All posts by Cheng, Cho, & Yee, Immigration Lawyers

Raising the Bar for Immigrants Who Were Convicted of a Crime

In early March, a Supreme Court ruling made it more difficult for immigrants who were convicted of a crime to avert deportation. Although not all convictions lead to deportation for longtime immigrants, the ruling showed that deportation is possible if immigrants fail to prove that their convictions aren’t for serious, disqualifying crimes.

What the Supreme Court Ruling Established

The specific case involved in the March ruling involved a Mexican citizen, Clemente Avelino Pereida, who had legally entered the U.S. and lived as a legal resident for over 25 years. Pereida had initially been charged with using a fraudulent Social Security card to secure employment in Nebraska. Ultimately, he was convicted based on a Nebraska law pertaining to criminal impersonation.

Pereida was unable to prove that he wasn’t convicted of a serious crime, according to Justice Neil Gorsuch, who composed and submitted the final opinion based on a 5-3 conservative-majority Supreme Court ruling against Pereida.

As part of the ruling, Gorsuch wrote that, according to immigration law, “certain nonpermanent aliens seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime.”

Normally, immigrants who aren’t convicted of a serious offense and facing deportation can seek a form of relief called cancellation of removal to avoid deportation, provided they’ve lived in the U.S. for 10 years or longer and meet other requirements. However, the ruling against Pereida determined that he wouldn’t be able to apply for this form of relief due to his failure to prove that the conviction wasn’t for a serious crime.

Arguing in Pereida’s Favor

Justice Stephen Breyer, representing the dissenting opinion, argued that the court should have ruled in favor of Pereida because the crime for which he was convicted fell into a less serious category of the state’s law. Breyer wrote that the law under which Pereida was convicted included both crimes of moral turpitude and those of a less serious nature. Specifically, he wrote that “the relevant documents in this case do not show that the previous conviction at issue necessarily was for a crime involving moral turpitude.”

Proving That a Criminal Conviction Isn’t for a Serious Crime

Pereida’s case demonstrates the difficulty that many immigrants may experience if they are unable to prove that their criminal convictions were for less serious crimes. While they may be able to seek cancellation of removal if their criminal convictions aren’t for serious crimes, the definition of a serious crime may differ based on individual state laws.

For example, the Nebraska law that led to Pereida’s conviction included a broad category of crimes considered serious, ranging from crimes of “moral turpitude” to offenses that aren’t considered as serious under other laws. In U.S. law, moral turpitude is a term that refers to “an act or behavior that gravely violates the sentiment or accepted standard of the community.” The dissenting opinion of the Supreme Court ruling attempted to argue that Pereida’s use of Social Security to fraudulently obtain a job didn’t fall into that category, instead constituting a less serious offense.

Based on these differing definitions, immigrants’ criminal convictions may be considered serious, even if the crime is ordinarily considered less serious. As a result, the ability to seek legal counsel from the attorney general to combat deportation will be unavailable to many immigrants with perceivably serious convictions. As long as they are unable to prove that their convictions were for less serious crimes, they’re at a greater risk of deportation, even if these immigrants and their families have been in the country legally for many years.

The Difficulties That Many Longtime Immigrants Experience

Criminal convictions can hinder an immigrant’s attempt to apply for residency. For many years, courts have relied on a “categorical approach” to decide on the appropriate repercussions for criminal convictions, in which case the courts attempt to determine what an individual is convicted of as opposed to the crime they actually committed.

Courts then may decide to deport individuals if the conviction matches grounds for removal, even if the actual crime committed isn’t as serious as the category. The Pereida case introduced a new approach in which a particular conviction can prevent noncitizens from seeking cancellation of removal and other potential forms of relief, including asylum, as long as it’s unclear whether that conviction matches removal grounds.

In addition to unclear state court criminal records or older records that are often destroyed, noncitizens risking deportation face other obstacles that can complicate their situation, including language barriers, the absence of legal representation, and the need to contest their case while in detention.

Ultimately, the Supreme Court’s ruling in the case of Pereida will likely lead to the deportation of many other non-citizens, including green card holders and undocumented immigrants, regardless of how long they’ve lived in the U.S.

What Is Visa Retrogression?

In some cases, the cut-off date for a green card application may move backward in a process known as visa retrogression. Typically, United States Citizenship and Immigration Services (USCIS) will let green card applicants know where they stand in line through their Visa Bulletin, enabling people to apply before the cut-off date. However, certain circumstances could lead USCIS to make the cut-off date even earlier.

When Visa Retrogression Occurs

Occasionally, there are months when a larger number of people apply for immigrant visas within a specific category than the number of visas available. This can lead USCIS to move the cut-off date backward. This visa retrogression won’t automatically carry over into the next month, but it can be unexpected for many people in line.

Visa retrogression most frequently takes place in September, the end of the government’s fiscal year. Normally, the cut-off date for the next month resets to the date set prior to the retrogression.

The Visa Bulletin typically indicates when a retrogression is taking place, helping visa applicants to prepare. This isn’t always the case, however, as retrogression can occur unexpectedly and move applicants toward the back of the line. This unexpected retrogression makes it important for green card applicants to ensure that their applications are sufficiently prepared, enabling them to apply for a month when a retrogression isn’t taking place.

What to Do in the Event of a Retrogression

If a visa retrogression takes place and individuals have already filed their green card application, it is recommended that applicants avoid taking further action outside of making sure their contact details are current.

Applicants don’t need to worry about their applications being rejected if visa retrogression is active. USCIS states that in some cases multiple visa categories are fully subscribed within only a few days after publishing the most recent Visa Bulletin. Regardless, officers are instructed to continue accepting and processing applications as long as the corresponding visa was available at the time of filing. On the other hand, officers can still deny applications if applicants are ineligible for reasons not pertaining to the retrogression.

To avoid issues regarding visa retrogression, it’s in an immigrant’s best interests to prepare his or her application as soon as possible to secure the ideal date and keep all information up-to-date if a retrogression pushes him or her back. Taking these steps can help facilitate a smooth process and increase the chances of approval.

Is a New Path to Citizenship on the Horizon?

Recently, President Joe Biden sent the U.S. Citizenship Act to Congress, which could provide millions of immigrants without legal status a new pathway to citizenship. The move comes as the president has worked to reverse a multitude of Trump-era immigration policies.

What to Expect With the U.S. Citizenship Act

In addition to other policies implemented under the Trump administration, President Biden has introduced the U.S. Citizenship Act that could provide 11 million individuals in the U.S. with a new eight-year path to citizenship. It would also work to immediately provide green cards to “Dreamers” under the Deferred Action for Childhood Arrivals (DACA) program, individuals with temporary protection status, and farmworkers. 

The question is whether the bill will pass. Many politicians and immigrant advocates are in favor of the bill, claiming that it will give immigrants a chance to become legal citizens and valuable contributors to local economies. On the other hand, critics of the bill claim that the bill eliminates opportunities for Americans and promotes uncontrolled immigration. There’s a lot at stake, as many immigrants hope to gain citizenship in the near future amid fears of deportation.

Conflict Between Both Sides of the Immigration Argument

The disagreements between Democrats and Republicans on immigration issues have a long history, and it’s continuing under President Biden. While the Democrats currently control the presidency, the Senate, and the House, they have also previously held the majority under former president Barack Obama in 2009. Despite this and the introduction of the DACA program in an effort to help young immigrants, immigration reform didn’t reach the level that many had hoped to see.

Today, the nation remains largely divided regarding immigration, as a recent Pew Research study has shown. Specifically, the study found that Republicans primarily wanted to increase both deportation rates and border security, a stark contrast to Democratic policies. Considering Trump’s policies have long had a strong foothold among the Republican party, Biden’s immigration policies may not get through Congress even with a Democratic majority.

Ultimately, it remains to be seen whether the U.S. Citizenship Act will pass, but it could give millions of immigrants the ability to become legal members of their communities. Other recently proposed policies may go into effect under Biden, reversing some of the previous administration’s policies as immigrants and their families yearn for a brighter future in the U.S.

Will President Biden Revoke the Public Charge Rule?

A national emblem of USA, immigration

Among other reversals of Trump-era policies, President Joe Biden may revoke the public charge rule. A review of the rule was officially ordered in February. The rule has been widely criticized for leading many immigrants to disenroll from Medicaid and other public programs.

A national emblem of USA, immigration service center and pen

Ordering a Review of the Public Charge Rule

In early February, President Biden signed an executive order directing federal agencies to conduct a review of Trump-era immigration policies impacting access to healthcare for immigrants, known as the public charge rule. Specifically, the public charge rule enables the federal government to deny immigrants entry into the U.S. or citizenship if they’re currently enrolled in public programs such as Medicaid.

The executive order also rescinded a memorandum necessitating repayment to the government from family sponsors if relatives are receiving public benefits.

What Exactly Is the Public Charge Rule?

The public charge rule was first introduced as part of the Immigration Act of 1882. It’s a test used for determining ineligibility for residency or immigration status, but the rule has rarely been used. Consulates abroad could use the rule to determine whether an individual is likely to become dependent on public benefits, while the U.S. Citizenship and Immigration Services (USCIS) can use it to deny green cards to individuals who are deemed financially unreliable.

USCIS can use the rule to deny green cards to any immigrants who have previously used Temporary Assistance for Needy Families, Supplement Security Income, Section 8 Housing or Rental Assistance, Supplemental Nutrition Assistance Program, or Medicaid. This has scared many immigrants into disenrolling from these programs.

Critics of the public charge rule have claimed that it functions as a wealth test that prevents immigrants from entering the U.S. based on unreasonable standards. Since the early 20th century, the rule has been rarely used. Former President Donald Trump implied that he would reimplement the rule in 2017, which led many immigrants to avoid public programs that they believed might hurt their chances at citizenship.

The Effects of the Rule

Many healthcare experts have been opposed to the public charge rule and the Trump administration’s reintroduction of it. One organization pushing to rescind the public charge rule has been the American Hospital Association (AHA), which labeled the rule as one of multiple “ongoing critical challenges” in its priority policies outline for President Biden.

The use of the rule under the Trump administration was expected to cause up to 4.7 million noncitizens to disenroll from CHIP and Medicaid, according to one Kaiser Family Foundation report. As a result, uninsured rates increased among immigrant families to reduce their access to adequate healthcare and subsequently worsened health outcomes. In addition to hurting immigrants, a drop in enrollment in Medicaid and other public programs could adversely affect healthcare safety net providers, preventing them from treating all members of their communities and decreasing revenue.

Although the public charge rule isn’t invoked in times of national crises, such as the COVID-19 pandemic, many immigrants are unfamiliar with the specifics of the rule. Subsequently, many immigrants who qualified for public benefits through gainful employment declined to access them.

Previous Efforts to Block the Rule

The Trump administration rolled out the public charge rule in August 2019, at which point multiple lower courts blocked it. Then, on January 27, 2020, the U.S. Supreme Court enabled the implementation of Public Charge: New Ethical Considerations for Adjustment Cases on February 24, as the pandemic began its spread throughout the country.

In November 2020, Cook County v. Wolf resulted in the 7th Circuit Court of Appeals blocking the rule, while now-Supreme Court justice Amy Coney Barrett issued the dissenting opinion that immigrants need to prove that they are financially independent. A month later, the City and County of San Francisco v. USCIS culminated in the 9th Circuit Court of Appeals blocking the rule across California and 14 other states.

Now in 2021 under the new administration, the public charge rule is more likely to be reversed, which the AHA and other critics of the rule are applauding. Of the review, AGA General Counsel Melinda Hatton stated, “We appreciate the administration’s review of this misguided policy and look forward to its reversal.”

Encouraging Immigrants to Enroll in Public Programs

With the reversal of the public charge rule, the hope among AHA and others is that immigrants won’t disenroll from public programs out of fear of potential repercussions, including removal or deportation. While the public charge rule wasn’t likely to lead to many immigrants’ denied entry into or citizenship in the U.S., the specifics of the rule were unclear to many. As more people enroll in public programs, they will access the benefits they need, and revenue for local medical practices is likely to increase as they’re able to treat more residents in the area with compensated care.

Immigration Restrictions Extended

Before the end of Donald Trump’s term as President, his administration extended restrictions on legal immigration along with visas enabling immigrants to temporarily work in the U.S. The administration made the move hours before the restrictions were set to end, extending them through March 31, a little over two months into President Biden’s term.

Final Trump-Era Restrictions on Immigration

The extension of the restrictions was among the last of the Trump administration’s acts, amid a focus on restricting legal immigration that took place throughout Trump’s term. The move is one of many based on the administration’s core premise that immigrants are taking jobs from Americans.

The Trump administration’s restrictions spanned from an early travel ban on several predominantly Muslim nations to an immigration proclamation that targeted immigrants seeking legal migration to the U.S. as of April 2020. That latter proclamation was initially extended in June and went from covering legal immigration to covering some guest worker visas.

While the Trump administration claimed that the negative impact of the COVID-19 pandemic inspired the more recent restriction extensions, this claim was contradictory to the administration’s other claims that the country had begun to recover from the pandemic. The extension also counters Trump’s claims that the U.S. economy had grown and that the unemployment rate was destined to lower.

The Future of Immigration in the U.S. Under a New Administration

The extension will expire on March 31, leaving many immigrants wondering how the next administration will handle immigration. Soon following his inauguration, President Joe Biden began reversing many Trump-era policies.

In January, the Biden administration signed a number of immigration orders, including an order that repealed Trump’s Muslim ban. In addition, immigration advocates are calling on the President to put an end to the recent extensions and other policies, including a policy separating families at the border.

In February, Biden addressed the latter issue by introducing a task force that would work to reunite immigrant children with their families. However, many advocates are still calling for more action from Biden to help legal immigrants, and the Biden administration has yet to address the extensions.

Over time, it’s expected that the Biden administration will continue to reverse Trump’s policies, including the proclamations extended in December. It’s predicted that once the extensions expire on March 31, the Biden administration will simply let the policies expire.