More ways to arrest people for following the rules, not many people are getting around the travel ban, and we delegate some asylum responsibilities to Honduras.

the (immigration) cops have taken over the (immigration) courts (and everything else) part 2

A simple way to understand the how the major immigration-related agencies within the Department of Homeland Security separate their duties is to divide them into benefits (USCIS), enforcement (ICE), and regulating entry (CBP). When someone submits an application for an immigration status within the U.S., that goes to USCIS. Of course, there is fair amount of overlap, particularly in regards to information-sharing. After USCIS approves a petition for someone overseas, they are admitted by CBP, and thereafter tracked by ICE for violations such as overstaying. USCIS might also decide to refer a case to ICE. USCIS also has a sub-agency (Fraud Detection and National Security––FDNS) that refers violators to ICE, and ICE has a subagency (Homeland Security Investigation––HSI) that, among other things, protects immigrants from crimes.

Under federal law, USCIS will refer cases to ICE and initiate removal (deportation) proceedings when asylum applications and certain other family- and humanitarian-based cases are denied. They may, but are not required to, take such action in other circumstances. Whether they do so is dependent on the policies in place at any given time, which are largely dictated by the policy preferences of the Administration in office.

USCIS will now issue the charging document for removal proceedings (called a Notice to Appear—NTA) in a much broader group of circumstances, including the expiration of Temporary Protected Status––which is about to affect a very large number of Haitians, Nepalese, Hondurans, Nicaraguans, and Venezuelans, as well as a number of foreign nationals from Afghanistan and Cameroon––and the denial of an application for an immigration benefit where the applicant is otherwise out of status: for example, the denial of a green card application.

The lines really blur, however, in the situations where ICE is actively waiting to arrest individuals at their USCIS: before, during, or after their interviews. The American Immigration Lawyers Association (AILA) reported ICE activity—including arrests—at USCIS Field offices throughout the U.S. The basis of an arrest normally arises from the applicant having committed an immigration violation in the past (typically an outstanding removal/deportation order, visa overstay, or unlawful entry), the arrest and an initiation of removal proceedings being the most effective method of preventing the applicant from “fixing” that violation.

We might assume that this Administration’s goal aligns with the obvious result: to detain and remove the lowest hanging fruit. It is hard to get the criminals, who are trying to hide. It is a lot easier to get the ones who put themselves squarely on the radar by trying to comply with the immigration laws.

We’d previously explained basis for detaining foreign nationals once their case were dismissed. However, both anecdotally and as reported, they are grabbing people at court that have active cases with future hearing dates, without any stated basis. We have now another arm of the government being guided from its independent stated mission to becoming another appendage of ICE.

exceptions should be exceptional

In an email response to a Congressional inquiry and as reported to AILA, the Department of State provided more clarity on the National Interest Exceptions to travel ban 2025.

There is no process for requesting the exception prior to the interview. The request is made verbally––supported by your responses in the DS-160 and any supporting documentation––explaining why your entry into the U.S. would be in it’s national interest and that you are not a threat to national security or public safety. If the officer decides to move the request up the chain, it will then go from the Chief of Mission at the post, and from there to DOS in Washington, D.C. where a Senior Bureau Official would sign off on it. These are expected to be very rare, and not on the basis of weddings, school attendance, employment and related purposes, or other financial/personal hardship.

so now should you take that trip to Puerto Rico?

We’re talked aboutwho should and shouldn’t be particularly nervous about traveling (and about Puerto Rico in particular). But advising clients with clients about travel to specific places at specific times, at times when policies and practices change daily, requires that attorneys regularly communicate with each other—particularly in regards to travel outside of the contiguous 48 states to and from the states of Alaska and Hawaii, as well as the territories (Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands).

As a general matter, CBP operates at ports of entry throughout the U.S., including its territories. However, when traveling between the contiguous 48 states and the territories, one shouldn’t encounter CBP directly. At offices within the airports and other “ports of entry” into the U.S., they scan the flight manifests of arrivals and departures, and otherwise communicating with TSA as needed when someone is flagged as being “inadmissible” to the U.S. As one might expect, they maintain their largest presence at the main entry points into the U.S., including (but not limited to), the states and territories mentioned above. San Juan, as mentioned, has been particularly active of late. Some of our colleagues report that it is essentially just business as usual at these locations, others report instances of more aggressive (and occasionally legal incorrect) enforcement.

Regardless, the final analysis is always the same. If you are in legal status, with no prior removal/deportation order and no reason to believe that you might be subject to immigration penalties for a past violation, then you should feel free to travel with your REAL ID document.

otherwise

The “Agreement Between the Government of the United States of America and the Government of the Republic of Honduras for Cooperation in the Examination of Protection Requests,” published on July 8th, allows Honduras to process requests for asylum or other forms of protection for certain applicants (not Hondurans, unaccompanied minors, or those who arrived with a valid visa or waiver) after they have made the same request in the U.S.

ICE has been blocked in the L.A. area from continued racial profiling and are required to provide access to lawyers. I have not read the 52-page order, but the selections that have been reported are strongly-worded and quite dismissive of the government’s arguments. This order is geographically limited, so should not be subject to the same scrutiny as the nation-wide injunctions that were disfavored by a recent Supreme Court decision.

Fees are going up again (and no, it hasn’t been that long since the last major increase), the August visa bulletintells us when to file the green card applications next month (EB-3 is about to get backed up), employers now have instructions for opting out of E-verify+, and and as yet another study finds this week, fewer workers means more inflation.

Matthew Blaisdell, Esq.

Sunset Immigration PLLC

219 36th Street, Ste 511

Brooklyn, NY 11232

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The war on foreign students continues, more TPS terminations and lawsuits, and DeSantis deputizes the Guard.

duration of status may not endure

The Trump administration is looking to continue some unfinished business from their first term by significantly limiting the amount of time that foreign students and exchange visitors can be present in the U.S. before they must apply to change or extend their status.

The initial attempt at changing the rule, covering all international student (including exchange visitors such as physicians) was published on September 25, 2020; however, it was not finalized by the time the Biden administration came in, and it was withdrawn. The rule would have effectively ended what is referred to as “duration of status” (or D/S)––which permits students and J-1 exchange visitors to remain in the U.S. as long as they maintain status––to four years or, in some circumstances (depending on country of origin), two years.

Requests for extensions would no longer be processed by the schools alone, but via USCIS: requiring extra scrutiny fees, processing, and delays so lengthy they could effectively prevent students from registering in time for their upcoming semesters. Moreover, students may be required to present compelling academic reasons for the extensions (including medical issues or other extraordinary circumstances), among other restrictions, such as the ability of students to effectively transition from student status to H-1B status (via “cap-gap” extensions).

Most dramatically, “unlawful presence,” a legal determination that carries significant penalties and restrictions, would be attached to students immediately following the new fixed terms, rather than after official findings of status violations.

Concerns raised at the time were that international students would be less likely to choose the U.S. as a destination due to the uncertainty surrounding their ability to remain in status, J-1 physicians in U.S. graduate medical education (already heavily regulated and monitored via SEVIS and annual reviews) would be particularly affected given their long programs, the J-1 host organizations would be less likely to sponsor students (undermining their goals of international collaboration), schools and students would take on an additional financial burden due to the need for more frequent extensions, and that CBP officers at ports of entry would effectively be doing the job of consular officers.

It’s our understanding that the new proposal largely contains the above provisions from the prior version. The proposal is being reviewed by the Office of Management and Budget, after which it will be published in the Federal Register for public comment, and then revised and published as a final rule with an effective date. More here.

In better news, some very good lawyers were able to get SEVIS terminations reversedfor their clients, with other protections to ensure that they wouldn’t suffer future harm due to the DHS errors. Those who had visas revoked by the Department of State will be pursuing a separate lawsuit.

this week in TPS terminations

As we noted a week ago today, the Department of Homeland Security (DHS) announced that it would terminate TPS for Haiti, effective August 3rd. However, a U.S. District Judge held that DHS cannot terminate a TPS designation before the expiration of the most recent extension: which, for Haiti, would expire on February 3rd, 2026. The DHS also announced the termination of TPS for Nepal, Honduras, and Nicaragua, to be effective two months from today. Work permits are automatically extended to that time. A lawsuit was immediately filed claiming that the terminations violate the Administrative Procedures Act and the Due Process Clause of the Fifth Amendment to the U.S. Constitution. Litigation will continue on both fronts for quite a while.

The net result: likely more significant economic damage.

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less process, more horror

The National Guard will take the place of judges at Alligator Alcatraz as part of a process to expedite deportation procedures. If the immigrants’ home countries won’t take them, South Sudan, one of the world’t most isolated and dangers countries by our own acknowledgment, will.

Matthew Blaisdell, Esq.

Sunset Immigration PLLC

219 36th Street, Ste 511

Brooklyn, NY 11232

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