Should a non-citizen travel outside the US right now?
February 4, 2017 4:29 AM   Subscribe

Should a person who is from a Muslim country not on the travel ban list risk traveling outside of the US right now?

I'm a US citizen. Spouse is currently in the US and is transitioning from student visa to spousal visa/green card. We have submitted the paperwork for this and if all goes well, it should be settled by April. However, spouse's green card application might be challenging/delayed because of their politically-oriented criminal record in home country. It was a false crime. There is ample documentation from human rights organizations, the European Court of Human Rights, as well as the US Department of State that the charge was false, it was a show trial, and spouse is due compensation for false imprisonment. Yet, their criminal record still exists and has been submitted to immigration officials with our fingers crossed.
BUT - This is not a question about that process.
Spouse is a citizen of a Muslim country that is not listed on the travel ban and is unlikely to be added to the travel ban. However, given the current climate, in combination with spouse's criminal record potentially popping up, we are nervous about non-essential travel outside of the US right now. However, there are some big family events coming up overseas that we'd really like to not miss.
What say you, AskMe? Are we being too paranoid?
posted by anonymous to Law & Government (29 answers total) 1 user marked this as a favorite
No, I do not think you are being too paranoid. Since things are currently subject to change on a daily basis, I personally would be nervous too and I would not take the risk.
posted by Too-Ticky at 4:39 AM on February 4, 2017 [31 favorites]

You're way better off asking an immigration attorney and a human rights organization familiar with your spouse's country of origin than AskMe.

But since you're soliciting opinions from random people on the internet... I grew up with a parent who was terrified of being separated from my brother and I at a border. I'm probably more anxious about immigration officials than I need to be as a result, but I'm definitely not naive about it in a way a lot of people seem to be. If I were your spouse, I definitely wouldn't be leaving the country until I had a green card in hand and would re-assess the situation at that point. By April, some of the litigation dust should have settled. A court order came out last night covering the whole country, but I think compliance is still a mess.
posted by hoyland at 4:45 AM on February 4, 2017 [10 favorites]

The USCIS seems to strongly discourage this, even in the absence of any wild cards like a criminal record (however false) and the ban.

Travel outside of the United States may have severe consequences if you are in the process of adjusting your status (applying for a green card). In general, if you are seeking immigrant status (a green card) and depart the United States without the appropriate documentation (i.e. advance parole) you may be inadmissible to the United States upon return, or even if admitted, you may be found to have abandoned your application.

If you have been admitted as a nonimmigrant and have applied to extend the period of authorized nonimmigrant stay, or have applied to change to a different nonimmigrant status, you will automatically abandon the application if you leave the United States before USCIS makes a decision on the advance parole application. Receipt of an advance parole document does NOT prevent abandonment of the change of status or extension of stay application. Upon returning to the United States, you are likely to be denied admission if your current status has expired.

posted by basalganglia at 4:54 AM on February 4, 2017 [10 favorites]

I agree you should seek a legal opinion, though even that seems limited by general volatility at present (see the recent New Yorker piece about the Iraqi couple working with refugee support services). My spouse (white cis male from Western Europe), holding a valid work visa and no criminal record or violation, was held for several hours with no explanation, no communication, and had his passport taken. He was eventually released after several hours and I was fortunate to have several friends in law who could quickly mobilize if needed but given that experience, I would not risk travel if I were in your position. In addition to the general volatility (and court decisions seeming to go against the ban), it does seem that worldwide, instructions and information disseminated to airlines, airports, and border control are inconsistent and poorly understood, and with much room for abuse by individuals. It sucks to be cowed by this, but if it means avoiding separating your family, I would err on the side of caution.
posted by stillmoving at 4:59 AM on February 4, 2017 [2 favorites]

I would absolutely not risk it. Between CBP agents interpreting laws on their own, an unpredictable president and EOs, and your spouse being a Muslim(!) Criminal(!) trying to sneak into our country to create another Bowling Green Massacre, it is way too dangerous of a climate to leave the US if she wants to have a reasonable expectation of getting back in.
posted by Suffocating Kitty at 5:25 AM on February 4, 2017

I wouldn't risk it until things have settled down a bit, because things are so chaotic right now. It doesn't seem like the airport customs agents know what they're supposed to be doing and it's also not clear that they all want to do the right thing. If your spouse happens to run into a petty tyrant at the U.S. border, they could have all kinds of trouble and I think that would suck more than missing some big family events--as regrettable as that would be.

When I do risk assessment, I think about two things: how likely something is to happen and what the worst possible consequences could be. When the probability is high and the consequences are nasty, I try and figure out another way to do something. This would be one of those cases for me.
posted by colfax at 5:36 AM on February 4, 2017

We were advised by my company and their immigration legal counsel to definitely refrain from traveling outside the US if we were from a Muslim country, even if it was not currently on the list of 7.

We were also encouraged to "consider" whether we wanted to travel outside the US if we were non-citizens in general, and advised to expect hassle at the border -- answering invasive questions from the border guards, possibly having to show them social media accounts, etc.

Two cents of legal advice that someone else paid for ...
posted by hyperion at 5:38 AM on February 4, 2017 [4 favorites]

You really ought to have an immigration lawyer in hand anyway for the adjustment of status because yours is not a typical case.

On the specifics, per basalganglia's comment: once you've submitted an adjustment of status application, you need an advance parole document to travel and then be allowed back into the US. Your spouse won't be able to return on the student visa by itself, even if the date on the visa implies that it's still valid, because he's told USCIS that he wants to be a permanent resident.

Advance parole is one of those areas where individual CBP agents are granted a lot of discretion even in non-crazy times. I wouldn't risk travelling right now.
posted by holgate at 6:54 AM on February 4, 2017 [1 favorite]

I wouldn't even in normal circumstances, and when we were in this same situation we didn't travel outside the US until we had our green cards. The student visa is specifically a non immigration visa, so applying for a green card could in some weird way be considered violating the spirit of the student visa. Our immigration attorney specifically warned against traveling outside the US during this period. Of course, now we have our green cards, but find ourselves reconsidering travel because of the craziness, even though we're not from Muslim countries, but that's a different story.
posted by peacheater at 7:02 AM on February 4, 2017 [5 favorites]

Please tell me you guys have an immigration lawyer. If you do not, you need to get one ASAP and ask them. I would be saying this in normal times because of your spouse's history, but these are not normal times and you really, really need legal representation now. IANAL but I say this as someone who knows a lot of immigrants/people in the US on various visas/immigration statuses.
posted by lunasol at 7:45 AM on February 4, 2017 [4 favorites]

I agree that you really need to be discussing this with a lawyer, but for what it is worth in your shoes I would not be traveling outside the country until a green card was in hand, and even then I would approach it with some caution until things get more settled.
posted by Dip Flash at 7:47 AM on February 4, 2017

No. There is very little recourse you have to get back in if you leave and are barred at re-entry - even if the ban has been at least temporarily stayed.
posted by Nanukthedog at 8:12 AM on February 4, 2017

I would specifically add to this that this issue was huge last week at work where we had joint memos from HR and Legal teams trying to get workers with Visas back from vacation. You do not want to be trying to re-enter the US while the ban is in effect.
posted by Nanukthedog at 8:25 AM on February 4, 2017 [1 favorite]

This is a really terrible burden on you and your family and your partner. But it's a very real threat to you. Speak with an immigration attorney and follow their advice, but I would be surprised if you were given any advice other than not traveling and generally keeping your ducks in a row and heads down.

That's completely totalitarian and unfair and (yes!) un-American. Lots of people are struggling to fix it but for now it's a choice of not traveling, unfair detention or being coerced into giving up your credentials.
posted by crush-onastick at 8:41 AM on February 4, 2017 [1 favorite]

I used to work with a lady from Iran who has lived in the US since the early 1980s. They are now US citizens. Even she has said they are not leaving the country for awhile.
posted by LoveHam at 8:41 AM on February 4, 2017

The answers so far are good. Agreed that it's advisable to not risk it and travel during the application process, unless you've got specific instructions from an immigration attorney on how to do it. This is good advice, the ban notwithstanding.

I will add that even once he's received the green card, he should be really clear as to his rights and know that he still risks being held at the border upon his return. There have been reports in the recent insanity where people were being told that unless they gave up their green card, they would be deported. This is after being held in detention for several hours without food and aggressive questioning. (The short answer here is do not give in, don't sign any papers, and ask to speak to an attorney, but otherwise be prepared to wait several hours until they decide they can't break you.)

I've come across this sort of stuff in the past even before this administration where border guards pulled that sort of stuff but that were usually in the context where they didn't believe people with green card statuses intended on being permanent residents in the United States. Being a muslim, even if not from a travel ban country, makes for a prime target for this sort of harassment from border guards who are now operating without any fear of reprimand.
posted by Karaage at 8:48 AM on February 4, 2017 [1 favorite]

Hopefully you are using a lawyer for the green card process. Make that your priority. Do not even think about leaving before spouse has the green card, and even then, wait a pretty good while. Take the lawyer's advice on any travel for as long as any blanket bans are in effect.
posted by beagle at 8:55 AM on February 4, 2017 [1 favorite]

I was under the impression that it was a bad idea to leave the US at all if you have a green card application in the works -- certainly an Irish colleague of mine had to abandon his travel plans last summer while he was waiting for the application to be processed. I am definitely not a lawyer (and like others I would encourage you to contact one), but even under the best of circumstances I think it would be very risky to leave the country -- and given your spouse's legal record and Trump I think it would be foolhardy to leave.
posted by crazy with stars at 9:41 AM on February 4, 2017 [1 favorite]

I would absolutely not risk this. Tbh I'm not sure there's such a thing as "being too paranoid" anymore.
posted by poffin boffin at 10:48 AM on February 4, 2017 [3 favorites]

Not paranoid at all. We have an Executive Branch that defies the Judiciary and publicly diminishes it. All bets are off until we see how this unfolds. And this is not only horrific but horribly unjust and unfair. And it's real. Seek counsel from a reputable immigration attorney and know that this is not a predictable world given what I started with. I'm sorry for your partner, you and your family.
posted by anya32 at 11:20 AM on February 4, 2017

Stay Put.
Even if you can get a immigration lawyer to commit to an answer, the absolute worst that could happen, for them, would be that they were wrong.
"Whoops, I really thought you'd be ok, sorry about that, here's my bill."
Having said that, I still think you should find a good immigration attorney.
Your next question should probably be: "Does anyone know a good immigration attorney in my area".
Best of luck.
posted by BoscosMom at 12:07 PM on February 4, 2017 [1 favorite]

Immigration lawyers I know are advising all noncitizens to avoid leaving the US. A green card holder from Trinidad got detained a few days ago. The former Norwegian PM was harassed because he had previously visited Muslim majority countries. There is no safe travel plan other than being a US citizen, and even then you may be harassed or delayed. I absolutely wouldn't risk it. The fact that your spouse is also trying to adjust status and has a criminal record, no matter how bogus, make this one a no brainer for me. No travel for noncitizens unless you're prepared for the possibility of being barred, potentially for years. This is terrifying and you are reasonable to be terrified.

posted by decathecting at 1:10 PM on February 4, 2017 [5 favorites]

IMHO it's worth keeping in mind that the travel ban was written in secret and announced without any real warning. We have literally no way to know what else is in the pipeline at this very moment.
posted by StrawberryPie at 1:58 PM on February 4, 2017 [5 favorites]

Not even immigration lawyers know what the fuck is going on lately. Don't risk it.
posted by zdravo at 1:58 PM on February 4, 2017 [2 favorites]

I'm a Canadian living in Chicago. I already told my family I won't be visiting them this year. It is simply not worth the risk to me that Trump and Co. could flip some switch and separate me from the life I have built.

Even before this I have always viewed border crossing as a form of Russian roulette. A cranky border guard has the full legal power to destroy your life. Now those cranky border guards are Trump's cranky border guards.
posted by srboisvert at 2:21 PM on February 4, 2017 [3 favorites]

My husband is from a non-Muslim non-banned country and has no criminal record (false or otherwise). After submitting his green card application several years ago, he was notified that he was not permitted to leave the country while it was pending, unless he received special authorization. He was advised not to try to seek such authorization.
posted by telepanda at 3:19 PM on February 4, 2017 [2 favorites]

Go to VisaJourney and ask this question. Generally, risky to leave the country during a status change, and especially with the circumstances described, at present.
posted by galaksit at 10:49 PM on February 4, 2017 [1 favorite]

This is not too paranoid. If your spouse were a naturalized U.S. citizen from a Muslim majority country I still wouldn't think it paranoid; the situation is too extraordinary and unstable.
posted by Verba Volant at 12:20 AM on February 5, 2017 [1 favorite]

My husband is from a non-Muslim non-banned country and has no criminal record (false or otherwise). After submitting his green card application several years ago, he was notified that he was not permitted to leave the country while it was pending, unless he received special authorization. He was advised not to try to seek such authorization

Same here. While the green card is in process, stay put. Even if your spouse has advanced parole, do not use it. I would've said the same a few years ago.

You have done well in disclosing your spouse's "crime" but that will only slow things down. Your spouse also came over on a student visa, which means your spouse promised they were here for non immigrant purposes. Now they are not. Customs people do not take kindly to that.

I haven't heard anything about the processing of applications, but it wouldn't surprise me if they were slowing down now because of all the uncertainty. Some areas may slow down on their own in anticipation of changes. Visa Journey would be the best source of that.

If you don't have a lawyer, you absolutely need one for the false record.
posted by Monday at 8:01 AM on February 5, 2017 [1 favorite]

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