In April 2018, the Trump administration implemented a “zero tolerance policy” that essentially called for the prosecution of everyone attempting to enter the U.S. illegally. While parents and guardians were being prosecuted, children of all ages were being placed in separate detention centers, often thousands of miles away from their families, which drew widespread condemnation from conservatives and liberals alike. In an effort to address this, President Trump signed an executive order on June 20, 2018, calling for measures to detain family units without separating children, expedite the prosecution of these family units, and modify a prior court settlement (the “Flores settlement”), which limits the amount of time children can be held in federal detention to 20 days.
For more information, see the Executive Order.
In related news, the Department of Homeland Security (DHS) published a fact sheet on June 23, 2018, regarding the process implemented by both DHS and Health and Human Services to ensure family members know the location of their children throughout the immigration process and ensure families are reunited.
President Trump’s executive order and DHS’ process will likely remain in the headlines for weeks to come, especially in light of a June 26, 2018 California court order requiring the reunification of family members within 30 days, and a separate lawsuit brought by 16 states arguing the Trump administration’s policies violate equal protection and due process rights, as well as asylum laws.
For more information, see DHS fact sheet.
On June 26, 2018, in a narrow 5–4 decision, the U.S. Supreme Court upheld President Trump’s most-recent (third) version of the travel ban, which imposes travel restrictions on nationals of Iran, Libya, North Korea, Syria, Venezuela, and Yemen (the administration lifted restrictions on Chad in April). The suit was brought by the state of Hawaii and others, and the plaintiffs argued that the travel ban violated the Establishment Clause because it was motivated not by concerns for national security, but rather animus toward Islam, as evident by previous statements from the President calling for a “Muslim ban,” and similar comments. The Supreme Court ultimately sidestepped Hawaii’s Establishment Clause claim by finding the ban itself to be neutral and squarely within the President’s authority under the Immigration and Nationality Act. Justices Breyer, Kagan, Sotomayor, and Ginsburg dissented, with Justice Sotomayor describing the Court’s decision as “blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity … all in the name of a superficial claim of national security.”
On June 12, 2018, DHS published a revised Northern Border Strategy (NBS) addressing security interests along the border with Canada. The NBS states that the “Northern Border remains an area of limited threat in comparison to the U.S. Southern Border,” but identified the following threats: (1) the bi-directional flow of illicit drugs; (2) “transnational criminal organizations” active along the border; and (3) potential terror threats from “homegrown violent extremists in Canada who are not included in the U.S. Government’s consolidated terrorist watch list.” While the NBS establishes only general goals and objectives to enhance border security and facilitate lawful trade, its publication coincides with rising trade tensions between the U.S. and Canada, and ongoing calls by President Trump to renegotiate the North American Free Trade Agreement (NAFTA), which has both trade and immigration implications.
For more information, see the DHS announcement.
On May 4, 2018, DHS announced the termination of Temporary Protected Status (TPS) for Honduras. As background, the DHS may designate a country for TPS when conditions in that country prevent the safe return of its nationals and, similarly, may terminate TPS once those conditions have improved. TPS for Honduras will terminate on January 5, 2020, and USCIS has now announced a re-registration period between June 5 and August 6, 2018, for those wishing to extend their TPS to the final termination date.
For more information, see USCIS announcement on June 5, 2018.
As a result of the “current security situation” in Nicaragua, the U.S. Department of State has suspended almost all U.S. visa processing at the U.S. Embassy in Managua. The U.S. Embassy will prioritize U.S. citizen services, immigrant visa cases already pending at the Embassy, and emergency non-immigrant visa services. Nicaraguan nationals applying for a U.S. visa should be sure to check the status of the visa processing suspension before planning travel and/or speak with an immigration professional regarding their options.
This month, the Department of Justice (DOJ), Civil Rights Division, Immigrant and Employee Rights Section, announced the settlement of two separate immigration-related discrimination claims — against a Utah employer and a North Carolina employer. In general, the Immigration and Nationality Act prohibits an employer from discriminating against an individual on the basis of his/her national origin or citizenship status. In Utah, the employer was found to have an unlawful policy of hiring only U.S. citizens and refusing to consider noncitizen applicants. Conversely, in North Carolina, a settlement was reached regarding claims the company discriminated against U.S. workers by preferentially hiring non-immigrant H-2B visa holders.
Importantly, such discrimination claims can also include unfair documentation practices during the Form I-9 employment eligibility verification process, and represent an often-misunderstood area of law for employers.
For more information regarding the DOJ’s Immigrant and Employee Rights Section, and enforcement of immigration-related discrimination claims, see this DOJ page.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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