policy change

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Since my trip to the U.S./Mexico border last summer, the situation for families seeking asylum has only become more challenging, especially in light of the Administration’s new “Remain in Mexico” policy.  This week, I am in Mexico along with Proskauer colleagues, Valarie McPherson, special immigration counsel, and Savannah Sosa, a project assistant.  We are providing asylum presentations and individual consultations in partnership with Institute for Women in Migration, IMUMI (www.imumi.org).

The new policy raises a number of questions, but first some background.

The Remain in Mexico Policy

On December 20, 2018, the Administration announced that it would begin implementing a “Remain in Mexico” policy – officially dubbed the Migrant Protection Protocols (MPP) – which requires asylum-seekers from Central America at the southern border to wait in Mexico for the duration of their U.S. immigration proceedings.  This marks a fundamental shift in asylum policy because, until now, asylum-seekers who lack valid entry documentation generally have been placed in expedited removal proceedings.  Applicants who passed a credible fear interview were then allowed to remain in the U.S., pending immigration court proceedings.

A recent change in immigration policy is adversely impacting a vulnerable population, and is likely to have a chilling effect on immigrants reporting crime and cooperating with law enforcement. Undocumented immigrant victims of domestic abuse, who prior to the updated guidance could freely file petitions for U Nonimmigrant status or Violence Against Women Act (VAWA) self-petitions without fear of bringing on deportation proceedings, now may suffer the very real repercussions of an unfavorable petition or application.  If unsuccessful, they now face a mandated issuance of a Notice to Appear (NTA), which is the charging document that initiates removal proceedings.

In a letter dated June 28, 2018, the United States Citizenship and Immigration Services (USCIS) issued “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” Policy Memorandum 602-0050.1, in pertinent part, provides updated guidelines regarding USCIS’s issuances of NTAs in Immigration Court. The new guidelines serve to ensure conformity with Executive Order 13768, and replaced, in its entirety, Policy Memorandum 602-00550 published in November 2011.

Yesterday, 23 law professors represented by Proskauer were granted permission to participate as amici curiae in a class action lawsuit contesting a recent U.S. Citizenship and Immigration Services (USCIS) policy change affecting minors in New York who seek Special Immigrant Juvenile Status (SIJS).  This policy change has resulted in SIJS denials for immigrant children who would otherwise qualify for SIJS based on well-established state and federal law.

SIJS is a form of immigration relief that provides unmarried children under age 21 with a path to citizenship if they can provide a determination from a state juvenile court that they are dependent on the court or are committed by the court to the custody of a State entity or an individual; that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law; and that it is not in their “best interest” to return to their country of origin.