Trump Administration Relies on Questionable Visa Overstay Reports to Crack Down on Legal Immigration

By Peek & Toland on July 18, 2019

The Trump administration is justifying its new restrictions on legal immigration, such as concerning international students, temporary workers, and visitors, on a controversial Department of Homeland Security (DHS) FY 2018 Entry/Exit Overstay Report. Relying on the DHS report is problematic for various reasons.

First, the DHS report as to the number of people who overstayed their visas is not accurate. Instead, it contains both individuals who overstayed their visas and those arrivals whose departures DHS could not verify., which significantly increases the number of people in the report. A departure might go unverified for various reasons, such as if the individual remained in the U.S. according to a different valid visa. Some individuals also might pass away, adjust to lawful permanent resident status, or be deported by DHS. Looking at broader statistics on overstays, furthermore, there has been a downward, not an upward trend in overstays, so the DHS report is misleading in this respect.

Trump Administration Relies on Questionable Visa Overstay Reports to Crack Down on Legal Immigration

Another issue with the DHS report is that many of the “overstays” included in their statistics are not documented overstays. Instead, there is evidence that as many as half the “overstays” cited in this report are no longer present in the U.S.

Finally, the Trump administration has relied on “negative” trends in the DHS report, yet wholly ignored “positive” trends in the report. For example, the administration uses the alleged 6.19% overstay for F-1 visa international students in FY 2016 as justification for making it easier to deport these students, even if they inadvertently lose their legal status. However, the report shows that the overstay rate for F-1 visa holders declined 42% between FY 2016 and FY 2018, dropping from 6.19% to 3.59%. Given this significant drop in the number of overstays, even if the numbers are correct, it is difficult for the administration to justify increased efforts to further reduce the overstay percentage of this group of visa holders. When facing any immigration issue, you are likely to need the legal advice that only experienced Texas immigration attorneys can offer you. Peek & Toland regularly provides strong legal representation for individuals, families, and businesses who are dealing with immigration problems. It is our priority to represent your interests and protect your rights.  Call us at (512) 474-4445 and schedule an appointment to speak with us today.

Changes to Public Charge Rule Drastically Increase Number of Denied U.S. Immigrant Visas

By Peek & Toland on July 17, 2019

Reuters is reporting that denials of U.S. visas have increased drastically following a change in the “public charge” rule by the Trump Administration. This rule states that if visa applicants could become a public charge, or reliant on the U.S. government for financial assistance through taxpayer support. Changes to this policy that took place in January 2018 have given State Department officials more considerable discretion to deny visas on public charge grounds.

Not so coincidentally, this policy change occurred on the heels of a Department of Homeland Security (DHS) proposing a rule to restrict immigration because the individuals might become public charges. This controversial proposal drew hundreds of public comments during the required notice and comment period. As a result, the efforts of the DHS to enact this policy increased drastically. Some have suspected that the State Department policy change was nothing more than an attempt to avoid the high-profile rulemaking process that DHS must go through and still achieve the same result. The State Department has enacted the same proposal as DHS, thus effectively bypassing any oversight by the public.

Changes to Public Charge Rule Drastically Increase Number of Denied U.S. Immigrant Visas

The State Department policy change has resulted in litigation in a federal court in Maryland. The federal government is arguing that its policy changes are not subject to procedural rules that require public notice and comment or court review.

Furthermore, even when visa applicants are providing what previously would have been adequate proof that they will be financially independent, such as affidavits for support from family members in the U.S. and proof of employment in the U.S., however, these individuals nonetheless are receiving denials of their visa applications. Denials of visas on public charge grounds have increased significantly since January 2018 when the State Department policy went into effect. Denials based on public charge grounds rose to almost 13,500 for fiscal year 2018, which is the highest total since 2004 and quadruple the number of such rejections for fiscal year 2017. The immigration attorneys of Peek & Toland have the experience that you need when you are seeking any relief or benefit under federal immigration laws. We will determine the facts and evidence that are relevant to your case, evaluate your options, and help you decide the best course of action for your situation. We intend to place you in the best position possible to achieve your goals. Contact our Texas immigration attorneys at our office today and learn how we can assist you through this complicated situation.

Attorney General Barr Overrides BIA Precedent to Expand Mandatory Detention for Those Seeking Asylum

By Peek & Toland on July 16, 2019

Attorney General William Barr has been following in the footsteps of former Attorney General Jeff Sessions, who certified a various Board of Immigration Appeals (BIA) cases to himself for review. In this way, Sessions was able to shape immigration policy and overruling existing precedent. Recently, Barr decided a case entitled Matter of M-S-, which effectively overruled an existing precedent found in the case of Matter of X-K-. In M-S-, Barr issued a ruling that effects non-citizens transferred from expedited removal proceedings to regular removal proceedings after establishing the preliminary finding necessary to seek asylum or a credible fear of persecution or torture. In the decision, Barr determined on behalf of the BIA that these individuals are not entitled to release on bond, which subjects them to indefinite mandatory detention.

Attorney General Barr Overrides BIA Precedent to Expand
Mandatory Detention for Those Seeking Asylum

Before this ruling, individuals seeking asylum who met the preliminary credible fear finding often were released with their families and await their asylum hearing dates. Now, these individuals may remain indefinitely detained and separated from their families. Since asylum proceedings often can take years, mandatory detention without the opportunity to be released on bond could stretch for years, as well.

Additionally, the Trump Administration now is requiring that some individuals seeking asylum must remain in Mexico due to a lack of room in detention centers. This BIA decision, which requires more individuals to stay in detention indefinitely, only compounds the overcrowding problem. Less than two months following the issuance of the Matter of M-S- decision, the Office of the Inspector General advised that due to severe overcrowding in at least one Texas detention facility, it was recommending that the Department of Homeland Security (DHS) take immediate action to address the overcrowding problem. The immigration lawyers of Peek & Toland have handled the cases of countless individuals and businesses who are facing all types of immigration concerns. We are here to protect your rights and advocate on your behalf to get the best outcome possible in your case. Call our office today at (512) 474-4445 to set up an appointment with our immigration attorneys.

Ninth Circuit Rules in U.S. vs. California

By Peek & Toland on July 15, 2019

The U.S. Court of Appeals for the Ninth Circuit recently upheld most California sanctuary laws that are designed to protect California residents from federal immigration enforcement efforts. These laws contain various provisions, including the following:

  • A requirement that private employers notify their employees when the federal agents request an inspection of their employment records
  • A restriction on state and local law enforcement cooperation with federal immigration officials, except concerning certain violent crimes and felonies
  • Mandatory inspection by the attorney general of immigration detention centers operating in the state to ensure compliance with due process and specific standards of care for immigrants

The Trump Administration had filed suit in federal court to prevent the state from enacting these sanctuary laws. The federal government asked the federal district court to issue a preliminary injunction barring the laws from going into effect while the lawsuit was pending. The federal district court denied the government’s request for a preliminary injunction and the federal government appealed to the Ninth Circuit.

Ninth Circuit Rules in U.S. v. California

The Ninth Circuit ruled that the district court did not abuse its discretion in denying the preliminary injunction, in which it concluded that the laws did not burden the federal government or conflict with federal government activities. Any obstruction created by the legislation, the court ruled, was within the state’s rights to enact such legislation.

The only aspect of the law that the Ninth Circuit panel found fault with was the provision that requires the state attorney general to periodically inspect immigrant detention centers to ensure minimum standards of habitability and compliance with due process. The Court ruled that this provision placed an unfair and impermissible burden on the federal government and requested that the lower court reconsider the extent of the burden on the federal government in conducting the additional inspections required under this provision of the state law. Immigration law is in a state of constant flux, meaning that definitions, requirements, and procedures are continually changing. In this situation, you may be able to help. As experienced Texas immigration attorneys, we have the knowledge needed to help you navigate through the often-complex immigration system. Call us today at (512) 474-4445 and schedule an appointment with one of our immigration lawyers and learn how we can assist you.

Immigrant Taxes May Save Social Security System

By Peek & Toland on July 14, 2019

According to a recent article, experts are forecasting that the Social Security system will be utterly insolvent by 2034. The survival of this essential system is entirely dependent on the tax payments of younger workers to support the older workers who are retiring and drawing benefits. As the American population ages and people live longer, the costs of paying out Social Security benefits soon may outweigh the taxes paid by workers. Under the current system, the only thing that can fix this problem is for more workers to pay in more tax dollars.

Immigrants are a valuable part of sustaining the Social Security system. Immigrants, including those who are undocumented, pay billions of dollars into Social Security each year. As these individuals are not eligible to receive Social Security benefits at retirement, they are contributing to Americans’ ability to draw Social Security benefits without deriving any benefit from doing so.

Immigrant Taxes May Save Social Security System

In 2016, which is the most recent year for which data is available, undocumented immigrants added $3.3 billion to the Social Security system. These individuals also added $3.3 billion to Medicare, a benefit that they too will forego, and $9.4 million in state and local taxes. On the whole, undocumented immigrant workers tend to be younger and more likely to be in the workforce than native-born Americans.

Undocumented immigrants who are working in the U.S. receive an Individual Tax Identification Number (ITIN), which allows individuals who have no social security numbers to file tax returns. Even those who do not file tax returns have federal, state, and local taxes deducted from their paychecks. The net result is a significant influx of money to Social Security that is not paid out in benefits to many of the immigrants who are contributing to it. The immigration lawyers of Peek & Toland have handled the immigration cases of countless individuals and businesses facing immigration-related issues. We are here to protect your rights and advocate on your behalf to get the outcome that you are seeking. Call our office today at (512) 474-4445 to set up an appointment with our immigration attorneys.

Trump Administration Expands Expedited Removal Process, but Ninth Circuit Grants Right to Federal Court Review

By Peek & Toland on July 13, 2019

In 2017, the President greatly expanded the use of expedited removal by the Department of Homeland Security (DHS) through an executive order. Often criticized as providing a complete lack of due process for immigrants in the deportation process, expedited removal allows immigration officers to quickly deport some immigrants who do not have proper documentation or who allegedly have committed fraud or some misrepresentation. More specifically, individuals who enter the country without authorization and whom immigration officials apprehend within two weeks of their arrival and within 100 miles of the Canadian or Mexican borders are subject to expedited removal.

Individuals whom immigration officers place into expedited removal are not entitled to have a regular deportation hearing before an immigration judge like other individuals who have been charged with deportation. As expedited removal appears so rapidly, these individuals rarely have a chance to produce evidence, consult with an attorney, or even reach out to a family member or friend for help. Although expedited removal is not supposed to apply to those seeking asylum, the inability to challenge one’s placement into the expedited removal process means that many asylum-seekers who lack proper documentation and do not enter through a port of entry likely end up in the expedited removal process anyway.

Trump Administration Expands Expedited Removal Process, but Ninth Circuit Grants Right to Federal Court Review

Even more troubling is the fact that many immigration officers fail to meet their duty to provide even the minimal due process protections to which those seeking asylum are entitled. Immigration officers fail to ask individuals whether they are seeking asylum, fail to provide interpreter services, and fail to record, document, or even conduct the credible fear interviews that are supposed to be a part of the asylum process. This only results in more people seeking asylum falling victim to the expedited removal process.

Most recently, however, the Ninth Circuit Court of Appeals ruled that individuals seeking asylum who are forced into expedited removal due to these faulty procedures have the right to a review of their cases by a federal court. In ruling that the lack of federal court review for expedited removal cases violated the Suspension Clause, asylum-seekers in this position now may be able to have their day in court. No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases every day and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your legal issue arises, we will have the best opportunity to resolve your immigration case successfully.

Marijuana Possession and Work in the Cannabis Industry May Lead to Denial of Naturalization

By Peek & Toland on July 12, 2019

One of the requirements for naturalization as a U.S. citizen is to establish good moral character (GMC). U.S. Citizenship and Immigration Services (USCIS) recently published a policy memorandum stated that any violation of federal controlled substance laws could be a conditional bar to establishing GMC, including offenses related to marijuana. Although USCIS acknowledges that simple possession of marijuana may not be illegal under some states’ laws, it is still illegal under federal law. Despite the decriminalization of marijuana to specific degrees in many states, all conduct that involves the possession, manufacture, cultivation, or distribution of marijuana remains illegal under federal law and thus can impact the establishment of GMC.

Marijuana Possession and Work in the Cannabis Industry
May Lead to Denial of Naturalization

Under federal law, marijuana remains a “Schedule I” controlled substance. Schedule I drugs are among those controlled substances that have the highest risk of misuse, are most dangerous to the public and have no accepted medical uses. Many states have removed marijuana from this category of controlled substances under state law, but Congress has not followed suit. This has resulted in many state laws that are in direct conflict with federal law on the issue of marijuana. Texas law does classify marijuana differently than other controlled substances but has not taken steps to decriminalize marijuana in any amount, except for a recent expansion of medical marijuana usage for various illnesses and medical conditions.

As a result of this conflict between state and federal law in some states, marijuana possession that would not result in a criminal conviction in some states remains illegal under federal law. A criminal drug conviction not only can put individuals at risk of deportation, depending on their immigration status but also can endanger their ability to obtain naturalization. Therefore, an activity not illegal under state law, but illegal under federal law, can threaten one’s immigration status and lead to a denial of naturalization. When you have any criminal conviction on your record, even for minor marijuana possession, you may not only be at risk of denial of naturalization, but also of deportation. In these circumstances, you need an experienced immigration attorney to represent your interests from the very beginning of your case. Taking steps to get you the relief that you are seeking at the outset of your case is typically easier than waiting until it’s too late. Contact Peek & Toland at (512) 474-4445 today and set up an appointment to speak with our legal team.

Trump Administration Continues to Seek Further Restrictions on Asylum-Seekers

By Peek & Toland on July 11, 2019

In a memorandum to the Department of Homeland Security (DHS) and the Justice Department (DOJ), the Trump Administration directed DHS to issue regulations within 90 days that are designed to deny work permits for any immigrants entering the country unlawfully and to begin charging a fee to apply for asylum. Historically, the U.S. never has charged a fee to apply for asylum. The White House justified these directives based on a recent increase in the number of Central Americans arriving at the southern border to apply for asylum.

According to the Administrative Procedure Act (APA) that governs the making of rules and regulations for federal government agencies, DHS and DOJ must confine their rulemaking to existing statutory authority in the Immigration and Naturalization Act (INA), which is the federal immigration law. As a result, these agencies must solicit input from stakeholders through a “Notice and Comment” period before any rules can become final. Due to these procedures, any person or entity who wants to challenge the regulations must wait until they have become final under the APA to seek review of them in court.  

Trump Administration Continues to Seek Further Restrictions on Asylum-Seekers

Prohibiting work permits and charging fees to apply for asylum is likely to harm those immigrants who genuinely are seeking asylum. Currently, asylum seekers can seek issuance of a work permit 180 days after applying for asylum. The 180-day waiting period is intended to curb frivolous asylum claims that might increase if work permits were available immediately, while at the same time recognizing that asylum seekers need to support themselves and their families while waiting for their asylum hearings, a process that can take as long as three years. 

However, the proposed regulations to deny work permits to anyone who entered the country other than by appearing at a port of entry can place an arbitrary bar to some individuals seeking asylum. In some cases, exigent circumstances may leave immigrants no choice but to enter the country at somewhere other than a port of entry. Although the regulations might deter some frivolous claims, it also could very well deter some meritorious claims. An experienced Texas immigration attorney can help you with all aspects of immigration law. We are here to evaluate the facts surrounding your case, present your options, and help you make the decisions that will be most beneficial to you, based on your circumstances. Contact Peek & Toland at (512) 474-4445 today and see how we can help.

Marijuana Decriminalization in Texas

By Peek & Toland on July 10, 2019

Ten bills related to marijuana decriminalization were before the Texas legislature during the most recent legislative session, one of which was successful and many others that were not. The only piece of legislation that survived this session was a slight expansion of the eligibility criteria for medical marijuana usage, in the form of cannabis oil. CBD oil from dispensaries under the medical use program has a maximum THC level of 0.5, which is not significantly different from CBD oil sold in retail stores, which is to contain a maximum THC level of 0.3.

Previously, the only condition eligible for legal medical marijuana usage was intractable epilepsy. The new legislation recognizes that other medical conditions may benefit from medical marijuana, including autism, epilepsy and seizure disorders, multiple sclerosis (MS), spasticity, terminal cancer, amyotrophic lateral sclerosis (ALS), and some incurable neurological diseases, including Alzheimer’s Disease, Parkinson’s Disease, and Huntington’s Disease.

Marijuana Decriminalization in Texas

Various issues remain problematic with the new legislation. For instance, Texas law requires a prescription for medical marijuana and CBD oil from a dispensary. However, federal law prohibits doctors from prescribing Schedule I controlled substances, which includes marijuana. While Texas law provides a workaround, doctors are still somewhat at risk if they prescribe medical marijuana.

A lack of regulation still exists as to CBD oil. Although many oils are labeled as being free of THC, there is the chance that they still contain trace amounts of THC, as there are no standard regulations that apply to the production and distribution of CBD oil. Furthermore, law enforcement officers in different parts of the state still consider CBD oil differently. Some counties consider CBD oil illegal unless produced by state-sanctioned dispensaries for medical purposes. This stance has led to raids and seizures of CBD oil in retail stores in some Texas counties.

The Peek & Toland criminal defense lawyers are here to represent your interests and advise you of the best course of action in your situation. Set up an appointment to talk to us today and discover how we can assist you with your criminal proceedings.

Criminal Convictions and Collateral Consequences

By Peek & Toland on July 9, 2019

Criminal convictions have many direct consequences, including jail or prison sentences, periods of community supervision, fines, and mandatory community service hours. However, criminal convictions also can have collateral consequences that can adversely impact your life for many years, if not indefinitely.

You could jeopardize your job and your career. In some cases, a criminal conviction can prevent you from ever working again in specific industries. A conviction also could hinder your ability to gain admission to colleges, graduate schools, or professional schools. You may be unable to obtain some professional licenses if you have a particular criminal conviction in your background.

Criminal convictions can cause you to lose some rights. For instance, under federal law, a felony conviction or any conviction for domestic violence, whether a felony or misdemeanor, prevents you from possessing firearms. Certain felony drug convictions prevent you from eligibility for federal financial aid. Some convictions, such as a DWI or related charge, can cause you to lose your driver’s license either temporarily or indefinitely, based on your situation. If you need a valid license for your job, then you may be at risk of losing your job.

Other potential collateral consequences for a criminal conviction can include the following:

  • Immigration consequences, including removal
  • Sex offender registration
  • Mandatory submission of DNA samples to law enforcement agency databases
  • Ineligibility for certain government public benefits

Individuals with certain criminal convictions may experience heightened difficulties in renting apartments and obtaining credit. Public housing assistance may be unavailable for individuals with certain felony convictions.

Criminal Convictions and Collateral Consequences

You also should be aware that collateral consequences may change over time or between states. For example, if you are convicted of a sex offense, you may not be required to register as a sex offender in the state in which you were convicted. However, if you move to another state, registration for that offense may be mandatory. The criminal defense lawyers of Peek & Toland have handled the legal representation of countless individuals facing various criminal charges. We are here to protect your rights and advocate on your behalf to get the best outcome possible in your case. Call our office today at (512) 474-4445 to set up an appointment with our criminal defense attorneys today.

How Can We Help You?

Our team is standing by to help. Call us at (512) 474-4445 or complete this form to send a message about your legal situation.