Statutes of Liberty

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Taryn Druge, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

The Trump administration has a logistical problem. If the administration wants to fulfill its promises of mass deportation via legal means, it has to use the judicial machinery of the U.S. immigration system.

Unfortunately, the immigration courts are backlogged to the moon – with 3.6 million cases pending at the end of FY2024, there is no way that the present machinery can keep up with current demand, never mind accelerate the pace of adjudications. There are about 700 immigration judges in the United States.

If they each handle two trials per day, every workday of the year, that’s about 280,000 cases per year — it would take thirteen years to clear the backlog, assuming no new cases came into the system. And more cases are coming into the system — a lot more. Although numbers vary, Q3 of FY2024 saw 100,000 new cases filed in a single month.

So, what is the administration going to do? We know of two steps so far — one is a fact, and one is a well-sourced rumor.

The Fact: Half of the Judges on the Board of Immigration Appeals Have Been Fired

There is just one appeals court for the entire U.S. immigration system — the Board of Immigration Appeals, in Falls Church, Virginia. Each and every decision made by all seven hundred immigration judges is appealable to the Board. That means that the Board has a heavy workload, and getting a decision on appeal often takes years.

Hiring more appellate judges — or more staff attorneys, who can assist with research and drafting — would be one way to speed up the Board’s work. (The Trump administration did that, in its first iteration, as did the Biden administration.) That is not what the new Trump administration has done. Instead, the new administration has fired about half of the judges on the Board of Immigration Appeals.

Our view is that this action is both political — every judge fired was appointed by former President Biden — and practical. The Trump administration does not intend to fix the problem of backlogs at the Board of Immigration Appeals. Instead, it intends both to abolish the Board and to abolish the lower immigration courts, by converting them into Special Inquiry Officers, from whose decisions no appeal will lie.

The Rumor: The Immigration Courts Will Revert to Proceedings Before Special Inquiry Officers

This rumor comes from Jason Dzubow, Esq., who published it in his excellent blog, The Asylumist. Dzubow is, in my view, the best attorney specializing in asylum law in Washington, and a real expert on U.S. immigration law — so it’s a very-well sourced rumor, but it is still unconfirmed by outside sources.

According to Dzubow’s source, the Trump administration intends to convert the existing immigration judges (and perhaps the remaining Board of Immigration Appeals judges) into Special Inquiry Officers. This would be a real throwback to procedure last seen before 1973, when Special Inquiry Officers were converted into Immigration Judges by regulation.

Dzubow’s interpretation, we think, is that by converting the immigration courts into special inquiry proceedings, the administration would be able to (1) decrease the due process protections available to respondents, and (2) tap a ready pool of officials already working at the Department of Homeland Security — existing immigration judges, ICE prosecutors, and USCIS adjudicators. (ICE prosecutors would no longer be needed in the streamlined system, and so converting them into Special Inquiry Officers would be a natural move.)

It is unclear how the new proceedings would be conducted, how the existing body of law would be applied to them, and what substantive changes this would bring for our clients. It would be an earthquake in the immigration court system, and the consequences are unpredictable.

In our view, this is still a rumor, but a pretty plausible one from a sensible and well-informed source. When we have new information, we will pass it on to our readers!

As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Taryn Druge, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

As we predicted, the new Trump administration has launched a broad-spectrum attack on various aspects of our immigration system. As we further predicted, many, many lawsuits have been filed in response.

The purpose of this advertorial is to give our readers a broad sense of the landscape, both in terms of the Executive Orders and what the administration’s foes have done to challenge them.

Executive Action: End Birthright Citizenship

We discussed the Trump administration’s attempt to end birthright citizenship by executive order in our last explainer. It isn’t going well for the administration. As we predicted, lawsuits were filed — nine of them, in various federal district courts — and, so far, the Justice Department is getting its clock cleaned. In State of Washington, et al., v. Trump, et al., a federal judge issued a nationwide injunction against the executive order, which is currently on appeal at the Ninth Circuit. Don’t expect the injunction to be lifted.

Executive Action: Guaranteeing the States Protection Against Invasion

The Trump administration, on January 20, 2025, issued an executive order stating that, (1) the United States is currently being invaded, within the meaning of Article IV, Section 4 of the Constitution, and (2) that the President is therefore exercising his inherent Article II power to suspect the physical entry of all aliens involved in an invasion into the United States until further notice. On February 3, immigrant advocacy organizations sued and sought an injunction. That complaint is still pending. They’ll get their injunction, trust us.

Executive Action: ICE Enforcement in Houses of Worship

The Trump administration announced that, in a reversal of previous policy, ICE may now conduct immigration enforcement operations in locations previously considered sensitive — prominently including schools and churches.

We predict that this lawsuit will eventually fail. There is no Statutory or Constitutional right to be free from arrest or detention based on location

Executive Action: Expedited Removal Policy

The Trump administration has expanded the scope of expedited removal — which ordinarily only involves recent entrants to the United States caught near the U.S. border — to the entirety of the United States. The policy targets undocumented immigrants nationwide.

People apprehended by ICE who cannot prove that they are U.S. citizens, or that they have permission to be in the United States, or that they have been in the country continuously for at least two years, can be summarily deported. The ACLU and allied organizations have filed suit, contending that this new policy violates the Fifth Amendment, the Immigrant and Nationality Act, and the Administrative Procedure Act.

We predict that this suit will succeed on procedural grounds, because DHS published a Federal Register Notice purporting to create a regulation on the same day that the E.O. was announced — on January 21, 2025.

Executive Action: Expanding Migrant Operations Center at Naval Station Guantanamo Bay

The Trump administration has announced that it will be ramping up operations at Guantanamo Bay, and plans to detain up to 30,000 migrants there. The administration has already began sending migrants there in small numbers.

The ACLU has sued, alleging that the Trump administration has now effectively deprived those detainees of the right to counsel, and is seeking an injunction guaranteeing, at a minimum, that lawyers will be able to contact their clients while in detention.

DHS spokeswoman Tricia McLaughlin has replied, in a statement to NPR, that “[i]f the AMERICAN Civil Liberties Union cares more about highly dangerous criminal aliens including murderers & vicious gang members than they do about American citizens — they should change their name.” (Capitalization in original.)

We predict that this suit will succeed, and we predict that Tricia McLaughlin will be promoted.

These are just some of the Trump administration’s immigration orders! We’re working as quickly as we can to address them in print for our readers. As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Taryn Druge, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

The Trump administration, as expected, released a raft of immigration-specific executive orders immediately upon assuming office.

We expected this, and postponed publication of our usual advertorial by a week so we could share information about the executive orders with you. We were surprised by the breadth and variety of the orders; they cover everything from birthright citizenship to end the COVID-19 vaccination requirement for green card applicants.

Rather than do a superficial summary of all of them, we want to focus on the most important orders, one at a time, and so we’ll start this week with what is, in our view, the most important of the Executive Orders — Protecting the Meaning and Value of American Citizenship, which purports to abolish birthright citizenship for the children of certain illegal immigrants.

First, what does the order say? It says that babies born on U.S. soil on or after February 19, 2025, are not US citizens if the baby’s mother (not father!) is unlawfully present or has temporary lawful status, and the baby’s father (not mother!) is not a US citizen or green card holder.

Here at Statutes of Liberty, we try to be measured in our analysis of changes to immigration law and policy. On this subject, it is difficult to maintain our equanimity, because this isn’t a close call — purporting to abolish birthright citizenship by executive order is ludicrous. It is already the subject of federal litigation, and we expect an injunction to be issued in short order.

When the Trump administration seeks to have the injunction quashed, the litigation may eventually proceed, through the appellate process, to the Supreme Court; and if it does, the administration will lose 9:0.

It has been settled Constitutional law since Wong Kim Ark v. United States that all those born in the United States, with the exception of children foreign diplomats (and, as a historical matter, members of certain Native American tribes) are United States citizens, because the Fourteenth Amendment to the United States Constitution states plainly that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

No one seriously doubted at the time that this was the meaning of the Fourteenth Amendment. That includes, amusingly, one of the Justices who dissented in the case, Justice Harlan. Harlan worried aloud, in a lecture to law students, about large numbers of Chinese immigrants “root[ing] out the American population” in the West.

But he admitted, with admirable candor, that “[o]f course, the argument on the other side is that the very words of the Constitution embrace such a case” as that of Wong Kim Ark. The Constitution is unambiguous on the subject, as the Administration will find out in short order.

As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Taryn Druge, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Here at The Law Office, we have a long (and happy) tradition of benefiting from the work of paid law clerks. In the nature of things, these relationships don’t last forever, because our law clerks go on to other things — actual clerkships, brilliant legal careers, &c. That means that we have to hire new clerks every so often. Every So Often is, as it happens, Now.

Daniela Corona, pictured above, is leaving us soon as well as she finishes up her studies at American University Washington College of Law. So, as one of her parting hazing rituals assignments, I asked her if she would sit for a public exit interview.

Are you a college student (or especially) a law student? Do you want to work here as a paid law clerk? Email James at [email protected]!

Montana: In one sentence, why should law students work here?

Corona: The clients you work with here are exactly the kind of people I want to help in my future career.

Montana: What sorts of people are those?

Corona: The kind of people who are most in need of help. Over the course of my time here, I’ve done five or so U Visa petitions — those are for people who have been victims of crime and have cooperated with the police. That’s not a moneymaker for the private bar.

Montana: Before you came here, did you have any prior immigration experience?

Corona: I come from a family of proud immigrants. I hadn’t worked in an immigration law clinic in law school.

Montana: Were you given interesting assignments? (In other words: Is this like working in BigLaw?)

Corona: Yes! (Also: No!) The assignments put me in the position of a working immigration attorney — completing immigration forms, taking affidavits, handling client contact. I attended immigration court hearings and even represented a naturalization applicant at her interview.

Montana: How many times were you sent out for coffee?

Corona: Zero. Well, it depends how you look at it. You dragged me out to pick up Friday morning coffee and pastries for the office once.

Montana: Village Sweet at Westover, best coffee and pastries in town.

[…]

Montana: Does the office pay its law clerks? Does the office offer flexible hours? Does the office offer a retirement plan matching benefit from day one? Answer these softball questions, please.

Corona: Yes, the office pays. Yes, the office offers flexible hours, but the hours are entirely in-person, no remote. Yes, clerks get a 3% retirement match.

Montana: As they say in English court: Is there anything that you wish to add to your testimony?

Corona: I would say that the lawyers at this office really care about helping the clients. Working at this law office has been a great introduction to the practice of immigration law.

Montana: I hope you end up acquiring us someday in a friendly, highly compensated purchase. But I will insist on the same autonomy and independence when I’m your law clerk, too. Thanks for your time, Daniela, and good luck out there!

As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq. and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Christmas came early here at The Law Office of James Montana PLLC — Taryn L. Druge, Esq., joined us as an associate attorney. We are thrilled to introduce her to the ARLnow readership, and, of course, the commentariat.

By way of introduction, here is a brief Q&A between Ms. Druge and our august founder.

Montana: You have an unusual last name. How do you pronounce it?

Druge: It is pronounced like “Scrooge” but with a D at the beginning.

Montana: So, not like the G in centrifuge.

Druge: No.

Montana: So the pointy-headed boss has been pronouncing your name incorrectly from your first day on the job, until this interview?

Druge: Yes.

Montana: It’s becoming something of a tradition here. Let’s introduce the readers to your legal background. What makes you such a wonderful addition to the firm?

Druge: I started in law school working as a law clerk at an immigration firm, and gained a lot of experience there. I also worked in a boutique civil litigation firm in New York, where I gained experience in motions practice, working with a wide variety of clients.

Montana: What made you want to practice immigration law?

Druge: I think that immigration law drew me in for the same reason I wanted to be a lawyer in the first place: I like the idea of solving problems. In my capacity as an immigration lawyer, I can help individuals to improve their lives; and, on a larger level, I think that lawyers help to add a certain amount of order to our larger society.

Montana: The people should be grateful. Why aren’t they?

Druge: Not every lawyer is called to the bar because they want to help people. Some people — and stop me if this sounds implausible to you — are here for the money.

Montana: At the rates we charge, that certainly isn’t true around here. What sorts of immigration cases do you like best?

Druge: Oooh, good question. I like the cases that pose special challenges — where we see particular obstacles, and are able to help clients to overcome unusual hurdles.

Montana: If you could change one thing about our immigration system, what would it be?

Druge: SHORTER FORMS.

Montana: Why would you choose that change?

Druge: It would make us, as immigration lawyers, less necessary.

Montana: Don’t give them any ideas. Or, rather, do. I would welcome a simpler system — we could help a higher volume of people that way.

Druge: I completely agree.

Montana: Speaking of which — do you have any openings for new consultations?

Druge: Yes, I do! Here is the link to schedule one directly in my calendar. Make sure the readers know that we charge for consultations here: $220 for the initial consultation; but if you hire us to do further work in your case, we subtract that from the bill!

Montana: Wonderful. I’m very glad that you’ve joined the practice, and we’ll do our best together to help clients to — as you put it — solve problems, and live lives of dignity.

As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq. and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

In October, we explained, in these pages, that TPS-Lebanon had been announced but that the application window had not yet opened yet. Great news!

The filing window is now open. In this brief advertorial, we want to describe the application process and offer our general view about the wisdom of applying early.

On October 17, the Department of Homeland Security announced that Lebanon was  designated for Temporary Protected Status for 18 months. This supplements — and, for most, will supersede — the previous grant of Deferred Enforced Departure for Lebanon. The application window opened on November 27, 2024 — just a week ago — and runs through May 27, 2026.

May 27, 2026 is more than a year away. January 20, 2025 — Inauguration Day — is substantially closer. Temporary Protected Status is a benefit granted by the Secretary of Homeland Security as a matter of discretionary authority delegated by Congress under the Homeland Security Act of 2002.

President Trump will appoint a new Secretary of Homeland Security — currently slated to be Gov. Kristi Noem — and it’s fair to assume that President Trump’s new Secretary of Homeland Security will have a different attitude towards TPS than President Biden’s Secretary of Homeland Security, Alejandro Mayorkas. The Trump Administration may move to revoke the grant of TPS for Lebanon.

Why is it fair to assume this? Because the Trump Administration, in its first iteration, moved to revoke TPS for El Salvador, Nicaragua, Sudan, Honduras, Haiti, and Nepal. These maneuvers were blocked by lengthy (and complex) litigation. A second round of attempts to revoke TPS is likely.

President-Elect Trump has said so, directly, that he intends to revoke TPS-Haiti; when asked if he planned to revoke TPS for Haitians in the United States, he replied, “Absolutely. I’d revoke it, and I’d bring them back to their country.”

We do not know whether President-Elect Trump will attempt to revoke TPS-Lebanon, but we believe that prospective applicants will be in a better position if they apply before he has a chance to do so.

So, if you qualify for TPS-Lebanon, we recommend that you apply before President Trump takes office. Here’s how:

• Start gathering your documents. Your lawyer will want to see your Lebanese passport or your birth certificate, plus evidence that you have been physically present in the United States on or about October 16, 2024. Evidence of physical presence includes:
  • Your 2024 tax returns (file them next year!)
  • Employment records, if you have them
  • Rent receipts
  • School records for you or your children
  • Medical records concerning treatment for you or your children
  • Religious records describing your attendance at a place of worship
• Put money aside. You can expect USCIS to charge up to $550 for your initial application.
• Apply! You can apply online directly here, either on your own or (as we recommend) with the assistance of counsel.

You can call us at 888-389-8655, or make an appointment via Calendly, here. But we know that, with tens of thousands of Lebanese nationals in Northern Virginia, handling all of these cases is going to be a team effort. In that spirit, here are two other trustworthy local partners for Lebanese nationals who need help applying for TPS.

Just Neighbors

Just Neighbors has a wonderful program that focuses on immigrants who make 200% or less than the amount prescribed by the Federal Poverty Guidelines. For information on how to get help from them, see here.

Catholic Charities of the Diocese of Arlington — Hogar Immigrant Services

Catholic Charities of the Diocese of Arlington is an excellent non-profit legal services center. They can handle your TPS application for a modest fee, and they’re wonderful people.

As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq. and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

[Note to readers: We decided this week to bring you a work of satire. This advertorial is written in the style of C.S. Lewis’s The Screwtape Letters, in which a senior devil offers his best — that is, worst — advice to a junior devil.]

My dear Stephen,

I have been very pleased — to the extent that we can feel pleasure, here, in the Infernal Realms — by what I read of your team-building efforts aboveground. You have assembled a remarkable lineup. (Inkgibbet’s dispatches concerning your new colleagues have been most intriguing. I look forward, in particular, to reading more about your new Attorney General — a kindred spirit if I ever met one.)

However, as servants of the Archfiend, we are not permitted to rest; we are not granted even a moment of respite. If you do not achieve results, rest assured: I will not suffer, and you will.

You seem happy with your plans. I do not think that you have a reason to be. Here, as I understand it, is what you propose to do.

1. You plan to create a “Warrior Board” to weed out military officers who might oppose you.
2. You then plan to mobilize the National Guard to then start a campaign of mass deportations.
3. Once you’ve arrested the non-citizens, you then, of course, expect to repatriate them promptly. That will, of course, include mothers and children.
4. The last time you tried deporting mothers and children, you ran into a very human problem: sniveling complaints about “breaking up families.” Your proposed solution is to deport the entire family, even if the family includes U.S. citizens. No family separation problem this time!
5. Where do you intend to put all of these people? Well, we read that your team wants to put them in “vast holding facilities that would function as staging centers.” Euphemisms are for childish mortals. Between us, let’s be frank: you intend to open the camps.

You cannot seriously believe that these plans will come to fruition.

First, the humans will instantly understand the nature of your plan, and they will oppose it. It simply will not do to fire all the generals who “lack leadership qualities”; doing so will alienate and irritate the very people you expect to carry out your orders.

Second, the troops that you mobilize will not readily agree to become domestic law enforcement agents. What the humans mean by ‘oath’ is, at the deepest level, a mystery to us, but it seems clear that they mean, by that word, a promise which they find difficult to break. They have all promised to uphold “the Constitution” — mere parchment to be sure — but you may find them to be rather stubborn in their insistence upon following its inky edicts. Moreover, many of those troops are immigrants themselves. Do you expect them to whistle while they work?

Third, you will be checked at every turn by lawyers and judges. Your record, in your first four years of bull-rushing the Constitution, was not impressive. If you invoke the Insurrection Act, open up camps to detain migrants en masse, expect to read a lot about Korematsu v. U.S.. Expect your actions to be enjoined left, right, and center. And expect buckets of habeas corpus predictions.

Federal judges will be ordering you to release people from custody faster than you can say “qualified immunity.” And don’t count on that immunity, either. Qualified immunity protects you, personally, from the suit, as long as you don’t violate that was “clearly established” at the time you took action. Nothing is more clearly established, under the Americans’ silly laws, than the right to have your day in court. You may enjoy it yourself — and what possible evil would that achieve?

Remember, you were granted this awesome power, not because you are a dreamer. Dreams, like the specious dribbling the humans call ‘philosophy,’ are for those who have not embraced the Infernal Realism: What we see is all there is, and we must bend it to our own ends, until the subjects of our experiments are twisted like wire. They must regard plain evil as “policy” and cruelty as “toughmindedness”; they must do our will not because we tell them to, but because they regard it as inevitable.

You cannot expect to achieve low ends without preparing the ground with a proper psychological barrage. Work on that first, or, after your inevitable failure, prepare to meet me in my office. I long to lecture you on strategy and tactics. I feel a certain ravenousness just thinking about it.

As always, I loathe questions — and, especially, comments — and you may not expect a response.

Your Affectionate Uncle,

Screwtape

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq. and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

We didn’t ask for our sponsored column on immigration law to be published less than two days after the election — that’s just the way the cookie crumbled.

The first thing we want to say to our readers — and our clients — is: Don’t panic. As we explained recently in these pages, most of our immigration legal apparatus is statutory or regulatory. Statutes can only be altered via legislation, and regulation can only be promulgated via the regulatory process. Major changes, if they occur, will be slow.

What changes do we expect?

1. DACA may end. The Trump administration tried to terminate DACA in its first term; it will now have the opportunity to try again.
2. TPS may be revoked for individual countries. The Trump administration attempted to revoke TPS for El Salvador in its first term. President Trump has said that he would revoke TPS-Haiti if elected. We believe him.
3. Parole in Place for spouses of U.S. citizens is almost certainly toast. As we said in our article on the subject back in June 2024: “As an executive action, it is subject to a simple revocation by any subsequent President without an act of Congress.”
4. Prosecutorial discretion in the immigration court is going to be severely restricted. The first Trump administration effectively had a “everything is high priority” posture. That means the immigration court backlog is going to get worse, not better.
5. Future asylum claims will be made much more challenging. We expect this to be a highly contentious and litigated area, and will address it in future columns as developments dictate.
6. Public charge determinations may be a big part of family-based immigration law again. Will we see the return of the Form I-944? Maybe!
7. The U and T Visas may be restricted via internal action. These visas, for victims of crime and human trafficking, are authorized by statute. But the Project 2025 blueprint suggests that a future Trump administration uses its executive authority to restrict U and T visa approvals to those who are actively providing significant material assistance to law enforcement. This would restrict approval to those whose U and T visa application processes are running concurrently with the criminal prosecutions — a small fraction of the total.
8. Mass deportations are a real, albeit unlikely, possibility.

What should immigrants do?

1. If you qualify for a benefit today, apply. Possession is nine-tenths of the law, and, in immigration law, possession means having a pending application.
2. Stay out of immigration court.
3. As always, avoid giving your hard-earned money to the crooks who prey on vulnerable people in difficult times like these. Never pay a ‘notary’ for immigration help. Always insist on working with a licensed attorney, and get a quote from more than one. Comparing the possibilities can save you time, heartache, and legal fees.

As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq. and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

On October 17, 2024, the Department of Homeland Security announced that Lebanon has been designated for Temporary Protected Status for 18 months. These supplements — and, for most, will supersede — the previous grant of Deferred Enforced Departure for Lebanon.

The Northern Virginia suburbs have a substantial Lebanese population, so this is big news. We’re here to explain what it means. Our main goal here is practical: to prevent people from paying lawyers until the application window opens, and help people to prepare their paperwork for when it does. If you’re curious about our editorial opinions, ask away in the comments.

First, a quick explainer on what TPS is, and how it works.

Temporary Protected Status, in theory, is a temporary measure meant to alleviate suffering in a country suffering from war or natural disaster. The U.S. Code permits the Attorney General (or, in modern practice, the Secretary of Homeland Security) to ‘designate’ countries which meet this description, and then provide temporary work permits, and temporary deportation protection, to nationals of the designated country who are in the United States on the date of the designation.

The process of applying for TPS is relatively simple. The applicant submits two applications: an application for TPS status on Form I-821, and, usually, an application for employment authorization on Form I-765. Fees vary depending on age. The Secretary of Homeland Security sets an ‘initial registration’ period for applicants, and then, if TPS is renewed, a ‘re-registration period.’ Miss these registration windows at your peril.

If you’re from Lebanon, living in the United States, and want to apply for TPS, here’s what you need to know:

• TPS is temporary. Sometimes — rarely — TPS designation ends. (We covered the attempt to end TPS-El Salvador in these pages. So, although TPS is a good thing, it is a bad substitute for permanent status. If you have an asylum claim, don’t let it drop just because you have the ability to apply for TPS!
• In most instances, TPS is superior to Deferred Enforced Departure. Those who have Deferred Enforced Departure (as attested by employment authorization documents) should still plan to apply for TPS, if they qualify.
• The TPS application period for Lebanon has not opened up yet. If a lawyer, an unethical ‘visa consultant,’ or ‘tax preparer’ (applicable soundtrack) offers to apply for you, do not pay them. TPS designation is a great benefit, but it also creates opportunities for scammers.
• Start gathering your documents. Your lawyer will want to see your Lebanese passport or your birth certificate, plus evidence that you have been physically present in the United States on or about October 16, 2024. Evidence of physical presence includes:
  • Your 2024 tax returns (file them next year!)
  • Employment records, if you have them.
  • Rent receipts
  • School records for you or your children
  • Medical records concerning treatment for you or your children
  • Religious records describing your attendance at a place of worship
  • Other documentary evidence which shows that you live here. Your lawyer can help you find more.
• Put money aside. You can expect USCIS to charge up to $600 for your initial application.
• Make a plan. Find a trusted place to apply for TPS after the initial registration period opens.

Once the application windows opens, our law firm will be delighted to help Lebanese nationals who want to apply for TPS. You can call us at 888-389-8655, or make an appointment via Calendly, here. But we know that, with tens of thousands of Lebanese nationals in Northern Virginia, handling all of these cases is going to be a team effort. In that spirit, here are two other trustworthy local partners for Lebanese nationals who need help applying for TPS.

Just Neighbors

Just Neighbors has a wonderful program that focuses on immigrants who make 200% or less than the amount prescribed by the Federal Poverty Guidelines. For information on how to get help from them, see here.

Catholic Charities of the Diocese of Arlington — Hogar Immigrant Services

Catholic Charities of the Diocese of Arlington is an excellent non-profit legal services center. They can handle your TPS application for a modest fee, and they’re wonderful people.

As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq. and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Here at Statutes of Liberty, we hate delays and we love data.

So, when we look at the latest data on the asylum backlog, we feel like the Roman poet Catullus: We hate and we love. Then, we feel compelled to explain. That, in a nutshell, is what these advertorials are here for.

In this brief article, we’ll discuss both the nationwide asylum data and local data from our very own Arlington Asylum Office. The nationwide data is available here. The local data is known to us via discussions with other practitioners and generous disclosures by the Arlington Asylum Office.

Keep in mind that these are what immigration lawyers call affirmative asylum applications — applications made at the Asylum Office as a matter of choice. Defensive asylum applications which are made in Immigration Court before an Immigration Judge are a completely separate data set.

In total, USCIS’s Asylum Directorate completed 117,876 cases in FY2024 YTD. That’s the good news — savor it. The bad news is that 386,150 applications were received over the same period, so the backlog grew by more than 268,000 cases. More than two people are getting into the queue for every person who exits the queue. And, of course, one person applying for asylum often is the primary applicant for an entire family.

The backlog is simply enormous. It’s more than a million cases now — and, if it continues to grow by a quarter-million per year, people who are in the queue for an interview now simply won’t ever have their cases heard. (This view is shared both by both sides of the immigration debate.) In theory, at least, the system is LIFO: Last In, First Out, so the newest cases get heard first, and the older cases only get heard if more cases are adjudicated than received.

Asylum offices differ quite markedly across the nation in their productivity. New Orleans, for example, sometimes adjudicates less than a hundred applications per month; Miami averages just under three thousand applications per month. Our own Arlington Asylum Office — which covers an enormous geographical range, from the shores of Lake Erie in Western Pennsylvania, right down to the Alabama shoreline with the Gulf of Mexico — completed just under 1,500 cases per month during FY2024 YTD.

The Arlington Asylum Office has about 140,000 pending cases, and about eighty officers who are devoted to the affirmative asylum docket. That’s 1,750 cases per officer, with more coming in every day. Our experience is that an asylum interview generally takes about half a day to complete.

Assuming, optimistically, that an asylum officer can actually complete two cases per day, and assuming (falsely) that not a single new case comes in the door, the current staff would be able to clear the backlog in about four and a half years.

Unfortunately, about 4500 new cases come into the Arlington Asylum Office each month, so there’s simply no way that the Arlington Asylum Office can keep up with the new work, never mind start to chew through the backlog.

We have no policy recommendations to offer here. We’re just here to report the facts — and the facts are unsustainable.

As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq. and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

As the election nears, our clients have been asking — with increasing frequency and understandable concern — about what a new president could do to alter our immigration system.

We’ve already examined former President Trump’s voluble and extraordinary policy proposals; in our view, Vice-President Harris has yet to provide sufficient detail on what she might do in the area, so we’re keeping our powder dry for when she does. The purpose of this article is to take a step back and talk about the legal architecture behind our immigration system, which both constrains and empowers any president.

Tiramisu is our preferred metaphor.

Federal immigration law can be usefully separated into layers. At the very top — a light dusting of cocoa powder and sugar — we have the Federal Constitution, and its (very brief) discussion of immigration, which is largely limited to empowering Congress to “establish a uniform rule of naturalization.”

This Constitutional mandate explicitly empowers Congress (and, by implication, disempowers the several states) to regulate immigration, which is one important reason why state lawsuits seeking to modify federal immigration policy face substantial roadblocks. The Constitution’s amendments concerning search and seizure, due process of law, and equal protection of the laws also occasionally — but rarely — impact the immigration system.

The sponge of the cake is statutory, and there are just three statutes of significance: the Immigration and Nationality Act of 1965, the Immigration Reform and Control Act of 1986, and the IIRAIRA (Illegal Immigration and Immigrant Responsibility Act) of 1996.

The first established the Preference System, under which certain categories of prospective immigrants, like unskilled workers and siblings of U.S. citizens, face extremely long waits, whereas other categories of prospective workers, like highly skilled workers and children of permanent residents, also face extremely long waits. The second is the Reagan Amnesty, which legalized large numbers of unauthorized migrants and introduced the I-9 system. The third, IIRAIRA, sharply curtailed the relief available to immigrants facing deportation and tightened the standards for financial responsibility for prospective permanent residents.

The binding of the cake is regulatory. Like most of American law, the regulatory apparatus has outgrown its statutory grounding to a striking degree. The Department of Homeland Security, and the Department of Labor issue regulations frequently which have massive effects on our immigration system — to name just one of recent vintage, the near-doubling of application prices.

The sugar — or absence thereof — is executive policy decisions.

The picture of Presidential power, with respect to our immigration laws, is therefore as follows:

1. No President can change the Constitution. With the exception of the 14th Amendment — and we all know how that came about — no Constitutional amendment concerning immigration has ever been ratified.
2. Very, very few presidents can pass a significant immigration statute. The list of those who have succeeded in living memory is short: Truman, Johnson, Reagan, Clinton. The list of those who have failed is much longer, particularly among recent presidents. President George W. Bush, President Obama, President Trump, and President Biden all promised substantial immigration legislation. Presidents Bush and Obama came closest, but all failed to pass significant immigration reform measures.
3. All modern presidents can promulgate regulations — more’s the pity — and all modern Presidents do. But our regulatory system is fraught with procedural complexity and delay, and can be combatted via litigation.
4. All modern presidents can announce executive policy changes, and all modern presidents do. Here is where the real action in immigration law is likely to be in the next administration. Presidents can use Congressionally granted power creatively, as President Biden did with Parole in Place and President Trump did with Title 42.

Most immigration benefits are a matter of statutory authority. Green cards are issued under the immediate relative and preference categories established by the Immigration and Nationality Act; without legislative changes, the administrative machinery will continue to rumble.

But, at the margins — at the border, in the immigration courts, and in its regulatory interpretations — a new President has substantial power to affect how the system operates. That power is not absolute, but it is substantial.

As always, we are grateful for your questions and comments, and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq. and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

On August 19th, the Parole in Place program opened. On August 23rd, ten states filed a lawsuit against the Department of Homeland Security, seeking an injunction to freeze the program and a declaratory judgment that the program is unlawful.

On August 26th, the federal judiciary issued its first reply to the litigants: an administrative stay. The purpose of this advertorial is threefold: First, we’ll explain how this stay will affect current and future Parole in Place applicants; second, we’ll explain the nature of the administrative stay; and third, we’ll offer some guarded predictions about the future of the Parole in Place program.

As a reminder, the Parole in Place program had a particular, and technical, purpose: allowing spouses of U.S. citizens who have been in the country for more than ten years to be ‘admitted’ for immigration purposes without departing the country. (For additional background on program and its eligibility requirements, see our handy ARLnow explainer, here.)

If approved, beneficiaries of the parole in place program would be eligible for work authorization, and, in many cases, to apply for green cards.

The Federal Judge in this case is J. Campbell Barker of the Eastern District of Texas, Tyler Division. Judge Barker was nominated to the bench by President Trump, and is known as a conservative jurist, but it would be wrong to describe him as unqualified or as an ideological pick; Judge Barker graduated first in his class from the University of the Texas School of Law, clerked both at the Federal Circuit and Second Circuit Courts of Appeal, and served as a prosecutor in the Eastern District of Virginia.

While in private practice, Judge Barker served pro bono to defend an asylum applicant, Khagendra Sharma, who had been denied asylum both by the immigration court and the Board of Immigration Appeals; Judge Barker persuaded a panel of the Court of Appeals for the Fifth Circuit that the immigration bureaucracy hadn’t given Mr. Sharma a fair hearing, which is a remarkable achievement both numerically — few immigration cases reach the appellate courts, and fewer still prevail — and politically; the Fifth Circuit is one of the most conservative Courts of Appeal in the United States.

With all of that said, it is no accident that the plaintiffs have their case before Judge Barker — it’s a matter of geographic gamesmanship. Federal litigation is assigned randomly to a judge who sits within the filing district. There are just two judges who sit in the Tyler, Texas district — Judge J. Campbell Barker, and Judge Jeremy Kernodle, also a Trump appointee of a similar age and a similar political background. The plaintiffs doubtless filed there because they believed, rightly or wrongly, that they would receive a sympathetic hearing.

In a rapidly written opinion, Judge Barker stayed the Parole in Place program for fourteen days. He set an extremely rapid schedule for motions practice — which we’ll excerpt, here, for the benefit of any litigators in the audience:

• August 28, 2024 — Deadline to file any motions related to venue or forum.
• August 30, 2024 — Deadline to respond to any such motion.
• September 2, 2024 — Deadline to reply on any such motion.

(August 30th is a Friday and September 2nd is a Monday. Enjoy your weekend, litigators!)

Judge Barker’s opinion also dispenses with initial disclosures and most fact discovery in the interest of speeding the course of decision-making, an indication that he wants to come to a decision pretty quickly on the merits of the case.

We predict that Judge Barker will issue a preliminary injunction that preserves the main features of the administrative stay — new Parole in Place applications can be accepted, but no Parole in Place applications may be approved while the injunction is in place. The litigation will then continue through the summary judgment stage, which might — might! — be concluded as soon as late October 2024, just in time for the election.

What does this mean for Parole in Place applicants? Practically speaking, it means that, for Parole in Place to be granted to any applicant who doesn’t have it now, two conditions must obtain:

1. Vice-President Harris must prevail in the Presidential election contest. If President Trump is re-elected, he will immediately revoke the Parole in Place program, deny pending applications as moot, and cease to defend the legality of the program in court.
2. The Biden (and, later, the Harris) Administration must prevail in what will likely be protracted federal litigation. Judge Barker’s stay is just the first shot in what is likely to be a long process, not dissimilar to the DACA litigation — and that eventually made it to the desk of Chief Justice Roberts.

Should those who are eligible still apply, given that the application window remains open but that no applications can currently be approved — and that the above two conditions will have to obtain for any approvals to be issued?

We think the answer depends on your particular situation. Applicants who stand to benefit from parole in place with little downside risk should probably apply. Those who might be a priority for deportation in a future administration should probably hesitate to do so — giving the government your full contact information and admitting, under penalty of perjury, that you entered the United States without inspection isn’t the best way to start removal proceedings.

As always, we are grateful for your questions and comments, and will do our best to respond.