Background

President Donald Trump began his second term promising a crackdown on illegal immigration. With Department of Homeland Security Secretary Kristi Noem – who later resigned – Trump rounded up hundreds of people alleged to be present in the United States without appropriate paperwork and detained them. Many were subsequently deported. As efforts to deport illegally-present foreign nationals continue, the administration has launched new initiatives aimed at restricting legal immigration, including bond requirements for H1-B (employment-based) visa applicants and a revision of the “public charge” inadmissibility rule that “mov[es] away from a bright line primary dependence standard.”

The administration has been handed setbacks by the courts. Of particular note, a federal judge blocked its attempt to “pause” State Department visa processing for nationals of 75 countries. The administration responded by pausing visa processing for all countries on Aug. 26 and has only (as of Sept. 20) resumed processing for Poland and Hungary. Also noteworthy was the Supreme Court’s 5–4 decision in Trump v. Barbara affirming birthright citizenship.

As executive orders and policy memos proliferate, the Immigration and Nationality Act (INA) has not been amended by Congress, and individuals seeking to become lawful permanent residents (LPRs) are facing previously unheard of situations. One local individual told us their story.

[Note: Names of attorneys have been withheld in order not to jeopardize the outcomes of current and future cases. Names of the two family members whose story is shared below have been changed, and gender-neutral pronouns are used, because their case is still pending.]

‘I’ve never seen

anything like it’

“Darcy” came to the United States 20-plus years ago through the visa waiver program (VWP), which is a simplified way for an individual to enter the country for business or pleasure for 90 days. The VWP has a shorter application process and can have a faster turnaround time than a B-1 (business) or B-2 (pleasure) visa application.

Darcy overstayed their visa, got a job in a service industry and became a parent. Darcy has a child, “Casey,” who is an adult U.S. citizen. Darcy’s only infraction during their 20-plus years in the U.S. was pleading guilty and paying a fine for presenting a fake driver’s license (in their own name) to a police officer during a traffic stop several years ago, an offense that is a misdemeanor in Pennsylvania.

Recently, Darcy and Casey retained a lawyer to petition U.S. Citizenship and Immigration Services (USCIS) for a family-based (immediate relative) immigrant visa for Darcy, based on Darcy being the parent of adult U.S. citizen Casey. Formally, the request was an “adjustment of status” (AOS) request, asking that USCIS adjust Darcy’s status from non-immigrant to immigrant (lawful permanent resident, or LPR).

Although Darcy had overstayed their visa waiver by many years, a policy memorandum from 2013 (PM-602-0093) gave the family and their attorney hope: PM-602-0093 advises USCIS that AOS requests from people who have overstayed VWP may be processed if they are immediate relatives of U.S. citizens.

“Whether to grant adjustment to an eligible applicant is a matter entrusted to DHS [Department of Homeland Security] discretion,” the memo explains. “USCIS exercises this discretion on behalf of DHS.” It further states, “USCIS field offices shall adjudicate adjustment of status cases filed by immediate relatives of U.S. citizens who were last admitted to the United States under the VWP, in accordance with section 245 of the INA. This includes cases where Form I-485 was filed after the 90-day period of admission.”

The memo advises USCIS officers that people who have overstayed their VWP admission may become LPRs – that is, receive green cards – if they are not under investigation for, or already convicted of, “an egregious public safety offense as described in Part IV of USCIS Policy Memo 602-0050,” and if they do not have outstanding “fraud and/or national security issues.”

The family’s attorney said that typically, green cards are simply mailed to people receiving adjustment of status. However, his clients were asked to come to the USCIS office in Philadelphia for an interview. The lawyer, an associate, and both Darcy and Casey drove to Philadelphia for the appointment. After waiting for an hour, they were told that only the attorney and the beneficiary (Darcy) could enter the room with the USCIS interviewing officer. This, too, was unusual.

Rather than being led to an interview room, the attorney tells us, they were taken to a conference room, where they sat at one end of a long table. The USCIS interviewing officer sat at the other end.

Then things got very strange.

“They asked [Darcy] maybe eight questions,” the lawyer tells us, “and then six guys rushed in with a warrant that’s not accurate … The warrant said there was a charging document, and there wasn’t, and I said, ‘You can’t arrest him on this authority,’ and they said, ‘We’re going to arrest him anyway regardless of what the warrant says.’”

The officers were from Immigration and Customs Enforcement (ICE).

The attorney’s suspicions had been raised by the fact that the AOS request had not simply been processed – “normally when a child petitions for their parent, they just get the green card in the mail”– so he and another attorney had already prepared the framework of a habeas corpus petition. “I wanted to have the habeas ready,” he explains, “so we could file it before they get [Darcy] to [a detention center several states away, or out of the country]. We filed the habeas, and the judge said, ‘Don’t move [them] until this case is over.’”

As of press time, the habeas corpus petition is pending.

Denied adjustment on questionable grounds

Two days after Darcy was seized by ICE agents, the attorney received a denial of the AOS request. “They said it was denied for discretionary purposes,” the lawyer shares, “[but] the reasons listed were literally exceptions created to allow someone in [Darcy’s] position to adjust.” Additionally, the denial noted that the interview had been more negative than positive – no surprise to the attorney, given that ICE agents had burst into the room when only a few questions had been asked, and those questions about the client’s overstay and fake driver’s license.

The attorney expresses concern that the executive branch is using enforcement officers to skirt both the law and court rulings.

“The BIA [Board of Immigration Appeals] has literally identified long residence, English speaking ability, and U.S. citizen children as positive factors, but they were apparently negative factors when they made this denial,” he says. “If [Darcy] had been involved in narcotics trafficking, that would have made more sense. The reason they’re not adjusting is because [my client] has been here so long, because [they] worked without authorization … They said that [Darcy’s] U.S. citizen child was born because [Darcy] overstayed, so that’s a negative factor instead of a positive factor. I’ve never seen that before.

“I’ve never had a judge or an adjudicator say that because your child was born when you were in unlawful status, it’s a negative factor. It’s as if this U.S. citizen [Casey] is considered somehow not a real U.S. citizen, [despite the Supreme Court deciding in favor of birthright citizenship in Trump v. Barbara].”

Days after the events described above, the attorney remains astonished.

“This is mind-boggling. To try to silence my client by arresting [them] in the middle of the interview, and try to get [them] out of the country before [they have] an opportunity seek relief … The denial within two days, without any opportunity to respond [typically, a rebuttable Notice of Intent to Deny is sent for a denial] … I’ve never seen anything like it.”

Executive overreach? Congressional

solutions?

Interviewed before his client’s seizure by ICE, the attorney expressed concern about the current administration’s apparent shift in its enforcement crackdowns.

“There’s a kind of change,” he said, “where the administration initially started publicizing what it was planning on doing as ‘We’re going after criminals’ … and has now abandoned that approach, and has begun to wholesale disenfranchise the lower economic strata of our country.”

The attorney remarked on what he considers “hypocritical” behavior by Trump, whose current wife, the former Melanija Knavs, came to the U.S. on a B-1/B-2 visitor visa and began working as a model without work authorization, then secured five consecutive H-1B visas before ultimately adjusting her status to LPR through an EB-1 visa in 2001. (Knavs met and began dating Trump in September 1998; they married in January 2005; she became a naturalized U.S. citizen in 2006. The first lady is a dual citizen of the United States and Slovenia. After her naturalization, she used her legal status to sponsor her parents’ and adult sister’s move to the United States.)

“There’s always a discretionary element to every adjustment-of-status decision,” the attorney explains, “where even if you’re eligible, you can still be denied on a discretionary basis.” He contends that such denials are “normally reserved for someone with a criminal conviction that doesn’t outright disqualify them,” alleging that the “the current administration is now falsely portray[ing] adjustment of status as a form of ‘extraordinary relief’ meant only for the most exceptional circumstances.”

The Press spoke with a second Pennsylvania immigration attorney, who voiced disappointment with the lack of action by Congress regarding immigration policy reform.

“Congress has done nothing,” he said, since enacting the “relief for people who had been here for a certain period of time” through the Legal Immigration Family Equity (LIFE) Act and LIFE Act Amendments of 2000, which established section 245(i) of the Immigration and Nationality Act. He suggested that President Donald Trump’s actions since taking office might result in compromise legislation being passed before the end of his term – particularly if midterm elections result in Democrats taking control of both the House and the Senate.