A Deep Divide: How Executive Order 13769 Changed Immigration Law

January 20, 2019, marks the second anniversary of my private law practice. My office opened its doors on a historic, and deeply divisive, day — the day of President Trump’s inauguration.

Like most Americans, it was difficult for me to comprehend how Trump could be our new president. I was certain that his term in office would be challenging for so many in the United States and around the world. I was also certain that my clients, friends, family, and community would become a target of Trump’s new administration. These certainties compelled me to open my new practice and to serve those in communities hardest hit by Trump’s pledged agenda.

My intuition was correct. After just seven days in office, Trump signed an executive order with the first version of his Muslim ban. This executive order attempted to prohibit immigrants from seven Muslim majority countries from entering the United States. This ban directly impacted many of my clients.

The first iteration of the ban was, for the most part, held unenforceable due to hard work of attorneys and activists across the country who immediately challenged the executive order. However, the practice of immigration law has changed dramatically during Trump’s presidency.

While the actual laws and regulations remain the same, the enforcement and interpretation of the laws have changed. This lack of consistency resulted in neither immigration attorneys nor immigration officers knowing how the law will be applied.  It is difficult for immigration attorneys to provide clients with clear answers to many of their pressing concerns.

This uncertainty is compounded by the introduction of new requirements in the immigration process. For example, a new form known as Form DS-5535 (Supplemental Questions for Visa Applicants), was introduced as a method to comply with the President’s demand for what he called “extreme vetting” of most immigrants. The form asks for the following:

  1. Travel history during the last fifteen years, including source of funding for travel;
  2. Address history and Employment history during the last fifteen years;
  3. All passport numbers and country of issuance held by the applicant (even expired or lost passports!);
  4. Names and dates of birth for all siblings;
  5. Social media platforms and identifiers, also known as handles, used during the last fifteen years; and
  6. Phone numbers and email addresses used during the last fifteen years.

Traditionally, the Department of State and U.S. Citizenship and Immigration Services asked for most of this information but for the prior five years. This new form expands the timeframe to fifteen years.

Once this form is requested by the Consular Officer (at the embassy handling the case), the applicant must complete it and return it to the embassy. Most embassies are refusing to accept delivery of this document in person from applicants at their interviews, and insist on email delivery.

Further complicating the process, even if an applicant can find and provide all the information requested, applications are often subjected to “Administrative Processing.” This additional processing can drag on for months, even years, without the applicant receiving a decision on their case.

Our immigration system is, in large part, based on promoting unification of families. However, the current policies significantly inhibit the unification process. Applying for a spouse, fiancé, child, or parent is an unnecessarily exhaustive process. Traditionally, it took five to eight months to bring your fiancé from abroad. Nowadays it could exceed a year and sometimes even much longer.

Another area of immediate concern is the immigration court system. The immigration court system has been flawed for a long time, but under President Trump’s administration, the problems are exacerbated.

Immigration courts are controlled by the Department of Justice. For the past two years, Attorney General Jeff Sessions wielded his incredible power over immigration courts in unprecedented ways. He plucked cases from the courts to decide himself, he emphasized quantity over quality in performance reviews, and as of October 1, he even imposed case closing quotas on immigration judges. Even after the resignation of AG Sessions, the DOJ will likely continue in the same direction.

The new policies implemented in immigration courts are in no way resolving the backlog of cases in these courts or providing individuals with their right to due process. Judges are no longer able to terminate cases if a respondent has a readily available relief they could seek, as they traditionally did. Releasing people on bond is extremely difficult and even impossible in some courts. Asylum seekers must meet a much higher standard of proof than the law requires. Hostility to immigrants is evident on all levels of the process.

As an attorney, I see the harm these policies are causing American families. Everyone deserves a fair day in court. That’s why I am calling on MEMBERS OF CONGRESS to support the creation of an independent immigration court system. Immigration cases are often life-or-death matters. The current application of the immigration laws is a grave and unacceptable injustice.

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Posted in Immigration.

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