Published on: May 13, 2019, Last Edited: May 13, 2019
A preliminary injunction has been issued by a district court preventing USCIS (United States Citizenship and Immigration Services) from implementing the ”adverse policy” dating from August 9th, 2018, according to which the “unlawful presence” of foreign students and their dependents is calculated retroactively.
This is a significant action by the court as “unlawful presence” can be an obstacle to anyone re-entering the USA during a certain period. For example, anyone who has accrued over 180 days’ unlawful presence will be barred from re-entry for three years while someone who has been deemed to have been in the United States unlawfully for over a year will be barred for 10 years.
The injunction is the result of lawsuits by several prestigious US schools, who see the new rules as violating the immigration rights of students that have been consistently applied for the past 20 years. Under the new rules, international students start to accrue “unlawful presence” as soon their “student status” is violated, although their “tenure of stay” may not have expired.
This may be through no fault of their own and violation of student status can be due to a simple admin error such as failing to notify a change of address or the Designated School Officer (DSO) entering an inaccurate number of campus hours worked into the database system for international students.
Under the previous rules, students would not begin to accrue unlawful status until or unless a judge or USCIS officer found that the rules had been breached, in which case unlawful presence would be calculated from the day after the court’s decision. This meant that a student could leave the US within 180 days without being barred from re-entry.
The August 9th policy change is seen as conflicting with the Immigration and Nationality Act and Democrat senators had been active in urging USCIS to revert to the former rules. For the moment, USCIS must revert to the former regulations regarding unlawful presence.
New guidelines issued by the Trump administration order immigration officers to take a more confrontational and sceptical approach when interviewing migrants seeking asylum in the USA.
Officers have been instructed to look for discrepancies between the migrant’s stories as told to border agents and the testimony they provide during their “credible fear” interviews with asylum officers.
These instructions are some of the most notable changes Washington has made in seeking to limit access for asylum seekers, whose right to claim protection on humanitarian grounds has long been established both in US law and in post-WW2 international treaties. It is clear that the administration wishes to deter asylum seekers as early as possible in the process, reducing the numbers coming before the US courts and acting as a deterrent for others.
Asylum officers fear that the extra workload these changes will make the process of screening even more time consuming and that the system will worsen overcrowding at border crossings, some of which have been overwhelmed by having to accommodate more than three times the number for migrants than they have beds in their detention facilities.
This overcrowding has led to thousands of migrants from Central America being released to enter the States with no more than a notice to appear in court. There tends to be a long time lag between a migrant passing the credible persecution test and being granted asylum status by a US judge, during which time they could have been living and working in the States for several years.
The Department of Homeland Security (DHS) sees a conflict of interest between its aim of lowering the numbers of migrants seeking asylum and the decision made by asylum officers, who prefer to refer a decision on an applicant to the US courts, rather than risk making a wrong decision in a rushed situation.
The American Civil Liberties Union’s Immigrant Rights Project has raised concerns about the plans and says that according to federal law, asylum officers should be conducting credible persecution interviews in a “non-adversarial” manner. USCIS states that the changes will apply with immediate effect and officers will be trained in applying the new techniques in the next few weeks.