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Mandatory Detention

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When a foreign national is taken into the custody of U.S. Immigration and Customs Enforcement (ICE), one of the initial steps taken by the deportation officer is to determine whether or not to grant a bond. A bond is a monetary payment made to the U.S. government (often by a friend, relative, or bond company) that allows the individual to be released from custody while pursuing relief in removal proceedings in front of an immigration judge. The bond money paid is intended to ensure that the foreign national will attend their hearings, as failure to do so will result in the government keeping the money. However, some foreign nationals are not eligible for release on bond, even if they are willing to pay, regardless of the circumstances. Specifically, those who have criminal convictions will not be able to request release on bond because of the mandatory detention statute INA § 236 (c). Mandatory Detention Statute INA § 236 (c), The Attorney General shall take into custody any alien who- (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence 1 to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. INA § 236 (c) Serious Harms of Mandatory Detention If a respondent is subject to mandatory detention neither ICE nor an immigration judge will entertain the possibility of granting them bond. These individuals will remain in jail throughout the removal proceedings, irrespective of their immigration status or personal circumstances. Each year, ICE detains over 100,000 immigrants, including people who have lived in the U.S. fordecades, parents of U.S. citizens and individuals who come to the country seeking safety. ICE subjects people in detention to dangerous conditions and substandard medical care. Noncitizens that are detained by ICE are typically held in jails along with criminals that are being detained by the State pending a criminal trial or serving short sentences. Detention facilities are often located in rural, hard to reach areas, inaccessible to families and legal counsel. In New York ICE hold noncitizens in several jails in New Jersey that are run by various counties and private prison companies (Bergen County, Hudson County and Kearny are the most commonly used facilities). Bergen County Jail was actually the subject of a season of the TV show “Locked Up” where viewers saw the widespread drug trafficking and inmate on inmate violence in the facility that was filled with career criminal gang members. Grounds for Mandatory Detention The grounds for mandatory detention always involve some criminal activity on the part of the noncitizen. The exact type depends on whether U.S. immigration authorities are charging them with being inadmissible to the United States or deportable from the United States. The document containing the immigration charges against you, called a Notice to Appear (NTA), tells you which one the government is charging you with. If you were legally admitted to the United States the last time you came, you’re subject to grounds of deportability. If you were never legally given permission to come to the U.S., or if you come back from a trip outside the U.S. after having committed a certain type of crime, you’re subject to the grounds of inadmissibility. Mandatory detention applies to respondents charged as inadmissible due to conviction for: An actual conviction is not required in all of the above cases. If you admitted committing certain crimes, or there’s enough evidence to suggest you committed certain crimes, you can be subject to mandatory detention. Respondents charged as deportable/removeable based on criminal convictions for: MANDATORY DETENTION FLOWCHART NOTES: Two ore more CIMT convictions from “single scheme”: A person is deportable for two or more CIMT convictions after admission, unless the convictions arose from a “single scheme of criminal misconduct.” INA § 237(a)(2)(A) (ii). The BIA defines single scheme to mean essentially from the same incident, where the perpetrator has no time to reconsider continuing with the criminal plan. Matter of Islam, 25 I&N Dec. 637, 638 (BIA 2011). The above flowchart does not ask about this. The petty offense exception applies to the inadmissibility, but not to deportability based on crimes involving moral turpitude (“CIMT”), and also to the bar to establishing good moral character based on CIMTs. Immigration and Nationality Act (“INA”) §§ 212(a)(2)(A)(i)(II), 101(f)(3). The petty offense exception requires a potential sentence that does not “exceed” one year, so one year is okay. The potential sentence must be one year or less, the sentence imposed must be six months or less, and the person must have committed just one CIMT. The above flowchart includes the petty offense exception. Petty offense exception and non-LPR cancellation: A conviction for a petty offense that fits within the exception may still bar a respondent from non-LPR cancellation of removal (42B) relief under INA § 240A(b)(1)(C), See Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010). This rule may change in the Ninth Circuit Ninth Circuit. See Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1088-93 (9th Cir. 2017), but at the moment the Board continues to apply the rule. See Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018).

Non-Minister Special Immigrant Religious Workers Sunset Date

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Today, September 30, 2023, was the final day or the “sunset date” for Non-Minister Special Immigrant Religious Worker Program. On Dec. 29, 2022, the president signed into law H.R. 2617, which extended the program through September 30, 2023, to allow these workers to immigrate or adjust to permanent resident by that date. Congress had amended the Immigration and Nationality Act (INA) in 1990 to create a special immigrant status for ministers and non-ministers in religious vocations and occupations. It provided a path to permanent residency (by filing an I-360 petition) for those who were a member of a religious denomination that has a bona fide non-profit religious organization in the United States for at least two years before filing; had been working continuously for the past two years immediately prior to filing the immigrant petition; and sought to enter the United States solely to work as a minister or in the religious vocation or occupation of your employer’s denomination. Special immigrants entering the U.S. solely to carry on the vocation of a minister, and their accompanying spouses and children, are not affected by the sunset date. It remains to be seen how this will affect various churches and religious organizations throughout the U.S. The injunction preventing DACA applications from being adjudicated or renewed has also caused problems for religious workers, particularly those connected to the Catholic Church. There were several recent changes affecting religious workers. A Policy Alert was issued in August 2022 addressing several policy changes.

Extension and Redesignation of Venezuela for Temporary Protected Status (TPS)

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The Department of Homeland Security (DHS) announced the extension of Venezuela’s 2021 Temporary Protected Status (TPS) designation for 18 months and a separate redesignation of Venezuela for TPS for 18 months. DHS has posted a Federal Register notice for public inspection. The Federal Register notice will be published on Oct. 3, 2023. If You Currently Have TPS or Have a Pending Application (Venezuela 2021) If You Do Not Currently Have TPS and Would Like to File an Initial Application (Venezuela 2023) More InformationFor the most current information related to Temporary Protected Status, visit our TPS webpage.

Employment Authorization Documents (EAD) Validity Extended to 5 Years

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USCIS has updated guidance in the Policy Manual to increase the maximum validity period to 5 years for initial and renewal Employment Authorization Documents (EADs) for certain noncitizens who are employment authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, and granted asylum, as well as recipients of withholding of removal. EAD’s are now going to have a maximum validity period to 5 years for initial and renewal EADs for certain noncitizens who must apply for employment authorization, including applicants for asylum or withholding of removal, adjustment of status under INA 245, and suspension of deportation or cancellation of removal. See the Policy Alert from USCIS. The updated guidance also explains the categories of noncitizens who are automatically authorized to work (also known as being employment authorized incident to status or circumstance) and provides more information on who can present a Form I-94, Arrival/Departure Record, to an employer as an acceptable document showing employment authorization under List C of Form I-9, Employment Eligibility Verification. The Form I-94 must be accompanied by identity documentation for purposes of employment authorization. Finally, this guidance clarifies that certain Afghan and Ukrainian parolees are employment authorized incident to parole. Increasing the maximum EAD validity period to 5 years is intended to significantly reduce the number of new Forms I-765, Application for Employment Authorization, we receive for renewal EADs over the next several years, contributing to efforts to reduce associated processing times and backlogs. Note: Whether the noncitizen maintains employment authorization remains dependent on their underlying status, circumstances, and EAD filing category. For example, if an individual received an EAD under the (c)(9) category based on a pending adjustment of status application for the maximum validity period of 5 years, and the adjustment application is then denied, their ancillary employment authorization may be terminated before the expiration date listed on their EAD. This update also includes other clarifications related to employment authorization, includingclarifying that the Form I-94 can be used as both evidence of status and employment authorization forcertain noncitizens who are employment authorized incident to status or circumstance. The updatealso explains that certain Afghan parolees and certain Ukrainian parolees are employment authorizedincident to parole. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance. PA-2023-27 New Policy Highlights CitationS Volume 3: Humanitarian Protection and Parole, Part F, Parolees, Chapter 1, Purpose and Background [3 USCIS-PM F.1]. Volume 10: Employment Authorization, Part A, Employment Authorization Policies and Procedures, Chapter 2, Eligibility Requirements [10 USCIS-PM A.2] and Chapter 4, Adjudications [10 USCIS-PM A.4].

Mayor Limits NYC Shelter Stays To 30 Days For Adult Migrants

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New York City Mayor Eric Adams is further tightening shelter rules by limiting adult migrants to just 30 days in city-run facilities — to help ease pressures on the city’s already struggling shelter system and perhaps dissuade more migrants from coming. Many are uneasy with the policy that could send thousands of people into the streets, many with nowhere to sleep and nowhere to work. Siding aside the morality and unintended consequences, it is unclear whether limiting migrants to thirty-day stays at the city’s homeless shelters will even achieve its intended goal of discouraging immigrants crossing the southern border from coming to New York. This comes after all the controversies that came to light this week about no-bid contracts to companies providing services to the new migrants arriving in the city and the Mayor renewing the contract of a controversial company whose CEO just resigned after being caught in several lies and stories came out about him funneling tax money to a hotel owned by his brother. The Mayor elected to renew their contract at what many are saying is an outrageously inflated price, despite the comptroller of the city coming out against it. New York Governor Kathy Hochul wants to end ‘right to shelter’ law that has existed since 1980 amid the migrant crisis. Until recently, Hochul interpreted the right to shelter law as requiring the city to provide shelter to any person who was physically present within the confines of the city the minute they seek it. Mayor Eric Adams also shared that opinion at one point, though he changed his opinion once he couldn’t get any federal funding for said housing, which was months before the Governor. Now he is pounding the drum about the need to stop providing shelter to migrants in New York. The Governor seems to have changed her tune now. Hochul first came out in August saying that the State could not force cities in upstate New York to house the 60,000 immigrants that had moved to the state. Adams and Hochul were publically debating the issue for several months through public statements and letters but it looks like now both the Governor and Mayor are in agreement that New York is unable to handle the influx of South and Central American immigrants that came to the area during 2023 and they certainly can’t handle anymore. The original premise behind the right to shelter was, for starters, for homeless men on the streets, it was later extended to families. But never was it envisioned being an unlimited universal right, or obligation on the city, to house literally the entire world. New York Governor Hochul talking about the Right to Shelter law in NYC Less than a year ago WWII, Korean & Vietnam Vets lived at Island Shores assisted living facility run by @HFH_NYC. Today “migrants” live there at taxpayer expense after the seniors CITIZENS were forced to leave by @HFH_NYC who then cut a shady deal with @NYCMayor. Disgraceful! pic.twitter.com/jkLjdc5uZ6 — Nicole Malliotakis (@NMalliotakis) September 23, 2023 This is concerning not only because of the number of people who are relying on the State and City of New York for shelter and food, but because most don’t see the stream of migrants to New York stopping anytime soon. Further, papers in NYC and people on X have been vocal about how the recent influx of migrants to the city have been worrying workers in an uncertain economic climate with a very competitive labor market. Long-standing immigrant New Yorkers who have are getting pushed out of their jobs by new arrivals who will work for less since they lack employment authorization and cannot legally accept employment in the United States. Stories of veterans being kicked out of shelters to make way for migrants have also sparked a lot of backlash, though it’s not clear whether this is true. The New York Post has been flooding Twitter and their paper with stories about crime by migrant shelters and “illegal immigrants earning thousands while living for free in shelters.” These stories seem to based entirely on hearsay and are at best anecdotal if not totally fabricated. What is troubling is how quickly and loudly the tone of the conversation has changed in the past two months. We saw during COVID how easy it is for fake news and fear can fan flames of xenophobia, hate, and sometimes even violence, when there were several incidents of Asian New Yorkers being victimized after stories about lab leaks in China. Unlicensed migrants, unregistered cars turn NYC shelter neighborhood into demolition derby https://t.co/PcktsfNl20 pic.twitter.com/OylaXnfdAh — New York Post (@nypost) September 23, 2023 Let’s hope things calm down and people don’t go down that path. This is New York–it’s difficult to imagine New Yorkers turning against immigrants–immigrants do make up the majority of the city.

Extension and Redesignation of Venezuela for Temporary Protected Status

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On September 22, 2023, Secretary of Homeland Security Alejandro N. Mayorkas announced the extension and redesignation of Venezuela for Temporary Protected Status (TPS) for 18 months, due to extraordinary and temporary conditions in Venezuela that prevent individuals from safely returning. This will allow as many as 472,000 migrants from Venezuela to live and work legally in the United States for at least the next 18 months. the United Nations estimates that more than 7.3 million people have fled the political and economic crisis in Venezuela in recent years. TPS grants other benefits to recipients as well and can make some people eligible to obtain permanent immigration benefits. There is more information about TPS available on our TPS Overview Page. The Biden Administration has been facing a great deal of recent criticism from many Democratic State and City leaders, along with the usual suspects in red states, who have been vocal in blaming Biden and his immigration and border policies for the large number of immigrants from South and Central America who have have recently crossed the Mexican border and arrived in New York, Chicago, Philadelphia, and other major cities. The areas that have been receiving the majority of the immigrants who recently crossed the border, such as New York, have had their resources stretched thin and are unable to support the number of people showing up in need of shelter, food, and other basic resources. Extending and redesignating Venezuela allows for those who recently arrived from Venezuela to obtain employment authorization and work, alleviating some of the burden that the recent influx of migration has put on cities and states like New York. This doesn’t solve all the problems, such as the number of new students being enrolled in public schools, most who don’t speak English and require additional resources if they are to catch up to American students of their age. This also only applies to Venezuelans, which make up only a fraction of the hundreds of thousands of migrants who crossed the southern border in 2023 thus far. That said, some believe that this step will still be helpful and is a step in the right direction. Others fear that providing legal protection to more Venezuelans already here would simply encourage others from the country to come. Recent polls have been showing widespread disapproval of Biden’s handling of border security, and Republicans rallying behind an array of hard-line immigration policies, the president has also appeared deeply uncomfortable focusing any attention on these issues. Reuters has reported that CBP has logged more than 1,000 migrant encounters daily in the El Paso area in the last several days and railroad operator Union Pacific said it was forced to shut service to Mexico. The August 2023 press release from CBP reported 232,972 encounters across the southern border, most of which resulted in the person being permitted to remain in the U.S. to seek asylum or other immigration benefits, though 93% of asylum-seeking respondents reported not having secured legal counsel. In addition, through the end of August 2023, over 211,000 Cubans, Haitians, Nicaraguans, and Venezuelans had arrived lawfully under the parole processes. The total number of migrants that will cross the southern border into the US is expected to surpass 500,000 by the end of the year. This Announcement Applicants for TPS under this redesignation must demonstrate that they are Venezuelan nationals (or individuals without nationality who last habitually resided in Venezuela) who have been continuously residing in the United States since July 31, 2023 and meet other eligibility criteria. U.S. Citizenship and Immigration Services (USCIS) will continue to process pending applications filed under the previous TPS designation for Venezuela. Individuals with a pending Form I-821, Application for Temporary Protected Status, or a related Form I-765, Application for Employment Authorization, as of the date of the forthcoming Federal Register notice, do not need to file either application again. If USCIS approves a pending Form I-821 or Form I-765 filed under the previous designation of TPS for Venezuela, USCIS will grant the individual TPS and issue an EAD valid through the same date. Under the redesignation of Venezuela, eligible individuals who do not have TPS may submit a Form I-821, Application for Temporary Protected Status, during the initial registration period which will be specified in a forthcoming Federal Register notice. Applicants also may apply for TPS-related EADs and for travel authorization. Applicants can request an EAD by submitting a completed Form I-765, Application for Employment Authorization, with their Form I-821, or separately later. There are currently approximately 242,700 TPS beneficiaries under Venezuela’s existing TPS designation. There are an additional approximately 472,000 nationals of Venezuela who may be eligible under the redesignation of Venezuela.