The Changing Landscape of Immigration: TPS and DACA September 21, 2018 Presenters: Patricia Elizee Lody Jean Melisa Peña Peterson St. Philippe Adonia R. Simpson

What is Temporary Protected Status? (TPS) The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. The Secretary may designate a country for TPS due to the following temporary conditions in the country: Ongoing armed conflict (such as civil war) An environmental disaster (such as earthquake or hurricane), or an epidemic Other extraordinary and temporary conditions INA §244 8 CFR  §244

What benefits does TPS provide? During a designated period, TPS beneficiaries are: Not removable from the United States Eligible to obtain an employment authorization document (EAD) Eligible to obtain  travel authorization TPS protection runs for a periods of 6, 12 or 18 months

Who is eligible for TPS? To be eligible for TPS, a person must: Be a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country; Have been continuously physically present in the U.S. since the effective date of the most recent designation date of the country; Have been continuously residing in the U.S. since the date specified for the designated  country; and Exception made for brief, casual and innocent departures Not have been convicted of any felony or 2 or more misdemeanors

Countries designated for TPS Countries Currently Designated Honduras:  January 5, 1999 Nicaragua: Janary 5, 1999 El Salvador: March 9, 2001 Haiti: January 21, 2011 South Sudan: November 3, 2011 Somalia: September 18, 2012 Sudan: May 3, 2013 Nepal: January 24, 2015 Syria: August 1, 2016 Yemen: March 4, 2017 Countries Previously Designated Guinea Liberia Sierra Leone

What is Deferred Action for Childhood Arrivals? (DACA) Defered Action for Chilhood Arrivals On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status. DACA is not a lawful status but it is a discretionary determination by DHS to defer removal action of an individual as an act of prosecutorial discretion. 

Requirements for DACA Under the age of 31 as of June 15, 2012; Came to the U.S. before reaching 16th birthday; Continuously resided in the U.S. since June 15, 2007;   Physically present in the U.S. on June 15, 2012, and at the time of making your request; No lawful status on June 15, 2012;   Currently in school, graduated or obtained certificate of completion from high school, general education development (GED), or an honorary discharged veteran of the Coast Guard of Armed Forces of the U.S. • Not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security of public safety.

How did we get here? Executive Orders from January 2017 No more priorities– EVERYONE is a priority Increase resources on enforcement– detention and removal Travel Ban (3 versions) Changes in asylum processing (LIFO) AG Decisions NOTE: There have been no changes in law– only policy, executive orders and regulations

Temporary Protected Status (TPS) Countries impacted (termination for 6 of 10) TPS for Haiti terminated– July 22, 2019 TPS for Honduras terminated– January 5, 2020 TPS for Nicaragua—terminated as of January 5, 2019 TPS for El Salvador terminated– September 9, 2019 Pending litigation HLA Joined the NACCP Legal Defense Fund March 2018 About to enter discovery phase  Based on Constitutional violations since TPS statute does not allow for Judicial review What to do now? Travel on AP Screen for other relief Pereira MTRs and cancellation

DACA (Deferred Action for Childhood Arrivals) DACA was terminated on October 5, 2017, BUT 3 courts (CA, NY, DC) have enjoined the termination so clients can RENEW No Advanced Parole DC Decision allowing for initial applications has been stayed In a surprise decision, the TX court decided NOT to enjoin applications  What to do now? Screen for other relief Pereira MTRs and cancellation Many do not have ULP if DACA obtained as minors

Assessing for other relief FOIA! Asylum: changed circumstances? Family based petitions IRs v. Preference Category Lawful entry or travel under AP? 6th and 9th Circuits 245(i) Non-LPR cancellation? NACARA? Victim-based relief (U, T, VAWA) Derivative citizenship? Employment-based

Family-Based Relief Immediate relative v. preference categories Entry/Waived through v. Paroled (in place parole request)  Adjustment of Status v. Consular Processing  I-601 v. I-601A  245 (i)  VAWA 

VAWA Self-Petition Client has suffered battery/extreme cruelty by USC or LPR spouse/parent/child. Spouse: May file is applicant is, or was, the abused spouse of a U.S. citizen or permanent resident. May also file as an abused spouse if the applicant’s child has been abused by the U.S. citizen or permanent resident spouse.  May also include unmarried children who are under 21 if they have not filed for themselves. Must be filed within 2 years of death or divorce Must prove good faith marriage Parent: Parent of a U.S. citizen has been abused by U.S. citizen son or daughter. Child: Abused child under 21 and unmarried and has been abused by U.S. citizen or permanent resident parent. Children may also be included on the petition. May also file as a child after age 21, but before age 25, if it can be demonstrated that the abuse was the main reason for the delay in filing. Applicant must have resided with the abuser. Applicant is a person of good moral character.

Applying for VAWA Self-Petition Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant Evidence of the abuser’s U.S. citizenship or lawful permanent resident status; Marriage and divorce decrees, birth certificates, or other evidence of legal relationship to the abuser; One or more documents showing the applicant and the abuser resided together; Evidence of the abuse, such as reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel. Affidavit of good moral character accompanied by a local police clearances; and If spousal abuser, submit evidence showing marriage was entered in good faith The adjustment of status application can be filed concurrently if the abuser was an immediate relative. Form I-485, Application to Register Permanent Residence or Adjust Status; Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support; Form I-693, Report of Medical Examination and Vaccination Record  Government issued identity document, birth certificate, and proof of entry (if available) Certified police and court records of criminal charges, arrests, or convictions (if applicable); Form I-601, Application for Waiver of Grounds of Inadmissibility or Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal (if applicable); Public charge (INA 212(a)(4)) and Entry without inspection (INA 212(a)(6)(A)) inadmissibilities are waived

VAWA Benefits If a self-petitioning spouse or child and all filing requirements are met, applicant will receive a notice (Prima Facie Determination Notice) valid for 150 days that can be presented to government agencies that provide certain public benefits to certain victims of domestic violence. When the I-360 is approved, applicant will be put in deferred action, which allows the applicant to remain in the United States and apply for work authorization. If abuser was USC spouse, eligible to naturalize in 3 years.

Relief in Immigration Court Asylum/ Humanitarian Asylum  Cancellation of Removal  VAWA Cancellation of Removal  Prosecutorial Discretion request  Jt. Motions to Re-Open Exceptional circumstances  Military service  Cooperating witnesses* Administrative Closures Voluntary Departure  Recent case law

Asylum Potential Issues in Court: Asylum One year filing deadline – If no exception for deadline is met; It will be a Withholding only proceeding. •Statute: INA § 208(a)(2)(B) •Regulation: 8 C.F.R. § 208.4(a)(4) •Exceptions: change in circumstances & exceptional circumstances •NIV status, Adjustment pending, •Parole, TPS, deferred action •What is a “reasonable time”

Asylum Potential motions to pretermit from DHS if there was a ” firm resettlement” in a third country. i.e Haitians that were given a work permit/ lived in Brazil before coming to the United State. Safe Third country: Dual/ Multiple nationalities i.e. A person that may have a second nationality and therefore another country that may take them in. Cuban/Spaniard with holds a European passport.

Humanitarian Asylum An applicant that establishes past persecution but no longer has a well founded fear of future persecution could be granted humanitarian asylum if there is a reasonable possibility that he or she may suffer i.e.: Liberia National who experience past persecution in the form on genital mutilation and past severe abuse. The other serious harm should be cognizant of the applicant’s country conditions. i.e.: A Venezuelan national who suffers from AIDS and its not able to access proper medication in their home country.

Cancellation of Removal – for non LPR A defense ONLY available in immigration court - There is no comparable affirmative application. Eligibility: Continuous physical presence in the United States for 10 years or more. Person of good moral character under section 101(f) of INA Not convicted of certain crimes under sections 212(a)(2), 237(a)(2), or 237(a)(3) of the INA – Aggravated Felonies Removal would result in exceptional and extremely unusual hardship to your qualifying relative. (United States citizen or Lawful permanent resident spouse, parent or child) and that the person is deserving of a favorable exercise of discretion.

Cancellation of Removal It is the Respondent burden to prove eligibility for this relief. Evidence to establish entry and continuous presence Medical records School Records Vaccinations Birth Certificates Lease or rent agreements Receipts of money sent

VAWA Cancellation of Removal Its designed to stop removal proceedings for victims of abuse by a United States citizen or lawful permanent resident spouse or parent. Eligibility for a defensive VAWA Subjected to battery or extreme cruelty by a U.S. citizen or lawful permanent resident spouse of parent; Physically present in the United States for a continuous period of 3 years or more prior to your VAWA application and the issue of the Notice to Appear (NTA); Good moral character for the last 3 years; Removal would cause extreme hardship to Respondent, children or parents; That certain inadmissibility grounds( criminal convictions ) do not apply to respondent. If granted, Respondent will obtain Lawful permanent residency.

Prosecutorial Discretion Request The power that DHS/ICE had to stop removal by exercising discretion and shifting time and resources to high priority cases that have implications for national security, border security and public safety. Under the current administration: Presidential Executive Order: Enhancing Public Safety in the interior of the United States” changed the priority of cases for enforcement. Everyone is now considered an enforcement priority; taking away any discretion DHS/ICE had to make distinctions between cases and choosing to not prosecute.

Administrative closure Administrative closures : The Board has described the practice as “a docket management tool that is used to temporarily pause removal proceedings,” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017), and “remove a case from an Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) May 17, 2018. The attorney general held that IJs and the BIA have no general authority for administrative closure. Accordingly, IJs and the BIA may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. Where a case has been administratively closed without such authority, the IJ or the BIA shall recalendar the case on the motion of either party. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) are overruled.

Recent Case Law Related to Cancellation of Removal Pereira v. Sessions, 138 S.Ct. 2105 (2018) June 21, 2018. A putative notice to appear that fails to designate the specific time or place of a noncitizen's removal proceedings is not a notice to appear under 8 U.S.C. § 1229a and so does not trigger the stop-time rule under 8 U.S.C. § 1229b(d)(1) for determining eligibility for cancellation of removal. Based on the plain text of the statute, it is clear that to trigger the stop-time rule, the government must serve a notice to appear that, at the very least, specifies the time and place of the removal proceedings. Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) Aug 31, 2018 BIA limits the Pereira decision to 10-year cancellation cases and the stop-time rule;  Finds that an NTA served with a notice of hearing from EOIR qualifies as commencing the jurisdiction of the court.

Recent Case Law Motions to Continue Matter of L-A-B-R 27 I&N Dec. 405 (A.G. 2018) Aug 16, 2018.  (1) An immigration judge may grant a motion for a continuance of removal proceedings only “for good cause shown.” 8 C.F.R. § 1003.29.  (2) The good-cause standard is a substantive requirement that limits the discretion of immigration judges and prohibits them from granting continuances for any reason or no reason at all.  (3) The good-cause standard requires consideration and balancing of multiple relevant factors when a respondent alien requests a continuance to pursue collateral relief from another authority—for example, a visa from the Department of Homeland Security. See Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009).  (4) When a respondent requests a continuance to pursue collateral relief, the immigration judge must consider primarily the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.  (5) The immigration judge should also consider relevant secondary factors, which may include the respondent’s diligence in seeking collateral relief, DHS’s position on the motion for continuance, concerns of administrative efficiency, the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion. 

Recent Case Law Motions to Terminate  Matter of S-O-G- & F-D-B- 27 I&N Dec. 462 (A.G. 2018) September 18, 2018. (1) Consistent with Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), immigration judges have no inherent authority to terminate or dismiss removal proceedings. (2) Immigration judges may dismiss or terminate removal proceedings only under the circumstances expressly identified in the regulations, see 8 C.F.R. § 1239.2(c), (f), or where the Department of Homeland Security fails to sustain the charges of removability against a respondent, see 8 C.F.R. § 1240.12(c). 3) An immigration judge’s general authority to “take any other action consistent with applicable law and regulations as may be appropriate,” 8 C.F.R. § 1240.1(a)(1)(iv), does not provide any additional authority to terminate or dismiss removal proceedings beyond those authorities expressly set out in the relevant regulations. (4) To avoid confusion, immigration judges and the Board should recognize and maintain the distinction between a dismissal under 8 C.F.R. § 1239.2(c) and a termination under 8 C.F.R. § 1239.2(f).

Recent Case Law Asylum Matter of AB 27 I&N Dec. 316 (A.G. 2018) June 20, 2018. (1) Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was wrongly decided and should not have been issued as a precedential decision. (2) An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate: (1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.  (3) An asylum applicant has the burden of showing her eligibility for asylum. The applicant must present facts that establish each element of the standard, and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of those elements.  (4) If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.

Recent Case Law – Matter of AB part 2 (5) The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim. (6) To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum. (7) An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims. (8) An applicant seeking asylum based on membership in a particular social group must clearly indicate on the record the exact delineation of any proposed particular social group. (9) The Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.

Recent Case Law Asylum : Family Matter of L-E-A- 27 I&N Dec. 40 (BIA 2017) May 24, 2017 (1) Whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question.  (2) To establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm. 

Creative forms of relief NACARA HRIFA U visa T visa

NACARA Salvadorans may be eligible for cancellation of removal or suspension of deportation under the Nicaraguan and Central American Relief Act (NACARA). A Salvadoran national is eligible for NACARA benefits if: first entered the United States on or before September 19, 1990 and registered for benefits under the ABC settlement agreement on or before October 31, 1991, either by submitting an ABC registration (which includes an asylum application in the Ninth Circuit) or by applying for TPS, unless apprehended at the time of entry on or after December 19, 1990, or filed an application for asylum on or before April 1, 1990. Derivative NACARA Benefits Spouse or unmarried child under 21 years of age of a person who was granted suspension under NACARA. Family relationship must have existed at the time that NACARA suspension or cancellation was granted to the spouse or parent. Applicant must have seven years continuous physical presence, not be subject to certain criminal grounds, possess good moral character, and demonstrate that returning to her country of origin would result in extreme hardship to herself or a qualifying relative.

HRIFA Are a national of Haiti Qualify as a dependent applicant under HRIFA: Spouse- relationship to the principal applicant must have been created prior to the date on which the principal becomes or became a permanent resident. Child- must be unmarried and under the age of 21 in order to qualify as the principal applicant’s “child.” Relationship to the principal must have been created prior to the date on which the principal becomes a permanent resident. Unmarried Son or Daughter- unmarried son or daughter (over the age of 21) of a principal applicant.  Must have been physically present in the United States for a continuous period beginning not later than December 1, 1995, and continuing until your adjustment application is approved.  Relationship to the principal must have been created prior to the date on which the principal becomes or became a permanent resident. Are admissible to the United States Are physically present in the United States when the application is filed

U Visa Nonimmigrant visa which is set aside for victims of crimes (and their immediate family members) who have suffered substantial mental or physical abuse and are willing to assist law enforcement and government officials in the investigation or prosecution of the criminal activity. Indirect and Bi-stander applicants Generous waiver for inadmissibilities Eventual pathway to residency and citizenship: Physically present in the United States for a continuous period of at least three years while in U nonimmigrant status, and Not unreasonably refused to provide assistance to law enforcement since you received your U visa. Derivative beneficiaries (I-918 Supplement A): Cons? Backlog and certifier discretion.

U Visa Eligibility Victim of qualifying criminal activity (occurred in the United States or violated U.S. laws) Suffered substantial physical or mental abuse as a result of the crime. Possess information about the criminal activity and were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime.

Applying for a U visa Form I-918, Petition for U Nonimmigrant Status (Supplement A for derivatives) Form I-918, Supplement B, U Nonimmigrant Status Certification. The Form I-918, Supplement B, must be signed by and authorized official of the certifying law enforcement agency (PDF) and the official must confirm that applicant was helpful, is currently being helpful, or will likely be helpful in the investigation or prosecution of the case. NOTE: Certifying agencies include all authorities responsible for the detection, investigation, prosecution, conviction or sentencing of the qualifying criminal activity, including but not limited to: • Federal, State Local, Tribal, and Territorial law enforcement agencies, prosecutor’s offices, judges; • Federal, State, and Local Child and Adult Protective Services; • Equal Employment Opportunity Commission; • Federal and State Departments of Labor; and • Other Federal, State, Local, Tribal, or Territorial government agencies that have criminal, civil, or administrative investigative or prosecutorial authority If any inadmissibility issues are present, you must file a Form I-192, Application for Advance Permission to Enter as Nonimmigrant, to request a waiver of the inadmissibility based on national or public interest (fee waiver available I-912); A personal statement describing the criminal activity of which you were a victim; and Evidence to establish each eligibility requirement.

T visa Is (or has been) a victim of a severe form of trafficking in persons: Sex trafficking: When someone recruits, harbors, transports, provides, solicits, patronizes, or obtains a person for the purpose of a commercial sex act, where the commercial sex act is induced by force, fraud, or coercion, or the person being induced to perform such act is under 18 years of age; or Labor trafficking: When someone recruits, harbors, transports, provides, or obtains a person for labor or services through the use of force, fraud, or coercion for the purpose of involuntary servitude, peonage, debt bondage, or slavery. Comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking (unless you are under the age of 18 or you are unable to cooperate due to physical or psychological trauma. In either case, you may not need to show that you complied with reasonable requests from law enforcement); Demonstrate that client would suffer extreme hardship involving unusual and severe harm if removed from the United States

T visa benefits T visa recipients are eligible for a number of federally-funded benefits and human services. If victim does not yet have T nonimmigrant status, he or she may also be eligible for these benefits and services if: ICE has granted  Continued Presence (PDF); or HHS has provided a letter of certification or eligibility. Derivative beneficiaries: Eligible to apply for lawful permanent residence after 3 years in T nonimmigrant status or once the investigation or prosecution of the trafficking is complete, whichever occurs earlier. 

Applying for a T visa Form I-914, Application for T Nonimmigrant Status (I-914 Supplement A for derivatives) Personal statement explaining in your own words how you were a victim of trafficking Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons (PDF)  to demonstrate victimization of trafficking and cooperation with any reasonable request to assist law enforcement. NOTE: Applicants can submit other evidence instead of or in addition to the Form I-914, Supplement B, such as trial transcripts, court documents, police reports, news articles, affidavits, or other relevant credible evidence. Evidence to show that you meet all other eligibility requirements Form I-192, Application for Advance Permission to Enter as a Nonimmigrant (if inadmissible)

What’s next and what can we do as advocates? Public Charge Regulations USCIS Policies re: NTAs and RFEs/NOIDs Implementation of AG Decisions and Quotas Administrative Closure DV-based asylum Continuances Family separation in our communities Detainer policies 287(g) counties Increase in Notario Fraud

Family Preparedness Make a plan for the family Children: Make arrangements in advance for a family member or friend to care of children if detained. Have the telephone numbers of this relative or friend handy and make sure other people know of these plans. Property: Make sure to designate trusted individuals to make decisions if detained. They can help withdraw money for deportation expenses or pay a mortgage. Documents: Keep a copy of all immigration documents that have been filed with immigration with a trusted friend or family member. Collect important papers, such as birth certificates, marriage certificates, and passports.

Beware of Notario Fraud Immigration law is complicated! Encourage non-citizens to consult with an immigration expert A non-citizen should never contact the U.S. Citizenship and Immigration Services (USCIS) without consulting with an immigration lawyer. Remember: do not give legal advice if you’re not a lawyer! Includes selecting and filling out forms Contact AILA South Florida or the Federal Trade Commission to report fraud or Florida Bar's Unlicensed Practice of Law Committee  When working with an attorney, understand the services you are paying for and get copies of any submissions for your own records.

Free Resources ILRC, https://www.ilrc.org/ IAN, https://www.immigrationadvocates.org/ CLINIC, https://cliniclegal.org/ AIC, https://www.americanimmigrationcouncil.org/ INA, https://www.uscis.gov/laws/immigration- and-nationality-act CFR, https://www.uscis.gov/laws/8-cfr/title-8- code-federal-regulations

Questions?