Seventh Circuit Says No Asylum for Bisexual Man; Posner Dissents

The following blog post is written by Armeen Mistry, an Associate in Minneapolis

Last week, the Seventh Circuit declined to review the asylum application of a bisexual individual who applied for fear of persecution. Ray Fuller, 51, told an immigration judge and the Board of Immigration Appeals that he could not return to Jamaica for fear of harassment or torment over his bisexuality. Both the judge and the appellate board denied his application. The Seventh Circuit upheld the denial, but U.S. Circuit Judge Richard Posner issued a critical dissent opinion.

Fuller came to the United States in 1999 on a fiancé visa and received conditional permanent resident status under 8 U.S.C. §1186a(a). When he failed to attend a required interview, the U.S. Citizenship and Immigration Services terminated his status. Fuller then pled guilty to attempted criminal assault and was imprisoned. When he was released from state custody, the U.S. Department of Homeland Security detained Fuller.

Fuller then applied for asylum and asserted that he is bisexual. He testified to the prosecution he had experiences as a bisexual man in Jamaica. The immigration judge found Fuller’s credibility “seriously lacking.” The Board of Immigration Appeals upheld the immigration judge’s decision.

The Seventh Circuit panel agreed there was sufficient concern about Fuller’s inability to provide concrete evidence. “We conclude that substantial evidence supports the IJ’s conclusion that Fuller did not credibly establish that he is bisexual,” the Seventh Circuit said.

Judge Posner dissented. He noted that the merit of Fuller’s claim turns on (1) whether Fuller is bisexual and (2) whether bisexuals are persecuted in Jamaica. With respect to the first point, Posner asked “how exactly does one prove that he (or she) is bisexual?” To the second point, Posner said “given the vicious Jamaican discrimination” against LGBT persons, it was impossible for Fuller to ask all his male sex partners to testify on his behalf.

Posner also criticized the immigration judge’s conclusion that Fuller is not bisexual because he has had sexual relations with women, including a marriage. “Apparently the immigration judge does not know the meaning of bisexual,” Posner said. “The fact that he refused even to believe there is hostility to bisexuals in Jamaica suggests a closed mind and gravely undermines his critical finding that Fuller is not bisexual.”

U.S. Chief Circuit Judge Diane Wood and U.S. Circuit Judges Ilana Rovner and Richard Posner were on the panel. Judge Wood wrote the majority opinion.

The case is Ray Fuller v. Loretta Lynch, No. 15-3487, in the U.S. Court of Appeals for the Seventh Circuit. The full text of the opinion is available here.

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New Entry Requirement When Traveling to Canada

Canada has a new entry requirement that applies to visa-exempt foreign nationals flying to the country on a temporary basis. The program is called the Electronic Travel Authorization (eTA) and was implemented on March 15, 2016. This new requirement is a result of the 2011 “Beyond the Border” action plan, announced in 2011 by President Obama and then Prime Minister Harper. The stated goal of the eTA program is to improve screening of all visa-exempt foreign nationals flying to Canada. This initiative mirrors the U.S.’s Electronic System for Travel Authorization (ESTA) that was put in place in 2008, and requires all eligible international travelers who wish to travel to the U.S. under the Visa Waiver Program to apply for the authorization. However, the ESTA is not needed if you have a Canadian passport. Likewise, if you are a U.S. citizen, you do not need to apply for an eTA. In addition, you will not need to register for an eTA if you are traveling to Canada by road or sea.

The eTA is electronically linked to a traveler’s passport and is valid for 5 years or until the passport expires, whichever comes first. The online application is $7 and all applicants are required to have a credit card and passport to apply. Currently, there is a leniency period, and as long as travelers have appropriate travel documents and a valid passport they are okay, but starting September 30, 2016 foreign travelers will need to register online for the eTA. This program works as a pre-screen for travelers and the idea is to act as a first line of defense in securing the border. If there’s a red flag with a traveler’s eTA application, they will be asked to provide additional information and may be asked for an interview. This is a big change from previous requirements and will apply to foreign nationals who wouldn’t normally require a visa to travel to Canada – such as British, Australian and French citizens, as well as U.S. green card holders or work permit holders.

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DHS Expands the Provisional Unlawful Presence Waiver

Today, The U.S. Department of Homeland Security (DHS) finalized a rule that expands eligibility for provisional waivers of inadmissibility based on the accrual of unlawful presence. The provisional unlawful presence waiver (“provisional waiver”) process allows certain individuals who are present in the United States to request from U.S. Citizenship and Immigration Services (USCIS) a provisional waiver on the grounds of inadmissibility before departing the United States for consular processing of their immigrant visas – rather than applying for a waiver abroad after their immigrant visa interviews using the Form I-601. The provisional waiver process is designed to encourage unlawfully present individuals to leave the United States, attend their immigrant visa interviews, and return to the United States legally to reunite with their U.S. citizen or lawful permanent resident (LPR) family members.

This final rule provides that eligibility for the provisional waiver will no longer be limited to the subset of statutorily qualified individuals who seek to immigrate as immediate relatives of U.S. citizens and who can show that denial of admission will result in extreme hardship to a U.S. citizen spouse or parent. Rather, this final rule makes eligibility for the provisional waiver available to all individuals who are statutorily eligible for a waiver of the unlawful presence grounds of inadmissibility. Under the new rule, such an individual must go abroad to obtain an immigrant visa, establish that denial of admission will result in extreme hardship to a U.S. citizen or LPR spouse or parent, establish that his or her case warrants a favorable exercise of discretion, and meet all other regulatory requirements. Eligibility for the provisional waiver will also extend to the spouses and children who accompany or follow to join principal immigrants. For those eligible, it provides the opportunity to apply for a waiver before departing the United States to obtain an immigrant visa. The DHS says the new rule promotes family unity, especially now that the immigrant can remain with their family pending a decision on their waiver.

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Report Shows Better Oversight Needed for DHS Fee-Collecting Programs

Last week, the U.S. Government Accountability Office (GAO) released a report after examining the way the U.S. Department of Security (DHS) manages the billions of dollars it collects from its various programs. In FY 2014, DHS received $15 billion in fees and other collections across 38 programs – including USCIS, CBP and ICE – the agencies within DHS that administer and enforce immigration laws. The GAO concluded that better oversight, monitoring and reporting of DHS programs and components are needed in order to educate the public and Congress on how the Agency’s collection programs are operating. The GAO recommended that DHS conduct regular reviews to identify, track, and report operational deficiencies. They also recommend that DHS document the processes for assessing, as well as managing, the difference between program costs and collections. The GAO found that DHS has generally focused on “ensuring continuity of program operations rather than efficiently using the funds.” The release of this report comes after the DHS proposed increasing the fees USCIS chargers for certain immigration and naturalization filings. USCIS says the new fees are needed to maintain adequate service and recover costs. This fee hike will affect many immigrants, including those commonly applying for a Form I-140, where the fee will go up more than 20%. With the release of the GAO report, it is clear the DHS needs regular and comprehensive oversight of the various programs and components – including the proposed new fees from USCIS – to ensure an effective and efficient use of fees.

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The Justice Dept. Petitions the Supreme Court to Rehear United States v. Texas

Last month, the Supreme Court issued a one-sentence opinion after a 4-4 split on United States v. Texas.  This decision was devastating for millions of undocumented immigrants living in the United States because it left in place a lower court’s ruling that blocked the safeguards granted by the Obama Administration via the Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). On Monday, the U.S. Department of Justice (DOJ) petitioned the Supreme Court to rehear the case. The DOJ specifically asked that the case be reconsidered “before a full nine-Member Court.” The agency argues that allowing the lower court’s injunction to stand is a troublesome precedent in a matter of “great national importance.” The Supreme Court rarely grants petitions for  rehearing, which the solicitor general, Ian Gershengorn acknowledged in the petition. However, there have been  past rehearings granted by the court where a 4-4 division occurred because of a vacancy on the bench, as is the case now. If a rehearing is granted, the justices could hear the case re-argued as early as October, when the new term begins. However that depends on whether President Obama’s nomination of Merrick Garland is confirmed by then, which does not look likely.

 

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New Regulations Increase Fines for Immigration-Related Violations

Recently, the U.S. Department of Justice (DOJ) issued an interim final rule that will increase fines on U.S. employers for violations of federal immigration law. The rule has the potential to substantially increase penalties for employing unauthorized workers, violating Form I-9 paperwork rules, and engaging in immigration-related unfair employment practices. These violations are unlawful under the Immigration Reform and Control Act of 1986, and the new rule is an inflation adjustment required by budget legislation that was signed into law last November. The rule will go into effect on August 1, 2016 and will apply to violations that took place after November 2, 2015. Similarly, the U.S. Department of Homeland Security and the U.S. Department of Labor issued an interim final rule to adjust the amounts of civil penalties in connection with the employment of temporary non-immigrant workers under the H-2B program.

The new fines set out by the DOJ’s new rule are quite substantial and increases penalties anywhere from 35% to 96% depending on the nature and severity of the violation. Whereas before, employing a single unauthorized worker resulted in a fine ranging from $375 – $3,200 for a first offense, the new rule adjusts the range to $539 – $4,313. The largest increase as a result of this new rule, raises the penalty for multiple violations to a range of $6,469 – $21,563 per violation, up from the prior range of $4,300 – $16,000. Moreover, Form I-9 paperwork violations will nearly double under the new rule. The prior fine range of $110 – $1,100 per violation will increase to $216 – $2,156 per violation. Finally, for unfair immigration-related employment practices, the maximum penalty increases from $3,200 – $3,563 per person discriminated against.

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What Effect Will Brexit Have on Immigrants?

Voters in the United Kingdom (UK) have voted to leave the European Union (EU), which has been referred to as “Brexit.” While the referendum to leave the EU has passed, this will not happen right away. The transition will take some time and in the coming months, British and European leaders will begin negotiating the terms of the UK’s departure. In the run up to the referendum, the discussion to leave the EU focused on many issues, but the driving force that seemed to push the referendum in the first place, was immigration. In the past few years, refugees have been flooding into Europe, due to political and economic instability in many parts of the Middle East and Northern Africa. The EU has seen the effects of this refugee crisis, with over 1 million people applying for asylum  in 2015. Many in Britain and the EU have questioned the policies surrounding how to handle this surge of people and migration as a whole.

Curbing the number of foreigners coming to the UK was a major promise of the Leave campaign. However, the result of this referendum doesn’t just affect asylum seekers – there are currently about 1.2 million Brits living in other EU countries and 3 million non-British EU nationals living in Britain. What happens to these people will depend on the terms of the negotiations between the UK and the EU.  But with sentiment against immigrants being so hostile, it could mean that in the coming years, some people may lose their right to continue living and working in the UK and be deported. While Europeans and the rest of the world are trying to figure out what this means for the EU as a whole, one thing is certain – the issue of migration and the free movement of people into and out of the UK will be a top priority when Brexit negotiations take place.

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Supreme Court Issues a Disappointing Split Decision in United States v. Texas

On Thursday, the Supreme Court split 4-4 in the case United States v. Texas, effectively leaving the Fifth Circuit’s decision in place, which blocks protections for millions of immigrants. This ruling voids the safeguards granted by the Obama administration for immigrants via the implementation of two national immigration enforcement policies: Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). President Obama issued a series of executive actions on November 20, 2014, in an effort to address what he referred to as “broken immigration system” and congressional inaction on immigration. The policies would have allowed undocumented immigrants whose children were born in the United States to apply for work permits and temporary residency; as well as eliminated the age cap in the existing DACA program. This Supreme Court ruling will uphold the lower court’s preliminary injunction, but will not change the original 2012 DACA in which individuals can still apply for and renew relief options granted under this program.

As the national debate over immigration heats up during the 2016 presidential election season, this is not only a huge blow to Obama’s ambitious immigration policy, but also the 4 million people who are currently eligible for deportation. This decision was not unexpected – the oral arguments in April suggested that the court would break in a 4-4 split along party lines – and there has been no forward movement to confirm nominated Merrick Garland. And while this decision does not mean the Supreme Court has ruled on whether the President overreached executive authority with his 2014 immigration policies, it is certainly a setback for immigrants and their families.

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Citizenship and Immigration Services Ombudsman Recommends U Visa Parole Policy

The Office of the Citizenship and Immigration Services Ombudsman has issued its Recommendation to USCIS regarding a U visa parole policy.  The policy would facilitate parole for individuals who are eligible for U nonimmigrant visa status and who reside outside of the U.S. The development of such a parole policy would comply with USCIS’ regulatory mandate, address the humanitarian concerns of principals and beneficiaries residing abroad, and would streamline adjudications of parole requests. The Ombudsman recommends that:

  1. USCIS should afford parole to eligible U visa petitioners on the waiting list who reside abroad by creating a policy to facilitate entry into the United States while waiting for a visa to become available.
  2. The parole policy should allow for concurrent filings of the U visa petitions and requests for parole.
  3. Cases should be adjudicated at the Vermont Service Center, where U visa petitions are currently processed, to ensure consistent and effective adjudication.

USCIS will provide a response to the Ombudsman’s Recommendation within 3 months. To read more about the Ombudsman’s recommendations, please visit the following link: https://www.dhs.gov/publication/ombudsman-recommendation-parole-eligible-u-visa-principal-and-derivative-petitioners

Rachel is an Intern with the firm and is not a practicing attorney.

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Posted in In The News, Nonimmigrant Visas

SEVP Issues STEM Designated Degree Program List

The Student and Exchange Visitor Program (SEVP) has created a STEM Designated Degree Program list, which includes the fields of study that the Department of Homeland Security considers to be science, technology, engineering or mathematics fields for the purpose of the 24-month STEM OPT extension. Eligible F-1 visa students with STEM degrees who finish their program of study and participate in an initial period of regular post-completion OPT have the option to apply for a STEM OPT extension. Previously, this extension was 17 months but was replaced this year with a 24-month extension. If you would like to request an addition to the STEM Designated Degree Program List, you may email the SEVP at sevp@ice.dhs.gov with the subject line “Request for STEM Designated Degree Program List.”

To see the list in full, you may download it here: STEM Designated Degree Program list

Rachel is an intern with the firm and is not a practicing attorney.

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Posted in In The News, Nonimmigrant Visas
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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