Spotlight on Immigration Law

Published on November 2018 | By Mark NeJame - Orlando Litigation Attorney; Yazen Abdin contributed to this article.

For better or worse, the world of U.S. immigration has been turned on its head in recent months. Since President Donald Trump took office, one of his main focuses has been immigration. Under this administration, numerous changes have been implemented in a short period. While some immigration topics have received national attention – such as the travel ban (which made it to the U.S. Supreme Court) and the separation of children from their families) – other topics have been overlooked.

One major change that has been overlooked by the media is that United States Citizenship and Immigration Services (USCIS) has been instructed to deny petitions and applications if the agency determines a case has insufficient evidence or is “incomplete.” This is significant because prior to this policy, USCIS would issue either a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) which would provide the applicant an opportunity to rectify or explain any perceived deficiencies. This change provides immigration officers with unfettered discretion to deny cases that are otherwise eligible for benefits.

Another recent policy change now promotes USCIS to act as an enforcement agency as opposed to a benefits agency. In contrast to Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP), USCIS’s primary focus is processing and adjudicating applications and petitions, such as extensions of status, changes of status,naturalization applications, and the like. Now, if an individual applies for a benefit with USCIS such as naturalization, for example, and that benefit happens to get denied, USCIS has been instructed to issue a Notice to Appear (commencing deportation proceedings before an immigration judge). Many immigration practitioners see this as a deterrent to legal immigration.

A proposed change currently in the works is redefining the term “public charge.” Under the current rule, immigrants can be denied immigration benefits if they are deemed to have received or be likely to receive certain public benefits in the future. This ground of inadmissibility is usually overcome by a sponsor who would sign an agreement stating that they will be financially responsible for the applicant. Under the proposed change, the term “public charge” will be construed more broadly, ultimately making less people eligible to immigrate, further deterring legal immigration.

USCIS is not the only immigration agency that has been changing. Immigration courts and immigration judges are also receiving instructions which minimize a judge’s discretion when presiding over their court. Attorney General Jeff Sessions has issued several decisions which chip away at the independence of judges. For example, immigration judges have previously been able to grant continuances which allows involved parties to move a hearing date for various reasons. This tool has been used by judges to manage their dockets and is generally intended to promote equitable outcomes. In addition to restricting the use of continuances, the Department of Justice (DOJ) has imposed quotas for immigration judges which further limits judicial discretion and erodes due process rights. In effect, these changes will lead to mass deportations and possibly the denial of relief for those otherwise eligible. The DOJ argues that these changes will clear the backlog in our court system.

Most people agree that our immigration system is antiquated and is in dire need of repair. And while some folks see the aforementioned changes as detrimental, others might argue that they are necessary to accomplish certain goals. Either way, the fact of the matter is our immigration system is changing quickly and will likely continue to do so as this hot button topic continues to be of major importance to all sides of the aisle.