On November 8, 2016, the American people voted and Donald J. Trump secured the majority of the Electoral College votes defeating Hillary Clinton (304 to 227). On the campaign trail, President Trump noted border and national security as a top priority for his Administration. Given this reality, it should be no surprise that President Trump issued Executive Orders on immigration https://www.whitehouse.gov/briefing–room/presidential–actions/executive–orders). The impact of these Orders is a developing situation.
The Department of Homeland Security (www.dhs.gov) is responsible for the enforcement of the president’s Executive Orders in a manner that ensures the safety and security of all U.S. citizens. In this regard, DHS retains the right to revoke visas at any time if required for national security or public safety. As an immigrant, lawful permanent resident, or a visa holder, it is therefore incumbent on you to be mindful of all the requirements of your travel to and from the United States. In addition, please note that DHS retains the discretion to conduct any security screenings for entry to the United States, consistent with its immigration laws and judicial orders.
Though some of the underlying tenets of U.S. immigration law is family unification and protecting those fleeing war or persecution, no Caribbean national, without ties to the United States, has any automatic right to request or demand entry into the United States or to receive immigration benefits in the United States. Nonetheless, we must be vigilant in educating ourselves of the proper procedures to preserve the relationships of our families, protecting our families from oppression, and availing ourselves of any due process rights or remedies.
As you may be aware, a NY federal judge granted the American Civil Liberties Union’s request for a nationwide temporary injunction that will block the deportation of all people stranded in U.S. airports under President Trump’s executive orders. The ACLU, along with several groups, filed a lawsuit this past weekend on behalf of two Iraqi men who were en route to the United States on immigrant visas when President Trump issued an executive order banning many persons, specifically from Syria, Iran, Iraq, Somalia, Sudan, Libya, and Yemen.
Though both men were granted immigrant visas, they were detained at JKF Airport for no other reason than the impact of President Trump’s executive order. In recent cases in Alexandria, Virginia; Boston; New York; and Seattle, federal courts have ruled against the detention of individuals at airports. The rulings appear to be limited to those people already at U.S. airports or in transit. Subsequent legal proceedings are pending.
Here are a few practical facts and tips in sifting through the noise of the past few days:
- The executive order on international travel ban of new arrivals affects only nationals and citizens, specifically from predominantly Muslim nations of Syria, Iran, Somalia, Sudan, Libya and Yemen for 90 days; Though the impact will disproportionately impact persons of the Muslim faith, the travel ban affects all individuals from these countries irrespective of religion.
- It is advisable that any persons born in or citizens of any of the seven countries listed in the Order, including lawful permanent residents and US citizens, refrain from travel at this time or seek advice of immigration counsel.
- Lawful permanent residents from non-listed countries should be mindful of any international travel. While the President’s Order is directed only to nationals of the seven listed countries, reentry to the United States is not guaranteed for any lawful permanent resident. Customs and Border Patrol (CBP) agents have the discretion at all times to question U.S. citizens or permanent residents coming from the above seven countries or from any other country.
- The executive order applies only to non-U.S. citizens. If you are a U.S. citizen, whether naturalborn or naturalized other than dual citizens from the countries above, you should be mindful, but not concerned.
- For 120 days, the Order bars the entry of any refugee who is awaiting resettlement in the U.S.
- If you’re not a U.S. citizen and an immigration agent requests your immigration papers, you must show them. If you’re over 18, you should carry your immigration documents with you at all times. If you don’t have immigration papers, say you want to remain silent. Under no circumstances, please do NOT lie about your immigration status or provide fake documents.
- If you are an immigrant or refugee of any of the seven countries above (or any country for that matter) with fear of repatriation and you are denied entry and detained at any airport or port of entry, you have the right to demand hearing before an immigration judge and the right to speak to legal counsel. In addition, if you are a lawful permanent resident , you have the right to resist any demand to abandon your permanent residency (by signing Form I-407).
- To maintain the validity of your U.S. permanent residency, be sure to (1) renew your green card; (2) maintain employment in the U.S.; (3) file your U.S. tax returns; (4) maintain a U.S. address, bank account, driver’s license and credit card account; (5) retain ownership of property in the U.S.; (6) keep your dependents in the U.S.; (7) obtain a reentry permit if you’re going to come close to the six-month red line outside the U.S.;
- Most importantly, if you are a lawful permanent residents for more than five (5) years domicile (or three (3) years when married to a U.S. citizen) in the U.S., you are eligible for U.S. naturalization (Form N-400: https://www.uscis.gov/n–400) and should apply immediately.
- The recent Executive Orders from President Trump also created travel bans of non-immigrants, permanent residents, or U.S. citizens of Caribbean descent (WRONG).
- The Department of Homeland Security has issued preferential visa allocations, approval processes and treatment for Caribbean nationals (WRONG).
- Caribbean nationals who are lawful permanent residents will not be subject to any screening OR normal discretionary questions at the border (WRONG).
- Lawful U.S. permanent residents do not have any legal rights at the airport or any port of entry (WRONG).
- Lawful permanent residents can remain out of the United States as long as they wish without any intention to return to the U.S. (WRONG).
Bottomline: Check all news from social media or any stock text messages prior to sharing and most importantly make a plan for your personal travel or to unify your family months in advance in order to ensure that you are in full compliance with all immigration laws and regulations.
Marlon A. Hill is a partner at the law firm of Hamilton, Miller & Birthisel, LLP and a past president of the Caribbean Bar Association.
Patricia Elizee is a family and immigration law partner at the Elizee Law Firm, P.A. and president of the Haitian Lawyers Association.