More than 2 Million Undocumented Immigrants Will Now Be Protected By California's Sanctuary Law

More than 2.3 million undocumented immigrants in California are now officially protected under a new state sanctuary law. Governor Jerry Brown signed Thursday the California Values Act, which bars police departments from detaining people based on their immigration status and prevents immigrants from being delivered to Immigration and Customs Enforcement (ICE) officers unless they are convicted of certain felonies and misdemeanors.

The policy also will limit the amount of personal information federal immigration officials can access on undocumented immigrants. Senate Bill 54, which has been criticized by President Donald Trump and is seen by many as a direct challenge to his recent crackdown on illegal immigration, will come into force on January 1. 

The bill’s main sponsor, Senate President Kevin de Leon, praised the timing of the bill, stating it was needed in the climate of what he described as Trump’s “mass deportation strategy,” The Hill reported. He said California was “building a wall” against Trump, a nod to the president's repeated, but unrealized, promise to build a wall between Mexico and the U.S. 

President Donald J. Trump’s Letter to House and Senate Leaders & Immigration Principles and Policies

IMMIGRATION PRINCIPLES & POLICIES

1. BORDER SECURITY

A. Border Wall. Our porous southern border presents a clear threat to our national security and public safety, and is exploited by drug traffickers and criminal cartels. The Administration therefore proposes completing construction of a wall along the southern border of the United States.

i. Ensure funding for the southern border wall and associated infrastructure.

ii. Authorize the Department of Homeland Security (DHS) to raise, collect, and use certain processing fees from immigration benefit applications and border crossings for functions related to border security, physical infrastructure, and law enforcement.

iii. Improve infrastructure and security on the northern border.

B. Unaccompanied Alien Children. Loopholes in current law prevent “Unaccompanied Alien Children” (UACs) that arrive in the country illegally from being removed. Rather than being deported, they are instead sheltered by the Department of Health and Human Services at taxpayer expense, and subsequently released to the custody of a parent or family member—who often lack lawful status in the United States themselves. These loopholes in current law create a dramatic pull factor for additional illegal immigration and in recent years, there has been a significant increase in the apprehensions of UACs at our southern border. Therefore, the Administration proposes amending current law to ensure the expeditious return of UACs and family units.

i. Amend the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVRPA) to treat all UACs the same regardless of their country of origin, so long as they are not victims of human trafficking and can be safely returned home or removed to safe third countries.

ii. Clarify that alien minors who are not UACs (accompanied by a parent or legal guardian or have a parent or legal guardian in the United States available to provide care and physical custody) are not entitled to the presumptions or protections granted to UACs.

iii. Terminate the Flores Settlement Agreement (FSA) by passing legislation stipulating care standards for minors in custody and clarify corresponding provisions of the TVPRA that supersede the FSA.

iv. Amend the definition of “special immigrant,” as it pertains to juveniles, to require that the applicant prove that reunification with both parents are not viable due to abuse, neglect, or abandonment and that the applicant is a victim of trafficking. The current legal definition is abused, and provides another avenue for illicit entry.

v. Repeal the requirement that an asylum officer have initial jurisdiction over UAC asylum applications to expedite processing.

C. Asylum Reform. The massive asylum backlog has allowed illegal immigrants to enter and stay in the United States by exploiting asylum loopholes. There are more than 270,000 pending cases in the asylum backlog before USCIS, and approximately 250,000 asylum cases before EOIR. Therefore, the Administration proposes correcting the systemic deficiencies that created that backlog.

i. Significantly tighten standards and eliminate loopholes in our asylum system.

ii. Elevate the threshold standard of proof in credible fear interviews.

iii. Impose and enforce penalties for the filing of frivolous, baseless, or fraudulent asylum applications, and expand the use of expedited removal as appropriate.

iv. Close loopholes in the law to bar terrorist aliens from entering the country and receiving any immigration benefits.

v. Clarify and enhance the legal definition of “aggravated felony” to ensure that criminal aliens do not receive certain immigration benefits.

vi. Expand the ability to return asylum seekers to safe third countries.

vii. Ensure only appropriate use of parole authority for aliens with credible fear or asylum claims, to deter meritless claims and ensure the swift removal of those whose claims are denied.

viii. Prevent aliens who have been granted asylum or who entered as refugees from obtaining lawful permanent resident status if they are convicted of an aggravated felony.

ix. Require review of the asylee or refugee status of an alien who returns to their home country absent a material change in circumstances or country conditions.

D. Ensure Swift Border Returns. Immigration judges and supporting personnel face an enormous case backlog, which cripples our ability to remove illegal immigrants in a timely manner. The Administration therefore proposes providing additional resources to reduce the immigration court backlog and ensure swift return of illegal border crossers.

i. Seek appropriations to hire an additional 370 immigration judges.

ii. Establish performance metrics for immigration judges.

iii. Seek appropriations to hire an additional 1,000 U.S. Immigration and Customs Enforcement (ICE) attorneys, with sufficient support personnel.

iv. Ensure sufficient resources for detention.

E. Inadmissible Aliens. The current statutory grounds for inadmissibility are too narrow, and allow for the admission of individuals who threaten our public safety. Therefore, the Administration proposes expanding the criteria that render aliens inadmissible and ensure that such aliens are maintained in continuous custody until removal.

i. Expand the grounds of inadmissibility to include gang membership.

ii. Expand the grounds of inadmissibility to include those who have been convicted of an aggravated felony; identity theft; fraud related to Social Security benefits; domestic violence; child abuse; drunk driving offenses; failure to register as a sex offender; or certain firearm offenses, including the unlawful purchase, sale, possession, or carrying of a firearm.

iii. Expand the grounds of inadmissibility to include former spouses and children of individuals engaged in drug trafficking and trafficking in persons, if the official determines the divorce was a sham or the family members continue to receive benefits from the illicit activity.

F. Discourage Illegal Re-entry. Many Americans are victims of crime committed by individuals who have repeatedly entered the United States illegally, which also undermines the integrity of the entire immigration system. Therefore, the Administration proposes increasing penalties for repeat illegal border crossers and those with prior deportations.

G. Facilitate the Removal of Illegal Aliens from Partner Nations. Current barriers prevent the Federal Government from providing assistance to partner nations for the purpose of removing aliens from third countries whose ultimate intent is entering the United States. Therefore, the Administration proposes authorizing DHS to provide foreign assistance to partner nations to support migration management efforts conducted by those nations. This will allow DHS to improve the ability of Central and South American countries to curb northbound migration flows and to interrupt ongoing human smuggling, which will also substantially reduce pressures on U.S. taxpayers.

H. Expedited Removal. Limited categories of aliens are currently subject to expedited removal, which erodes border integrity and control by impeding the ability of the Federal Government to efficiently and quickly remove inadmissible and deportable aliens from the United States. The Administration seeks to expand the grounds of removability and the categories of aliens subject to expedited removal and by ensuring that only aliens with meritorious valid claims of persecution can circumvent expedited removal.

2. INTERIOR ENFORCEMENT

A. Sanctuary Cities. Hundreds of sanctuary jurisdictions release dangerous criminals and empower violent cartels like MS-13 by refusing to turn over incarcerated criminal aliens to Federal authorities. Therefore, the Administration proposes blocking sanctuary cities from receiving certain grants or cooperative agreements administered or awarded by the Departments of Justice and Homeland Security

i. Restrict such grants from being issued to:

a. Any state or local jurisdiction that fails to cooperate with any United States government entity regarding enforcement of federal immigration laws;

b. Any entity that provides services or benefits to aliens not entitled to receive them under existing Federal law; and

c. Any state or local jurisdiction that provides more favorable plea agreements or sentencing for alien criminal defendants for the purpose of immigration consequences of convictions.

ii. Clarify ICE’s detainer authority, and States’ and localities’ ability to honor that authority, so that States will continue to detain an individual pursuant to civil immigration law for up to 48 hours so that ICE may assume custody.

iii. Provide indemnification for State and local governments to protect them from civil liability based solely on compliance with immigration detainers and transportation of alien detainees.

iv. Require State and local jurisdictions to provide all information requested by ICE relating to aliens in their custody and the circumstances surrounding their detention.

v. Clarify the definition of a criminal conviction for immigration purposes, to prevent jurisdictions from vacating or modifying criminal convictions to protect illegal immigrants, and roll back erosion of the criminal grounds of removal by courts under the “categorical approach.”

B. Immigration Authority for States and Localities. The prior Administration suppressed cooperative partnerships between the Federal Government and State or local governments that wanted to help with immigration enforcement, undermining the security of our communities. Therefore, the Administration proposes enhancing State and local cooperation with Federal immigration law enforcement in order to ensure national security and public safety.

i. Clarify the authority of State and local governments to investigate, arrest, detain, or transfer to Federal custody aliens for purposes of enforcing Federal immigration laws when done in cooperation with DHS.

ii. Authorize State and local governments to pass legislation that will support Federal law enforcement efforts.

iii. Incentivize State and local governments to enter into agreements with the Federal Government regarding immigration enforcement efforts.

iv. Provide the same extent of immunity to State and local law enforcement agencies performing immigration enforcement duties within the scope of their official role as is provided to Federal law enforcement agencies.

C. Visa Overstays. Visa overstays account for roughly 40 percent of illegal immigration. The Administration therefore proposes strengthening the removal processes for those who overstay or otherwise violate the terms of their visas, and implementing measures to prevent future visa overstays which may account for a growing percentage of illegal immigration.

i. Discourage visa overstays by classifying such conduct as a misdemeanor.

ii. Require that all nonimmigrant visas held by an alien be cancelled when any one nonimmigrant visa held by that alien is cancelled, to ensure that if an alien abuses one type of visa, he cannot circumvent the immigration system by then relying on another type of visa to enter the United States.

iii. Bar all visa overstays from immigration benefits for a certain period of time with no waiver.

iv. Clarify that the government does not bear any expense for legal counsel for any visa overstay in removal or related proceedings.

v. Require DHS to provide all available data relating to any deportable alien to the Department of Justice’s National Crime Information Center for purposes of that alien’s inclusion in the Immigration Violators File, with the exception of aliens who cooperate with DHS on criminal investigations.

vi. Enhance the vetting of bond sponsors for those aliens who enter without inspection, to ensure that bond sponsors undergo thorough background checks prior to being eligible to post or receive a bond.

vii. Permit the Department of State to release certain visa records to foreign governments on a case-by-case basis when sharing is in the U.S. national interest.

viii. Permit the Department of State to review the criminal background of foreign diplomats or government officials contained in the National Crime Information Center database before visa adjudication, regardless of whether the applicant’s fingerprints are in the database.

D. Necessary Resources. The relatively small number of ICE officers is grossly inadequate to serve a nation of 320 million people with tens of millions of tourists and visitors crossing U.S. ports of entry every year. Therefore, the Administration proposes providing more resources that are vitally needed to enforce visa laws, restore immigration enforcement, and dismantle criminal gangs, networks and cartels.

i. Seek appropriations to hire an additional 10,000 ICE officers.

ii. Seek appropriations to hire an additional 300 Federal prosecutors to support Federal immigration prosecution efforts.

iii. Reforms to help expedite the responsible addition of new ICE personnel.

E. Detention Authority. Various laws and judicial rulings have eroded ICE’s ability to detain illegal immigrants (including criminal aliens), such that criminal aliens are released from ICE custody into our communities. Therefore, the Administration proposes terminating outdated catch-and-release laws that make it difficult to remove illegal immigrants.

i. Ensure public safety and national security by providing a legislative fix for the Zadvydas loophole, and authorizing ICE, consistent with the Constitution, to retain custody of illegal aliens whose home countries will not accept their repatriation.

ii. Require the detention of an alien: (1) who was not inspected and admitted into the United States, who holds a revoked nonimmigrant visa (or other nonimmigrant admission document), or who is deportable for failing to maintain nonimmigrant status; and (2) who has been charged in the United States with a crime that resulted in the death or serious bodily injury of another person.

F. Legal Workforce. Immigrants who come here illegally and enter the workforce undermine job opportunities and reduce wages for American workers, as does the abuse of visa programs. Therefore, the Administration increasing employment verification and other protections for U.S. workers.

i. Require the use of the electronic status-verification system (“E-Verify”) to ensure the maintenance of a legal workforce in the United States.

ii. Preempt any State or local law relating to employment of unauthorized aliens.

iii. Impose strong penalties, including debarment of Federal contractors, for failure to comply with E-Verify.

iv. Increase penalties for any person or entity engaging in a pattern or practice of violations.

v. Require the Social Security Administration to disclose information to DHS to be used in the enforcement of immigration laws.

vi. Expand the definition of unlawful employment discrimination to include replacement of U.S. citizen workers by nonimmigrant workers or the preferential hiring of such foreign workers over U.S. citizen workers.

vii. Strengthen laws prohibiting document fraud related to employment or to any other immigration benefit.

G. Deportable Aliens. The categories of aliens that currently qualify for deportation are insufficiently broad to remove aliens who pose a threat to the security of the American public. Therefore, the Administration proposes expanding and clarifying the type of aliens who present a danger to Americans and should therefore be removable on an expedited basis.

i. Expand grounds of deportability to explicitly include gang members.

ii. Expand the grounds of deportability to include those convicted of multiple drunk driving offenses or a single offense involving death or serious injury.

iii. Expand the grounds of deportability to include those who fail to register as a sex offender.

iv. Clarify the technical definition of “aggravated felony” by referring to “an offense relating to” each of the categories of crimes, rather than specifying the crimes themselves. This will ensure certain kinds of homicide, sex offenses, and trafficking offenses are encompassed within the statutory definition.

H. Gang Members. Today, known gang members are still able to win immigration benefits despite the dangers they pose to American society. As such, the Administration proposes implementing measures that would deny gang members and those associated with criminal gangs from receiving immigration benefits.

I. Visa Security Improvements. Without sufficient resources, the State Department is hindered from adequately vetting visa applicants. As such, the Administration proposes enhancing State Department visa and traveler security resources and authorities.

i. Expand the Department of State’s authority to use fraud prevention and detection fees for programs and activities to combat all classes of visa fraud within the United States and abroad.

ii. Ensure funding for the Visa Security Program and facilitate its expansion to all high-risk posts.

iii. Increase the border crossing card fee.

iv. Grant the Department of State authority to apply the Passport Security Surcharge to the costs of protecting U.S. citizens and their interests overseas, and to include those costs when adjusting the surcharge.

v. Strengthen laws prohibiting civil and criminal immigration fraud and encourage the use of advanced analytics to proactively detect fraud in immigration benefit applications.

3. MERIT-BASED IMMIGRATION SYSTEM

A. Merit-Based Immigration. The current immigration system prioritizes extended family-based chain migration over skills-based immigration and does not serve the national interest. Decades of low-skilled immigration has suppressed wages, fueled unemployment and strained federal resources. Therefore, the Administration proposes establishing a merit-based immigration system that protects U.S. workers and taxpayers, and ending chain migration, to promote financial success and assimilation for newcomers.

i. End extended-family chain migration by limiting family-based green cards to spouses and minor children and replace it with a merit-based system that prioritizes skills and economic contributions over family connections.

ii. Establish a new, points-based system for the awarding of Green Cards (lawful permanent residents) based on factors that allow individuals to successfully assimilate and support themselves financially.

iii. Eliminate the “Diversity Visa Lottery.”

iv. Limit the number of refugees to prevent abuse of the generous U.S. Refugee Admissions Program and allow for effective assimilation of admitted refugees into the fabric of our society.

Oversight of the Administration's Decision to End Deferred Action for Childhood Arrivals

President's statement addresses the implementation and impact of the Deferred Action for Childhood Arrivals (DACA) program, and provides recommendations for how Congress should move forward. There is no doubt that the DACA benefits have been a major blessing for the recipients and their families. The educational institutions they attended and their employers also benefited. But there also have been some adverse side effects for the American economy, for local communities, and for our immigration system. The DACA program not only was an egregious abuse of executive authority, it was carelessly implemented. It has displaced legal U.S. workers from employment opportunities, added to the cost of public welfare and assistance programs, provided deportation protection to criminals, diverted resources away from processing benefits for legal immigrants, invited fraudulent applications, and helped inspire a surge of new illegal immigration. Members of Congress again are being confronted by passionate advocates for an amnesty. You must also remember that constant increases in immigration have consequences for Americans, and that continued tolerance of illegal immigration damages the integrity of our legal immigration system and erodes public support. For these reasons, an amnesty is appropriate only if it is limited to the approximately 700,000 people who now have DACA benefits, and only if it is enacted along with other provisions to mitigate the unavoidable fiscal costs, increases in chain migration, and encouragement to illegal immigration that will ensue.

Chairman Grassley and Ranking Member Feinstein, thank you for the invitation to appear at this important hearing. My statement addresses the implementation and impact of the Deferred Action for Childhood Arrivals (DACA) program, and provides recommendations for how Congress should move forward. There is no doubt that the DACA benefits have been a major blessing for the recipients and their families. The educational institutions they attended and their employers also benefited. But there also have been some adverse side effects for the American economy, for local communities, and for our immigration system. The DACA program not only was an egregious abuse of executive authority, it was carelessly implemented. It has displaced legal U.S. workers from employment opportunities, added to the cost of public welfare and assistance programs, provided deportation protection to criminals, diverted resources away from processing benefits for legal immigrants, invited fraudulent applications, and helped inspire a surge of new illegal immigration. Members of Congress again are being confronted by passionate advocates for an amnesty. You must also remember that constant increases in immigration have consequences for Americans, and that continued tolerance of illegal immigration damages the integrity of our legal immigration system and erodes public support. For these reasons, an amnesty is appropriate only if it is limited to the approximately 700,000 people who now have DACA benefits, and only if it is enacted along with other provisions to mitigate the unavoidable fiscal costs, increases in chain migration, and encouragement to illegal immigration that

EB-5 Regional Center Program Reauthorization – Extended to December 8, 2017.

The EB-5 Regional Center Program is now extended to December 8, 2017 thanks to H.R.601, which the President signed into law yesterday.  The relevant language for regional center program extension is in H.R. 601 “Continuing Appropriations Act, 2018 and Supplemental Appropriations for Disaster Relief Requirements Act, 2017”  Division D Section 101 provides appropriations for “continuing projects or activities…for which appropriations, funds, or other authority were made available in the following appropriations Acts: … (6) The Department of Homeland Security Appropriations Act, 2017 (division F of Public Law 115–31), except section 310.”  H.R. 601 Division D Section 106 (PDF page 13) further specifies that: “Unless otherwise provided for in this Act or in the applicable appropriations Act for fiscal year 2018, appropriations and funds made available and authority granted pursuant to this Act shall be available until whichever of the following first occurs:

(1) the enactment into law of an appropriation for any project or activity provided for in this Act;

(2) the enactment into law of the applicable appropriations Act for fiscal year 2018 without any provision for such project or activity; or

(3) December 8, 2017.”

The language in Section 106 is a good reminder that “extended to December 8” doesn’t mean “guaranteed to remain unchanged until December 8.” Congress will reportedly turn its attention to immigration issues in the next couple months, and they could come up with legislation before December that affects multiple visa categories including EB-5. Let’s hope.

Trump's immigration crackdown causing strain on courts

President Donald Trump's promised crackdown on illegal immigration has resulted in temporary reassignments of about one-third of the nation's immigration judges, a move judges and activists say is only further backlogging already jammed immigration courts.

Dozens of immigration judges have been sent for weeks-long assignments closer to the U.S. border with Mexico following Trump's executive order aimed at increasing border security. Judges have also been assigned to detention centers around the country or made to hear cases via teleconferencing. More than 100 of the nation's 326 immigration judges have been mobilized in the administration's effort, according to the Department of Justice.

The aim: to more quickly decide deportation cases, immigration advocates say.

The moves have forced some reassigned immigration judges to temporarily abandon their dockets and resulted in some people waiting even longer for their day in court. Part of that disruption, Marks said, is growing the country's backlog of cases. The Transactional Records Access Clearinghouse at Syracuse University found that the number of pending immigration cases swelled to more than 610,000 last month.

Immigrants waited an average of 672 days for their cases to be resolved in 2016, according to The Transactional Records Access Clearinghouse. Marks says that number will likely grow as more judges face reassignment.

Those gaps can mean more than simply forcing people to wait longer for their cases to get in front of a judge — it can also hurt the strength of a person's case.

Department of Justice officials note that the backlog and long waits did not begin under Trump. Average wait times steadily grew during President Barack Obama's administration including when thousands of Central American children and families fleeing violence in their home countries arrived in the summer of 2014.

Attorney General Jeff Sessions announced in a speech in Arizona in April the administration's plans to hire more immigration judges, as well as streamline the process to get them to the bench to deal with the harsher penalties now being enforced against those found to be in the country illegally, including detaining all adults apprehended at the border.

Another part of that effort includes pressuring so-called "sanctuary cities" to buy into the Trump administration's policies. Sessions made the case in one such city, Philadelphia, during a visit on Friday. "I urge the city of Philadelphia and every sanctuary city to reconsider carefully the harm they are doing to their residents by refusing to cooperate with federal law enforcement," Sessions said.

Trump officials point to the drastically lower number of apprehensions along the southwest border as proof the crackdown is working. June saw a 53 percent decrease from one year ago. But immigration lawyers say those numbers are only more proof that uprooting judges to the border is unnecessary.

Trump Admin. Fights For Broad Travel Ban In 9th Circ.

Law360, New York (August 10, 2017, 10:53 PM EDT) -- The federal government told the Ninth Circuit on Wednesday that a “formal assurance” from a refugee resettlement agency is not enough to exempt a foreign national from the Trump administration’s travel ban, nor are the state of Hawaii’s “unpersuasive” efforts to widen the definition of “close” family. 

In a reply brief, the U.S. Department of Justice continued to fight a July ruling from U.S. District Judge Derrick K. Watson in Hawaii holding that refugees with assurances of resettlement are exempt from President Donald Trump’s executive order barring nationals from six Muslim-majority countries from entering the U.S., as are grandparents, in-laws and other types of family members outside the government’s narrow definition of “close.”

The government said a formal assurance from a U.S. resettlement agency does not count as the kind of “bona fide” relationship with a U.S. entity that the U.S. Supreme Court said would exempt a traveler from the ban when it partially reinstated Trump's order on June 26. The Justice Department argued that no individual refugee is party to the agreement made between the resettlement agency and the U.S. Department of State and that the refugee generally has no contact with the agency before arriving.

On the family portion of Judge Watson’s ruling, the government said the most relevant provisions for defining the term “close” are those in the Immigration and Nationality Act that govern which family members are close enough to seek immigrant visas for family reunification.

“Plaintiffs’ efforts to expand ‘close’ family to include siblings-in-law, cousins, nieces and nephews, aunts and uncles, and grandparents — i.e., any familial relationship but the most distant — are unpersuasive,” the government said.

The appeals court last heard from Hawaii on Aug. 3, and oral arguments are set for Aug. 28, according to the federal court docket.

Late Thursday, the Trump administration also filed a brief in the ongoing Supreme Court case over the travel ban, arguing that under the high court’s precedent, the president’s “national security” findings give a facially legitimate reason for the order’s exclusion of certain foreign nationals from the U.S.

Meanwhile, in the Ninth Circuit case Thursday, the U.S. Committee for Refugees and Immigrants filed an amicus brief in support of Hawaii, arguing that the district judge’s holding on refugees should be upheld.

“The district court correctly concluded that the existence of a formal assurance of services from a refugee resettlement agency is a type of ‘bona fide relationship’ with a foreign national,” the group said.

The committee further argued that the government — not the district court — is trying to “rewrite” the high court’s June opinion, and that it and other agencies in its network are being harmed by having refugees who have received formal assurances excluded. It said it also joined the International Refugee Assistance Project in urging the appeals court to expedite the appeal and the issuance of a mandate.

A number of other amicus briefs were filed at the Ninth Circuit last week also urging the court to affirm Judge Watson’s ruling, including one by IRAP and HIAS Inc., or the Hebrew Immigrant Aid Society, which argued that more than 200,000 refugees currently seeking resettlement in the U.S. are threatened by the administration’s executive order and that Judge Watson correctly enjoined “the government’s policy of excluding refugees with formal assurances.”

Other amicus briefs were filed at the Ninth Circuit in support of Hawaii, including ones by Human Rights First, a group of American Muslim citizens, a group of former national security officials, a number of law professors, and the states of New York, California, Connecticut and Delaware.

The federal government appealed Judge Watson’s ruling the day after he issued it.

“The Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the executive branch's duty to protect the nation,” U.S. Attorney General Jeff Sessions said in a statement at the time, referring to the Hawaii federal court's earlier injunction blocking the travel ban.

The federal government asked the Ninth Circuit to pause Judge Watson’s order to allow the justices sufficient time to review it. In addition to asking the Supreme Court to clarify its ruling and issue a temporary administrative stay, it also sought a stay from the Ninth Circuit in case the justices opted to decline to rule pending the court’s consideration of the matter.

The Supreme Court agreed on June 26 to take up the appeal over the ban — although it won’t hear the case until this fall — and it granted the government's request to reinstate part of the order in the meantime. It said that people from the six affected countries who do not have a close family relationship tying them to the U.S. or another “bona fide” connection may not gain entry.

The State Department then released guidance clarifying that “close family” would not include grandparents, grandchildren, uncles, aunts, nephews, nieces, sisters-in-law, brothers-in-law or “any other ‘extended’ family members.”

An attorney for the refugee groups did not respond to requests for comment Thursday. A DOJ representative and a representative for Hawaii's Department of the Attorney General declined to comment.

The International Refugee Assistance Project and HIAS Inc. are represented by Omar C. Jadwat, Lee Gelernt, Hina Shamsi, Hugh Handeyside, Sarah L. Mehta, Spencer E. Amdur, David K. Hausman, Cecillia D. Wang, Cody H. Wofsy, David Cole, Daniel Mach and Heather L. Weaver of the American Civil Liberties Union Foundation, by Karen C. Tumlin, Nicholas Espíritu. Melissa S. Keaney, Esther Sung, Marielena Hincapié and Justin B. Cox of the National Immigration Law Center, by Mariko Hirose, Rebecca Heller and Mark Wasef of the International Refugee Assistance Project and by Mateo Caballero of the ACLU of Hawaii Foundation.

Hawaii and named plaintiff Ismail Elshikh are represented by Neal Katyal, Colleen Roh Sinzdak, Mitchell P. Reich, Elizabeth Hagerty, Thomas P. Schmidt, Sara Solow and Alexander B. Bowerman of Hogan Lovells, by Hawaii Attorney General Doug S. Chin, Hawaii Solicitor General Clyde J. Wadsworth, and by Deirdre Marie-Iha, Donna H. Kalama, Kimberly T. Guidry and Robert T. Nakatsuji of the Hawaii Department of the Attorney General.

The federal government is represented by acting Solicitor General Jeffrey B. Wall, acting Assistant Attorney General Chad A. Readler, acting Assistant U.S. Attorney Elliot Enoki, Deputy Solicitor General Edwin S. Kneedler, Deputy Assistant Attorney General Hashim M. Mooppan, and attorneys Douglas N. Letter, Sharon Swingle, H. Thomas Byron III, and Lowell V. Sturgill Jr. of the U.S. Department of Justice.

The case is State of Hawaii et al. v. Donald Trump et al., case number 17-16426, in the U.S. Court of Appeals for the Ninth Circuit.

The Latest Milestone In EB-5 Enforcement? Prison Time

Two people have been handed prison sentences this year in cases over EB-5 visa program fraud, and while it is still possible that more criminal matters could be brought, such cases have the added challenge of needing significant resources and an element of criminal intent, according to attorneys.

So far, 2017 is shaping up to be a notable year for EB-5 fraudsters getting jail time. First, a Chicago-area man who admitted to defrauding Chinese investors out of $160 million through the federal government's EB-5 visa program was sentenced to three years in prison in February.

In that case, Anshoo Sethi pled guilty to one count of wire fraud in January 2016, admitting he falsified documents and lied to string along nearly 300 Chinese nationals who believed they would get a temporary visa to the U.S. through the EB-5 program in exchange for their support of a purported plan to build a convention center and hotel complex.

Several months after Sethi's sentencing, real estate developer Lobsang Dargey was sentenced to four years in prison on Aug. 4, having pled guilty earlier this year to charges of a wire fraud conspiracy and a "scheme to conceal information" from the U.S.

Prosecutors claimed Dargey had "fraudulently obtained" more than $235 million from a commercial lender, an institutional investor and immigrant investors. Specifically, they said Dargey defrauded more than 280 foreign investors by "falsely promising them" permanent residency via the EB-5 program.

On top of the large amounts of money involved, the cases are significant for being criminal in nature, as much of the enforcement in the EB-5 world has been through civil cases with the U.S. Securities and Exchange Commission.

"[I]n general, criminal cases are much more difficult and resource-intensive endeavors to pursue," noted Douglas Hauer, an attorney with Mintz Levin Cohn Ferris Glovsky and Popeo PC. "So, the only instances where we'll see criminal actions is where there is clear evidence that an individual engaged in criminal conduct — and that means that the individual had a guilty mind, or the 'mens rea,' to actually commit a wrongful act."

Simply put, prosecutors may not have perceived an element of criminal intent in some of these cases, according to Bill Mateja of Polsinelli PC, who previously worked as a prosector at the U.S. Department of Justice.

"It does seem to me, though, that there are cases that the SEC has pursued, where a U.S. attorney's office may have deemed that there wasn't criminal intent," Mateja said. "It's one thing to engage in civil securities fraud, another to engage in criminal securities fraud."

Still, those with their eyes on the EB-5 industry aren't ruling out future criminal cases. Ronnie Fieldstone, an attorney with Arnstein & Lehr, predicted that there could be some other cases "of a more minor nature," and that it's possible we still might see criminal charges related to the EB-5 case over the Jay Peak ski resort.

"I hate to say, [but] the jury's out on that case," he said.

Mark Abueg, a spokesman with the DOJ, declined to comment when asked if there were any plans for charges to be filed in relation to the Jay Peak EB-5 situation.

In some ways, the criminal and SEC actions may also help to reassure investors that fraud in the EB-5 industry is being addressed. Peter Joseph, the executive director of IIUSA,  an EB-5 trade group, argued that the justice process coming to an end on some of the bigger cases has instilled an "important aspect of confidence in the marketplace." He also noted that his organization is keeping an eye out for any future criminal developments.

"I do assume that some of the SEC actions that have already been taken in the last few years, that are separate from these two cases, could potentially get to the criminal side of the equation," he said. "My understanding [is] that that's generally the order of things, and so what we're keeping a close eye on that as well."

Meanwhile, federal prosecutors in New York have subpoenaed Kushner Cos., the real estate development company owned by the family of White House Senior Adviser Jared Kushner, over its dealings with the EB-5 visa program, according to published reports, adding another level of intrigue to discussions surrounding the program.

On top of all this, the EB-5 regional center program is up for reauthorization at the end of September. But with Congress tasked with passing budget legislation and potentially tackling tax issues this fall, it remains to be seen whether any legislative reforms to the EB-5 program will materialize before the reauthorization deadline hits.

About linguistics, translations, and more…

Certain words that sounds almost exactly the same in English and in Russian, and universally translated by professional translators as the same, have in fact very different meanings in English (I mean American English, I do not know much about British English) and in Russian.

It causes considerable amount of confusion in business transactions, immigration, litigation, and everywhere else. For example, simple English word “partnership” translated in Russian as «партнерство». In American

English word “partnership” has a very specific legal meaning, i.e. that the parties have certain joint ownership in the enterprise. In Russian, they use the word “partnership” very loosely, to describe any type of business relationships, from cooperation on a project, to simple business transactions between manufacturer and distributor, or buyer and seller, or wholesaler and retail, or any kind of customer/service provider relationships.

It causes a lot of confusion on American side, when they see the relationships being descripted as “partners”, when in fact, they are not even close. In immigration, we ask client sometimes to provide recommendations from influential people from the industry. Each letter we get, claims that the client is a “partner” and they have “partnership” relationships with the company. Well, for immigration officer it’s a bad sign, as it signals the letter is written by an interested party who has some financial gains from the process, not by an objective person who had some knowledge of the matter.

On another hand, when Russian businessman describes to American counter-part that now they are partners, it signals to American side that they will have certain ownership rights to the enterprise. Which is totally opposite of what Russian meant.

There is a lot more samples like that. Be wary.

Denaturalization of individuals who lie on their naturalization applications

Acting Assistant Attorney General Chad A. Readler of the Justice Department’s Civil Division:

 “We will aggressively pursue the denaturalization of individuals who lie on their naturalization applications, especially in a circumstance like this one, which involved an alien who masqueraded as an immigration officer and was convicted of defrauding nine aliens of thousands of dollars in exchange for false promises of facilitating immigration benefits.”

Araceli Martinez aka Maria Araceli Ramos de Martinez, 53, a native of Mexico, pleaded guilty in September 2012 to Obtaining Money, Labor or Property by False Pretense in violation of California Penal Code § 532(a) in the Superior Court of the State of California for the County of Los Angeles. Between June 2011 and March 2012, Martinez engaged in a scheme in which she impersonated a U.S. immigration officer. Martinez falsely represented that undocumented immigrants could hire her to assist them in obtaining legal status, defrauding her victims of thousands of dollars without ever submitting any paperwork on their behalf. Martinez applied to naturalize and become a U.S. citizen in the midst of engaging in her fraudulent scheme. While under oath during her naturalization interview, Martinez stated that she had never committed a crime or offense for which she was not arrested. Relying on this answer, USCIS granted her naturalization application and Martinez became a U.S. citizen later that year. When the Department of Justice filed a complaint in federal court to initiate denaturalization proceedings in April 2017, Martinez was incarcerated in the Mendocino County jail in Ukiah, California, serving a two-year sentence for a December 2015 conviction for felony grand theft.

“This order sends a clear message to individuals who commit fraud during the naturalization process – we will investigate you and seek you out to ensure that justice is done,” said Acting ICE Director Thomas Homan. “ICE will continue to work with our partners at the Justice Department’s Office of Immigration Litigation – District Court Section to hold individuals responsible for their fraudulent conduct, especially those pretending to be government officials.”

“I congratulate the trial team for bringing Araceli Martinez to justice,” said USCIS Acting Director James McCament. “Ms. Martinez fraudulently obtained her citizenship and then made false representations that exploited other immigrants. By doing so, she threatened to undermine the hard work our officers do every day to protect the integrity of the immigration system. USCIS is glad to see her held accountable.”

U.S. businesses in danger of suffering irreparable harm due to a lack of available temporary nonagricultural worker

U.S. businesses in danger of suffering irreparable harm due to a lack of available temporary nonagricultural workers will be able to hire up to 15,000 additional temporary nonagricultural workers under the H-2B program under a final rule that the Departments of Homeland Security and Labor submitted to the Federal Register today. To qualify for the additional visas, petitioners must attest, under penalty of perjury, that their business is likely to suffer irreparable harm if it cannot employ H-2B nonimmigrant workers during fiscal year (FY) 2017.

After consulting with Secretary of Labor Alexander Acosta, Secretary of Homeland Security John Kelly determined there are not enough qualified and willing U.S. workers available to perform temporary nonagricultural labor to satisfy the needs of some American businesses in FY 2017.

“Congress gave me the discretionary authority to provide temporary relief to American businesses in danger of suffering irreparable harm due to a lack of available temporary workers,” said DHS Secretary John Kelly. “As a demonstration of the Administration’s commitment to supporting American businesses, DHS is providing this one-time increase to the congressionally set annual cap.”

The H-2B Temporary Nonagricultural Worker program was designed to serve U.S. businesses unable to find a sufficient number of qualified U.S. workers to perform nonagricultural work of a temporary nature. Congress set the annual H-2B cap at 66,000. A maximum of 33,000 H-2B visas are available during the first half of the fiscal year, and the remainder, including any unused H-2B visas, is available starting April 1 through September 30. On March 13, 2017, USCIS received sufficient H-2B petitions to meet the full FY 2017 statutory cap of 66,000. In May, Congress delegated its authority to the Secretary to increase the number of temporary nonagricultural work visas available to U.S. employers through September 30. The Secretary took the intervening time to consult with the Secretary of Labor on the issue and to properly develop this rule in accordance with Congressional requirements.

Starting July 19, eligible petitioners for H-2B visas can file Form I-129, Petition for a Nonimmigrant Worker and must submit a supplemental attestation on Form ETA 9142-B-CAA with their petition. A new tip line to report general H-2B abuse and employer violations has also been established.

Hawaii judge loosens travel ban to allow grandparents, and other relatives

A federal judge in Hawaii ordered a loosening of President Donald Trump's travel ban late Thursday, ruling that the Trump administration's interpretation of the recent U.S. Supreme Court ruling is too narrow. Judge Derrick K. Watson said grandparents and other close relatives -- such as in-laws, aunts and uncles -- traveling from the six affected countries, all of them predominantly Muslim, are exempt from the ban, for now. Last month, the Supreme Court reinstated most of the travel ban, allowing only those with "bona fide" family ties to enter the U.S. By the administration's interpretation of that, only travelers with a parent, spouse, child, adult son or daughter, son- or daughter-in-law or sibling in the U.S would be admitted.

Tax questions answered for immigration investors

Through years of working with foreign immigrant investors, we come across commonly asked questions that foreign investors may have about the U.S. tax system. Here, Karasik Law Group shares some basic answers about tax issues that can impact investors’ visa effort.

Q: When does an immigrant investor have a U.S. tax return filing requirement?

A: If an immigrant investor is a Green Card holder or meets the Substantial Presence Test (as defined in Internal Revenue Code), the investor is considered a U.S. tax resident. U.S. tax residents are required to file U.S. tax returns to report worldwide income and they are subject to foreign financial asset reporting requirements.

Note that investors who are nonresidents are still required to file U.S. tax returns to report any U.S.-sourced income received during the tax year.

Q: When are personal U.S. tax returns due for immigrant investors?

A: Federal individual income tax returns are typically due on April 15 of the following calendar year. Investors that live overseas typically qualify for an automatic two-month extension (usually June 15). Immigrant investors, just like any US taxpayer, can apply for an additional six-month extension that extends the deadline to October 15. While a taxpayer may extend the filing deadline, all taxes due on the income reported on the tax return must be paid by April 15 to avoid penalties and interest. Some states that have state income tax, have filing deadlines that differ from the federal filing deadlines and/or may not honor the June 15 automatic overseas extension. We recommend that investors consult with qualified tax consultants to make sure that their tax returns are filed correctly and in a timely manner.

Q: What happened when immigrant investors fail to file their tax returns correctly and in a timely manner?

A: U.S. taxpayers who fail to report their worldwide income and meet their foreign asset reporting requirements can face substantial penalties and interest. Filing the wrong tax forms may also cause the entire return to be invalid, thus compounding any interest and penalties incurred. While the standard statute of limitations available to the IRS for auditing a tax return is three years, the statute of limitations does not apply if a taxpayer never filed a tax return, or has omitted certain tax forms. In that case, the IRS has an indefinite period of time within which to audit a taxpayer.

It is important for immigrant investors to seek assistance from qualified tax advisors who understand the complexities involved in the investor’s green card process and the impact that certain investment income and filing deadlines can have on the tax status of the investor.