Asylum Fees, BIA v. SCOTUS, & More
White House Memorandum: Fees for Asylum Seekers
On April 29, 2019, the White House issued a memorandum to the Attorney General and the Secretary of Homeland Security on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System. According to the memorandum, it is being issued in response to the crisis in our immigration and asylum system caused by the mass migration of aliens across our southern border. In an effort to reduce the crisis, the White House is instructing the Attorney General and the Secretary of Homeland Security to, among others, propose regulations to ensure that, absent exceptional circumstances, all asylum proceedings in immigration court are concluded within 180 days of filing and setting a fee for the filing of an asylum application and for the filing of an initial application for employment authorization while the asylum application is pending. The proposed regulations should also prohibit anyone that entered or attempted to enter the US unlawfully from obtaining employment authorization while the application for asylum is pending.
These new regulations will significantly change the asylum process, making it more difficult for applicants, many of whom fled their countries in fear, leaving everything behind, to apply for asylum. The requirement that the case be processed within 180 days of filing reduces the time applicants have to obtain the evidence necessary to prove their case. And the combination of filing fees and inability to obtain employment authorization will financially hurt a group of people that is already suffering.
The White House gave the Attorney General and the Secretary of Homeland Security 90 days from the date of the memorandum to take action.
BIA v. SCOTUS on Notices to Appears
The US Supreme Court (SCOTUS) is the highest court of the country, all other courts are subordinate to it and should follow it’s rulings. The Board of Immigration Appeals (BIA) did not do this.
Individuals in removal proceedings may apply for cancellation of removal if they meet certain requirements. One of the requirements is that the individual has been continuously residing or physically present in the country for a specified period of time (the time varies depending on whether the individual is a lawful permanent resident or not). This period of continuous residence or physical presence is deemed to end when an individual is served a Notice to Appear (NTA) (there are other ways this period may end, but we will only be addressing the issuance of an NTA). This is referred to as the stop-time rule.
In 2017, SCOTUS, in Pereira v. Sessions, determined that an NTA that did not include the time and place of the hearing, as required by statute, was not sufficient to end the continuous residence or physical presence requirement for cancellation of removal purposes. Therefore, the individual continued to accumulate continuous residence or physical presence while removal proceedings were pending.
On May 1, 2019, the BIA, in Matter of Mendoza-Hernandez, decided that, if a Notice of Hearing is sent to the individual after the NTA with no time and place of hearing is issued, the period of continuous residence or physical presence ends on the date of the Notice of Hearing. The BIA reasoned that the incomplete NTA was corrected by the Notice of Hearing because the Notice of Hearing included the information that was missing in the NTA.
This decision is contrary to SCOTUS’ decision, which was clear that an NTA that did not include the time and place of the hearing was not sufficient to end the continuous residence or physical presence requirements for cancellation of removal purposes. According to SCOTUS, the cancellation of removal statute required the issuance of a correct NTA to end the continuous residence or physical presence period. SCOTUS did not indicate that the NTA could be corrected with the issuance of another type of document, SCOTUS was clear that the NTA had to meet the statutory requirements. The government could correct the incorrect NTA by issuing a correct NTA, not by sending a Notice of Hearing.
Nationwide Injunction: Change to Unlawful Presence for International Students
On August 9, 2018, the current administration changed the way unlawful presence is calculated for students and exchange visitors in F, J, and M nonimmigrant status. Prior to the change, those individuals in the above nonimmigrant statuses would start accumulating unlawful presence on the day after USCIS formally made a determination that they violated their status or on the day an immigration judge ordered them excluded, deported, or removed. The new policy made it so that these individuals would start accumulating unlawful presence the day after they engaged in any activity that was not consistent with their status (e.g., no longer pursuing their course of study, engaging in unauthorized employment).
In response to this policy change, a lawsuit was filed in U.S. District Court for the Middle District of North Carolina. On May 3, 2019, the Honorable Loretta C. Biggs granted the Plaintiffs’ Motion for Preliminary Injunction. The injunction stops the implementation of the new policy. The Judge granted the preliminary injunction to have nationwide impact. This means that the government cannot enforce their new policy anywhere in the US, until a final decision on the case is made or an order dissolving the preliminary injunction is entered.
If you have questions about your immigration case here in Florida, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Groups. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any family or marital legal issues you may be experiencing.
