A recent article in the WALL STREET JOURNAL referred to a March 30, 2018 email from James McHenry, the head of the Department of Justice’s Executive Office for Immigration Review (“EOIR”), to immigration judges across the country, indicating that new metrics will require immigration judges to complete three (3) cases per workday. As a lawyer, I am used to dealing with many cases every day, so at first blush, three did not seem like a lot. But in context of the immigration judicial process, it most certainly is. And the stakes are high.
According to A. Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges union, “[t]hey are allocating, on average for a case, no more than two and a half hours,” further noting that political asylum cases often include hundreds of pages of supporting documents and evidence, not to mention countless hours of testimony and deliberation. In addition, because different judges handle different types of cases, including complex ones that take more time, it does not make a whole lot of sense to apply the same standard uniformly to all judges. Again, Judge Tabaddor: “We deal with people who are unaccompanied children, with people who have mental competency issues, with people who have serious criminal convictions, and with people who have fear of returning to their home countries in case of threat of death.”
According to Syracuse University, the immigration court backlog is currently more than 680,000 cases. EOIR’s new requirements will force some judges to adjudicate cases more quickly than they have been. The average cases completed per year by immigration judges, according to the EOIR, is less than 680. The new metric will require judges to complete 700 cases per year.
Judge Tabaddor says that “[y]ou are going to, at minimum, impact the perception of the integrity of the court.” It’s a lot worse than that.
Immigration judges are appointed by the Attorney General and are employees of the Department of Justice. Unlike their regular federal judge counterparts, who have life-tenure, immigration judges can be fired by the Attorney General. Courts certainly have established “aspirational” case completion goals in order to move overall caseloads along, but numeric quotas have never been explicitly tied to judges individual performance evaluations. This will no doubt jeopardize an immigration judge’s ability to remain independent and impartial.
“The very concept [of a quota system] is in conflict with independent decision-making authority of judges,” says Judge Tabaddor, “because it pits the judges’ personal livelihood to mere completion of cases faster through the system, rather than making decisions that are based on the fact and the law of the case as they took the oath to do.”
One could also argue that mandatory quotas will lower the quality of adjudications and perhaps even compromise due process. The Immigration and Nationality Act requires that a respondent in removal proceedings be given a “reasonable opportunity” to examine and present evidence. Most respondents in removal proceedings do not speak English as their primary language. A strict time frame for judges to complete their cases would no doubt interfere with that judge’s ability to assure that this important federal right to examine and present evidence is respected.
Related to this, Judges may now feel more pressure to deny requests for continuances. An unrepresented person making his or her first appearance before an immigration judge may need more time to find an attorney. An individual seeking political asylum may need more time to gather and develop evidence that is often very difficult to obtain from his or her home country. Reasonable continuances are often necessary to allow individuals time to develop their case.
Here’s a novel idea. What about increasing the budgets for the immigration courts? Remember the backlog number above? 680,000 cases! Immigration courts are way under-funded relative to the budgets of immigration enforcement agencies. In the government’s 2017 fiscal year, the combined budgets of Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”) exceeded $20 billion. By comparison, EOIR’s was about $420 million.
Let’s face it. By imposing numeric quotas on immigration judges, we’re doing little more than enabling the Trump Administration’s broader agenda of streamlining removal procedures in to so it can deport massive numbers of people at the expense of due process. The immigration court system can only function if due process is respected. This can only be accomplished if the judges have enough time to carefully review each case, conduct a thorough and fair hearing, deliberate the case, and then when all this is done, issue a well-reasoned decision that is consistent with the facts and relevant law.
United States Citizenship and Immigration Services (“USCIS”) recently announced that it’s changing its mission statement to eliminate a passage that describes the United States as “a nation of immigrants.” USCIS’s new mission statement reads as follows:
“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”
The previous mission statement read as follows:
“USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”
Where do I start? Did you now that the director of USCIS, Lee Francis Cissna, is actually the son of an immigrant? Aren’t most of us if we trace back our lineage far enough?
In a letter to USCIS agency staff, Mr. Cissna said, “We are also responsible for ensuring that those who naturalize are dedicated to this country, share our values, assimilate into our communities, and understand their responsibility to help preserve our freedom and liberty.”
What Mr. Cissna did not mention in his letter to agency staff explaining his reasoning is that the phrase “nation of immigrants” was popularized by a book by President John F. Kennedy (published posthumously), titled “A Nation of Immigrants”, and is frequently used to convey the American ideal of multiculturalism. President Kennedy’s book explored the contribution of immigrants when the United States was in the midst of a debate over the direction of its immigration policy.
People who know me know my politics. I’m socially liberal and fiscally conservative. I am a registered Democrat. (I grew up in Albany after all.) I also used to work for Republican Senator Alfonse D’Amato. Back in those days, Washington was very different. Democrats and Republicans could debate issues during the day and enjoy a meal together in the evening. Senator D’Amato always worked with his colleagues across the aisle, including Senator Edward Kennedy.
In the wake of 9/11, Senator Kennedy, along with his colleague, Senator Sam Brownback, stated, “Immigration is a central part of our heritage and history. It is essential to who we are. Continued immigration is part of our national well-being, our identity, and our strength.” He wasn’t wrong.
In 1981, President Ronald Reagan stated, “Our nation is a nation of immigrants. More than any other country, our strength comes from our own immigrant heritage and our capacity to welcome those from other lands.” He wasn’t wrong either.
That was then, this is now. President Trump has used the phrase “nation of immigrants”, but he did so in a written statement defending his attempt to ban immigrants from seven Muslim nations.
Ensuring “the promise of the United States as a nation of immigrants” is no longer the mission of USCIS, the very agency charged with administering our immigration laws. On the contrary, the new mission statement reflects President Trump’s hardline stance on immigration and immigrants themselves.
Should the title be Immigration Reform 2.0 or 22.0? Maybe Immigration Reform Redux? Really, how many times have we started down this road, only to be disappointed (or, at least that’s the way I feel anyway)? Well, we’re starting down this path … yet again (albeit with some difficulty). So what’s the latest iteration?
On January 25, 2018, the Trump Administration House released its “Framework on Immigration Reform and Border Security”, a one-page outline of its plan to legalize the status of so-called “Dreamers” in exchange for what it calls sweeping reforms to the immigration system. The reforms are hardly sweeping, but they are dramatic.
The President’s framework proposes significant cuts to the “legal” immigration system (i.e., U.S. citizen or lawful permanent resident family members sponsoring their own qualified family members, e.g., possibly spouses, children, parents and siblings). This is referred to as eliminating “chain migration” or as the White House is calling it, “protecting the nuclear family.” The President is also looking for massive funding for border security and interior enforcement, including $25 billion for the border wall as well as more spending for Customs & Border Patrol and Immigration & Customs Enforcement agents. The President is also calling for the elimination of the Diversity Visa Lottery Program.
In exchange for all of this, the President’s plan would offer legal status to young people who currently have DACA status or who are otherwise DACA-eligible (estimated to be about 1.8 million people), including an opportunity to apply for citizenship after waiting a minimum of 10 years.
Not surprisingly, there’s been a public outcry against it from the Democrats and their progressive base. The official statement from the American Immigration Lawyers Association (“AILA”) reads as follows:
This proposal isn’t a serious effort to reach a deal on the crisis created by the administration when it terminated the DACA program. The dubious relief it offers to a questionable number of Dreamers is dwarfed by its offensive assault on families, the waste of tens of billions of taxpayer dollars on harsh enforcement that does next to nothing to improve national security, and a repudiation of Constitutional principles of due process. This proposal is completely untethered from common sense, decency, or American values.
There are several angles from which I could argue against the President’s “framework”, but I will limit myself to his efforts to end what he calls “chain migration” and the economics of that.
Every year, over 1 million new immigrants (i.e., Green Card holders) are admitted to the United States. About half of these individuals are the first in their family to permanently settle in the United States. The other half are joining their family members who arrived earlier. This is commonly known as “chain migration.” The starting point for these new immigrants may have been different (e.g., the family-based Green Card process, the employment-based Green Card process, or perhaps refugees who were resettled in the United States, among other possibilities). Ultimately, though, these permanent residents and perhaps eventual citizens of the United States can thereafter start to bring their own or other family-members to the United States.
The contributions of family-based immigrants to our U.S. economy, to our local communities, and frankly to the national fabric are great. The data suggests that they account for a significant portion of the United States’ domestic economic growth, contribute to the well-being of our current and future labor force, and play a key role in business development and community improvement. They are also the most upwardly mobile segments of the labor force. Here’s some data from the Migration Policy Institute.
- Immigrants accounted for 17%, or 27.6 million, of the 161.8 million persons in the civilian labor force in 2016.
- Of the 26.2 million employed foreign-born workers ages 16 and older in 2016, the largest share, at almost 32%, worked in management, professional, and related occupations.
A 2016 panel put together by the National Academies of Science Engineering and Medicine found that “immigration is integral to the nation’s economic growth. The inflow of labor supply has helped the United States avoid the problems facing other economies that have stagnated as a result of unfavorable demographics, particularly the effects of an aging workforce and reduced consumption by older residents.” Among its findings:
- Immigration has an overall positive impact on long-run economic growth in the U.S.
- In terms of fiscal impacts, while first-generation immigrants are more costly to governments, mainly at the state and local levels, than are the native-born, in large part due to the costs of educating their children, as adults, however, the children of immigrants (the second generation) are among the strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than either their parents or the rest of the native-born population.
I could go on, and I am sure that those who oppose my views would come up with their own data to contradict mine.
In 1965, liberals and conservatives in Congress compromised their differences and created an immigration model that would favor “family unification.” That’s the system we have today. By no means is it perfect. If we restrict it, however, we will no doubt negatively impact our country’s economic growth.
Family-based immigration is essential to our economic growth, not only because of immigrants’ contributions in the workforce, but because the current policy does indeed attract the talent we hope to bring and need to bring from around the world. The United States trains entrepreneurs and other highly skilled individuals from across the world at our renowned universities. We want them to stay, to build companies and drive innovation right here in the United States. Consider, for example, that the current CEO’s of Tesla, Google, and Amazon were all born overseas. Many well-known companies would not exist at all if our immigration system had not enabled their founders or their parents to move to the United States in the first place.
If we create obstacles for individuals to bring their relatives to the United States, we will no doubt lose them to other countries with more progressive immigration regimes. We need to remind ourselves that “chain migration” is not a threat to the United States, but rather an essential economic strategy.
 The White House officially defines this as follows: The process by which foreign nationals permanently resettle within the U.S. and subsequently bring over their foreign relatives, who then have the opportunity to bring over their foreign relatives, and so on until entire extended families are resettled in the country.
 In 2016, about 1.49 million foreign-born individuals moved to the United States, which was a 7 percent increase from the 1.38 million that entered in 2015.
 “Civilian labor force” is defined as civilian persons ages 16 and older who were either employed or unemployed but looking for work in the week prior to participation in the U.S. Census Bureau’s American Community Survey (ACS) and Decennial Census.
Last month I wrote about receiving a call from a friend of mine who heads up the local affiliate of a national not-for-profit. As a reminder, among its many charitable endeavors, this not-for-profit runs a summer camp for kids. Some of their employees come from overseas. My friend, his superiors, and the association that represents the interests of his and other similarly situated not-for-profits are concerned that the Trump Administration, as a result of the Presidential Executive Order “Buy American and Hire American”, is going to revamp the J-1 Exchange Visitor Program, and specifically two of its component visa categories, the Summer Work Travel program (and possibly even the J-1 Camp Counselor program).
In our telephone conversation, he asked whether there were any alternative visa options that they might be able to consider. I told him there was, the H-2B nonimmigrant visa, but that the requirements for qualifying for an H-2B visa are much more onerous than the J-1 Summer Work Travel or Camp Counselor programs.
The H-2B nonimmigrant visa allows foreign nationals who are citizens of certain named countries (with limited exceptions), to accept “temporary” non-agricultural employment in the United States. Before doing so, the sponsoring employer must first obtain a temporary labor certification from the U.S. Department of Labor (“USDOL”) by establishing that there were no willing, able, and qualified U.S. workers available during the recruitment period. As this employment is temporary, the foreign national must also show “nonimmigrant intent” (i.e., that he or she has a compelling reason to return to his or her country of origin).
Like the H-1B program, there is an annual numerical limitation of 66,000 H-2B visas that are available in each government fiscal year. Under the regulations, an H-2B petition may be valid for up to one year for seasonal, intermittent, or peakload needs, and for up to three years for a one-time need. Also under the regulations, H-2B petitions may be extended for periods of up to one year, to a maximum of three years in H-2B status in some instances. To be eligible for a period of H-2B status beyond these limitations, a foreign national must remain outside the United States for at least three months. Spouses and children under 21 may hold a derivative H-4 status.
There are some key aspects of the H-2B visa program, among them, the employer identifying what its temporary need is. The job may be professional, skilled, or unskilled, and there must be a seasonal, peakload, intermittent, or one-time need for the temporary services or labor. The following definitions apply:
- Seasonal. The seasonal definition of temporary need requires an employer to establish that their need for labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature and the period(s) of time during each year in which the employer does not need the services or labor. (Note that employment is not seasonal if the period of need is unpredictable, subject to change, or considered a vacation period for the employer’s permanent employees).
- Peakload. The peakload definition of temporary need requires an employer to establish that it regularly employs permanent workers to perform the services or labor at the place of employment and it needs to supplement its permanent staff on a temporary basis due to a seasonal or short-term demand and the temporary additions to staff will not become part of the employer’s regular operation
- One-Time Occurrence. The one-time occurrence definition of temporary requires an employer to establish that it has not employed workers to perform the services or labor in the past and it will not need the workers to perform the services or labor in the future or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker(s).
- Intermittent. Under this standard, an employer must establish that it has not employed permanent or full-time workers to perform the services or labor but occasionally or intermittently needs temporary workers to perform the services or labor for short periods.
As also noted above, before an employer can file a petition with U.S. Citizenship and Immigration Services (“USCIS”), it must first obtain a temporary labor certification from the USDOL. After a period of recruitment, the employer will file an application for temporary labor certification with the USDOL. The temporary labor certification represents an employer’s attestation of testing the labor market appropriately and in good faith to demonstrate that capable U.S. workers did not respond to its recruitment efforts or ultimately were not available (either due to lawful rejection by the employer, failure on the worker’s part to follow through or remain on the job, etc.) to perform the labor or services. Before filing the temporary labor certification, the law requires the employer to recruit for the offered position(s). This recruitment must take place within 120 days of the start date for the offered positions. Prior to the recruitment, the employer must also apply for and receive a Prevailing Wage Determination from the USDOL, which can take around 60 days to receive.
Once all of this is done, and assuming there are no available U.S. workers and the temporary labor certification is certified by the USDOL, the employer will file its H-2B petition with USCIS. It is permissible for an H-2B petition to be filed for multiple beneficiaries provided the temporary labor certification application on behalf of multiple workers entails “the same service or labor on the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment.” Once that’s approved, it will be forwarded to the U.S. embassy / consulate closest to where the foreign nationals reside and that issues H-2B visas.
I have completely over-simplified this process. It’s highly technical and keeping on top of the timing is critical. However, for an employer that has the type of needs that are outlined above, the H-2B visa may be a very viable option.
 On April 18, 2017, President Trump signed an Executive Order entitled “Buy American and Hire American.” The purported purpose of the “Hire American” portion of the order is to create higher wages and employment rates for U.S. workers, and to protect their economic interests by rigorously enforcing and administering the laws governing entry into the United States of foreign workers. Most of the focus of the implications of this Executive Order has been on the H-1B nonimmigrant visa program. Other visa programs are clearly in the cross-hairs as well.
On Halloween, 2017, an Uzbek immigrant purposely killed eight people in New York City with a rental truck he rented from The Home Depot as he drove down a bike path in lower Manhattan and mowed down several people before crashing into a school bus. Reports indicated that the 29-year-old Uzbek immigrant, Sayfullo Saipov, had entered the United States through what is called the “Diversity Visa Lottery Program” (the “DV program”).
The dust had barely settled on the tragedy, and President Trump tweeted, “The terrorist came into our country through what is called the ‘Diversity Visa Lottery Program,’ a Chuck Schumer beauty. I want merit based.” Not surprisingly, Senator Schumer immediately shot back, “I guess it’s not too soon to politicize a tragedy.”
So what exactly is the DV program that’s now being politicized? The diversity immigrant category was added to the Immigration and Nationality Act (“INA”) by the Immigration Act of 1990. Its purpose was to stimulate “new seed” immigration (basically, to foster new, more varied, immigration from under-represented parts of the world).
To accomplish this, the DV program makes 50,000 immigrant visas (i.e., “Green Cards”) available annually to individuals of countries from which immigrant admissions were lower than a total of 50,000 over the preceding five years. The visas are divided among six global geographic regions according to the relative populations of the regions, with their allocation weighted in favor of countries in regions that were under-represented among immigrant admissions to the United States during the past five years. The INA limits each country to 7%, or 3,850, of the total, and further provides that Northern Ireland be treated as a separate foreign state for DV program purposes.
The qualifications are quite (or I should say deceptively) simple. First, an individual needs to be from a country that is allowed to participate in the DV program. Second, the principal DV applicant must have a high school education, or its equivalent, or two years of qualifying work experience as defined under U.S. law. The program has its supporters and detractors. Its supporters argue that the DV program provides “new seed” immigrants for an immigration system that’s weighted disproportionately in favor of family-based immigrants from a handful of countries. Detractors argue that the program is vulnerable to fraud and misuse and, as President Trump is now tweeting, is potentially an avenue for terrorists, noting the difficulties of performing background checks in many of the countries eligible for the diversity lottery. The program’s supporters counter that background checks for criminal and national security matters are performed on all prospective immigrants seeking to come to the United States, including those who have won diversity visas.
We’re now in the 2019 DV program. Approximately 14 million people around the world will apply for a visa. Only 0.3% of them will be successful. Anecdotally the DV program has been referred to as the “golden ticket”.
We can debate the policy of whether the DV program should stay or go. While the President quickly pointed his finger at Senator Schumer for being responsible for the DV program, what he failed (of course) to point out was that the legislation was overwhelming supported by Congress in 1990, and then signed into law by then Republican President George H.W. Bush. President Trump also failed to mention that proposed legislation passed by the Senate in 2014 (but which did not pass the House), led by the now defunct Gang of Eight (of which Sen. Schumer was a member), would have canceled this program.
In my view, canceling the DV program is not the answer to our problems, and will not make our country safer. The same laws are in effect to screen potential immigrants from all countries, regardless of the type visa that they enter the United States. Rather than pointing fingers in the aftermath of this terrible tragedy (which the President was not willing to do after the Las Vegas shooting when gun control would have been at issue), we should focus on the root causes to prevent future attacks and to protect all Americans from those who seek to do us harm.
 An individual qualifying with work experience must have two years of experience in the last five years in an occupation which, by U.S. Department of Labor (“USDOL”) definitions, requires at least two years of training or experience that is designated as Job Zone 4 or 5, classified in a Specific Vocational Preparation (“SVP”) rating of 7.0 or higher. The USDOL provides information on job duties, knowledge and skills, education and training, and other occupational characteristics on their website http://www.onetonline.org/. The O*Net online database groups work experience into five “job zones”. While many occupations are listed, only certain specified occupations qualify for the DV Program.
 In the “for what it’s worth” column, nationals of Uzbekistan have not been singled-out in any of President Trump’s travel ban associated executive orders … so far.
 In FY2015, the last year for which statistics are available, close to 14.5 million people from around the world applied for the 50,000 available visas.
Can someone tell me the difference between an “executive order” and a “presidential proclamation”? I don’t think I learned that in law school, and for sure it was not on the bar exam. Frankly, before September 24, 2017, I would likely have used the phrases interchangeably. And yet, as of September 24, 2017, many of my colleagues are wondering about the purported difference.
The definitions of “executive orders” and a “presidential proclamations”, including their differences, is not easy to express as the U.S. Constitution does not contain any provision referring to them. The most widely cited explanation came in 1957 from the House Committee on Government Operations, which explained the difference as follows:
Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law . . . . In the narrower sense Executive orders and proclamations are written documents denoted as such . . . . Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute. The President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority. The difference between Executive orders and proclamations is more one of form than of substance . . . (Emphasis added.)
So why would the president’s first two efforts at a travel ban be in the form of “executive orders”, and his most recent effort be in the form of a “proclamation”? Frankly, I’m not quite sure, but I suspect that whether the courts find Travel Ban 3.0 to be enforceable, either in part or in total, will turn more on its substance and not by whether it’s a presidential proclamation instead of an executive order.
So, then, what’s the deal with Travel Ban 3.0? The President’s proclamation, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats,” was issued by President Trump following a worldwide review of information sharing practices between the U.S. and nearly 200 foreign countries. The purported purpose was to assess whether nationals of each country seeking to enter the United States pose a national security or public safety threat to the United States. As a result of this review, eight (8) countries have been deemed to have inadequate identity management protocols, information sharing practices, and risk factors. They are Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. It was also determined that Iraq did not meet the baseline requirements, but nationals of Iraq will not be subject to an outright ban on travel, but rather will be subject to additional screening measures.
There are exemptions under the President’s proclamation, such as the travel restrictions do not apply to lawful permanent residents (i.e., Green Card holders) of those countries, and foreign nationals who have been granted asylum in the U.S., refugees who have been admitted to the U.S., or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture. There are other exemptions as well.
There are also waivers available if a foreign national can demonstrate that (a) denying entry to the United States would cause the foreign national undue hardship, (b) entry would not pose a threat to the national security or public safety of the United States, and (c) entry would be in the national interest.
Not surprisingly, the anti-administration forces argue that this is yet another attempt by the President to further his discriminatory and anti-immigrant policies and does nothing to strengthen our national security. I tend to agree.
The new travel ban goes (or went, depending on when you’re reading this) into effect on October 18, 2017, but the ban is effective immediately for anyone whose entry to the U.S. was previously barred by the administration’s prior travel ban (Executive Order 13780 dated March 6, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”) (i.e., nationals of Iran, Libya, Somalia, Syria and Yemen who do not have a bona fide relationship with a person or entity in the United States).
Also, until October 18, 2017, citizens of Iran, Libya, Somalia, Syria, and Yemen are exempt from the new travel ban if they have a “bona fide relationship” with a U.S. person or entity. (This is actually an issue in the courts at the moment.)
And finally, unless an exemption does apply or an individual is eligible for a waiver, the restrictions of Travel Ban 3.0 apply to individuals of the eight (8) designated countries who (a) are outside the U.S. on the applicable effective date, (b) do not have a valid visa on the applicable effective date, and (c) do not qualify for a reinstated visa or other travel document that was revoked under the President’s earlier travel ban (Executive Order 13769 dated January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”).
I have written before, and no doubt will do so again, that immigrants and refugees contribute in a positive way to our nation by strengthening our local businesses, communities, and national economy. Travel Ban 3.0 will do little more than simply harm families, negatively impact our business community, and undermine our national values.
 Staff of House Committee on Government Operations, 85th Congress, 1st Session, Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Committee Print 1957).
 Both executive orders and proclamations have the force of law, akin to regulations issued by federal agencies, so they are codified under Title 3 of the Code of Federal Regulations (“CFR”), the CFR being the formal collection of all of the rules and regulations issued by the executive branch and the federal agencies. Neither executive orders nor proclamations are legislation, however. Neither require approval from Congress, and Congress cannot overturn them. On the other hand, Congress can pass legislation that can make it difficult, or even impossible, to carry out an executive order or presidential proclamation. Nevertheless, only a sitting President can overturn an executive order or proclamation by issuing another executive order or proclamation to that effect.
On September 5, 2017, the Trump Administration announced that it would be ending the Deferred Action for Childhood Arrivals (“DACA”) program. As if the 2016 presidential election post-mortem wasn’t bad enough, now this. This change of policy impacts almost 800,000 young people, the so-called Dreamers, who entered the United States before they were 16 years of age, generally through no fault of their own. Dreamers have temporary protection from deportation (to countries where they have had very little contact with in their lives). In many cases, these individuals also received employment authorization.
A little reminder as to what DACA is (and soon to be “was”). In June 2012, former President Obama’s then-Secretary of Homeland Security Janet Napolitano announced a program, commonly known as DACA, whereby aliens who were unlawfully present in the United States, who had been brought to the United States as children, and who met other criteria, could receive “deferred action.” These young people were basically protected, albeit temporarily, from being removed from the United States. They were able to work lawfully, attend school, and basically live their lives without the constant fear of being deported. However, unlike legislation, DACA does not provide a permanent legal status to these young people, and it needs to be renewed every two years.
Now, effective immediately, no new applications for DACA will be accepted. Current DACA beneficiaries whose status will expire before March 5, 2018 are permitted to renew their status for an additional two years if they apply by October 5, 2017. Any person for whom DACA expires as of March 6, 2018 will no longer have deferred action or employment authorization.
So how did the current state of affairs come to be? Well, then candidate Trump repeatedly pledged to end DACA (and to construct a border wall) as part of his campaign platform. Indeed, right after his inauguration, the White House prepared a draft Executive Order (which was leaked to the press) dated January 23, 2017 titled Ending Unconstitutional Executive Amnesties. The Executive Order proposed to rescind the then-proposed DAPA program immediately, which was the subject of a federal court injunction, and to also stop processing new DACA applications. So bad on top of bad.
Back in June, 2017, not seeing any movement on the President’s campaign promise, Texas and nine other states sent a letter to Attorney General Jeff Sessions stating that unless the Department of Homeland Security (“DHS”) agreed to “phase out” the program by rescinding Secretary Napolitano’s memo authorizing DACA and halting approval of any new or renewal DACA applications, they would take legal action to challenge DACA. President Trump caved to their demands.
In this regard, on September 4, 2017, Attorney General Sessions sent a letter to Acting DHS Secretary Elaine Duke stating the DACA was an “unconstitutional exercise of authority by the Executive Branch” and that legal challenges to the program would “likely” result in DACA being deemed unlawful. On September 5, 2017, Acting Secretary Duke issued a memorandum officially rescinding the program.
There’s so many ways I can go with this. For today, let’s focus on Attorney General Sessions’ statement that DACA was an “unconstitutional exercise of authority by the Executive Branch.”
President Obama’s administrative action was, at the time, the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations. According to the American Immigration Council, since 1956, there have been at least thirty-nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together.
The Immigration and Nationality Act (“INA”) and its implementing regulations are replete with examples where DHS will either refrain from an enforcement action, like electing not to serve and thereafter file a charging document (commonly known as a Notice to Appear) with the Immigration Court, as well as decisions to provide a discretionary remedy when an immigrant is already in removal proceedings, such as granting stays of removal, granting parole, or granting deferred action.
The INA itself authorizes the President’s legal authority to exercise prosecutorial discretion, including by prohibiting judicial review of three (3) types of actions involving the exercise of prosecutorial discretion (i.e., the decisions to commence removal proceedings, to adjudicate cases, and to execute removal orders).
Congress has also legislated deferred action in the INA itself as a means by which the executive branch may use, in the exercise of its prosecutorial discretion, to protect certain victims of crime, abuse, or human trafficking.
Notably, the INA also has a specific provision which recognizes the President’s authority to authorize employment for non-citizens who do not otherwise receive it automatically by virtue of their particular immigration status. It is this provision, in conjunction with other regulations, that currently confers eligibility for work authorization under DACA.
Beyond this, memoranda issued by federal agencies authorized to implement and enforce our nation’s immigration laws recognize prosecutorial discretion too, including a seminal one issued by legacy-Immigration and Naturalization Service (“INS”) Commissioner Doris Meissner in 1990 to her senior agency staff. There are earlier memoranda as well opining as to the legality of prosecutorial discretion too.
Finally, the Supreme Court held in Arizona v. United States that a “[a] principal feature of the [deportation] system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue [deportation] at all . . . .” Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).
As a result of all of the above (i.e., the INA and its implementing regulations, Supreme Court decisions, and agency memoranda), there have been at least thirty-nine (39) instances since 1956 where a president has exercised his executive authority to protect aliens, generally in the interest of simply keeping families together.
Our history is replete with examples of U.S. presidents, in the name of prosecutorial discretion, issuing directives that provided for deferred action (or whatever they may have called it at the time) to non-citizens of the United States. Since his September 5, 2017 announcement ending DACA, President Trump has made positive comments about Dreamers, and now says he will “revisit” the program if Congress does not act. Let’s see if he has the political courage to do so.