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- Options for illegal alien have become very limited.
- The law hasn’t changed, the agency regulations have.
- Aliens must place their long-term reliance upon another Constitutional element.
What options exist currently?
Here’s one example. Before Trump, an alien who’d entered without inspection who was married to a US citizen (1) could have the spouse file an I-130 spousal petition, then (2) file a provisional waiver of unlawful presence (I-601A), and then (3) consular process at the embassy abroad to return to the US as a permanent resident.
That’s still theoretically possible, but much less likely than it was before Trump took control of the Department of Homeland Security, Department of State, and the Justice Department.
If you’re in removal proceedings, none of that is possible now. Immigration court cases cannot be continued for filing I-130s (or for any other reason); and cases cannot be closed to allow I-601A filings (or to allow anything). If you’re in removal proceedings, you can plead and hopefully get a Voluntary Departure grant, which allows you to leave the US without a removal order. Then once you’re outside the country, your spouse can petition you, you can apply for a waiver and eventually consular process. That’s much more difficult than doing all that while you’re in the US.
Applying for a work visa? This used to be a matter of routine: the employer petitions you for a work visa, and once it’s approved the visa is issued and you start work. That isn’t the case anymore either; it’s no longer routine. Overseas consular officers have told aliens with approved petitions that Americans should have the jobs, not foreigners, and the visas are denied. That actually happens now. It was unheard of before.
Applying for Asylum? That’s very, very difficult; some would say it’s next to impossible, even with a solid case. (Of course, someone trying to snare the money out of your hand may tell you differently . . .)
Has the Law Changed? No, the Regulations have . . .
Under Trump the law hasn’t changed; the execution of the law has changed. What does that mean?
The American system has 3 branches: the legislative, the executive, and the judicial. The legislative branch – Congress – makes the law. The Executive branch carries out the law – executes it. The Judiciary – the federal court system – sees that those laws are constitutional. The federal courts are supposed to insure other 2 branches are behaving themselves legally.
The agencies of the Executive branch have their own rules and regulations for carrying out the laws, putting them into effect.
The code of federal regulations is the rulebook put out by the agencies of the executive branch; for example, Homeland Security, Department of Justice and Department of State. Those rules dictate how the agencies execute the law. In some cases, federal regulations go too far and act as new law, which is illegal, and that’s what the federal courts are for – to tell them they can’t do that.
So, for example, Congress passes a law declaring that an alien may adjust status to US permanent resident under certain conditions. The agency in charge, here USCIS, puts out a regulation detailing how that is accomplished: what evidence is needed, where it’s submitted, how the agency determines what bad evidence is, what happens if the agency needs more evidence, what’s the deadline, what’s the fee, and other requirements. And regulations have the force of law; they aren’t law, but they must be obeyed just as the law is.
The immigration courts aren’t under the federal court system; they are administrative courts. They exist under the President’s administration. They’re part of the Department of Justice (DOJ). And just like USCIS, the DOJ has its own regulations. And the head of the DOJ, the attorney general, can direct those immigration courts as he sees fit. He can take judge’s rulings, and remake them to serve the aims of the current President.
And that’s what’s happening. That’s why immigration court continuances and closures are no longer allowed. Because the attorney general says they aren’t.
USCIS carries out the same instructions. They scour every petition and application for the tiniest reason to deny it. And if they can, they deny it. What used to be routine processing now takes twice as long and usually includes requests for additional evidence. And as of 9/11/18, USCIS won’t need to bother requesting additional evidence – they’ll just be able to deny the petition or application. How? Because they changed the rules that USCIS must follow.
Want more? USCIS eventually wants to immediately refer all denials to Immigration and Customs Enforcement so that the alien can be placed in proceedings and removed. Their new rules will allow for that also.
So the law hasn’t changed – because an alien by law may still be petitioned by a spouse and apply for permanent residency. The regulations have changed: now it’s much harder to get a petition or application approved; if’s it’s denied; you’re placed in removal proceedings. And once you’re in immigration court, many of the former protections no longer exist.
The president is charged under the US Constitution with executing the laws (thus we get the word “Executive”). He may execute them as he sees fit. Federal courts can tell him when he’s overstepped his authority, but someone needs to file a lawsuit first. In the short term, the Congress’s job is to oversee the agencies and curtail any abuses. Congress does this by passing and modifying laws, or by other action. But the US Congress doesn’t have many leaders willing to do this presently. For aliens with US jobs and US spouses, that’s bad timing.
Aliens must place their long-term reliance upon another Constitutional tool.
(The following is opinion – not legal advice. Schedule a consultation if you want to discuss your specific case facts, but don’t act based on the following. A misguided step could land you in a deep hole.)
Everyone in the United States should thank James Madison. Our Constitution protects us in ways we don’t realize.
In Hitler’s Germany, there was a parliamentary system where the executive branch was elected from the legislature. But there was no strict separation of powers under the Weimar constitution. Hitler, under the guise of national security (sound familiar?), issued emergency decrees, which eventually surrendered all judiciary power in Germany to the dictatorship. The courts were reorganized, and the right to appeal was outlawed, all “in the interests of the state.” Anyone with even a smattering of history knows what happened. The effects still resonate today in Germany and the world. When the German people gave up an independent judiciary, they handed the country over to a madman.
That can’t happen in the United States; at least it can’t happen to the same extent because we’re protected by the Constitution. In the US, the Constitution determines which branch has power, and which has responsibility. The President can never outlaw the Congress or suspend its powers. The Constitution does that. The President can never restructure the judiciary – only the Congress can do that. (The President can restructure the administrative courts, but not the federal courts.) Similarly, the Congress cannot execute the laws, nor does it have direct control of the armed forces.
So, what’s the secret tool that aliens might hold fast to? – the federal courts.
Unlike Nazi Germany, in the US there always must be a right to appeal administrative decisions. That occurs through the federal court system. When an alien is ordered removed, he appeals that decision to the administrative appeal board – the Board of Immigration Appeals (also under the Executive via the Justice Department). If that’s denied, the next option is the federal circuit court. In New York it’s the Second Circuit Court of Appeals.
As I mentioned earlier, the judiciary is a separate branch of government. Unlike ICE, the USCIS, the DOJ and the immigration courts, the President has no power over the federal courts. He may be represented before them, but he has no power over them. The federal courts decide cases according to law; that is, the intent of Congress. They don’t decide cases according to the President’s prejudice or misinformed opinion.
Herein lies the alien’s hope for some sort of positive outcome: look ahead to being heard before the federal courts. It’s arduous, time consuming, and demanding; but it may make ultimate justice possible.
For any alien, the best course of action may be to do what’s possible. Do what you can. If you’d planned on filing a provisional waiver, and you’re not in removal proceedings; perhaps you should file it. If you intended to adjust your status through a family or work visa, perhaps you should submit the materials. If you’re due to depart the US to consular process after a waiver approval or file a fiancé visa – it might be best to do it. You may succeed. But Trump’s “reich” also might stymie you. (Remember you can’t legally return if the consulate denies you.)
What then? If you’re in the US, you may end up in removal proceedings. Presently, chances of success there are not terribly good, and they aren’t very good before the BIA either. But ultimately you likely can file an appeal with the federal courts. If you’re in New York, that’s the Second Circuit; if you’re in New Jersey or Pennsylvania, it’s the Third Circuit; if you’re in California, it’s the Ninth Circuit. If you want to file a writ of Habeas Corpus, you can do that before federal district (trial) courts. Federal courts will hear the arguments on a constitutional basis. They’ll judge the executive agency’s conduct toward you: was it proper and lawful? Or did they misapply the law? Very often the Executive branch make enormous, infuriating mistakes; but nothing is ever done because no action is filed. Federal court procedure remains difficult, but ultimately it may be the best chance for a positive outcome.
There is no free lunch. The US legal system doesn’t guarantee anyone justice, only a chance at justice. Having the best possible chance is up to you.
Administrative (Presidential, Executive) law can be shaped, slanted, fingered, or misshapen as the Executive chooses. In the current immigration law reality, the administrative agencies use every administrative tool to punish. Ultimately, they’re trying to ruin the lives of not only illegal aliens who have a path to relief, but also of lawful permanent residents, and naturalized citizens.
There are protections inherent in the Constitution, and in difficult times when we have no other choice, we must rely on them. Aiming ultimately for federal court protection must be an available strategy. The federal courts can rule in your favor and against the administration because they’re not under the president’s control. Say thank you to James Madison for that.
Ultimately, we have a marvelous system of government – that’s why everyone wants to come here. But with that system comes the possibility that some very destructive and careless people can decide people’s lives. But we’re not powerless. The laws allow us a very real method of fighting back.
When you’re at the end of your rope, tie a knot and hold on.
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