News From the Courts

Posted on: December 30th, 2019
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Lawsuit Alleges DHS and USCIS Overreach in EB5 Final Rule

Florida EB5 Investments, LLC has filed a lawsuit against the Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) for the rule the agencies put in place which severely and fundamentally hindered the EB5 Immigrant Investor Program. In the lawsuit, EB5 Investments questions the authority of DHS and USCIS to make augmentations to the requirements to a statutory-based visa program which defy all measures of detrimental economic impact suggesting that such augmentations would have.

The rule, which DHS issued on November 21, 2019, made significant increases in the amount of money required to invest to qualify. Additionally, the rule eliminated the role of the individual states when determining the areas in which such investments are to be made. The lawsuit asserts that although DHS claimed when it made these changes, that any unintended negative effects to the United States was unknown, there was data readily available which suggested the rule’s severe economic impact, not only to regional centers such as EB5 Investors, but also the United States as a whole. Furthermore, the lawsuit claims that stripping states’ of their ability to determine which areas within their own borders should receive investments extends beyond the scope of DHS’ authority, and that the agency has neither the aptitude nor the insight to make such determinations for each individual state.

The lawsuit seeks for a temporary restraining order and preliminary injunction preventing the implementation of the rule.

For more information, view the full lawsuit.

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District Judge in San Francisco Blocks Trump Rule Which Ended Fee Waivers for Low-Income Immigrants Seeking Citizenship

San Francisco-based United States District Judge Maxine Chesney granted a nationwide injunction, ordering the Trump administration to continue its exemption of many low-income immigrants from the $725 application fee for United States citizenship. Blocking a rule which significantly narrowed the scope of the poverty waiver, Judge Chesney granted the injunction in a lawsuit by immigrant advocates, who stated that the rule, “creates a wealth test for citizenship,” and would prevent the naturalization of many current legal residents.

The more than 13 million immigrants who come to the United States on visas obtained either via family members, employment status, or as refugees, are generally eligible to apply for citizenship after three or five years. This affords them the rights of citizens, such as running for office, serving on juries, or voting, and protects them from deportation. In order to gain citizenship, these individuals must pass tests in English and must not have any serious crime convictions since their entry into the country. Rules implemented in 2010 waived the application fee of $725 for individuals who could demonstrate that they receive government aid or financial hardships as the result of unemployment or medical expenses.

Announced in October and implemented on December 2, the Trump administration rules eliminated the exemption for government benefits and provided fee waivers exclusively to individuals who could demonstrate their income was no more than 150% of the federal poverty guidelines or demonstrate financial hardships. Additionally, instead of using their own tax records to show their income, it required them to file tax transcripts from the IRS.

Plaintiffs in the suit described the new rules as arbitrary, punitive, and divisive, creating a pool of second-class poor noncitizens.

For more information, view the full article from The San Francisco Chronicle.

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Federal Court Awards United States Citizenship to American Samoans

After a decades-long legal battle, American Samoa has become the last territory to be afforded citizenship, joining Puerto Rico, Guam, and the U.S. Virgin Islands. A federal court ruled individuals who were born in American Samoa, a U.S. territory in the South Pacific Ocean, are citizens of the United States. Prior to this decision, American Samoans were classified as “non-citizen nationals,” thus denied rights afforded to citizens, such as receiving federal student loans, sponsoring family members for immigration purposes, and the right to vote, or run for office.

In March 2018, John Fitisemanu, Pale Tuli, and Rosavita Tuli, all of whom were born in the territory but currently reside in Utah, sued the federal government on the basis that their Constitutional rights were being violated under the 14th Amendment. In 1868, the 14th Amendment specified citizens as individuals, “born or nationalized in the United States, and subject to the jurisdiction thereof.” Laws enacted in the 20th century explicitly identifies American Samoans as, “nationals,” instead of citizens. The primary point of contention in the court case was whether, for the purposes of the 14th Amendment, American Samoa is considered, “in the United States.”

Prior to the ruling, American Samoans were afforded citizenship only if at least one of their parents was a citizen. If neither parent was a citizen, it would cost a minimum of $725 to initialize the application process.

For more information, view the full article from Newsweek.

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