© Farhad Sethna, Attorney, 2018
Where do I even begin? The last two weeks seem to be like an immigration whirlwind.
First, we had the disclosure that the Department of Homeland Security (DHS) is going to separate parents from children at the border. While this has been going on for quite some time already, the recent disclosure indicates that the DHS is going to try to apply this to all arriving aliens. This is especially distressful, because in any event, children should not be stripped from their parents. Especially for infants and young minor children, this is a terrible situation. The DHS is not shying away from its reasoning. It is not a space issue. It is basically a deterrent. If, Attorney General Jeff Sessions says, the aliens are willing to cross illegally into the United States and break the law, then they should be prepared to face the consequences. One such consequence, it seems, is to have your children ripped away from you.
On the employment based immigration front, the USCIS is apparently preparing some kind of plan that would make it very difficult, if not impossible, to seek and be granted various non-immigrant work categories, including the H-1B, O-1 and L-1B. No word yet on the L-1A , which is for multi-national inter-company managers or executives, but be assured, that category is also increasingly hard to qualify for. All of these new hard-line employment targeted policies are products of the Trump April 2018 “Buy American, Hire American” executive order.
With regard to family based immigration, the backlogs continue. While there was talk earlier about restricting some of the categories of family based immigration or eliminating them altogether (for example, brothers and sisters of US citizens), that would require legislation, and Congress has not acted on immigration legislation as yet. That will probably be an item after the November 2018 elections, but let’s see.
AG Sessions is taking a look at gender based refugee and asylum status. It appears as though the Department of Justice wants to overturn well-established case law and precedent granting battered domestic partners membership in a “particular social group”, thereby qualifying them for refugee status in the USA. The line of domestic abuse refugee cases stems from Matter of R-A-, a case that originally began in 1999, and which the board finally ruled on in 2008. AG Sessions is trying to reverse the decision in Matter of R-A-. This would bar many deserving pending asylum cases from being granted, as well as bar potential future applications from claiming such relief. This issue will doubtless continue to evolve, along with many other immigration issues.
Finally – if all the above wasn’t enough, Sessions has determined that immigration judges cannot “admin close” (administratively close) pending cases. The immigration court will have to reopen the cases that have been administratively closed, therefore adding to their backlog of cases. Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). Sessions overruled two cases holding that Immigration Judges could admin close cases: Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017). How this will play out on an already overloaded Immigration Judge docket is easy to see: coupled with Session’s directive to judges to speed up processing, adding to the backlog of cases will only increase the number of cases that are decided and appealed. Stay tuned for another article on the directive to re-docket the administratively closed cases!
Copyright, Farhad Sethna, Attorney, 2018
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.