Category: Immigration

DHS Expands Use of Biometric Data in Immigration

Last week, the Department of Homeland Security (“DHS”) announced plans to expand the use of biometric data in determining family relationships for immigration purposes. A proposed rule with the new protocols for biometrics use is expected to be published soon. This rule is also said to allow more uses of new technology as they become available.

The Use of Biometric Data in Immigration

The proposed rule will give the DHS the authority to require biometrics use for every application, petition, or related immigration matter. The current practice by the United States Citizenship and Immigration Services (USCIS) requires biometrics only for applications that require background checks. This new rule is intended to give the DHS broad authority to use biometrics technology. The DHS can use voiceprints, iris scans, palm prints, and facial photos, as well as additional technologies developed in the future.

“As those technologies become available and can be incorporated as appropriate, it gives the agency the flexibility to utilize them. And then it also would give the agency the authority down the road, as new technologies become available and are reliable, secure, etc., to pivot to using those, as well,” said one USCIS official. And while children under age 14 are now generally exempt from the collection of biometric data, the proposed rule will also remove the age restriction.

DNA can be collected by the agency to verify a genetic relationship where establishing a genetic or familial relationship is a prima facie requirement of receiving an immigration benefit. Though the raw DNA will not be stored by the DHS, the test results will be saved in the immigrant’s Alien file, also known as the “A-file.” The A-file is the official file that the DHS maintains with all of the immigrant’s immigration and naturalization records. Any such information collected may be shared with law enforcement, but there is no procedural change in other agencies gaining access to the A-files.

Reactions From Immigration Leaders

The additional collection of biometric data will not result in an increase in existing filing fees, as the cost is covered under new filing fees set to go effect October 2, 2020. The DHS has emphasized that the biometrics rule is to be given top priority; nevertheless, it will undergo the standard review process.

This proposed rule quickly drew severe criticism from pro-immigration activists. Andrea Flores from the American Civil Liberties Union called it an “unprecedented” collection of personal information from immigrants and U.S. citizens. She said, “collecting a massive database of genetic blueprints won’t make us safer – it will simply make it easier for the government to surveil and target our communities and to bring us closer to a dystopian nightmare.”

DHS Acting Deputy Secretary Ken Cuccinelli welcomed the rule, stating that “leveraging readily available technology to verify the identity of an individual we are screening is responsible governing.” He added that “the collection of biometric information also guards against identity theft and thwarts fraudsters who are not who they claim to be.”

©2020 Norris McLaughlin P.A., All Rights Reserved
For more articles on DHS, visit the National Law Review Immigration section.

Returning Resident Visas and COVID-19 Travel

With global travel disruptions reaching six months, lawful permanent residents (LPRs) and conditional permanent residents (CPRs) who are abroad and cannot currently travel back to the United States due to the Coronavirus Disease 2019 (COVID-19) pandemic are experiencing extended absences from the United States. Absences from the United States between six months to one year by a permanent resident may result in questioning at the time of reentry to the United States by the inspecting officer. Absences from the United States of more than one year can be more problematic. Those LPRs or CPRs who cannot, for whatever reason, return to the United States within the required timeframe may need to secure a “returning resident visa” from a U.S. consulate or embassy abroad.

LPRs or CPRs who have remained outside the United States for longer than one year, or beyond the validity period of a two-year re-entry permit, may require a returning resident visa to re-enter the United States and resume permanent residence. The returning resident visa is intended for LPRs or CPRs who departed the United States with the intention of returning to the United States, and only prolonged their stay outside the country due to circumstances beyond their control. For an LPR or CPR, qualifying reasons for remaining outside the United States for longer than one year or beyond the validity period of a two-year re-entry permit could include, but are not limited to, severe illness, pregnancy, third-party withholding of passport or travel documents, or government restrictions on outbound international travel such as those that may have been caused by the COVID-19 pandemic. Returning resident visa applicants must be able to justify their excessive absence from the United States due to circumstances “beyond their control” while presenting sufficient support for their continuous desire to promptly resume residence in the United States due to strong and continuous financial, employment, family, and social ties to the country.

LPRs or CPRs abroad with the possibility of remaining outside the United States for longer than one year, or beyond the validity period of a two-year re-entry permit, should be cognizant of the requirement of maintaining and being able to document continuous financial, employment, family and social ties to the United States. Such documents could include copies of U.S. income tax returns, property ownership documentation, employment documentation, and evidence of family and social ties, among other relevant documentation. This documentation will potentially establish that the original intent of the trip was temporary in nature. Due to the infrequent availability of appointment dates as U.S. consulates and embassies worldwide gradually resume routine services following initial closures due to COVID-19, returning resident visa applicants are encouraged to plan their applications sooner rather than later to avoid prolonging their stays abroad even further throughout the application process, which is substantively similar to that of other immigrant visa applications and also requires a medical examination.

*Special thanks to Chris Costa for his valuable assistance with this GT blog post.

©2020 Greenberg Traurig, LLP. All rights reserved.

ARTICLE BY Jennifer Hermansky of Greenberg Traurig, LLP

For more articles on immigration, visit the National Law Review Immigration, VISA, USCIS, ICE, & DHS Legal Updates section.

DHS Rules Effective August 2020 Will Push Asylum Seekers Further into Poverty and Marginalization

In late June 2020, the Department of Homeland Security (DHS) announced two regulatory changes intended to deprive asylum applicants of the ability to work lawfully in the United States while they await the adjudication of their asylum applications.  By increasing the obstacles asylum seekers overcome to obtain an Employment Authorization Document, commonly known as a “work permit,” the new rules endanger the health and safety of asylum seekers and their families.

The first rule change, effective August 21, 2020, eliminates the requirement that USCIS must process employment authorization applications within 30 days of receiving the application.  This rule change allows USCIS to adjudicate work permit applications for an indeterminate period of time, which will inevitably result in delays.  The government claims this move will deter immigrants from filing “frivolous, fraudulent, or otherwise non-meritorious [asylum] claims.”  But the rule change is more likely to force asylum seekers further into poverty and informal economies, thereby making it more difficult for them to meet their basic needs.

The second rule change, effective August 25, 2020, severely restricts eligibility for work permits while simultaneously increasing the waiting time for work permits.  This too will have dire consequences for asylum seekers struggling to survive while their asylum applications remain pending.  The new measures mandate the government to:

  1. substantially delay the issuance of work permits by more than doubling the waiting period to apply from 150 days to 365 days;
  2. bar asylum seekers from receiving a work permit if they attempt to enter the United States without inspection on or after August 25, 2020, unless they qualify for very limited exceptions;
  3. deny employment authorization for asylum seekers who file their asylum application after the one-year filing deadline, unless granted an exception;
  4. prohibit employment authorization for applicants who have been convicted of certain crimes or who are “believed” to have committed a serious non-political crime outside the United States;
  5. deny employment authorization applications if the underlying asylum application has experienced “unresolved applicant-caused delays,” such as a request to amend or supplement the asylum application or if the application is being transferred to a different asylum office due to a change in the applicant’s address;
  6. automatically terminate an asylum seeker’s work permit without provision for renewal if an immigration judge denies the asylum case and the applicant does not appeal to the Board of Immigration Appeals (BIA) within 30 days, or if the applicant does appeal but the BIA denies the appeal; and
  7. limit the employment authorization validity period to a maximum of two years.

The effects of these new directives will be devastating. Currently, the inability to work lawfully for at least six months after seeking asylum often leaves applicants homeless, hungry, and without access to health care.  Because federal law does not provide support such as income, housing, or food assistance to asylum applicants, dramatically increasing the waiting period for a work permit will exacerbate the conditions of poverty in which many asylum applicants find themselves.  Without employment authorization, asylum seekers cannot obtain health insurance under the Affordable Care Act, and often cannot apply for a driver’s license or benefit from public assistance programs that offer safe housing and access to food.  Federal law permits states to provide state-funded benefits to asylum seekers, but only about half of the states have extended benefits to that population.   Even when states do provide some public benefits to asylum applicants, it is often only for children, the elderly, or asylum seekers with specific health conditions.

Given these consequences, pro bono attorneys representing asylum seekers who are eligible to apply for a new work permit or to renew an existing work permit now should consider filing employment authorization applications before August 21, when the first of these rules goes into effect.

 

© 2020 Proskauer Rose LLP.

ARTICLE BY Erin M. Meyer and Angela Gichinga at Proskauer Rose LLP.
For more on the topic, see the National Law Review Immigration Law section.

Travel Bans are Legal Diplomatic Tools to Further Foreign Policy

Commentary on Travel Bans

In spite of national and international criticism, the Trump Administration continues to use travel bans as part of its strategy to pursue American foreign policy objectives. On May 29th, President Trump signed an executive order on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers.

This order bans Chinese graduate students and researchers who have ties to an entity that “implements or supports” China’s “military-civil fusion strategy.” It also calls on the State Department to consider if Chinese graduate students currently in the U.S. should have their visas revoked.  The goal of this travel ban is to prevent China from acquiring sensitive American technologies and intellectual property that could modernize and enhance the Chinese military.

This is just the latest in a series of travel bans that the Administration has used to pursue foreign policy interests.  In Syria, the U.S. has a tenuous relationship with the Assad regime and the security infrastructure was ravaged by years of civil war and radical insurgents. There is no mechanism for meaningful security and information sharing between the two nations.  The Administration has a full travel ban on Syrians to guard America’s security.

In Iran, the U.S. relationship has been tense for over four decades. The Trump Administration withdrew from the Joint Comprehensive Plan of Action and 1955 amity treaty. However, Trump’s foreign policy objective is to make a new nuclear deal with Iran.  Trump’s travel ban in Iran allows Iranian students to receive visas as a path for dialogue.

Nigeria and America are allies and major trade partners.  However countering the Islamic militant group Boko Haram, which abducted 300 girls in 2014, is also part of America’s foreign policy.  The travel ban in Nigeria is limited to only immigrant visas.  The State Department issued over 99,000 visas in Nigeria in 2019.  Of these only 6,746, or 7%, were immigrant visas.  Banning 7% of Nigerians sends a message that the Nigerian government must to more to counter terrorism. But it stops short of banning all travelers from a main trade partner.

Some Chinese graduate students are now part of a growing list of banned travelers to the United States.  Travel bans are controversial, but our government has the obligation to use all legal tactics at its disposal to pursue its foreign policy goals and to secure its citizens. Travel bans are diplomatic tools, not political weapons.

The opinions and views stated herein are the sole opinions of the author and do not reflect the views or opinions of the National Law Review or any of its affiliates.

© 2020 George Farag
For more on travel bans, see the National Law Review Immigration law section.

Supreme Court of the United States Upholds DACA (Deferred Action for Childhood Arrivals)

In a 5-4 decision written by Chief Justice John Roberts on Department of Homeland Security et al vs. Regents of the University of California, the Supreme Court held that the DACA rescission was improper under the Administrative Procedures Act.

In the decision, Chief Justice Roberts concludes “that the acting secretary violated the [Administrative Procedure Act]” and thus the decision to end the DACA program must be vacated. Today, over 700,000 foreign nationals have availed themselves of the opportunities provided by DACA.

In his opinion, Chief Justice Roberts writes:

“We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern.’ Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”

Chief Justice Roberts was joined in the majority by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sotomayor. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh filed opinions that concurred with parts of the dissent and majority.

On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum creating a non-congressionally authorized administration program that allowed certain individuals who entered the United States as children and met various other requirements, namely lacking current lawful immigration status, to request deferred action for an initial period of up to two years, with the ability to renew thereafter, and eligibility for work authorization. This program became known as DACA – Deferred Action for Childhood Arrivals.

The program has faced continuous constitutional scrutiny since its creation, including the Department of Homeland Security’s order that ended the program in 2017. Lower court rulings enabled the DACA program to continue, ultimately leading to suit being brought before the Supreme Court.

The Supreme Court’s decision is not a final resolution on DACA, but instead rules that the Trump Administration’s total recession of DACA was “arbitrary and capricious” and that the administration failed to give adequate justification for ending the program. This decision keeps the DACA program in place.

The full ruling on the case can be found here.

©2020 Greenberg Traurig, LLP. All rights reserved.

To Reverify or Not: Form I-9 and Lawful Permanent Residents

On Friday, May 15, the U.S. Department of Homeland Security (DHS) issued a notice clarifying to employers that they cannot reverify Lawful Permanent Residents (LPRs) who presented evidence of permanent residence status that was unexpired at the time of the employee’s initial Form I-9, Employment Eligibility Verification, regardless of later expiration. While employers were never required to reverify LPRs, there has long lacked specific instruction on this, leading many involved in human resources across Pennsylvania and New Jersey to conduct reverifications of LPRs in violation of federal law.

What is Form I-9?

Form I-9, Employment Eligibility Verification (“Form I-9”), is used to:

verify the identity and employment authorization of individuals hired for employment in the United States.” All employers in the United States must are required to implement procedures for the use of Form I-9 that ensure its proper completion for each individual that is hired for employment in the United States—citizens and noncitizens alike.

Federal law requires employers to “allow employees to choose which document(s) they will present from the Lists of Acceptable Documents” that is included with Form I-9. As the DHS M-274, Handbook for Employers, notes, in “Section 1, an LPR may choose to present a List A document (such as Form I-551, Permanent Resident Card, commonly referred to as a Green Card) or a List B and C document combination (such as a state-issued driver’s license and unrestricted Social Security card).”

LPRs are issued a Form I-551, Permanent Resident Card (LPR Card) as evidence of permanent resident status. If an individual is an LPR and presents a valid LPR Card when completing Form I-9, the LPR Card is deemed a sufficient “List A” document, thereby rendering successful the employer’s verification of the individual’s identity and ability to work in the United States. An employee need not present any further evidence. Acceptable LPR Cards include:

  • Those issued from January 1977 to August 1989 that have no expiration date;
  • Currently unexpired, but with 10-year expiration dates; and
  • Currently unexpired, but with 2-year expiration dates.

To Reverify or Not to Reverify?

The DHS notice informs that employers who successfully complete the Form I-9 verification process with an LPR Card that either did not have an expiration date or was a 10- or 2-year LPR Card that was unexpired at the time of verification must not seek to reverify the employee in the future even if the LPR Card later expires.

However, when an individual that is an LPR presents the following to an employer during the Form I-9 verification process, it is necessary to reverify:

  • Expired LPR Card and Form I-797, Notice of Action (which is issued when an individual applies to renew an LPR Card), that indicates the LPR Card’s validity has been extended. Employers should consider these documents as acceptable “List C” evidence, requiring reverification at the end of the extension period. Note that the employee must still present a valid, unexpired “List B” document to satisfy the initial Form I-9 verification.
  • Form I-94 or Form I-94A, Arrival-Departure Record, containing an unexpired temporary I-551 stamp and a photograph of the individual. When presented, these documents are acceptable “List A” evidence. Employers must conduct a reverification no later than when the I-551 stamp expires, or one year after the issuance of Form I-94 or Form I-94A, Arrival-Departure Record, should the record not indicate an expiration date.
  • Current foreign passport with a photograph and either a temporary I-551 stamp or I-551 printed notation on a Machine-Readable Immigrant Visa. Additionally, if the current, foreign passport is, in the rare instance, endorsed with “CR-1,” rather than an I-551 stamp, the employer is reminded that the “CR-1” endorsement is the equivalent of an I-551 stamp. Employers must conduct a reverification when the I-551 stamp or I-551 printed notation on the Machine-Readable Immigrant Visa expires. If there is no expiration date listed, the reverification must occur no later than one year from the date that the I-551 was stamped or “CR-1” was endorsed in the foreign passport.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more on employment verification, see the National Law Review Labor & Employment law section.

Immigration and Compliance Briefing: COVID-19 Summary of Government Relief and Potential “Public Charge Rule” Impact on Nonimmigrant and Immigrant Visa Applications

Public Charge Rule

The “Public Charge Rule” implemented by the Department of Homeland Security (“DHS”) on February 24, 2020 mandates that certain individuals applying for U.S. immigration status are generally inadmissible into the U.S. if they are found likely to become a public charge at any time. Individuals inside or outside the U.S. who seek to either obtain Lawful Permanent Resident status (apply for immigrant visas and “green cards”) or to extend or change nonimmigrant status (temporary visas) must now demonstrate that they have not received public benefits, or have received limited public benefits, with some exceptions. This requires individuals to provide with their applications for immigration status additional detailed information regarding finances (such as income, assets, credit scores, bank accounts, taxes, debts, etc.). Public benefits received prior to February 24, 2020 will not weigh heavily against these individuals. Immigration case impact and processing trends are still being determined given the fairly recent implementation of the Public Charge Rule.

Available guidance notes that public benefits considered for a public charge determination include, but are not limited to, the following: any federal, state, local, or tribal cash assistance for income maintenance. Examples include Supplemental Security Income (SSI) and Cash Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), Section 8 Housing Assistance & Project-Based Rental Assistance, Public Housing; and Medicaid. In contrast, the following are not considered for a public charge determination: tax credits; unemployment benefits; disaster relief assistance; certain forms of nutritional support, including Special Supplemental Nutrition for Women Infants and Children (WIC) and school breakfast and lunch; and certain Medicaid benefits, including emergency medical care, school-based services and benefits, and Medicaid for individuals under 21 years of age.

As a reminder, many non-immigrants (temporary visa holders) are not eligible to receive public benefits. Eligibility for public benefits depends on immigration status, age, and other factors. Use of public benefits to which an individual is not entitled may have adverse immigration consequences beyond the public charge determination. All individuals should carefully review eligibility criteria prior to applying for and/or using public benefits.

COVID-19 Relief Measures

In response to COVID-19, the federal government has enacted broad economic relief policies. These measures include direct financial aid to families through tax credit rebates, expanded unemployment benefits and new relief programs as well as indirect aid through increased federal funding for businesses and healthcare providers. Generally, the use of disaster relief assistance will not impact a public charge determination for individuals seeking immigration benefits. However, the use of public benefits during COVID-19 can still be considered in the public charge analysis.

Healthcare Measures

Federal legislation passed in response to COVID-19 provides additional federal funding for COVID-related testing and treatment, including increased funding for Community Health Centers and for testing and treatment of uninsured and underinsured individuals. USCIS is encouraging anyone experiencing COVID-19 symptoms to seek medical treatment and/or preventative care. Seeking testing, prevention, or treatment of COVID-19 will not factor into a public charge determination for purposes of seeking an immigration benefit, even if the testing/prevention/treatment is federally funded. However, eligibility for Medicaid has not changed, and enrollment in Medicaid during COVID-19 may still be used as a factor for determining an immigration benefit under the Public Charge Rule.

Stimulus Bill Rebate Payments

The CARES Act authorized the federal government to issue one-time tax credit rebate payments to certain taxpaying individuals and households, including certain temporary nonimmigrants. Depending on income, eligible individuals can receive up to $1,200 while eligible households can receive up to $2,400. In addition, eligible individuals with children can receive $500 per dependent child under 17 years of age.

The rebate payments authorized by the CARES Act are considered tax credit payments, which will not factor into a public charge determination.  However, note the following:

  • Eligibility for tax-credit rebate payments depends on filing 2018 and/or 2019 taxes and tax residency status and requires all recipients to possess a valid social security number with limited exceptions for certain military households and adopted dependent children. This means that many mixed-status families (families with individuals in different immigration statuses) may not be eligible for the stimulus check.
  • Receiving tax credit payments in error may lead to an individual or household owing taxes, which could be used in a public charge determination for purposes of seeking an immigration benefit. It is very important that any individual receiving a tax credit rebate check ensure that they are in fact eligible to receive it.

Food and Nutritional Assistance

The Families First Act authorizes states to provide supplemental SNAP benefits to SNAP households and creates a new program, Pandemic EBT (“P-EBT”), authorizing states to provide meal assistance to children who are out of school due to COVID-19 and who would otherwise receive free or reduced school lunches. P-EBT is considered disaster relief assistance and will not factor into a Public Charge determination. However, eligibility for SNAP has not changed and enrollment in SNAP may still be used as a factor for determining an immigration benefit under the Public Charge Rule.

Unemployment Benefits

When individuals become unemployed through no fault of their own, they may qualify for relief through unemployment benefits. Unemployment benefits pay out a portion of an individual’s prior income while the individual is unemployed, and are administered by states with oversight from the Department of Labor (DOL). The benefits program is funded through taxes paid by employers. Although the federal government has set a few eligibility requirements, states are largely able to determine their own individual eligibility criteria and benefit levels for basic unemployment benefits.

While eligibility requirements for unemployment benefits vary by state, generally someone must be considered “able and available to work” before s/he is eligible to collect unemployment benefits. Since many temporary nonimmigrant work visas (such as H-1Bs and L-1s) require employer sponsorship prior to employment authorization, most people with these types of visas are not considered to be able and available to work. Individuals with other types of work authorization, such as an unrestricted EAD (Employment Authorization Document), may be eligible for unemployment benefits.

The CARES Act expands on basic unemployment benefits through three programs: Pandemic Unemployment Compensation (PUC), Pandemic Emergency Unemployment Compensation (PEUC), and Pandemic Unemployment Assistance (PUA). These programs increase coverage and availability, but eligibility criteria are still determined by individual states.   Some states have temporarily waived eligibility requirements due to COVID-19, including the able and available requirement. This waiver may expand the types of non-U.S. workers who qualify for unemployment benefits in those states. Additionally, some states have waived waiting periods and increased payments.

Unemployment benefits are considered earned benefits and will not factor into a public charge determination.

SBA Loans

COVID-19 relief packages provide funding for small businesses in the form of loans, interest relief for certain loans, and waivers of certain fees.  Certain non-U.S. citizens who own or share ownership in qualifying businesses may apply for an SBA (Small Business Administration) loan.

SBA loans are unlikely to impact a public charge determination because generally disaster relief programs are not considered in the analysis. Also, an SBA loan is granted to a company rather than to an individual, while a public charge determination focuses on an individual

Given that this is a rapidly changing situation, please also refer to the following online resources, and be sure to review the “last updated” date:

© 1998-2020 Wiggin and Dana LLP

For more on the public charge rule, see the National Law Review Immigration law section.

Update: Suspension of Trusted Traveler Enrollment Extended to June 1, 2020

On April 22, 2020, Customs and Border Protection (CBP) announced it is extending its suspension of operations at all Trusted Traveler enrollment centers until at least June 1, 2020 to protect CBP officers and the general public from exposure to COVID-19.

Applicants with a previously scheduled appointment for a final interview will need to re-schedule for a date after June 1st. Applicants can log in to their online TTP accounts for more information on available appointments and to review the status of a pending application. Designated airports will continue to allow enrollment on arrival for conditionally approved applicants entering the United States.

The temporary closures apply to all enrollment centers – Global Entry, NEXUS, Sentri, and FAST.

The closures are expected to add to the already extensive backlog of pending applications. In response to this, CBP will allow current members to continue using their trusted traveler benefits for 18 months after the date of expiration provided members submit an application for renewal before their current membership expires. Additionally, applicants now have 485 days (just under 16 months) to complete their final interview from the date of conditional approval.

Please click the following links for our previous posts on this issue:

COVID-19 Immigration-Related Updates

Trusted Traveler Processing Delays 

 

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Authored by Colleen DiNicola in the Immigration Practice at Mintz Levin.
For more on travel restrictions, see the National Law Review Immigration law page.

The Ever Thinning Right of Privacy at the Border—A Warning for Attorney Travelers

Immigration Commentary

It was March 2, 2020, at around five in the afternoon, right before the COVID-19 pandemic went out of control, and cities and states started to issue stay-at-home orders.

I had just gotten married to my wife on February 28 in Mexico. On our flight back we traveled with our family, around ten people in total. As we went through the automated customs system, my wife got an X in the receipt that the customs’ machine sometimes gives you. Mine did not have an X but, since hers did, I accompanied her to the agent’s kiosk that reviews receipts marked with Xs. When we got there, the agent reviewed her passport quickly, and told her that she would have to go through a secondary screening in what they call the “little room” or “el cuartico” in Spanish. As her husband, they let me go in with her.

We were in the “little room” for a few minutes, not too long. They reviewed her passport and then we were told to go to another place, following a long pathway full of orange plastic cones that took us to another agent, in a zone where there were scanning machines. The agent opened both of our bags, looked at them carefully, item by item, and then told us to sit and wait.

As we sat and waited for around twenty minutes, two agents came in and introduced themselves as being from the Investigative Unit at the Department of Justice. They showed us their badges. Without giving any details, they told us that they had orders from the agent-supervisor in charge to take our phones and laptops. My wife and I are both lawyers and, as such, reacted quite surprised, and quickly asked why. Both agents–one very polite, the other, not so much–told us that they could not tell us why they needed our phones and laptops, or what the whole thing was about. A back and forth, at times intense, ensued.

Our immediate reaction as lawyers was to say: “You don’t have a right to do that. Please show us a warrant to search our phones or laptops.” We additionally disclosed to them at that point that we were attorneys, and that our phones and laptops contained attorney-client sensitive information, and that such information does not belong to us but to the client. The polite officer did not say much. The not-so-polite officer said, essentially: “I don’t care” and that “at the point of entry we have a right to inspect these things.”

At the time, I did not know the law on this topic. As an immigration lawyer, I knew that non-citizens seeking admissibility do not have a constitutional right to privacy. I thought that a different standard applied to U.S. citizens—which we both are. The agent seemed to disagree. I did not have time to research the law on my phone. The agents made us place our phones on the table, so we could not use them. The back and forth with the not-so-polite agent turned more intense. We managed to persuade him to let us use our phones to call our lawyers.

We called three lawyers. First, a good friend, Juan Carlos Gomez, an immigration law professor. He was of the view that if they were going to search our phones and laptops, they needed a magistrate’s order or a warrant. I then called two good friends and excellent criminal attorneys. Both of them said something similar: “If they want to take it, they are going to take it, and there’s not much you can do about it. You just need to make sure you are making it clear that you don’t consent, and thus, anything inside cannot be used against you.” All three attorneys told us that we did not have to provide the passwords of our phones and laptops; we just had to turn them in physically.

My wife and I were both unconcerned about ourselves. We really had nothing to hide but felt (1) that our right of privacy was being violated, and (2) that our clients’ information was vulnerable. We both run small practices and take our phones and computers everywhere, as most lawyers do.

After some 60 minutes arguing with the agents, we agreed that we were going to wait for their supervisor to come see us before they took any of our laptops or phones. According to the not-so-polite agent, their boss had just been in a car accident and was going to take an additional hour. We said we would wait.

After around three hours since landing, tired, and with our family waiting outside, we said: “Let’s just give it to them, let’s not wait anymore.” As we were about to turn in our phones, the agent-supervisor appeared. He was a nice man. We explained to him the situation, that we were attorneys, that our devices contained confidential attorney-client information, and that if he could give us any details about the topic of their investigation, we could cooperate and provide them with any necessary information. The agent-supervisor was polite, understood our position, and said not to worry about it, that he was going to let us go with our devices. We grabbed them and left.

To this day, we are not sure whether the agent-supervisor let us go because of the hassle of having to deal with two lawyers to obtain information that may not be all that valuable anyway, or if he let us go due to the attorney-client privilege concerns we shared with him.

Can U.S. border agents take an attorney’s device which contains attorney-client privileged information?

The short answer seems to be yes.

The longer answer is laid out in the 2018 U.S Customs and Border Protection Directive No. 3340-049A (the “Directive”).[i] Specifically, section 5.2 of the Directive, titled “Review and Handling of Privileged or Other Sensitive Material,” addresses this issue head-on.

First, the information has to be “identified” or “asserted to be” protected by the attorney-client privilege. This burden is on the attorney. In other words, if you have attorney-client privileged information, it is your duty as a lawyer to make the claim.

Second, after there is a claim of attorney-client privileged information, the “Officer shall seek clarification, if practicable in writing, from the individual asserting [the] privilege as to specific files, folders, categories of files, attorney or client names, email addresses, phone numbers, or other particulars that may assist CBP in identifying privileged information.”

Third, before any search may occur, where there is a claim of privilege, “the Officer will contact the CBP Associate/Assistant Chief Counsel (ACC) office.” Then, in coordination with the ACC, the Officer “will ensure segregation of any privileged material from other information examined during a border search to ensure that any privileged material is handled appropriately.”

Finally, at the completion of segregation and review, “unless any materials are identified that indicate threat to homeland security, copies of materials maintained by CBP and determined to be privileged will be destroyed, except for any copy maintained . . . for purposes of . . . a litigation hold.”

In short, CBP officers may search a lawyer’s phone, but they have to “segregate” the privileged information. How confident can you feel about border agents “segregating” and not looking at privileged material in searches they do out of your sight? I think we don’t need to answer that question.

Can U.S. border agents access information remotely stored in “the cloud”?

The next question is how far they can search. We have not defined what a “device” is. Today, almost all smartphones are connected to “the cloud,” which allows you to access vast amounts of information beyond what is stored in the actual physical device.

The Directive also addresses this. It specifically states that “[t]he border search will include an examination of only the information that is resident upon the device and accessible through the device’s operating system or through other software, tools, or applications.” In fact, “Officers may not intentionally use the device to access information that is solely stored remotely.” The Directive goes on to recommend that “Officers request that the traveler disable connectivity to any network . . . or where warranted . . . Officers will themselves disable network connectivity.”

In other words, Officers can search your phone, but they cannot go into your Dropbox, iCloud, Google Drive or any other information that is stored in “the cloud” and that is accessed through internet connectivity. The question again becomes, how confident can you feel about border agents not accessing readily available information in Gmail, iCloud, Dropbox, and other cloud-based services? You really have no assurances that officers will not look at things you keep in “the cloud” that are so readily accessible. This underscores the importance of always having such applications logged out in your devices, but especially when you travel internationally.

Do you have to give U.S. border agents your password?

The Directive states that “[t]travelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents.” “Passcodes or other means of access may be requested and retained as needed to facilitate the examination of an electronic device.”

Thus, the Directive clearly says that you have to provide your password. However, it is unclear what remedy border agents have if U.S. citizens refuse to do so. In the case of non-U.S. citizens, it is clear that they could be denied admission into the country. It is highly unlikely, however, that a U.S. citizen attorney, making a claim of privilege, has to voluntarily disclose the password of the device that contains the privileged information. What happens if the attorney refuses to give his password? Will he be arrested? What if he is arrested and still refuses to give his password? Will he be physically forced? It seems to be one of those situations where it will be difficult for U.S. agents to enforce. Of course, U.S. Customs is not completely without remedy, as the refusal to turn in the password will result in the impounding of the device and its opening using other electronic means.

What to do?

We will never know why they wanted our devices. Likely, it was something related to one of the hundreds of clients we have represented. But we do not know exactly which client or what the investigation was about.

What we do know now and learned from this experience is that we live in a world with increasingly fading privacy rights, and that we have to learn, as lawyers, to take necessary precautions to protect our clients’ information. These precautions include traveling with devices that do not have access to cloud-stored information, such as Dropbox, Google Drive, Gmail, iCloud, or some legal software that relies on cloud computing. It is also important to travel with computers or phones that do not have anything in it that can be privileged. As seen above, even if the Directive says that the Officer has to “segregate” and not look at attorney-client privileged material, these searches happen out of your sight, and you have no control whatsoever over what the Officers look at. Until the Directive is challenged in court, Attorneys have to be extremely careful when they travel internationally.

[i] The legal authority or weight that the Directive carries is not the subject of this article; this article merely describes the current policy used by CBP in doing searches of attorneys’ devices.

© 2020 Eduardo Ayala Maura
For more on attorney-client privilege matters, see the National Law Review Law Office Management section.

President Trump Expected to Sign Executive Order to “Temporarily Suspend Immigration to the United States”

Shortly after 10:00 p.m. last night, President Donald Trump announced—through Twitter—that he “will be signing an Executive Order to temporarily suspend immigration into the United States,” because of the “attack” from the COVID-19 pandemic on the United States and “to protect the jobs of our GREAT American Citizens.”

Other than President Trump’s Tweet, neither the White House, the Department of Homeland Security, State Department, nor any other federal agency provided any guidance or information as to what exactly the suspension of immigration into the United States actually means, how expansive such a suspension would be, or the number of individuals and countries that such an executive order could affect.

Global Travel Ban to the United States

On March 19, 2020, we wrote about the travel restrictions the White House imposed on the admission of foreign nationals into the United States, to limit the spread of COVID-19. Since then,

foreign nationals who were in any of the following countries in the 14-days before traveling to the United States (were and still) are barred from entering and will be turned away at U.S. airports, ports, border crossings, and other ports-of-entry: Austria, Belgium, China, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Iran, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

Moreover, all non-essential travel between the United States, Canada, and Mexico was initially restricted on March 18, 2020, for 30 days. Yesterday, however, President Trump extended the non-essential travel restriction between the three counties for an additional 30 days—through May 20, 2020.

Official Guidance to Suspend Immigration

As of today, there are no other restrictions on the entry to the United States related to the COVID-19 pandemic, other than those noted here. President Trump’s Tweet is still just a Tweet. No official guidance has been issued as to the halting of “all immigration” into the United States.

©2020 Norris McLaughlin P.A., All Rights Reserved