Department of State Updates “Close Familial Relationship” definition for Executive Order 13780 based on Hawaii District Court Ruling

On July 17, 2017 the Department of Homeland Security (DHS) and U.S. Department of State (DOS) announced updates regarding the implementation of President Trump’s Executive Order 13780, in response to a ruling by the U.S. District Court in Hawaii.

Last Thursday, July 13, 2017, the U.S. District Court in Hawaii issued a ruling regarding the definition of “close familial relationship,” as that phrase was used in the Supreme Court’s June 26, 2017 order on implementing Section 2(c) of E.O. 13780.  A close familial relationship for that purpose was previously defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships.  The District Court of Hawaii ruled that, in addition to those relationships, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, ‎nephews and nieces, and cousins also be included in the definition of “close familial relationship.”

As of June 29, 2017, DHS and DOS had begun implementing Trump’s Executive Order at United States embassies and consulates abroad in compliance with the Supreme Court’s June 26th decision that agreed to hear the travel ban case next fall and partially granted the government’s request to stay the lower court’s injunctions. Their website states that “implementation [of the Executive Order] is in full compliance with the Supreme Court’s decision.”


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Homeland Security Temporarily Delaying Effective Date of International Entrepreneur Final Rule

On Tuesday, July 11, 2017, the Department of Homeland Security published notice in the Federal Register delaying the implementation of the International Entrepreneur Rule. After last month’s prediction that the Trump administration would delay the rule from going into effect on July 17th, the DHS notice officially delays the effective date of the regulation until March 14, 2018, except for an amendment to an Aliens and Nationality Immigration Regulation relating to seizure and forfeiture of conveyance, which will still go into effect on July 17, 2017.

The DHS states that the reason for the temporary delay is to “provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order 13767, ‘Border Security and Immigration Enforcement Improvements.’”

On January 25, 2017, President Trump issued Executive Order 13767, Border Security and Immigration Enforcement Improvements, prescribing improvements to border security and immigration enforcement, requiring the DHS Secretary to “take appropriate action to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.”

DHS will issue a Notice of Proposed Rulemaking seeking public comments on the proposal to rescind the International Entrepreneur Final Rule. The delayed effective date will provide an opportunity for the notice and comment rulemaking to take place.

The comment period is open for 30 days, until August 10, 2017.

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Supreme Court Agrees to Hear Travel Ban Case next Fall, Reinstates parts of Travel Ban

On Monday, June 26, 2017, the Supreme Court granted certiorari to hear the government’s appeal of lower court’s injunctions on President Trump’s travel ban in their next session beginning October 2017, and granted the government’s request to reinstate parts of the ban until the Court hears the case.  As is explained below, this means that the ban can be enforced against some travelers.

Of interest, the Court’s per curium action was a unanimous decision, but Justices Thomas, Alito and new Justice Gorsuch partially dissented and would have stayed the injunction in its entirety, allowing the full travel ban.

The revised travel ban that was issued by President Trump in March blocks most new immigrants from six predominantly Muslim countries for 90 days and all refugees for 120 days. A presidential memorandum issued earlier this month changed the conditions of implementation to prevent it from expiring during court proceedings, stating the ban would go into effect 72 hours after the Supreme Court acted on the government’s appeal.

The Court’s ruling means the travel ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” the Court wrote. The ban will not be applied to visa applicants who have a close relationship to a family member in the U.S. or who have been accepted to higher education programs or extended a job offer in the U.S.  Any other individual from one of the six listed countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – without a connection to the U.S. will be subject to the ban, as the Court also determined, “when it comes to refugees who lack any such connection to the United States… the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”

The Department of Homeland Security said it will give further details on implementing portions of the ban after consulting with the Department of Justice and State Department.

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Foreign Startup Founder Rule Delayed

It is being reported that the Trump Administration intends to stop a new rule meant to help grant foreign-born entrepreneurs temporary permission, “parole,” to be in the U.S.

The International Entrepreneur Rule was created to allow foreign entrepreneurs to apply to work in the U.S., provided their startup raised $250,000 from established U.S. investors.  It was created after a public uproar after several stories were aired on TV and in the news about foreign entrepreneurs that were willing to invest in the US and hire Americans, were being denied visas.

Finalized in January on the last days of the Obama administration, the rule was supposed to take effect on July 17, 2017. Currently, it is at the Office of Management & Budget where it is to be further reviewed.  The Department of Homeland Security (DHS) plans to file an official notice, that will delay the implementation of the rule by eight months.  Then it is being reported in the press, that the Trump Administration, plans for the rule to disappear into an administrative black hole.  This position by the administration is contradictory to its promise to support and grow American jobs.

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Supreme Court Narrows Grounds for Revoking Citizenship

On Thursday, June 22, 2017, the Supreme Court unanimously tightened the standards for stripping immigrants of citizenship.  Divna Maslenjak, a Bosnian-Serb refugee who immigrated to the U.S. in 2000 and later obtained American citizenship, was stripped of her citizenship when information that she lied during her naturalization process was discovered.  She admitted to covering up her husband’s service in the Bosnian-Serb army unit that massacred 8,000 Bosnian Muslim civilians at Srebrenica in 1995.

Applicants for citizenship must possess “good moral character.” The government argued she lacked this, and if she had presented accurate information during her naturalization process, it would have affected the decision to grant Mrs. Maslenjak citizenship.

During Mrs. Maslenjak’s 2013 trial for procuring citizenship illegally, the jury was instructed that any lie, whether or not it was “material” and “did not influence the decision to approve [her] naturalization,” was sufficient for conviction.  The jury found her guilty of making false statements on her application and she was stripped of her citizenship

Mrs. Maslenjak’s lawyer challenged the jury instruction in the case, as the jury was told it could convict regardless of whether the false statement at issue influenced the government’s decision to approve the application for naturalization.

The Sixth Circuit Court of Appeals upheld her conviction, which conflicted with several other circuit rulings that held a misrepresentation must be relevant to the naturalization decision.

The Supreme Court rejected the government’s position in this case that any lie, no matter how minor, during the nationalization process can cost an individual his or her American citizenship.  Justice Kagan wrote for the court, stating that a jury must find that “a false statement sufficiently altered those processes as to have influenced the award of citizenship.”

Maslenjak v. U.S. has been remanded back to the lower courts, giving Mrs. Maslenjak  the opportunity to challenge the materiality of her false statements to determine the status of her citizenship going forward.

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U.S. Supreme Court Rules for Immigrant Who Received Bad Advice from Lawyer

On Friday, June 23, 2017, the U.S. Supreme Court ruled in favor of a green card holder who pleaded guilty to a crime based on faulty advice from his attorney. Jae Lee, 48, told the high court that he pleaded guilty to a crime based on his attorney’s advice that he would not be deported if he did. This was the wrong advice, and Lee subsequently faced “mandatory deportation” for pleading guilty to an aggravated felony. Since then, Lee has been in custody for seven years as his case proceeded. The Supreme Court ruled in Lee’s favor, holding that Lee was prejudiced as a result of his attorney’s inadequate advice.

Lee came to the United States in 1982 at the age of 13. He is a lawful permanent resident. In 2008, federal officials searched Lee’s house on a tip, where they found drugs, cash, and a loaded rifle. Lee admitted the drugs were his, and a grand jury indicted him on one count of possessing ecstasy with an intent to distribute. He told his attorney he was not a citizen, and repeatedly asked him whether he would face deportation if he pleaded guilty. Lee’s attorney assured him he would not be deported if he accepted a plea. Based on this assurance, Lee accepted the government’s plea and was sentenced to one year and one day in prison.

However, Lee had unknowingly pleaded guilty to an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B), and was subject to mandatory deportation as a result of the plea. This was contrary to the advice of his attorney. Upon learning that he faced deportation, Lee filed a motion to vacate his conviction and sentence. At an evidentiary hearing, both Lee and his plea-stage counsel testified that deportation was “the determinative issue” in his decision to accept the plea. A magistrate recommended Lee’s plea be set aside, but the district court for the Western District of Tennessee denied relief, and the Sixth Circuit affirmed.

In a 6-2 decision, the U.S. Supreme Court reversed the lower courts and ruled in Lee’s favor. The Court held that Lee had adequately demonstrated to a reasonable probability that he would have rejected the plea had he known he would be deported. “Everyone agrees that Lee received objectively unreasonable representation,” the majority opinion held. “The question presented is whether he can show he was prejudiced as a result.” Applying the two-part test from Strickland v. Washington, 466 U.S. 668 (1984), the high court found that Lee was prejudiced.

In Strickland, the Supreme Court established the standard for determining when a criminal defendant’s Sixth Amendment right to counsel is violated by that counsel’s inadequate performance. To establish ineffective assistance of counsel, a defendant must demonstrate: (1) the attorney’s performance fell below an objective standard of reasonableness; and (2) the attorney’s performance gives rise to a reasonable probability that if the attorney had performed adequately, the result would have been different. In Hill v. Lockhart, the high court held that the two part test in Strickland also applies to the plea stage. 474 U.S. 52, 57 (1985).

Here, the high court concluded that under Strickland and supporting cases, Lee was prejudiced by ineffective assistance of counsel. “But for his attorney’s incompetence,” said the majority opinion, “Lee would have known that accepting the plea agreement would certainly lead to deportation.”

Justice Thomas dissented. He noted that Lee admitted the drugs were in his possession, and a court or jury would have found Lee guilty regardless. “There is no reasonable probability of any other verdict,” Justice Thomas said “A defendant in petitioner’s shoes, therefore, would have suffered the same deportation consequences regardless of whether he accepted a plea or went to trial.”

Justice Thomas also criticized the majority’s application of Strickland. “[T]he Court today holds that a defendant who pleaded guilty need show only that he would have rejected his plea and gone to trial,” Justice Thomas said. “This standard does not appear to be particularly demanding, as even a defendant who has only the ‘smallest chance of success at trial’—relying on nothing more than a ‘Hail Mary’—may be able to satisfy it.”

Justice John Roberts wrote the majority opinion, in which Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Thomas filed a dissent, in which Justice Alito partially joined. Justice Gorsuch took no part in the consideration or decision of the case.

The case is Jae Lee v. U.S., No. 16-327, in the U.S. Supreme Court. The full text of the opinion is available here.
A special thanks goes to Armeen Mistry of Cozen O’Connor’s Minneapolis office for writing this article.

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Department of Homeland Security Rescinds DAPA Program

On Thursday, June 15, 2017, the Department of Homeland Security Secretary John Kelly rescinded an Obama administration memorandum creating DAPA, a deferred deportation program for undocumented parents of U.S. citizens and lawful permanent residents.

DAPA would have allowed these undocumented parents to apply for three-year work authorization permits and deportation deferment protection, allowing the persons to be lawfully present for as long as the grant of deferred action status lasted.

This program never went into effect, as a Texas judge issued an injunction in 2015 after twenty-six states challenged the policies. The United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision, and in 2016 the Supreme Court allowed the district court’s injunction to remain in place, blocking the Government from further pursuing the DAPA program or expanding the previously implemented DACA program. When Secretary Kelly rescinded the memo, he stated on the DHS website that “there is no credible path forward” in court.

DACA is another Obama-era immigration policy that initially went into effect in 2012, allowing certain illegal aliens that entered the country as minors to receive a renewable two-year period of deferred action from deportation and eligibility for a work permit.

The DHS further stated that “the rescission [of the 2014 memo on DAPA and the expansion of DACA] will not affect the terms of the original DACA program as outlined in the June 15, 2012 memorandum.”


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9th Circuit Upholds Block on Trump’s Revised Travel Ban

On June 12, 2017, a unanimous three judge panel on the Ninth Circuit upheld a nationwide preliminary injunction on President Trump’s revised travel ban, in addition to blocking directives within the executive order suspending the current refugee admissions program and limiting the number of refugees to 50,000 for this fiscal year.

The Ninth Circuit panel ruled that the travel ban does not account for why allowing the entry of nationals from the six targeted countries under “current protocols” would harm U.S. interests.

“In conclusion, the Order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the per curiam opinion said.

President Trump’s revised executive order, signed March 6, seeks to block U.S. entry to nationals from six Muslim-majority countries of Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days, and to suspend the nation’s refugee program, leaving out the provision specifically barring Syrian refugees from entering the U.S. A Hawaii federal judge blocked the ban on March 15, referencing multiple statements by Trump and others administration members indicating the travel ban had a religiously motivated purpose.

The ruling comes after the Fourth Circuit similarly upheld a nationwide injunction on President Trump’s revised travel ban on May 25, finding the ban likely runs afoul of the Constitution, and citing statements from the president and others in his administration indicating the executive order’s goal was to carry out a “Muslim ban.”

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Trump Administration’s DHS FY2018 Budget Request, Increase on Immigration Enforcement and Border Security Funding

The Trump administration’s Fiscal Year 2018 budget request for the Department of Homeland Security (DHS) was recently released and highlights proposed funding increases across the DHS, including U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE).

The proposed budget would increase the total DHS budget 7.1% from $66 billion $70.7 billion.

The FY 2018 President’s Budget proposes an increase of $2.9 billion for investments necessary for CBP to obtain operational control of the southern border, as directed by Executive Order 13767. The budget report noted that, “CBP is committed to identifying and allocating the appropriate resources to meet its requirements to secure the southern border, enforce U.S. immigration laws, and obtain operational control.” Its main initiative from this proposed budge is to provide a critical investment in frontline border security, budgeting for Wall Planning, Design and Construction ($1.6 billion); Tactical Infrastructure ($111 million); Southwest Border Surveillance Technology ($197 million); other Technology, Assets, and Equipment ($667 million); and Border Patrol Agent Staffing, Retention and Relocation, and Hiring Improvements ($147 million).

The FY 2018 President’s Budget supports immediate planning, design, and construction of the wall along the southern border. Of the $16.4 billion requested for FY 2018, a 21.6% increase from the $13.5 billion appropriated in FY 2017, it provides $1.6 billion for border wall construction, including planning, design, and construction to support 32 miles of new border wall system in the Rio Grande Valley Sector ($784 million), 28 miles of new levee wall in the Rio Grande Valley Sector ($498.4 million), 14 miles of new border wall system that will replace existing secondary fence in the San Diego Sector ($250.6 million), and planning for future border wall construction ($38 million); $15.5 million for southern border wall information technology; and nearly $5 million for mission and operations support hiring directly associated with southern border wall construction.

The CBP budget request accounts for 23.2% of the total DHS budget request.

The FY 2018 request for the ICE includes $1.4 billion for Detention Beds, ADT, and Transportation.  Of the $1.4 billion, $1.2 billion will be allocated to detention beds supporting an adult average daily population of 48,879 and a family average daily population of 2,500 for a total of 51,379 beds. The report stated that, “of the requested beds, 48,884 will be funded from discretionary appropriations and 2,495 will be funded by mandatory fees, allowing ICE to manage the illegal alien population apprehended along the southern border as well as an increased detained population resulting from the increased interior enforcement pursuant to the President’s Executive Orders on Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States.”

The FY 2018 Budget also includes an increase of $164.3 million for transportation costs associated with the increased detained population and an increase of $57.4 million to sustain an additional 14,000 participants in the ATD program, a flight mitigation tool used for some of the aliens on ERO’s non-detained docket.  Other categories receiving increases in funding are Law Enforcement Officer Staffing ($186 million); Critical Foundation Infrastructure ($23 million); ICE TECS Modernization ($20.3 million, case management system); and consolidated ICE Financial Solutions (CFIS) ($7.8 million).

The $7.9 billion requested for ICE in FY 2018 is a 29.4% increase from the $6.2 billion appropriated in FY 2017.

The ICE budget request accounts for 11.2% of the total DHS budget request.

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Appeals Court Upholds Block on Trump’s Revised Travel Ban

On May 25, 2017, the 4th Circuit Court of Appeals upheld a ruling that blocked President Trump’s revised travel ban against six Muslim-majority countries. The first travel ban was issued in January, but that ban was also halted by an earlier court. The Executive Order (EO) that contained the revised travel ban was issued on March 6, 2017 and targeted travelers from Iran, Libya, Syria, Somalia, Sudan and Yemen. Had the EO gone into effect, Nationals from these six counties would have been blocked from entering the U.S. for 90 days and all refugees for 120 days. The revised EO did not block Nationals from Iraq, which had been listed in the earlier EO, and it removed a complete ban on Syrian refugees.

The 4th Circuit Court ruled 10-3 to uphold the lower court’s decision that barred the Trump administration from implementing its revised EO. In the ruling, Chief Judge Roger Gregory made it clear that any changes made to the revised travel ban that removed any mention of religion did not fix the fact that the order unfairly and illegally targets Muslims. Further, Chief Judge Gregory wrote that comments made during Trump’s presidential campaign do matter and cannot be ignored when looking at the revised travel ban. Gregory wrote, the EO “cannot be divorced from the cohesive narrative linking it to the animus that inspired it,” he wrote. “We find that the reasonable observer would likely conclude that [the EO’s] primary purpose is to exclude persons from the United States on the basis of their religious beliefs.” It is likely that the case will now be appealed to the Supreme Court.

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About ABCs of Immigration Law
The global economy has become increasingly transactional and transcontinental. Since 9/11, there have been many amendments to immigration laws in the United States that have largely affected both individuals and businesses. Cozen O'Connor's immigration law blog, ABC's of Immigration Law, focuses on the interests and the challenges faced by those individuals and business impacted by immigration laws.
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