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Local advocates and lawyers are sounding the alarm for area Lusophone communities after a new policy implemented by U.S. Citizenship and Immigration Services would force many people hoping to obtain legal residency to return to their country of origin to apply for a green card.
Cabo Verdeans and Portuguese may be the local populations most affected by the policy, which CIS issued in a memorandum dated May 21. The policy calls adjustment of status — the process by which an immigrant converts from one immigration classification to another — a form of “extraordinary relief” outside of usual processes for immigrants wishing to live in the U.S.
Helena DaSilva Hughes, president of the Immigrants’ Assistance Center, noted that a large number of Portuguese and Cabo Verdeans entered the U.S. legally, but overstayed their visa. Because of that, if they were to leave the U.S. to apply for a green card, they would be barred from re-entering the country for up to 10 years.
“Because they are barred, the adjustment of status doesn’t matter,” DaSilva Hughes said. “They can pick up their visa, but they’re not going to be allowed to enter the U.S.”
A May 22 press release from CIS quoted a spokesperson as saying that an immigrant who wants a green card “must return to their home country to apply, except in extraordinary circumstances” — language that does not appear in the May 21 policy memo itself. One week later, CIS issued a “clarification,” according to the New York Times, saying that it would be up to the individual immigration officer to determine whether someone needed to return to their home country.
Adjustment of status most frequently applies to those seeking a green card after entering the country on a non-immigrant visa, such as a student or tourist visa. Many immigrant advocates and lawyers call the new policy blatantly illegal.
“The Immigration and Nationality Act allows people who enter the United States legally with a visa or legal entry to adjust their status and get their green card here in the United States,” said Eliana Nader, an immigration attorney at Magaletta, McCarthy, & Nader, a Boston-based law firm. “That’s what the law says.”
According to the 5-year estimate of the American Community Survey conducted in 2021, there were 31,619 residents of New Bedford who identified themselves as Portuguese or of Portuguese descent, of which 7,205 were born abroad. About 2,000 of those did not have U.S. citizenship at the time.
Fred Watt, a semi-retired immigration attorney at Watt, Sylvia & Friedel, said he also sees the policy impacting the local Portuguese community.
“It’s particularly bad for the Portuguese because anybody who came in after 2000 from Portugal, 99% of them came in on a visa waiver,” Watt said, referring to a program that allows Portuguese citizens to pay a $41.27 fee online for an e-visa and stay in the U.S. for up to 90 days as tourists.
Those who overstay on a visa waiver program do not have the right to stand before an immigration judge to fight their case, Watt said, making the situation more precarious for them.
Watt said he does not expect the move to greatly impact the city’s Guatemalan population, a large portion of whom entered the U.S. without prior authorization and would have to seek legal residency through other processes. Most of the approximately 80 New Bedford area immigrants taken into custody by U.S. Immigration and Customs Enforcement custody have been Guatemalan.
Watt added that Cabo Verdeans, who make up around 10% of New Bedford’s population, also face risks under the current policy. That situation is complicated by the fact that Cabo Verde is included on a list of 75 countries that are banned from the issuance of immigrant visas. Catholic Legal Immigration Network, Inc. spearheaded a lawsuit against the ban in U.S. District Court for the Southern District of New York in April.
“Most [Cabo Verdeans] would’ve come on a tourist visa,” Watt said. He added that if they are on the 75-country list, they may very well have no paths of return to the U.S. at this time.
“If that [program] is closed,” he said, “they can’t really do anything.”
Lawsuits on the horizon
Immigration advocates and lawyers who spoke with The Light on the new CIS policy about adjustment of status said no one is wondering if it will be challenged in court — it certainly will be.
“Every time I hear there’s a policy coming out, there’s a lawsuit coming,” DaSilva Hughes said.
Where observers split is in how they believe it will play out in the courts. Much of it rests on questions of discretion, with the memo classifying adjustment of status to those present in the U.S. as a “matter of discretion and administrative grace,” with the immigrant to bear “the burden of showing why administrative discretion should be favorably exercised.”
Watt said the way the authors wrote the policy still leaves a lot up to the adjudicating officer reviewing a particular green card petition. That could make it difficult to overturn in court.
“Given the wording of that memo, [a plaintiff] is going to be on weak grounds,” Watt said. “I think the way they phrased it is going to make it problematic to get it struck down.”
Not so, said Nader.
“The language that they’re using is just not noted anywhere in the [Immigration and Naturalization Act],” she said. “Overstaying a visa and adjusting status here through an immediate relative petition … is a very ordinary and accepted way of adjusting status and very clearly allowed in the law.”
Watt added that the law has always given significant discretion to immigration officers.
“It’s always been a discretionary form of relief,” Watt said, adding that such adjustment of status applications have been a regular feature of his practice since the 1990s. “They’ve always been allowed just as a matter of course.”
Nader agreed with Watt on that point, arguing that adjustment of status is “quite ordinary.” Nader said she thinks the point of the new policy is to create conditions where an immigrant would be banned from re-entering the country due to previous visa overstays.
“What they’re trying to do is very deliberate,” she said. “If they’re forcing you to leave the United States to go through a consular process there … it’s a lot easier for your case to be denied. Then you’re stuck out there.
“That clearly seems to be the motive behind this,” she added.
According to a recent blog post by David Weir, an immigration specialist at the CATO Institute, a libertarian think tank, the move is a continuation of a trend where more than half of green card applications were denied in the last year.
Since 1980, the vast majority of green cards granted were done so as a result of applications to adjust status from within U.S. borders.
Weir also said that the memo’s description of status adjustment as out of the ordinary does not match the language of the law. “The law grants the authority to do it, which every administration has faithfully done according to the intent of Congress,” Weir wrote. “Until this one.”
How the memo plays out in the courts is largely a game of chance, Watt said, as parties shop for federal circuit courts where they’re more likely to get a judge favorable to their disposition.
“I think when it gets to the Supreme Court, the Trump order stands,” Watt said.
Nader said she continues to place her hopes in the courts to stop the move.
“It’s clearly illegal on its face,” she said, “and I’m pretty hopeful that there’ll be an injunction or stay soon.
“You can’t override the law by memo.”
Kevin G. Andrade can be contacted at kandrade@newbedfordlight.org.
