Austin Immigration Lawyer Blog

A panel of legal experts met with a Senate Homeland Security subcommittee to raise concerns over the constitutionality of Customs and Border Patrol (CPB) agents stationed at the northern and southern borders being able to search cellphones without warrants. For years, CPB’s policy has allowed border agents to force travelers and immigrants stopped at the border to unlock their electronic device without first obtaining a warrant—the only condition is that there is “reasonable suspicion” to do so.

But Georgetown University law professor Laura Donahue testified in Washington last Wednesday, arguing that CPB’s warrantless searches are not only a violation of civil rights, they also lead to racial profiling. The tremendous increase in searches, Donahue claims, pose a complete breakdown of the constitutional rights that both migrants and U.S. citizens crossing the US border still enjoy.

The CPB reports that its agents have searched over 8,500 devices in 2015 alone. That number doubled to more than 16,000 searched in 2016 and soared “to more than 30,000 searches in 2017,” this according to data Donahue presented to the Senate subcommittee on Federal Spending Oversight and Emergency Management.

The fate of President Trump’s zero-tolerance immigration, which has resulted in massive backlash over its separation of immigrant children from their guardians at the border, will be decided in the Los Angeles federal court this month. U.S. District Judge Dolly Gee will be presiding over arguments on July 27.

Critics of the administration’s immigration policy will be presenting their case against the President’s recent executive order ending the practice of separating immigrant children from their guardians. The dissent stems from the order being used as a springboard for another problematic immigration policy involving the extension of the detention periods of these immigrant families.

The order states that “alien families” will be detained “together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings” in the effort to maintain “family unity.” President Trump additionally clarifies that unlawfully present families will be prosecuted to the fullest extent of the law, consistent with his hardline approach to immigration.

An increasing number of Democrats have joined in calling for the termination of Immigration and Customs Enforcement agency (ICE), an advocacy once championed by the far-left parts of progressive politics and now front and center in democratic politics.

The call to shut down the agency picked up steam weeks ago in Washington, beginning with a demonstration against Department of Homeland Security Secretary Kirstjen Nielsen, who was spotted by protesters dining at a Mexican restaurant. The group urged her to take action against the Trump administration’s zero-tolerance approach to unlawful immigration resulting in the separation of immigrant children from their guardians at the border. The demonstration climaxed with a call to action that now resounds with other immigration rights advocates: “Abolish ICE.”

Two weeks after the incident, a growing roster of prominent democrats adopted the movement and brought it to the mainstream when once not even the most liberal lawmakers gave it the time of day.

The Supreme Court on Tuesday ruled in favor of the federal government in Trump v. Hawaii, upholding the President’s travel ban on Muslim-majority countries and overruling a lower court’s decision to put parts of the ban on hold. Deliberations led to a 5-4 split with the high court’s liberal justices as the dissenting minority. The decision effectively reverses the lower court’s ruling, which was already put on hold while the case was reviewed to prevent full implementation of the immigration ban. Chief Justice John Roberts authored the opinion.

With the third and latest iteration of Trump’s executive order banning travel from Muslim-majority countries now in full effect, travelers, immigrants, refugees, and even visa holders from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen are now completely shut off from entering the country.

While critics of the policy have pointed out the discriminatory basis of the ban evident in the predominant religion in the blacklisted countries as well as the President’s own social media posts, Chief Justice Roberts sees things differently.

The Trump Administration is presently looking into adopting a new policy aimed at simplifying the process of denying visa applications on “public charge” grounds. The administration has been gearing up for the change as early as last year. When President Trump made his first attempt at implementing an immigration ban on predominantly Muslim countries in January last year, a supplementary executive order was reportedly already in the works.

While this executive order was never signed or formally released, it was intended to follow through on the President’s immigration platform grounded on the idea that “households headed by aliens (legal and illegal) are much more likely than households headed by native-born citizens to use federal means-tested public benefits.”

The policy has drawn heavy criticism from New York legislators, with more than 70 of them led by Assemblyman Andrew D. Hevesi, collectively publishing an open letter addressed to President Trump where they expressed their opposition to the draft proposal.

The State Department recently announced that it had affirmed the termination of a bilateral investment treaty (BIT) between Ecuador and the United States, set to take effect a year after the Ecuadorian government issued a notice of its termination. The termination of the BIT, however, also affects the availability of  E-2 treaty investor visas for Ecuadorian immigrant workers.

The E-2 investor visa allows certain individuals from countries the United States has a commerce and navigation treaty (such as the BIT) with to enter the country. In particular, only foreign nationals who have invested a “substantial amount of capital” in a U.S. business enterprise may avail of the visa as they are expected to develop and direct the operations of that enterprise throughout their stay in the country.

What happens after the termination of a BIT is unique to every treaty because each agreement follows an embedded set of post-termination guidelines. In the case of the U.S.-Ecuador BIT, Ecuadorian nationals with E-2 visas acquired on or before May 18, 2018 will remain entitled to their E-2 classification until May 18, 2028.

California’s Fair Employment and Housing Commission (FEHC) recently published the complete text of its “Regulations Regarding National Origin Discrimination,” clarifying how the term “national origin” is defined for purposes of implementing the Fair Employment and Housing Act (FEHA). In particular, the new regulations prohibit employers from inquiring into a job seeker or employee’s immigration status. An exception has been made, however, for instances where “the person seeking discovery or making the inquiry has shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law.”

These changes take effect on July 1, 2018.

A “national origin group” is typically defined as a group of people who same the same place of origin, culture, ancestry, or language. The FEHC’s new regulations, however, expand the interpretation of nation origin in implementing the FEHA, adding all conceivable attributes of a national origin group categorized accordingly.