Immigration Updates: DACA, TPS, Asylum & Deportation Hearings

DACA

The Department of Homeland Security has updated their website to announce that they’re accepting first-time requests for consideration under DACA. To qualify, you have to have entered the country under the age of 16 before June 15th of 2007. You are under 39 years of age today. And you have to have either graduated high school or be studying to take your GED. But if you didn’t graduate, don’t let that stop you.

Our hope is that Biden will expand DACA to apply to more individuals who may be a little bit older or who entered later, but right now, those are the requirements. We also know that they’re now doing DACA renewals for two years. Those who got one-year renewals will receive new cards that last for two years.

Advance Parole

DACA recipients can travel internationally with their Advance Parole for one of three reasons. You can travel for: 1) humanitarian reasons because perhaps you have a sick or dying relative, 2) for education or 3) for employment reasons. All you need is this travel permit.

Advance Parole allows you to travel, and then to also come back with a legal entry, which opens up more opportunities and makes you eligible for other benefits that later lead to a green card and something more permanent. It’s easier because you can do an adjustment of status inside the country rather than having to do the consular process.

Temporary Protected Status (TPS)

This is a status for people who come from countries and who are in the United States when some sort of infrastructure collapse happens in their country. Maybe there’s an epidemic, like Liberians had TPS when there was the Ebola outbreak in their country, or Haitians had it after the earthquake. Hondurans and Salvadorans have had it since the late ’90s and early 2000s after Hurricane Mitch. Similar to DACA, it was this renewable status that was in place for quite a long period of time before Trump took office. When he took office he immediately tried to cancel the program.

There’s litigation blocking it. Most recently the Ninth Circuit allowed the cancellation, but there has been an extension now under the Federal Register. It’s a regulation that’s published in the Federal Register. It says that everyone from El Salvador, Haiti, Nicaragua, Sudan, Honduras and Nepal is going to have their work permission if it’s been renewed as required over the years. Most of you guys have not had to renew because of the litigation. They just automatically extend the work permit. Individuals from those countries who renewed at the last required moment are automatically now extended through October 4th of 2021.

https://www.federalregister.gov/documents/2020/12/09/2020-27154/continuation-of-documentation-for-beneficiaries-of-temporary-protected-status-designations-for-el

You don’t need to reapply to renew your work permit. Be cautious of notarios who are telling you to reapply. They are automatically extending it. All you need for purposes of employment or to extend a driver’s license is a copy of this Federal Register notice and your expired work permit. Employers should not be requiring an unexpired work permit. They should accept this Federal Register notice with an expired work permit. That’s another thing that President Biden has announced in his 100 day plan. Because TPS is an executive program, not a congressional one, therefore it doesn’t require an act of Congress. We hope to see an actual extension of the program under Biden.

If they were going to offer a permanent status to the Dreamer or to the TPS recipients, then that would require an act of Congress. However it only takes a presidential action to extend the work permission under these programs. So I think we will see that continue under President Biden.

Asylum

We have asylum changes in the regulations that are completely gutting the asylum system.

There was hope in the immigration legal community that these published regulations were not going to be implemented. When regulations get published, there’s a notice first and then a comment period, then they become final. In the interim, while we were in the notice and comment period on these asylum regulations, the election happened. And in true Trump fashion, they pushed through the finalization of these asylum regulations and they took effect on January 10th.

Of course, Biden would not implement regulations like this, but because they follow this prescribed system where there has to be a proposal, then a notice and comment period, and then a finalization, it’s going to take several months for the Biden administration to reverse or backpedal on those regulations. 

These regulations are 420 pages long. I discussed all the information you need to know in a Facebook Live with Lindsay Gray, who runs a nonprofit called Vecina, which helps provide pro-bono representation to asylum seekers. 

Follow the link below to watch:
https://www.youtube.com/watch?v=Z5sQ7BJ7SVY

To summarize, the new rules completely reduce eligibility for asylum. 

Expedited Removal Hearings

People who are apprehended at the border have usually gone through a credible fear interview process. Then if they passed their interview, they get released from the detention center and then they prepare for their full-fledged asylum hearing. 

Now, they’re trying to raise the bar on that asylum interview — the credible fear interview. They’re taking it from a significant probability of persecution to a reasonable probability for persecution. What does that mean? That means you have to prove that it’s more than 50% likely that you’ll be harmed in your country.

This does not apply to people who file their asylum applications before these regulations go into effect.

This is only going to affect cases filed after January 10th. 

With this higher bar, you have to prove it’s more likely that you’re going to get persecuted. It’s easier to get what’s called a “frivolous finding,” which means you’re making it up.

Let’s say you’re afraid of something and you know that circumstances have changed in your country and you ignore that fact and apply anyway, that would be a willful blindness. They’re slashing eligibility based on political opinion eligibility, political opinion persecution and particular social group persecution. So LGBTQ+ claims, domestic violence claims, political persecution, and basically the vast majority of claims out of Central America are going to be affected through these regulations.

Now it’s going to be harder to show that you cannot internally relocate in your country reasonably. They will have a higher expectation that you just move to another city. Even though previously, all you had to do was show that that was not reasonable. 

There’s now discretionary denial for adjudicators and judges to deny asylum just because they feel like it. We’ll see what happens if and when Biden can roll these regulations back. 

Court Hearings 

There’s over 1.2 million cases pending in the immigration court system. The reason for that is because Trump revoked the enforcement priorities the moment he took office, and he said, “Everyone’s who’s undocumented who’s apprehended under my presidency gets put into deportation proceedings.” Whereas before that, under Obama (who wasn’t actually that friendly to immigrants) they had priorities, where people with significant criminal histories or recent entries, for example, would be placed in removal, but people who had been in the U.S. for many years, had family ties, community ties and good moral character would not be placed in deportation. Since the Trump administration ended that, it really ballooned the number of cases in immigration court.

The court is extremely backlogged. To handle the extreme backlog of cases, the court is now ramming through cases. Instead of exercising prosecutorial discretion and releasing people from the deportation system who don’t merit a review for deportation or who aren’t an enforcement priority for the agency.

They’re trying to remove what they call the master calendar hearings, which are the preliminary hearings. They’re going to ask people to submit their pleadings in writing, via a motion. That means that the judges are going to decide everything in writing. That eliminates our chance to make arguments at preliminary hearings, and we’re going to have to rush through cases. Now, if you’re in a big hurry to get your case through court, perhaps this is a good news thing for you. But if you’re not, and you want to give it a little bit more time or you want time to make arguments in court, this is rough. Call or text us anytime to discuss any concerns regarding your case.

If there’s anything you want to hear about in immigration, bring your questions. Or if you want us to cover a big topic, send us a message and we’d be happy to do that.