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 Austen Soare, 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 Biden Administration announced a large amnesty program on Monday — the “New Process to Promote the Unity and Stability of Families.” The purpose of this article is to describe the program, advise prospective applicants of how to prepare for the program’s implementation and — no less importantly — to discourage potential applicants from paying anyone to apply for this today, because, as of this writing, the application window remains firmly closed.

What is the New Process to Promote the Unity and Stability of Families?

As we’ve discussed in prior articles, U.S. immigration law treats people very differently based on how they entered the United States. Those who enter with visas — even  if they later overstay those same visas — are allowed to apply for permanent residency if otherwise qualified; those who cross the border generally are not allowed to do so without first leaving the United States and attending an interview at a U.S. Embassy or Consulate abroad.

(more…)

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 Austen Soare, 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.

Kabuki is a form of Japanese theater, in which actors — through exaggerated gestures, colorful costumes, and dramatic recitation — convey a story to their audience. It is a high art form.

Kabuki is also a derisive term for Washington posturing, in which politicians — through exaggerated gestures, colorful costumes, and dramatic recitation — convey a story to their audience. It is a low art form.

The new Biden executive order, which purports to ‘secure the border,’ is the second kind of kabuki. It says a great deal and conveys a story, but means very little.

First, we’ll tell you what it says, and then, we’ll tell you what it (probably) doesn’t mean.

On June 3, 2024, President Biden signed A Proclamation on Securing the Border, which suspended entry into the United States by noncitizens unless certain conditions are met. Those conditions are, roughly, as follows:

1. The suspension is in effect as of June 5, 2024.
2. If the Secretary of Homeland Security determines that the average number of ‘encounters’ at the border over a rolling seven-day period is less than 1,500 per day, then the suspension shall be discontinued.
3. If the Secretary of Homeland Security determines that the average number of ‘encounters’ at the border over a rolling seven-day period is greater than 2,500 per day, then the suspension shall be reimposed.
4. The proclamation does not apply to green card holders, trafficking victims, visitors to the United States who hold valid travel or employment visas, or holders of other lawful immigration documentation.
5. The proclamation does not apply to unaccompanied alien children (UACs) who are traveling from countries other than Mexico and are traveling without a parent or guardian.
6. The proclamation does not apply to any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, due to operational considerations at the time of the entry or encounter that warranted permitting the noncitizen to enter.

If a noncitizen crosses the border anyway, and applies for asylum, he is ineligible for asylum, unless:

1. He faced an acute medical emergency at the time of apprehension, or had a family member who did, or,
2. He “faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder” or, again, had a family member who did.
3. He was a victim of human trafficking.

Now, here’s why the executive order is likely to be meaningless in practice.

The Exceptions Swallow the Rule

Exception #2, above (“imminent threat of rape, kidnapping, torture, or murder”) covers a very large number of asylum claims. Border officials will be unable to prevent asylum applicants from applying for asylum if they claim to be subject to this exception, and many (quite obviously!) will claim as much.

Condition #6, above (“any noncitizen who is permitted to enter by the Secretary of Homeland Security… due to operational considerations”) vests the Secretary with effectively full authority — as immigration restrictionists have pointed out — to suspend the suspension. The Secretary has already used his authority quite expansively with respect to the use of humanitarian parole. He may do so again in this new context.

The Executive Order Will Be Enjoined

In November 2018, President Trump issued a very similar executive order. It was enjoined. The Biden Administration is not stupid. They know that civil libertarians will sue, and they know that a similar injunction is likely to follow.

Why, then, issue the executive order? It’s kabuki. The Biden Administration wants the electorate to think that it is taking firm action on the border. When immigration restrictionists react to your immigration proposal by telling you that it is unworkable, and advocates of increased immigration react to your proposal by telling you that it is unworkable, you should worry about your proposal’s practical effects — if practical effect is your goal. If you want to send a message through theatrical gestures, on the other hand, such criticism rather misses the point.

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 Austen Soare, 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.

If you ask Black’s Law Dictionary for the definition of trial, you’ll find the dry, legal definition: a judicial examination of the issues between the contending parties. But, for lawyers and clients alike, a trial is also something much more like the definition in ordinary English – a time of testing, a time of stress, a time of temptation, and a time of loneliness. 

Preparing for trial requires both intellectual labor and psychological preparation. A lawyer has to master the facts: he has to know how his clients respond both to direct examination and to likely avenues of cross-examination; he has to know his exhibits; he has to know the opposing advocate with whom he must contend and the judge whom he must persuade. But, after the briefs are written, the exhibits are submitted, and the pretrial paper-shuffling is complete, the lawyer still has to look squarely at the summons and prepare himself.

Different lawyers have different rituals. A memorable law professor of ours likes to read the Rules of Evidence the night before trial, while sipping a single glass of red wine. (As advisable as this is on gustatory grounds, the reading material is not especially useful before immigration trials, because, in immigration court, the Federal Rules of Evidence do not apply.) When one of us worked as a legal aid attorney, he would hop in his car the night before trial and work as a Lyft driver to shake off the nerves. One of us always shines and brushes his shoes. 

Trial itself is a blur; that’s why, when we can, we send two attorneys to trial, so one can run the court, and the other can take notes, reflect, and consult with the other during breaks. Immigration court is slow to move, but, once trial begins, it can be a frenetic place – with just two hours set aside for most trials, judges and attorneys alike are keen to get the facts in the record efficiently.

Today, we go on trial at 1 PM. We’ll do our level best for our client. And so, today, we won’t be able to reply as timely as we’d like to comments and questions. But when we return from court, we 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 Austen Soare, 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.

According to a WSJ (paywalled) scoop this week, and as widely reported in other (non-paywalled) sources, the Biden Administration is weighing a major immigration move: granting a rare form of relief called “Parole in Place” to spouses of U.S. citizens. Our job, as your friendly local immigration lawyers, is to explain what this would mean and how it would work in practice.

First, we have to draw out a basic distinction. U.S. immigration law treats non-citizens quite differently depending on how they came to the United States. To simplify things enormously: if you came through the airport, you’re much better off than if you crossed the border.

If you came through the airport, and you subsequently marry a U.S. citizen, you can apply for a green card based on that marriage.

If you cross the border, and you subsequently marry a U.S. citizen, you can’t apply for a green card directly. (You can, under some circumstance, put into motion a half-decade long process through which you might be able to get a green card after many legal bills get paid and after you make a return trip to your country of origin for a cuticle-chomping interview at the U.S. Embassy, but that procedure is outside the scope of this explainer.) (more…)