President Trump has signed an executive order requiring that persons seeking admission to the United States be “vetted and screened to the maximum degree possible.” That includes searching travelers’ mobile phones, other electronic devices, and social media posts. Also, the administration has recently detained a number of lawful permanent residents (green card holders) as it cracks down on immigration and ramps up deportations, raising questions about what rights and protections a green card affords to millions of people across the United States. This article gives a few examples. Feel free to schedule a consultation so we can help you prepare for requesting admission to the U.S.
1. Mahmoud Khalil is a former graduate student at Columbia University who led protests against Israel’s conduct in its war with Hamas. He has not been charged with any crime. He was arrested in March in New York and remains in detention despite having a green card and being married to a U.S. citizen. Potential grounds for deportation include:
- The Immigration and Nationality Act allows deportation of foreign nationals deemed by the Secretary of State to be a “foreign policy” risk to the U.S. The government charged Khalil with being deportable on this basis. But the government has put forth no evidence that Khalil has provided material support to Hamas. So, the activities which allegedly make him a “foreign policy” risk may be protest activities normally protected by the free speech guarantee of the First Amendment to the U.S. Constitution.
- The government may deport a foreign national who was “inadmissible at the time of his adjustment,” meaning ineligible for permanent resident status when it was granted. The government alleges Khalil made misrepresentations in his application by failing to disclose prior employment with the British Embassy in Beirut and the United Nations Relief and Works Agency for Palestine Refugees, as well as failing to disclose membership in an organization called Columbia University Apartheid Divest. To prove this charge, the government would need to show that Khalil did make such misrepresentations, that it was willful, and that his misrepresentations about employment and organization membership tended to shut off a line of inquiry (by the USCIS officer considering his application for permanent resident status) which might well have resulted in a proper determination of ineligibility.
- If it “appears” to USCIS that a person “was not in fact eligible for the adjustment of status made in his or her case,” USCIS should commence rescission proceedings by serving upon them a Notice of Intent to Rescind (NOIR) informing them of the allegations upon which USCIS intends to rescind the adjustment and providing an opportunity to respond within 30 days. A NOIR can only be served within 5 years of the date of adjustment. Rescission proceedings are not available if the person was issued an immigrant visa instead of adjusting.
2. Fabian Schmidt is a German national who lives in New Hampshire. Schmidt, who is also a green card holder, was detained at Logan International Airport in Boston, his family has said. Reportedly, he has several misdemeanor arrests, including a 2015 arrest for possession of marijuana, which was later dismissed. And in 2016 he was charged with a DUI. According to his family, Schmidt has struggled with drug and alcohol addiction in the past. Potential grounds for removal include, for example:
- Controlled substances conviction: Schmidt was charged with being deportable for a controlled substance conviction. For immigration purposes, a person can be considered to have been convicted even if the charges were dropped. Specifically, if a guilty finding was withheld, but the judge has ordered some kind of punishment (e.g., probation, completion of a drug rehabilitation program), this may in certain situations still count as a “conviction.” There is no statute of limitations under the immigration laws and you may be stopped for convictions that occurred many years ago.
- DUI: Certain aggravating factors can make driving under the influence of alcohol a “crime of moral turpitude” or “aggravated felony” which is the basis for removal from the United States:
- Repeat DUI offenses
- DUIs resulting in injury or death
- DUIs combined with other criminal activities, such as drug possession or driving with a suspended license.
- Drug or alcohol abuse or addiction: A person with a current substance-use disorder may be ineligible for admission to the U.S. Once a determination if made that a person has had a substance-use disorder, they bear the burden of proving that the disorder is in “sustained remission.”
3. There have been multiple press reports that U.S. Customs and Border Protection officers at ports of entry have been increasing scrutiny of LPRs who have spent significant periods abroad. This has included but not been limited to elderly permanent residents with U.S. citizen children and grandchildren. CBP officers have informed LPRs that it appears their long stays abroad have amounted to abandonment of their status. According to some reports, CBP officers explained that it would be preferable to sign a Form I-407, Record of Abandonment of Lawful Permanent Resident Status, because otherwise the individual would be referred to immigration court for a removal hearing and may be detained while awaiting the hearing.
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