Border and Enforcement News

Siskind Summary – H.R. 3591 – The American Hope Act of 2017

By: Greg Siskind

Section 1. Short Title – The “American Hope Act of 2017”

Section 2. Definitions.

Eligible Nonprofit Organization – A nonprofit, tax-exempt organization, including a community, educational, faith-based or other immigrant-serving organization whose staff has the qualifications to serve immigrants, refugees, asylees or persons applying for these statuses.

Institution of Higher Education – Based on Section 101 of the Higher Education Act of 1965 which is limited to nonprofit institutions offering associate’s degrees and higher.

Section 3. Restoration of State Option to Determine Residency For Purposes of Higher Education Benefits.

Section 505 of the 1996 Immigration Act is repealed. That provision bars states from offering in-state tuition to illegally present immigrants (some states have bypassed this by offering in-state tuition based on graduating from a high school in the state rather than based on residence). The repeal is made retroactive to 1996.

Section 4. Cancellation of Removal and Adjustments of Status of Certain Residents Who Entered The United States as Children.

Special Rule for Certified Residents Who Entered the United States as Children.

DHS will cancel the removal of and adjust to the status of an alien lawfully admitted for permanent residence on a conditional basis (CPR) an alien who is inadmissible or deportable from the US if the alien shows that

• The alien has been continuously present in the US since 12/31/2016 and was younger than 18 when the alien entered
• The alien isn’t inadmissible for the following reasons
  • Criminal grounds – INA Section 212(a)(2)
  • Security grounds – INA Section 212(a)(3)
  • Permanently ineligible for citizenship or a draft dodger – INA Section 212(a)(8)
  • Polygamists – INA Section 212(a)(10)(A)
  • International child abductors – INA Section 212(a)(10)(C)
  • Former citizens who renounced citizenship for tax purposes – INA Section 212(a)(10)(E)
• DHS may waive these grounds if the offense is immigration-related, a misdemeanor offense or its equivalent or any offense that is not a crime of violence where the waiver serves humanitarian purposes, family unity or is in the public interest.

DHS shall by rule set a procedure to apply for this status without requiring being placed in removal proceedings. Minors may request the benefit through a legal guardian or counsel. People in removal proceedings or previously ordered removed are eligible to apply.

DHS shall conduct background checks on all aliens applying for relief.

Any period of continuous presence in the US of an alien who applies for cancellation of removal under this section shall not be considered to have terminated when the alien is served a notice to appear in a removal proceeding.

Departures of 90 days in a row or an aggregate of more than 180 days will be considered a failure to maintain continuous presence unless the departure was authorized by DHS. Exception for brief, casual and innocent absences whether or not authorized by DHS. DHS may also extend these periods in exceptional circumstances such as the serious illness of the alien, or death or serious illness of a spouse, parent, grandparent, sibling or child.

CPRs won’t count against green card numerical limits.

DHS shall propose regulations within 180 days of enactment and shall be effective immediately. Within an additional 180 days, final regulations are due.

Aliens denied applications may seek a review from DHS.

DHS may not remove people with pending application or who are prima facie eligible.

Section 5. Conditional Permanent Resident Status.

Valid for an initial period of 8 years.

Termination of status. DHS may terminate status if the alien has engaged in conduct that renders the alien deportable. Aliens who have their status terminated will revert to the status they had immediately before being granted CPR. Aliens who have their CPR terminated may request review of the determination in a removal proceeding. The burden of proof is on DHS.

CPRs may submit a request to remove conditions. An approved applicant will have conditions on green card removed. Denied applicants will have CPR status terminated. An alien denied may have that determination reviewed in a removal proceeding. The burden of proof is on DHS with a preponderance of the evidence standard.

Applicants may file within six months of maintaining conditional status for 3 years a removal of conditions application. The application must show the alien has not become ineligible for one of the admissibility grounds noted above and has not abandoned residency in the US. Abandonment presumed if the alien has been absent from the US for 365 days in the aggregate during the CPR period unless the alien can show otherwise. Time in the armed services abroad doesn’t count.

Time in DACA shall count toward the 3-year period governing when conditions can be removed.

Time in CPR can count toward the naturalization period but applicants cannot apply to naturalize until conditions are removed.

Applicants seeking a removal of conditions must undergo a new background check.

Section 6. Exclusive Jurisdiction.

DHS has exclusive jurisdiction except for people in removal proceedings and in that case the Attorney General has exclusive jurisdiction until proceedings are terminated. After this, DHS shall resume jurisdiction.

Section 7. Confidentiality of Information.

The government may not use information furnished by the alien to initiate removal proceedings or publicize information in the petitions except to assist law enforcement agency investing crimes or terrorism or a coroner to identify a deceased individual. $50K potential penalty.

Section 8. Grant Program to Assist Eligible Applicants.

DHS may establish with USCIS a program to award grants to eligible nonprofit organizations to assist eligible applicants apply for benefits under the act. No specified dollar amount except “such sums as may be necessary.”

Section 9. Presidential Award For Business Leadership in Promoting American Citizenship

An award shall be given to companies and other organizations that make extraordinary efforts in assisting their employees in learning English, attain GEDs and increasing their understanding of American history and civics.

Section 10. English Learning Program.

The Secretary of Education shall develop an open source electronic program that is useable on computers and the Internet which provides instruction on the English language, is available for free, is readily accessible in public libraries and is fully accessible to speakers of the top 6 foreign languages spoken by immigrants in the US.

Section 11. Higher Education Assistance.

Outlines which federal student financial aid programs are available to CPRs.

Section 12. GAO Report.

Within 7 years, the Comptroller General of the US shall submit a report to the Judiciary Committees of the House and Senate setting forth the number of people who applied for benefits and statistics on the adjudication of those benefits.

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Siskind Summary – HR 3304 – The House Dream Act of 2017

By: Greg Siskind

Section 1. Short Title – The Dream Act of 2017

 

Section 2. Definitions

Select ones that are not obvious –

“Disability” – Refers to section 3(1) of the Americans with Disabilities Act of 1990

The term “disability” means, with respect to an individual

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment .

“Early Childhood Education Program” – As defined in Section 103 of the Higher Education Act of 1965 – includes Head Start programs, state licensed child care programs or programs that serve children from birth through age six that addresses children’s cognitive, social, emotional and physical development and is a state pre-k or similar program.

“Institution of Higher Education” – as defined in section 102 of the Higher Education Act of 1965. This is a somewhat broader definition than used, for example, for H-1B visas and would include for-profit schools as well as programs offering lesser degrees than associates or bachelors degrees. Does NOT include foreign institutions.

“Permanent Resident Status on a Conditional Basis” means people who get conditional permanent residence (CPR) under this act.

“Poverty Line” – Uses Census definition rather than HHS guidelines which is the normal reference in immigration cases. Census number is a little higher.

“Uniformed Services” – defined in 10 USC 101(a) and means the armed forces, the commissioned corp of the National Oceanic and Atmospheric Administration and the commissioned corp of the Public Health Service.

 

Section 3. Permanent Resident Status on a Conditional Basis for Certain Long-Term Residents Who Entered the United States as Children.

Aliens getting permanent resident status under this act get it on a conditional basis.

DHS shall cancel the removal of and adjust to CPR status an alien who is inadmissible or deportable from the US or is in temporary protected status (TPS) if

• The alien has been continuously physically present in the US since the date that is 4 years before the date of the enactment of the act.
• The alien was younger than 18 when the alien initially entered the US.
• The alien is not inadmissible for the following reasons outlined in INA 212(a)-
  • Criminal and related grounds – 212(a)(2)
  • Security and related grounds – 212(a)(3)
  • Alien smuggling – 212(a)(6)(E)
  • Student visa abusers – these are people who came on F-1s and violated status – 212(a)(6)(G)
  • People permanently ineligible for citizenship and draft evaders – 212(a)(8)
  • Polygamists – 212(a)(10)(A)
  • International Child Abductors – 212(a)(10)(C)
  • Unlawful Voters – 212(a)(10)(D)
• The alien hasn’t been involved with persecuting people on account of race, religion, nationality, membership in a social group or political opinion
• The alien hasn’t been convicted under federal or state law (other than immigration violations) that is punishable by a maximum term of more than 1 year or 3 or more offenses under federal or state law (other than immigration violations) and arising on different dates that led to imprisonment for an aggregate of 90 days or more;
• The alien has been admitted to an institution of higher education, has earned a high school diploma or GED, or is enrolled in secondary school or a GED/high school diploma equivalent educational program.

Waiver – DHS may waive the grounds of inadmissibility based on 212(a)(2), (6)(E), (6)(G), or (10)(D).

Treatment of Expunged Convictions – DHS shall review expunged cases on a case by case basis and review circumstances to determine whether they should prevent someone from applying.

DACA recipients – DACA recipients will get CPR unless they engaged in conduct since receiving DACA status making them ineligible for DACA.

Application fee – DHS may charge a reasonable fee. Exemptions will be available for applicants 1) younger than 18 years of age or  2) receiving total income during the year preceding application date less than 150% of the poverty line AND the applicant is in foster care, younger than 18 and homeless or cannot care for himself or herself because of a disability and had income under 150% of the poverty line in the last year OR during the last year accumulated more than $10K in medical debt (includes immediate family) and has income below 150% of the poverty line.

Biometrics/Biographic data – Aliens must submit such data (exceptions for physically impaired) and DHS must complete a background check using the data.

Medical exams – Aliens must undergo an exam to get CPR status.

Military selective service – Aliens applying for CPR must register for the draft if required.

Determining physical presence – doesn’t terminate when the alien gets a notice to appear in a removal proceeding.

Treatment of Certain Breaks in Presence – With exceptions, aliens cannot maintain continuous residence if they have departed for more than 90 straight days or 180 days in the aggregate. DHS may extend for extenuating circumstances beyond the alien’s control, including the serious illness of the alien, or death or serious illness of a parent, sibling, grandparent or child of the alien. Doesn’t include periods of travel authorized by DHS.

Limitation on Removal of Certain Aliens – DHS/DOJ may not remove aliens who appear prima facie eligible for relief under this section. Such individuals must be given a reasonable opportunity to apply if the alien is in removal proceedings, is the subject of a final removal order or is the subject of a voluntary departure order. DHS will also stay the removal proceedings of and not commence new proceedings for any alien who meets the act’s requirements except education/service requirements who is at least 5 years of age and enrolled in elementary or secondary school or an early childhood education program. [Note – those younger wouldn’t meet the requirement to be here for at least four years]. Employment Authorization Documents are to be granted to people covered under this section.

CPR grants will not affect numerical limits on green cards.

 

Section 4. Terms of Permanent Resident Status on a Conditional Basis.

Granted for a period of 8 years unless DHS extends.

May be terminated if DHS

• Determines the alien now fails one of the inadmissibility eligibility grounds (such as the criminal ones)
• DHS must give notice and an opportunity to contest

The alien will be returned to the status held before CPR except that if DHS determines that the reason for terminating renders the alien ineligible for TPS, the alien will not be returned to that status.

 

Section 5. Removal of Conditional Basis of Permanent Resident Status.

The conditional basis of the alien’s permanent resident status shall be removed if the alien has not abandoned residence in the US and 1) has acquired a degree from an institution of higher education or has completed at least 2 years, in good standing, in a program for a bachelor’s degree or higher degree in the US, 2) has served in the Uniformed Services for at least 2 years and, if discharged, received an honorable discharge, or 3) has been employed for at least 3 years and 75% of that time has held a valid employment authorization, except that any period the person is not employed while having employment authorization and is enrolled in school shall not count toward the time requirements under this clause.

Hardship exception – DHS may remove the conditions and grant unconditional permanent residency if the alien demonstrates compelling circumstances for the inability to satisfy the requirements and demonstrates the alien has a disability, is a full-time caregiver of a minor child or the removal of the alien would result in an extreme hardship to the alien or the alien’s parent, spouse, or child who is a US national or lawful permanent resident.

Citizenship requirement – Alien must show the ability to pass citizenship English exam (there’s a disability exception).

Application fee – DHS may charge a reasonable fee to process this application. Same fee exemptions as noted above are available.

Biometrics/Biographic data – same requirements as for initial CPR application.

Treatment for Purposes of Naturalization – For purposes of naturalizing, an alien granted CPR shall be considered to have been admitted to the US and be present in the US as an alien lawfully admitted for permanent residence. Aliens must be converted to unconditional permanent residence before a naturalization application may be submitted.

 

Section 6. Documentation Requirements.

Documents Establishing Identity –

• Passport or national ID document from the alien’s country that includes alien’s name and a photo or fingerprint
• Alien’s birth certificate and an ID card that includes name and photo
• A school ID card including name and photo and school records showing name and that the alien was enrolled
• A Uniformed Services ID card issued by the Department of Defense
• Any immigration or other document issued by the US government
• A state-issued ID card bearing alien’s name and photo

Documents Establishing Continuous Physical Presence in the US –

– employment records

– school records

– Uniformed Services records

– Religious institution records showing alien’s participation in a religious ceremony

– passport entries

– a birth certificate for a child born in the US

– automobile license receipts or registration

– real estate/lease documents

– tax receipts

– insurance policies

– remittance records

– rent receipts or utility bills

– money orders for money sent in or out of US

– dated bank transactions

– two or more sworn affidavits from people not related to the alien with direct knowledge

Documents Establishing Initial Entry Into the US – To show the alien was under 18 on the date of entry, the following may be submitted:

– admission stamp on the passport

– school records

– DOJ/DHS documents stating date of entry into the US

– health records

– rent receipts or utility bills

– employment records

– religious records

– birth certificate for child born in the US

– automobile license receipts or registration

– real estate/lease documents

– tax records

– travel records

– money orders for money sent in or out of US

– dated bank transactions

– remittance records

– insurance policies

Documents Establishing Admission to an Institution of Higher Education – to show admission to an institution of higher education, the alien shall submit a document from the institution certifying that the alien has been admitted or is currently enrolled as a student.

Documents Establishing Receipt of a Degree From an Institution of Higher Education – A diploma or other document from the school stating receipt of the degree will suffice.

Documents Establishing Receipt of High School Diploma, General Education Development Certificate, or a Recognized Equivalent – The alien shall submit to DHS a high school diploma or certificate of completion, equivalency diploma or certificate recognized by the state or evidence of passing the GED.

Documents Establishing Enrollment in an Educational Program – for other schools discussed in the act, school records showing the name of the school, alien’s name, periods of attendance and the current grade or educational level.

Documents Establishing Exemption from Application Fees –

• To show age, show ID documents noted above showing age is younger than 18
• To show income, employment records from the SSA or IRS or other government agency or bank records, or two sworn affidavits from non-relatives with direct knowledge

Documents to Establish Foster Care, Lack of Familial Support, Homelessness, or Serious Chronic Disability – Two sworn affidavits from non-relatives with direct knowledge

Documents to Establish Unpaid Medical Expense – The alien shall provide receipts or other documentation from a medical provider documenting that the alien has accumulated more than $10K in debt in the past year as a result of unreimbursed medical expenses.

Documents Establishing Qualification for Hardship Exemption – two sworn affidavits from non-relatives with direct knowledge.

Documents Establishing Service in the Uniformed Services –

– DOD form DD-214

– National Guard Report of Separation and Record of Service form 22

– Personnel records for such service from the appropriate Uniformed Service or

– health records from the appropriate Uniformed Service

Documents Establishing Employment –

• SSA or IRS or other government records
• At least two of the following:
  • Bank records
  • Business records
  • Employer records
  • Union, day labor center or worker assistance organization records
  • Sworn affidavits from non-related individuals with direct knowledge
  • Remittance records

DHS may prohibit or restrict the use of a document or class of documents if they go through a comment period and can show it is not reliable or is being used fraudulently to an unacceptable degree.

 

Section 7. Rulemaking.

Within 90 days of enactment, DHS shall publish implementing regulations which will allow for immediate application for relief. The regulations shall be effective on an interim basis and may be changed after notice and comment. Final regulations are due within 180 days of enactment. Paperwork Reduction Act is waived (presumably to speed up the process).

 

Section 8. Confidentiality of Information.

DHS may not disclose Dream or DACA application information. DHS may not refer individuals granted permanent resident status on a conditional basis or was granted DACA to ICE or CBP except to assist in law enforcement or to investigate criminal and security backgrounds of the applicant as part of application process. $10K penalty for violators.

 

Section 9. Restoration of State Option to Determine Residency for Purposes of Higher Education Benefits.

Section 505 of the 1996 Act which bars states from offering in-state tuition based on residency to illegally present immigrants is repealed. The repeal is retroactive to 1996.

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Siskind Summary – Proclamation Expanding Travel Ban

By: Greg Siskind

The White House states that it’s March 6, 2017 call for information sharing requirements to be met for countries to avoid being included in the travel ban. According to the Administration, several countries are deficient with respect to their identity-management and information-sharing capabilities, protocols and practices. Some countries have also been deemed to have a “significant terrorist presence” within their country. Therefore, the President is imposing various restrictions on the entry into the US of nationals from these countries.

Section 1. Policy and Purpose. US policy is to protect citizens from terrorist attacks and public-safety threats. Visa processing with adequate screening and vetting is critical.

Information-sharing and identity-management protocols by foreign governments are important parts of this.

As part of Executive Order 13780, the President ordered a worldwide review to identify what additional information would be needed from foreign governments to determine if individuals pose a security or public safety threat. That resulted in a July 9, 2017 review that created a baseline for reviewing threats with three categories of criteria:

• Identity-management information – the US expects foreign governments to provide information needed to determine whether applicants are who they claim to be;
• National security and public-safety information – the US expects foreign governments to provide information about whether people seeking entry pose national security or public-safety risks;
• National security and public-safety risk assessment – this category focuses on national security risk indicators and include whether a country is a known or potential terrorist safe haven, whether it is in the Visa Waiver Program and whether it fails to receive its national subject to final orders of removal from the US.

The review identified 16 countries as being “inadequate” based on the three categories and another 31 as being “at risk” of becoming inadequate based on the criteria.

The White House claims that the 50-day engagement period caused many countries to improve their cooperation with the US.

DHS has determined that the following countries continue to have “inadequate” ID management and information sharing practices such that entry restrictions and limits are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela and Yemen. Iraq missed the baseline as well, but DHS is not recommending inclusion with the others, but Iraqi nationals would still be subject to additional scrutiny if they pose a security or safety risk. Somalia was also identified as problematic.

With respect to the countries identified, the restrictions on travel apply to all immigrants – both green card holders and nonimmigrants. But the restrictions apply differently depending on the particular country and type of visa.

Somalia (not listed on the list of 7) – while it is sharing information, it is unable to consistently cooperate and has terrorist threats emanating from its territories. Therefore, entry restrictions for nationals of Somalia are being imposed.

Section 2. Suspension of Entry for Nationals of Countries of identified Concern.

Chad – Has shown a willingness to improve, but doesn’t adequately share public-safety and terrorism information and terrorist groups are active in the country. The entry of immigrants is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants is suspended.

Iran – Iran fails all tests. The entry of immigrants and all nonimmigrants except F and M students and J-1 exchange visitors is suspended. F, M and J nonimmigrant applicants will be subject to enhanced screening and vetting requirements.

Libya – Libya, while an important and valuable counterterrorism partner, faces significant challenges in all three criteria. The entry of immigrants is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants is suspended.

North Korea – North Korea doesn’t cooperate in any respect and fails all tests. The entry of all immigrants and nonimmigrants is suspended.

Syria – Syria regularly fails to cooperate and does not meet any of the criteria. The entry of all immigrants and nonimmigrants is suspended.

Venezuela – Venezuela is uncooperative in verifying whether its citizens pose national security or public-safety threats. But there are alternative sources for obtaining information to verify ID. The restrictions therefore focus on government officials. The entry into the US of officials of government agencies involved in screening and vetting procedures – including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations – and their immediate family members, as nonimmigrants on B-1, B-2 and B-1/B-2 visas is suspended. Nationals of Venezuela who are visa holders should be subject to appropriate additional measure to sure traveler information remains current.

Yemen – Yemen, while an important and valuable counterterrorism partner, faces significant challenges in all three criteria. The entry of immigrants is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants is suspended.

Somalia – The entry of immigrants is suspended. Nonimmigrants are subject to additional scrutiny to determine if applicants are security or safety threats.

Section 3. Scope and Implementation of Suspensions and Limitations.

The proclamation applies to people from designated countries who

• Are outside the US later than 3:30 eastern time on September 24, 2017;
• Do not have a valid visa on that date; and
• Do not qualify for a visa under Section 6(d) of this proclamation.

Exceptions – The suspension of entry pursuant to section 2 of this proclamation shall not apply to:

• Any lawful permanent residents of the US (this directly contradicts descriptions in various country outlines);
• Any foreign national who is admitted to or paroled into the US on or after the applicable effective date;
• Any foreign national who has a document other than a visa – such as a transportation letter or advance parole document – valid on the effective date;
• Any dual national of a country designated under section 2 when the individual is traveling on a passport issued by a non-designated country;
• Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 via for travel to the UN, or G-2, G-2, G-3, or G-4 visa; or
• Any foreign national who has been granted asylum to the US; any refugee who has already been admitted to the US; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waivers. A consular officer or CBP may, in their discretion, grant waivers on a case-by-case basis to permit entry if the following criteria are satisfied:

• Denying entry would cause undue hardship;
• Entry would not pose a threat to the national security or public safety of the US; and
• Entry would be in the national interest.

A waiver will allow for issuance of a visa, but will leave unchanged all other requirements for entry or admission. Examples of situations that might be appropriate for consideration of a waiver include

• The foreign national has been previously admitted to the US for a continuous period of work, study or other long-term activity and is seeking to reenter the US to resume that activity and denying reentry would impair that activity;
• The foreign national has previously established significant contacts within the US but is outside the US on the effective date for work, study or other lawful activity;
• The foreign national seeks to enter the US for significant business or professional obligations and the denial of entry would impair those obligations;
• The foreign national seeks to enter the US to visit or reside with a close family member (e.g. spouse, child or parent) who is a US citizen, green card holder or alien on a nonimmigrant visa and denial would cause the foreign national undue hardship;
• The foreign national is an infant, young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstance of the case;
• The foreign national has been employed by, or on behalf of, the US government;
• The foreign national is traveling for purposed related to certain international organizations;
• Canadian permanent residents;
• Foreign nationals traveling as a US government-sponsored exchange visitor; or
• The foreign national is traveling to the US at the request of a US government department or agency for law enforcement, foreign policy or national security reasons.

Section 4. Adjustments to and Removal of Suspensions and Limitations.

DHS and the State Department will devise a process to assess whether the suspensions should be continued for each country. A report will be submitted with recommendations every 180 days. DHS, State, DOJ, the Director of National Intelligence and other agencies shall engage with listed the countries.

Section 5. Reports on Screening and Vetting Procedures.

DHS, in coordination with State, the AG, the Dir. of National Intelligence shall submit periodic reports that

• Describe the steps the US government has taken to improve vetting for nationals of all foreign nationals;
• Describe the scope and magnitude of fraud, errors, and unverifiable claims made in applications for immigration benefits;
• Evaluate the procedures related to screening and vetting established by State Department

The first report will be submitted within 180 days and the second with 270 days of the first report; annually after that.

Section 6. Enforcement. No immigrant or nonimmigrant visa issued before the applicable date under Section 7 shall be revoked. Individuals with visas revoked based on the January 27^th Executive Order shall be entitled to a travel document. Admitted refugees and granted asylees not covered.

Section 7. Effective dates.

• Section 2 effective 3:30 eastern time on September 24, 2017 for people who were subject to entry restrictions from the January EO and who lack a credible claim of a bona fide relationship with a person or entity with a person or entity in the US.
• Section 2 effective date for all other person is 12:01 am eastern time on October 18, 2017 including nationals of Iran, Libya, Syria, Yemen and Somalia who have a credible claim of a bona fide relationship with a person or entity in the US and Chad, North Korea and Venezuela.

Section 8. Severability. If any provision is held invalid, the remainder of the proclamation shall not be affected; and if any provision of the proclamation is held to be invalid because of the lack of certain procedural requirements, the relevant officials shall implement those requirements to conform with existing law and with any applicable court orders.

Section 9. General Provisions.

The proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

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Siskind Summary – Chart Comparing “Dream” Bills

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Siskind Summary – SUCCEED Act

By: Greg Siskind

Senate Republicans have introduced the SUCCEED Act as an alternative to the DREAM Act to provide relief to DACA recipients.

Section 1. Short Title; Table of Contents

“Solution for  Undocumented Children through Careers, Employment, Education and Defending our Nation Act” or the “SUCCEED Act”.

Section 2. Definitions

Alien Enlistee – A conditional permanent resident who seeks to comply with bill requirements through enlistment & service in the Armed Forces.

Alien Postsecondary Student – A conditional permanent resident who seeks to comply with the bill requirements through enrolling in and graduating from an institution of higher education in the US.

Conditional Permanent Resident (CPR) – 1) An alien who is granted conditional permanent resident status under this bill. CPRs shall not be considered to be unlawfully present in the US for purposes of Section 505 of the 1996 Immigration Act which bars states from granting in-state tuition to illegally present immigrants (states have bypassed this by conditioning in-state tuition on graduating from a state high school). 2) CPRs shall not be considered a lawful permanent resident for purposes of petitioning for relatives under section 204(a) of the INA or filing for adjustment of status under INA section 245(a). 3) CPRs must intend to permanently reside in the US. 4) CPRs are not required to have a foreign residence which they don’t intend to abandon. 5) CPRs are considered to have been inspected and admitted for purposes of INA Section 245(a) in order to later adjust to permanent residency AFTER CPR status has been removed under Section 5 of the bill.

Federal Public Benefit – the American Opportunity Tax Credit authorized under IRC Section 24A(i) [tax credits available to offset certain higher education costs], the Earned Income Tax Credit [tax credit available for people earning under a certain income level], the Health Coverage Tax Credit [available to certain people based on jobs lost due to international trade agreements and people whose pensions were taken over by the Pension Benefit Guaranty Corporation (PBGC) because of financial difficulties], Social Security benefits, Medicare benefits, and benefits under the Federal-State Unemployment Compensation Act.

Institution of Higher Education – Includes US institutions defined under section 102 of the Higher Education Act of 1965.

Applicable Federal Tax Liability – liability for federal taxes including penalties and interest.

Secretary – Secretary of Homeland Security

Significant Misdemeanor – A criminal offense involving domestic violence; sexual abuse or exploitation, burglary, unlawful possession or use of a firearm; drug distribution or trafficking; or DUI. Also, any misdemeanor for which the individual was sentenced for a term of not less than 90 days (excluding a suspended sentence).

Section 3. Cancellation of Removal of Certain Long-Term Residents Who Entered the US as Children.

Special Rule for Certain Long-Term Residents Who Entered the United States as Children

The Secretary may cancel the removal of an alien who is inadmissible or deportable from the US and grant CPR if the alien a) has been physically present in the US for a continuous period since 6/15/12;

1. b) was younger than 16 years of age on the date when the alien initially entered the US;
2. c) was younger than 31 years of age and no lawful status in the US on 6/15/12;
3. d) If 18 years of age or older, the person has 1) while in the US, earned a high school diploma or GED; 2) has been admitted to an institution of higher education in the US; or 3) has served, is serving, or has enlisted in the Armed Forces;
4. e) If younger than 18 years of age, 1) is attending or has enrolled in a primary or secondary school; or 2) is attending, or has enrolled in, a postsecondary school. NOTE: This will allow children too young to apply for DACA to be eligible for CPR;
5. f) has been a person of good moral character since the date on which the alien entered the US-based on section 101(f) of the INA. That INA section refers to the following:

• Habitual drunkards
• Certain drug offenders
• Professional gamblers and people convicted of illegal gambling
• People who have lied to get immigration benefits
• People jailed for an aggregate period of 180 days or more regardless of the offense
• People convicted of an aggravated felony
• People who have participated in torture or genocide or committed severe violations of religious freedom
• Other offenses not named above can still lead to a determination one lacks good moral character

False claims to citizenship or registering or voting in violation of the law are not violations if both parents are US citizens [note – not all children automatically naturalize with their parents], they were citizens before the person was 16 and the person believed he or she was a citizen

1. g) has paid federal taxes or is on a payment plan approved by the IRS;
2. h) is not inadmissible under INA Section 212(a) or deportable under Section 237(a) for the following reasons –

• Has no listed diseases and has required vaccinations, no physical or mental illnesses posing a danger to others, and is not a habitual drug user or addict
• Not inadmissible on criminal grounds
• Security and terrorism grounds, people whose entry would have negative foreign policy consequences for the US, membership in totalitarian party, participants in persecution, torture and genocide, recruiter of child soldiers
• Public charge grounds (people who are a financial burden on the country)
• Fraudulently or willfully misrepresenting a material fact to procure a visa or admission into the US or falsely claimed citizenship
• Alien smugglers
• People permanently ineligible for citizenship and draft evaders
• Aliens ordered removed who illegally re-enter or attempt to re-enter the US
• Practicing polygamists, international child abductors, unlawful voters, former citizens who renounced to avoid taxation
• Engaging in marriage fraud
• Failure to register address changes (unless DHS determines failure was excusable)

The alien has not been convicted of a felony under State or Federal law, regardless of the sentence imposed, any combination of offenses under Federal or State law for which the alien was sentenced to imprisonment for at least one year; a significant misdemeanor and has never been under a final order of removal unless the person has remained in the US under color of law after such final order was issued or received the order before attaining 18 years of age.

DHS may waive, on a case-by-case basis and for humanitarian reasons, a ground of inadmissibility based on health, public charge, failure to attend removal proceeding [query – 212(a)(6)(b) is not listed as a ground to deny CPR so why would waiver be needed?], and alien smuggling and visa and immigration status violators. DHS must report within 180 days after enactment the number of waivers granted and denied and then report that information quarterly.

Application procedures.

DHS shall issue regulations allowing eligible people to apply for relief without being placed in removal proceedings.

Each alien applying for CPR who are at least 18, must sign an acknowledgment confirming the alien was notified that he or she will be ineligible for any form of relief or immigration benefit under this bill or other immigration laws other than withholding of removal under 214(b)(3) or Convention Against Torture claims if the alien violates a term for CPR. DHS can make an exception if warranted on humanitarian grounds or in the public interest. Courts may not review these determinations.

Applicants must submit biometric and biographic data. Alternative procedures for people with physical disabilities or impairments.

Background checks – DHS shall use biometric, biographic and other data that DHS to conduct security and law enforcement background checks and to determine if there are any factors that would render the applicant ineligible for relief. Cancellation of removal won’t happen until checks are complete. DHS will seek information on criminal activity from international law enforcement agencies and the country of last habitual residence.

Medical examinations will be submitted.

Applicants must register for Selective Service if required.

Expunged convictions – Expunged convictions shall be evaluated by DHS on a case-by-case basis according to the nature and severity of the offense to determine eligibility for CPR, removal of CPR status or adjustment to permanent residency. No judicial review of these determinations.

Termination of Continuous Period – ANy required periods of continuous residence are not interrupted by being served a notice to appear in a removal proceeding under section 239(a) of the INA.

Treatment of Certain Breaks in Presence – Departures of more than 90 continuous days or more than 180 days in the aggregate in a five-year period will break continuous residence. Exceptions made if failure to return to the US was for exceptional circumstances such as serious illness of the alien or the death or serious illness of the alien’s parent, grandparent, sibling or child. Absences due to military service are excused.

DHS shall publish rules implementing this section within 180 days of enactment. They may be issued on an interim basis with a final rule due within a reasonable period of time.

DHS may not remove an alien who establishes prima facie eligibility for cancellation or removal and CPR until the alien has had a reasonable chance to file a CPR application.

Section 4. Conditional Permanent Resident Status.

CPR shall be granted for an initial period of 5 years or when the alien reaches 18 if after 5 years.

CPRs may be employed in the US incident to CPR status and enlist in the Armed Forces.

CPRS may travel outside the US and may be admitted without having to obtain a visa if the alien has a valid CPR document and the absence from the US was not for more than 180 days or longer or for multiple periods exceeding 180 days in the aggregate or was due to service in the Armed Forces.

DHS shall terminate CPR status for an alien who is 18+ years of age if DHS determines the alien is a postsecondary student in an accredited institution of higher education in the US but failed to enroll in such institution within 1 year after the date on which the alien was granted CPR.

DHS shall terminate CPR for children under 18 if DHS determines the child enrolled in a primary or secondary school as a full-time student but has failed to attend for a period exceeding 1 year during the date on which the child was granted CPR.

DHS shall terminate CPR for enlistees who received CPR status on that basis and failed to complete basic training and begin active duty service within 1 year or received a discharge which was not honorable.

DHS will also terminate for people who got CPR fraudulently, no longer are meeting CPR requirements or has become a public charge, has not maintained employment in the US for a year since being granted CPR while the alien was not enrolled as a student or enlisted in the Armed Forces or hasn’t completed a combination of employment, military service or postsecondary school totaling 48 months during the 5-year period beginning on the date CPR status was granted.

People whose CPR is revoked for failing to meet CPR requirements shall be subject to expedited removal.

Once CPR status revoked, the alien returns to status the person had immediately before receiving CPR.

 

Extension of CPR Status.

DHS shall extend CPR for an additional 5 years if the alien has demonstrated good moral character during the entire CPR period, is in compliance with CPR requirements, has not abandoned residence in the US, doesn’t have tax liabilities, is not receiving Federal public benefits and has graduated from college, attended a postsecondary school for at least 8 semesters, has served as a member of the Armed Forces for 3 years and, if discharged, received an honorable discharge, or has attended a postsecondary school, served in the Armed Forces or maintained employment for a cumulative total of not less than 48 months.

Section 5. Removal of Conditional Basis for Permanent Residence

Aliens who have been CPR for at least 10 years may file an application to remove conditions and adjust to (unconditional) permanent residence. If the requirements for adjusting are not met, CPR status may be terminated and adjustment denied.

Applicants may apply to adjust status up to 180 days before the 10 year CPR period expires through the expiration date of CPR. CPR shall be deemed to continue while the adjustment is pending.

Adjustment applications must contain proof of maintaining CPR status for 10 years, good moral character, and no abandonment of residence in the US (presumed if absent for an aggregate of 365 days unless alien can show otherwise and not including Armed Services work).

 

Citizenship requirement. CPRs may not have conditions removed unless they can pass the citizenship English test unless there are developmental or mental impairments explaining this.

No adjustment of status without being current on taxes.

Biometrics and biographic data are required and must be reviewed before adjustment granted.

There are no numerical limitations on adjustment of status for people going this route.

Section 6. Limitation on Parole Authority.

INA is amended to say DHS may not use parole authority to parole generalized categories or classes of aliens based on nationality, presence or residence in the US, family relationships, or any other criteria that would cover a broad group of foreign nationals, whether inside or outside the US.

Advance parole is separately defined to distinguish it from other parole categories.

Section 7. Failure to Comply With Status Requirements; Visa Overstays

VWP applicants must sign an acknowledgment confirming the alien has been notified he or she will be ineligible for any right to apply for adjustment of status if the alien fails to depart at the end of the 90-day period for admission and waives any right to review or appeal a determination of admissibility at a port of entry into the US and waives the right to contest removal (except for asylum applicants).

NIV applicants must sign an acknowledgment that they understand no right to apply to adjust status if the alien violates any term or condition of his or her nonimmigrant visa.

DHS may not issue an NIV (other than an A or G visa) until the alien has waived right to adjust status in the US and from contesting removal if the alien violates a term of NIV status or fails to depart at the end of the alien’s authorized period of stay.

Section 8. Benefits for Relatives of Aliens Granted Conditional Permanent Resident Status.

CPRs may not sponsor family members for any immigration benefit and having CPR may not be used to provide special consideration for relatives to remain in the US (appears to eliminate using a CPR to help a family member get cancellation of removal).

Section 9. Exclusive Jurisdiction.

DHS shall have exclusive jurisdiction to determine eligibility for CPR and adjustment. The AG shall terminate final removal orders after the alien has been granted CPR status. The AG has jurisdiction to determine eligibility for relief under this Act for any alien has been placed into deportation, exclusion or removal proceedings until proceedings are terminated.

Section 10. Confidentiality of Information.

Information provided in a CPR application may not be used to initiate removal proceedings and will keep application information confidential. Information may be shared with law enforcement authorities or with a coroner to assist in identifying a deceased individual. $10,000 fine for violating this section.

Section 11. Restriction on Welfare Benefits for Conditional Permanent Residents.

For purposes of the current 5-year wait applicable to green card holders to apply for public benefits, individuals have met the requirements to adjust status from CPR shall be considered to have met the 5-year requirement (i.e. they can apply after ten years).

Section 12. GAO Report.

Within 7 years, the Comptroller General shall submit a report to the Judiciary Committees of the Senate and House a report setting forth data on usage of the CPR program.

Section 13. Military Enlistment.

Military enlistment eligibility section of US Code amended to include CPRs.

Section 14. Eligibility for Naturalization.

People adjusting to permanent residency under this bill may apply to naturalize not later than 5 years after such adjustment of status.

***

United States U.S. issues visa sanctions on 4 nations

The United States placed sanctions on visa issuance for four countries who declined to admit deported nationals. DHS has announced the sanctions on Cambodia, Eritrea, Guinea, and Sierra Leone were imposed due to a “lack of cooperation” in these deportation proceedings. This is in accordance with a January executive order which instructed DHS to contact “recalcitrant countries” unwilling to accept deported individuals and to impose appropriate sanctions if this refusal persists. The levying of sanctions has never been a common practice, and the president’s utilization of sanctions as a disciplinary action is even more novel. Removal of these sanctions will occur once cooperation has “improved to an acceptable level.”

Claiming unilateral adherence to international law by the United States, Acting Secretary of Homeland Security Elaine Duke announced the sanctions by saying, “The United States itself routinely cooperates with foreign governments in documenting and accepting its citizens when asked, as do the majority of countries in the world. However, these countries have failed to do so, and that one way street ends with these sanctions.”

Beginning September 13, 2017, these sanctions specifically affect the following countries in the following ways:

The U.S. Embassy in Phnom Penh, Cambodia discontinued the issuance of B visas, temporary visitors for either business or pleasure, for Cambodian Ministry of Foreign Affairs employees, with the rank of Director General or above, and their families.

The U.S. Embassy in Asmara, Eritrea discontinued the issuance of all B visas, temporary visitors for either business or pleasure.

The U.S. Embassy in Conakry, Guinea discontinues the issuance of B visas, temporary visitors for either business or pleasure, and F, J, and M visas, temporary visitors for student and exchange programs for Guinean government officials and their immediate family members.

The U.S. Embassy in Freetown, Sierra Leone discontinues the issuance of B visas, temporary visitors for either business or pleasure, for Ministry of Foreign Affairs officials and immigration officials.

 

For more information, view the press release.

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