A federal judge has barred President Trump’s recent asylum ban, now forcing the administration to accept all migrants crossing the southern border who seek protection, rather than limit asylum requests to U.S. ports of entry. As of last evening, Judge John Tigar of the U.S. District Court of Northern California issued a temporary restraining order that will require the U.S. Customs and Border Patrol to process all individuals crossing the California, Arizona, and Texas border. The bar will remain until a scheduled hearing to be held on December 19, when the judge will revisit the court’s view of a permanent injunction.

The judge’s bar quickly halts the administration’s new rule, and the U.S. Citizenship and Immigration Services’ accompanying policy guidance, which limit asylum pleas to official ports of entry between the United States and Mexico. The administration stated the restriction was necessary to protect U.S. national security from the migrant caravan, as 7,000 migrants, mainly from Honduras, began to arrive in Tijuana over the weekend.

The U.S. district court opinion describes the Congressional intent to offer asylum to all applicants, whether at designated ports of arrival or not, as explicitly cited under 8 U.S.C. § 1158(a)(1) of the Immigration and Nationality Act.

Mayer Brown attorneys, including partner Paul Hughes, filed a lawsuit in the US District Court of the Middle District of North Carolina, challenging the legality of the August 9, 2018 USCIS policy memorandum on the accrual of unlawful presence for F, J, and M visa holders.

If an individual accrues more than 180 days of unlawful presence, she is subject to a 3-year reentry bar. That bar grows to 10 years if the individual is unlawfully present for 365 days or more. Previously, USCIS calculated unlawful presence as beginning the day after an immigration officer or immigration judge determined that the holder of an F, J, or M visa is out of status. That policy provided necessary notice to individuals, providing them an opportunity to cure any status violation prior to the imposition of a reentry bar. This policy has controlled for more than 20 years.

On August 9, USCIS issued a policy memorandum that purports to create a fundamentally different policy regarding unlawful presence. Now, USCIS will backdate unlawful presence, beginning the clock on the date of the factual situation which rendered an individual out of status. Thus, when an immigration officer or judge determines that an individual is out of status, the result is an automatic 3- or 10-year reentry bar if more than 180 days have elapsed from the underlying factual circumstances, which is often the case.

Plaintiffs include Haverford College, The New School, Guilford College, and Foothill-De Anza Community College District, among others.  The universities argue that the revised policy is “intentionally designed to impose tens of thousands of reentry bars” of up to 10 years on holders of visas typically granted for academic purposes.  The complaint states that now it is “impossible for an individual to know with certainty what conduct will trigger such a reentry bar. An individual may commit conduct that he or she has no reasonable way of knowing will later cause an USCIS officer or immigration judge to later declare him or her ‘out-of-status,’ and—because of the new policy of backdating—will be immediately subject to a reentry bar once that decision is made.”

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