CHEP Conference /19/2014. Manner of Entry. Cuban/Haitian Entrants typically arrive to the US by one of three modes:

Transcription

1 CHEP Conference 2012 Que Volá Sak Pasé Manner of Entry Cuban/Haitian Entrants typically arrive to the US by one of three modes: Traditional Rafters/Irregular Maritime Arrivals Land Border crossing By plane Irregular Maritime Arrivals (Rafters) Wet foot/dry foot policy Mandatory detention of irregular maritime arrivals applies to Haitians, but not Cubans Possibility of parole through credible fear Traditional manner of transportation/mode of entry for both Cubans and Haitians Made possible by IIRAIRA and subsequent Meissner Memo Solidified with increased enforcement after 9/11 Facilitated by the relative ease for Cubans travel to Mexico 1

2 Fiscal Year 2012 HA DR PRC CU MX EC Other Total Aug Jul Jun May Apr Mar Feb Jan Dec Nov Oct Fiscal Year HA DR PRC CU MX EC Other Total , , , , , , , , , , , ,610 1, , , ,198 3, , , ,850 3, , , , ,229 5, , , , ,013 1, , , , , , , , , , , , , , ,092 1, , ,369 1, , , , ,295 6, , , ,367 By the Numbers South West Border 96% (92% Cubans & 8% Haitians) Canadian Border 3% Virgin Islands/Puerto Rico/MIA 1% Processing Issues Cubans Usually, encountered in South Florida Usually, only detained pending identity checks Usually, released with a two year parole Usually, NTA not filed Haitians Also, South Florida occurrence Almost always detained Sometimes, placed into proceedings immediately to seek asylum while in detention Released on order of supervision if asylum denied Sometimes, given credible fear interviews Paroled with a credible fear interview and placed in non-detained immigration proceedings Parole will not be renewed while in proceedings If ordered removed, cannot obtain parole or renewal, but can seek an order of supervision 2

3 Arriving Aliens 8 CFR 1.1(q) The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked. Arriving Aliens and Adjustment of Status If NTA never filed, Adjustment of Status filed with USCIS and processed normally. However, if an NTA has been filed with the Immigration Court... Arriving Aliens and Immigration Court Regulations restrict the authority of the Immigration Judge (IJ) over arriving aliens. By regulation, the IJ can only adjudicate a limited number of applications for relief in proceedings from arriving aliens, including asylum but excluding adjustment of status (except in very rare circumstances). 3

4 Arriving Aliens and Adjustment of Status (Part II) As a result of Federal litigation and additional regulations, USCIS now has jurisdiction over applications for adjustment of status for arriving aliens even if the alien is currently in proceedings, pending appeal, or already ordered removed. If currently in proceedings, the proceedings can be concluded in any of three ways: Immigration Proceedings (descending order or preference) Termination typically with DHS consent and where no inadmissibility issues exist (no fraud, no crimes). Individual no longer in proceedings. Administrative Closure IJ now has authority to AC case without of DHS consent, though still unlikely if inadmissibility issues exist. Individual remains in proceedings, which can be renewed at any time by either party with a motion to re-calendar. Order of Removal for any reason, even in absentia order In all three cases, alien applies with USCIS. However, if denied there is no appeal nor review by an Immigration Judge. Border Crossers Three Typical scenarios: Presentation or Apprehension AT the Border Presentation or Apprehension after crossing the border Entered without inspection/no DHS contact (EWI/PWI) 4

5 Presentation or Apprehension at the Border Cases, in theory, are similar to maritime arrivals in that aliens have not actually entered the US but are arriving Usually, detained pending confirmation of identity Usually, released with 2-year parole Usually, NTA is filed with immigration court at point of entry (change of venue recommended) Problems In confirming identity, DHS sometimes keeps original documents of aliens leaving them without identification (may be necessary when seeking re-parole) Despite significant improvement, not all jurisdictions are providing two-year paroles (However, USCIS will re-parole for two years pursuant to its guidance) Not all paroles have the same annotations but remember a parole is a parole!! In rare cases, the alien is released ROR rather than with a parole. USCIS will parole them in place but if in proceedings must get proceedings terminated or, alternatively, adjust with the IJ (who maintains jurisdiction because alien not properly charged as an arriving alien) Occasional delay in release, or on-going detention. Year and a day begins ticking at issuance of parole not at entry If detained during the entire immigration court proceeding and released after removal order through an order of supervision, not eligible for CAA. Presentation or Apprehension after crossing the border Technically, not arriving aliens because they are not coming or attempting to come into the United States at a port-of-entry. They have already entered!! Increased chance of lengthier detention including the possibility of remaining detained throughout immigration proceedings Increased chance of being released ROR rather than parole 5

6 EWI/PWI If Cuban, eligible for a two year parole from USCIS Haitians not eligible for parole Apply affirmatively to USCIS for adjustment of status under CAA one year and one day after the parole has been issued If denied, cannot appeal to the Administrative Appeals Office (unless certified by USCIS) Eligible for review and adjustment under CAA by an immigration judge (not arriving aliens). However, it is very difficult to get NTA issued. If for some reason, the alien was placed in proceedings, and order removed, there is no possibility of parole AFTER a removal order; thus, no eligibility for CAA (However, alien remains an Entrant for purposes of public benefits) Practice Advisory Remember to monitor immigration court cases for individuals who are not considered arriving aliens. Only an immigration judge has jurisdiction to adjudicate adjustment of status under CAA or other forms of relief such as asylum. A missed hearing will result in a removal order. Airplane Arrivals Admitted as a visitor if passport from a non-visa waiver country Admitted with Visa waiver Paroled as an arriving alien if from a non-visa waiver country (NTA may or may not be filed) Paroled as a visa waiver (may or may not be referred to IJ by I-863 in asylum only proceedings) Possible Fraud Charge 6

7 Are they Cuban/ Haitian Entrants? If admitted for any reason, they are not Cuban/Haitian Entrants but are eligible for CAA (may be deemed Entrants for public benefits after adjustment under CAA) If admitted and apply for asylum, they are Entrants when application is filed If paroled, for any reason, and can demonstrate that they are EITHER a citizen OR a national of Cuba/Haiti they are Entrants Cuban/Haitian Entrant Definition According to ORR and the REAA a Cuban and Haitian entrant or entrant is defined, in relevant part, as: (a) Any individual granted parole status as a Cuban/Haitian Entrant (Status Pending) or granted any other special status subsequently established under the immigration laws for nationals of Cuba or Haiti, regardless of the status of the individual at the time assistance or services are provided; and (b) Any other national of Cuba or Haiti (1) Who: (i) Was paroled into the United States and has not acquired any other status under the Immigration and Nationality Act; (ii) Is the subject of exclusion or deportation proceedings under the Immigration and Nationality Act; or (iii) Has an application for asylum pending with the Immigration and Naturalization Service; and (2) With respect to whom a final, nonappealable, and legally enforceable order of deportation or exclusion has not been entered. Parole & 8 CFR 212.5(h)(1) (h) Effect of parole of Cuban and Haitian nationals. (1) Except as provided in paragraph (h)(2) of this section, any national of Cuba or Haiti who was paroled into the United States on or after October 10, 1980, shall be considered to have been paroled in the special status for nationals of Cuba or Haiti, referred to in section 501(e)(1) of the Refugee Education Assistance Act of 1980, Public Law , as amended (8 U.S.C.1522 note). (2) A national of Cuba or Haiti shall not be considered to have been paroled in the special status for nationals of Cuba or Haiti, referred to in section 501(e)(1) of the Refugee Education Assistance Act of 1980, Public Law , as amended, if the individual was paroled into the United States: (i) In the custody of a Federal, State or local law enforcement or prosecutorial authority, for purposes of criminal prosecution in the United States; or (ii) Solely to testify as a witness in proceedings before a judicial, administrative, or legislative body in the United States. 7

8 Florida Department of Children & Families Refugee Services Program Eligibility Guidance "According to 63 FR 31895, dated June 11, 1998, INS determined that Cubans or Haitians paroled into the United States under INA 212(d)(5) since October 19, 1980, are to be considered to have been paroled in the immigration status referred to as "entrants" in the above section 501(e)(1) of the Refugee Education Assistance Act of 1980, P.L , as amended, rather than section 502(e)(2), thereby ensuring the eligibility of these individuals for refugee assistance programs even if they later acquire some other immigration status. These clients retain eligibility for refugee services even if the validity period of their parole status expires." Non-Cuban Spouses Eligible for Cuban Adjustment but not considered Entrants. Not eligible for parole Often held in detention, while spouse and/or children released. If held throughout immigration proceedings and order removed will be either removed or released on order of supervision If released on OSup, not eligible for CAA Haitians Parole and Re-parole (changes/limitations/disparate treatment) TPS Prosecutorial Discretion DACA Deferred Action ASYLUM Any pending family petitions (pre-adjudication of I-601 waivers) 8

9 Haitian Family Reunification Program The World Bank and Congressional Budget Office say remittances are key to recovery. An "effective way" to increase remittances is expediting entry of LEGAL immigrants DHS has approved family-based visa petitions for 112,000 Haitian beneficiaries who are on wait lists of 2.5 to 11 years in Haiti DHS Secretary Napolitano can and should create a Haitian FRPP or at least START paroling in some of the most vulnerable, e.g. the 15,800 minor children and spouses of LPRs whose wait is nearly 3 years. No congressional action is needed Direct precedent is the Cuban Family Reunification Parole Program (FRPP) DHS. There s broad bipartisan support rmcgrorty@cclsmiami.org 9