sequence of form filings likens the process to a visit to a Department of Motor Vehicles (DMV) office.

In my practice area of business immigration law, green card processes are mostly employment-based and involve the successive filing of a labor certification application, immigrant petition, and adjustment of status application (with the first not always required and the latter two sometimes eligible for concurrent filing). So I’ll refer to these types of filings in describing the analogy here.  But variations of the analogy may be equally applicable to other types of green card processes, such as those in which the aspiring permanent resident will apply for an immigrant visa overseas rather than adjustment of status within the United States, as well as those based on family relationships and those available to asylees and refugees.

The trappings of a visit to the DMV, no matter the state, may be familiar to you: the issuance of a waiting number determining your place in a queue, followed by a long wait for your number to be called at one of several counters to file required paperwork, followed yet again by a lengthy wait for your paperwork to be processed, and eventually – hopefully – approved without issue.  The counter at which you’ll be called, and the length of the corresponding queue (or maybe in some fortunate instances, the absence of one altogether), often depends on specific factors, such as the type of service you’re seeking.

Just as you’re issued a waiting number upon entry into a DMV office, aspiring permanent residents are issued a priority date when the first major filing in their green card process (either the labor certification application or immigrant petition) is submitted.  The priority date is the date this first filing is submitted and determines, once the immigrant petition is approved, the aspiring permanent resident’s place in any existing queue to apply for adjustment of status.

Similar to how you wait at the DMV for your number to be called to file your paperwork at the appropriate counter, aspiring permanent residents face varying wait times for their priority date to be “called” at a designated “counter” to apply for adjustment of status.  The “counter” in the green card process at which aspiring permanent residents must apply for adjustment of status is based on a combination of two main factors: their immigrant classification (which, when speaking with clients, I refer to as their “green card category”) and their country of chargeability (which I refer to as their country of birth).  Aside from some significant exceptions outside of the employment-based green card process,[1] the law limits the supply of green cards available each fiscal year.  Because the law allocates this limited supply based on a combination of both immigrant classification and country of chargeability, queues form at “counters” where the demand for green cards exceeds the available supply.  And the more severely demand exceeds supply, the longer the queue will be. This analogy helps to show why EB-2 and EB-3 immigrants born in India and China are often confronted with waits lasting many years for their priority date to be “called” at their designated counters,[2] while EB-2 and EB-3 immigrants born in most other countries often face no such queue.  In technical terms, the existence of a queue at a given “counter” means the availability of green cards associated with that counter’s classification and chargeability combination is “retrogressed.”  If there’s no queue, green card availability at that counter is “current.”

A visit to the DMV often entails a wait of several hours sitting and keeping watch of your designated counter at it serves the visitors who arrived before you until your own number is finally called.  Likewise, many aspiring permanent residents monitor the often plodding, month-to-month movement of “cut-off dates” in the Bureau of Consular Affairs’ monthly Visa Bulletins for the designated “counter” at which they must apply for adjustment of status.[3]  The Visa Bulletin for a given month contains various charts showing whether a queue for filing an adjustment of status application exists for any classification and chargeability combination, and if so, how long the queue is.  Combinations for which there is no queue are assigned a “C” notation, indicating that green card availability is current and that the adjustment of status application can thus be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming any prerequisite labor certification has been granted. Combinations for which there is a queue, and for which green card availability is thus retrogressed, are denoted by a “cut-off date,” with older dates reflecting longer queues.  Aspiring permanent residents seeking to adjust status at a “counter” at which green card availability is retrogressed can track their place in the queue by comparing their priority date with the applicable cut-off date each month.  Priority dates that fall before the applicable cut-off date in a given month are those that have been “called,” indicating that much like counters at which green card availability is current, an adjustment of status application can be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming again that any prerequisite labor certification has been granted.

Like processing of paperwork filed at a counter at the DMV, processing of an adjustment of status application may take a long time.  But eventually – hopefully – the application is approved without issue.  And unlike a visit to the DMV, having qualified counsel during the green card process can make all the difference in one’s chance of success.

[1] For example, “immediate relatives” (spouses and children of US citizens, and parents of US citizens if the citizen is at least 21 years old) are exempt from annual numerical limits on green card availability. INA 201(b)(2)(A)(i).
[2] Aspiring permanent residents for whom the queue for applying for adjustment of status involves a wait of several years, such as EB-2 and EB-3 immigrants born in India and China, commonly change jobs or employers in the course of their wait. Such a change can require a restart of the green card process since employment-based green card processes are generally job and employer specific.  But to allow aspiring permanents residents who change jobs or employers to keep their place in queue, the law permits them to retain their priority date under certain conditions if they are the beneficiary of a previously approved EB-1, EB-2, or EB-3 immigrant petition, and likewise become the beneficiary of an approved EB-1, EB-2, or EB-3 immigrant petition based on their new job or employer. 8 CFR 204.5(e). 
[3] US Citizenship and Immigration Service also publishes monthly updates indicating whether to use the Visa Bulletin’s Dates for Filing charts or its Final Action Dates charts, to determine whether an adjustment of status application may be filed.

Source: The Green Card Process Through the Lens of a DMV Visit

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