DHS to Review State Laws Issuing Driver’s Licenses to Undocumented Immigrants

Acting Homeland Security Secretary Chad Wolf has ordered a review of state laws that allow undocumented aliens to obtain driver’s licenses and restrict data-sharing with Federal immigration authorities. Wolf’s memo follows the enactment in December 2019 of New York’s “Green Light” law, which authorized the grant of licenses for undocumented immigrants, among other things. Similar laws exist in a dozen other states. The Trump Administration has clearly indicated its disdain for such laws and is studying them at present, likely looking for an avenue to challenge their enforceability.

DHS Proposes Additional Mandatory Bars to Asylum

The Department of Homeland Security has proposed seven new bars to asylum in addition to those already existing (e.g., serious crimes, security threats, terrorism, etc.) under the Immigration and Naturalization Act.  The proposed rule would bar asylum for aliens who are convicted of:

  1. A felony under federal or state law;
  2. An offense related to alien smuggling or harboring;
  3. An offense involving illegal reentry;
  4. A Federal, state, tribal, or local crime involving criminal street gang activity;
  5. Certain Federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant;
  6. A Federal, state, tribal, or local domestic violence offense, or those who are found by an adjudicator to have engaged in acts of battery or extreme cruelty in a domestic context, even if no conviction resulted; and
  7. Certain misdemeanors under Federal or state law for offenses related to false identification, the unlawful receipt of public benefits from a Federal, state, tribal, or local entity, or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.

The proposed rule not only adds to the list of offenses, it would also remove the requirement to conduct a second review in cases where an immigration judge issues a discretionary denial of the application. The net result of the rule, if it goes into effect, will be fewer aliens with criminal records being eligible for asylum.  Comments on the rule are due January 21, 2020, so stand-by for further updates.

Proposed USCIS Rules Increase Financial Burden on Immigrants

Two new proposed immigration regulations would profoundly affect employers, international students, H-1B and L-1 visa holders, EB-5 investors, asylum seekers, and others. The first rule would make changes to the USCIS fee schedule. In this rule, DHS proposed to adjust USCIS fees by a weighted average increase of 21 percent, add new fees, and make other changes, including form changes and the introduction of several new forms. The second would make multiple changes to the regulations governing asylum applications and eligibility for employment authorization based on a pending asylum application.  These new DHS proposed rules will place additional burdens on employers seeking to sponsor nonimmigrant and immigrant workers and those seeking asylum. More information is available via the follow links on the proposed fee rule and the proposed rule regarding asylum employment authorizations.

Reasonable Suspicion Required to Search Electronic Devices at Border

Border agents no longer have complete discretion to search your phone and computer at the border.  They now need to have reasons for suspicion of unlawful intent before demanding to search electronics.  On November 12, 2019, U.S. District Judge Denise Casper said there must be a reasonable suspicion that the devices contain contraband — such as child pornography or classified information — before the search.  The ruling, however, did not go so far as to require warrants for searches of electronic devices, but the Judge concluded that the border search exception to the Fourth Amendment does not give CBP officers an unfettered ability to search electronic devices.  Casper said she was requiring reasonable suspicion, rather than a warrant justified by probable cause, because travelers have a reduced expectation of privacy at the border and the government has an interest in maintaining “territorial integrity.”

The number of electronic device searches at U.S. ports of entry has recently increased significantly. Last year, CBP conducted more than 33,000 searches, almost four times the number from just three years prior. This new ruling is a major victory for privacy rights.

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