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Expansion of the Provisional Unlawful Presence Waiver

Today, July 29, 2016, the Department of Homeland Security (DHS) will publish in the Federal Register a final rule expanding eligibility for the provisional unlawful presence waiver, filed on Form I-601A.  The new rule will take effect on August 29, 2016.

Since its launch in March 2013, many immigrants have utilized this waiver to minimize the time that they are separated from friends, family, work, and their community because they are able to apply for the waiver and receive approval before traveling abroad for consular processing.  For certain applications, the process that often results in many months of separation now can be completed in less than two weeks.  Additionally, because the waiver is discretionary, immigrants benefit from the knowledge that DHS has determined that they warrant a positive exercise of discretion before they leave the country, making their journey and application process far less risky.

Until the passage of this new rule, however, the provisional waiver was only available to immigrants who were the spouses, children, and parents of certain U.S. citizens, otherwise known as “immediate relatives.”  The waiver was further limited because the applicant had to prove that a U.S. citizen spouse or parent would experience extreme hardship upon denial of the immigrant’s admission to the United States; in other words, hardship to a spouse or parent who was a lawful permanent resident (“LPR” or “green card” holder) was not taken into consideration.

Beginning August 29, 2016, the rule will be expanded to include all individuals who are statutorily eligible for the unlawful presence waiver and who can establish extreme hardship to a U.S. citizen or LPR spouse or parent.  The expanded group of individuals includes the beneficiaries of family-sponsored and employment-based immigrant visa petitions, and Diversity Visa selectees, so long as they have a qualifying relative under the statute for purposes of the extreme hardship determination (a U.S. citizen or LPR spouse or parent).  Some additional changes were made to the regulation, including the elimination of a denial based on a “reason to believe” that another ground of inadmissibility exists.

DHS comments associated with the publishing of the final rule make it clear that this expansion is a benefit to the entire nation: it encourages the efficient use of government resources by streamlining a process that has previously been fraught with problems, it encourages eligible immigrant visa applicants to proceed forward with their visa processing and therefore integrate more quickly and fully into their U.S. community, and, most importantly, it minimizes the time that U.S. citizens and lawful permanent residents are separated from their loved ones.  DHS estimates that approximately 100,000 individuals will become eligible under the new rule during the rule’s 10-year period of analysis.  The expansion is a welcome addition to our immigration system, and comes at a time when change is desperately needed.

Will DAPA Be Obama’s Departing Legacy?

In mid-January of this year, the U.S. Supreme Court announced that it had granted cert to in United States v. Texas, meaning that it would consider the legal challenges, originally lodged by the state of Texas and many others, to President Obama’s November 2014 Executive Actions, including the Deferred Action for Parents of Americans (“DAPA”) which would provide work authorization and protection from deportation to about 5 million undocumented immigrants.  The specific issues in that case are (1) if a state has a right to sue the federal government if they are voluntarily providing a subsidy to aliens who would benefit from the deferred action program; (2) if the guidance in Obama’s Executive Action provisions are lawful; (3) if that guidance was subject to notice-and-comment procedures; and (4) if that guidance violates the Take Care clause of the US Constitution (Article II, Section 3).  The fourth issue was added by the Supreme Court itself, suggesting the likelihood of a broad and detailed decision affecting far more than immigration law and reaching out into presidential power generally. A decision will likely be issued by the end of June 2016.

If the Supreme Court decides against Texas Attorney General Ken Paxton and his coalition of 26 states, the Executive Actions could very well be carried out before the end of the year, and any new president will be forced to honor the policies as they stand when he or she comes into office (whether future changes can be made is a different matter, however). Indeed, the White House has stated publically that they intend to begin enrolling immigrants as soon as possible, and immigrants are likely to make haste in submitting their applications, given the political volatility of the program. Democratic presidential candidates have stated their intention to continue with the program while GOP candidates, predictably, have not.

The outcome of the case has undoubtedly been affected by Justice Antonin Scalia’s sudden passing on February 13, 2016.  The conservative judge was almost certain to come down on the side of Attorney General Paxton.  While his missing vote is helpful to the immigrant cause, his absence could result in an equally divided court. A 4-4 tie verdict from the Supreme Court results in an automatic affirmation of the lower court’s ruling.  In this case, the lower court favored the state challenge by a 2-1 split.  While there may be an additional recourse in under those circumstances – a formal request for a re-hearing after a 9th justice has been appointed – the political machinations surrounding a quickly approaching presidential election are certain to slow down or halt any Supreme Court appointments, and any hope for DAPA as President Obama intended it become speculative at best.  Indeed, a week ago Senate Republicans have sworn that they will not hold any confirmation hearings for a Supreme Court nominee selected by President Obama.  Of course, if five Supreme Court justices decide in the President’s favor and issue a positive decision this June, the DAPA program could likely become Obama’s departing legacy – and one of which he should be very proud.

Ignoring Alternatives & Increasing Detention of Families

Although the number of families being detained on the U.S.-Mexico border has dropped, the government is moving forward with plans to increase its capacity to detain families, with plans to open a new facility to house 2,400 women and children in Dilley, Texas, next month. Many of the women and children who would be housed in this facility are fleeing domestic abuse or gang violence. While Immigration and Customs Enforcement has the option of releasing individuals on bond or providing an ankle monitor, detention is clearly the preferred solution. Detention is not only an expense that falls on the shoulders of tax-payers; it also exposes detainees to the risk of sexual abuse. In fact, a complaint from earlier this month alleges recent sexual abuse in the Karnes City, Texas, facility, and other centers were previously closed after numerous allegations of abuse. Meanwhile, an alternative program from 2004 known as ISAP (Intensive Supervision Appearance Program) has proven to be widely successful, with 93% of participants showing up to their scheduled hearings on their own accord.

Bond determinations are made based on an assessment of an immigrant’s potential danger to the community and the risk that they will not attend their removal proceedings, but instead going into hiding. In many of these cases, women and children have come to this country seeking protection and have turned themselves in at the border. They have very few resources. The chance that they will post a bond and not attend future court hearings is highly unlikely. A denial of bond, or a very high bond, should be reserved for individuals with a criminal history who have already proven that they pose a danger to society, or that they are likely to not show up for a scheduled hearing.

Expense and risk are not the only issues that cause concern to many; detention in these remote facilities means less access to paid or pro bono legal services. Although detainees at the Artesia center are provided a list of pro bono services, the services listed are hours away and the detainees often have no means of contacting them. If they elect to hire private counsel, they will have to look elsewhere as well, as the nearest immigration attorney is approximately an hour away from the facility. Volunteer attorneys who have traveled to Artesia to offer pro bono services note that there is not even a business center in the town of Artesia where an attorney can make photocopies or send faxes.

In response to the proposed development of the Dilley facility, several prominent Democratic senators recently wrote a letter to the Secretary of Homeland Security. In that letter, found at, the senators wrote:

“The administration’s practice of opposing bond in all of these cases, even those cases in which credible fear has been established and where there is no evidence of danger to the community or risk of flight, furthers the injustice for those families detained and unnecessarily increases the demand for bed space. Concerns over flight risk can be ameliorated through Alternatives to Detention (ATD), which help ensure the appearance of asylum seekers in immigration proceedings and are more cost effective.”

From the outside, it certainly seems that inexpensive and humane alternatives are low on the administration’s priority list, and one can’t help but wonder why – or wonder what priorities are more important. Several Democratic senators, at least, are left wondering.

Immigrant Flood Victims Should Seek Assistance

Were you affected by the recent floods in Colorado? Even undocumented persons are eligible for federal and local assistance.

If your home and belongings were damaged or destroyed, you are eligible for assistance from the federal government through the Federal Emergency Management Agency (FEMA). Although people without immigration status do not qualify for cash assistance from FEMA, they can receive benefits in many other forms. FEMA is encouraging all flood victims, regardless of status, to register for assistance. If one member of the household is a citizen or a lawful permanent resident (LPR), the entire household may qualify for assistance from FEMA, since only one member of the household must be eligible for assistance. An attorney can assist you in determining if you qualify for FEMA assistance. To apply for more information on FEMA’s program, go to:

Other benefits available to undocumented persons include crisis counseling, disaster legal services, transportation, emergency medical care, food, water and other emergency supplies. Many large charities, including the Red Cross and the Salvation Army will also assist any victim of the floods without revealing their immigration status. You can receive medical assistance, food and supplies from these and other organizations.

If you are an immigrant and flood victim in need of legal services, free legal assistance is available through Colorado Flood Legal Relief.  Aretz & Chisholm Immigration has offered their legal services through this non-profit effort. For assistance, you may contact the hotline at (855) 424-5347 or request help online::

For more information on the situation of immigrants affected by recent flooding, see

Behind the Sound Bites on Arizona’s Immigration Law

Cite as “AILA InfoNet Doc. No. 10051130 (posted May. 11, 2010)”

One of the problems with debates on serious issues being played out in the media is that all sides, by necessity, make their arguments with shorthand and sound bites. The same is true, in spades, of the public discussion on Arizona’s SB1070 immigration law.

Much of the debate centers around the law’s requirement that law enforcement personnel demand immigration documents when they have “reasonable suspicion” that someone they have stopped might be undocumented. Proponents of the law often give the example of an Arizona driver who has been stopped for speeding and is unable to produce a valid driver’s license as an example of reasonable suspicion.

While that example makes for a nice sound bite, the reality is a little more complicated. If Arizona had meant to limit the circumstances to that, they readily could have written a law that said that if a person required to produce an Arizona driver’s license cannot do so, check for his proof of legal status. That would have been ethnically neutral, and would have avoided getting into the vague territory of “reasonable suspicion.” But they didn’t do that. Instead, they went much further.

The Arizona law requires law enforcement officers (including non-police civil servants enforcing municipal civil codes) to demand documents where “reasonable suspicion” exists that a person might be undocumented. Thus, if a county official goes to a home to cite the resident for the grass being too tall, or having too many people living in the house, or having a car on blocks in the yard, this obligation kicks in. Since there is no reason in these kinds of instances to look at a drivers license, what would create “reasonable suspicion” in this form of “stop”?

The legal definition of “reasonable suspicion” arises from a 1968 Supreme Court case called Terry v. Ohio. The court there said that, under the Fourth Amendment prohibition against unreasonable searches and seizures, an officer may “stop and frisk” a person if the officer observes “articulable facts” that make it “reasonable to assume” that the person is violating the law. Well, here, the “frisk” would be the demand for the documents. But what articulable facts could arise that would make it reasonable to assume that someone is in violation of immigration laws? THAT is the sticking point. In the vast majority of circumstances covered by this law, the ONLY articulable facts would be ethnically based–color of skin, accent, language. And THAT then triggers an issue under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which states “no state shall … deny to any person within its jurisdiction the equal protection of the laws”.

Modern law interpreting the Equal Protection Clause derives from the famous school desegregation case, Brown v. Board of Education. That case, and those that have followed it, have established that this Clause operates as a general restraint on the government’s power to discriminate against people based on their membership in certain classes, including those based on race and ethnicity. Because in the vast majority of the circumstances in which the Arizona law requires officers and officials to demand documents, the only possible articulable fact that would lead to the demand is ethnically based, the law conflicts with the Fourteenth Amendment.

It also is just plain against American values to engage in this kind of ethnic profiling.

There are those who argue that police develop “instincts” and “can identify patterns” that lead them to a reasonable suspicion based on their experience. Even assuming that that is true, and is not in fact based on subliminal prejudices, it would not be true here. The enforcement of this law is being assigned to state and local police and to civil servants, rather than to immigration officers. None of them have the experience to know what those patterns would be. Again, that leaves them with only ethnicity to serve as a guide. And, since the majority of ethnic minorities, including Latinos, in Arizona are in fact U.S. citizens or legal residents, ethnicity would not be a reliable basis even if such profiling were not morally repugnant.

Blog by Crystal Williams, AILA Executive Director, 5/11/10

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