Insight into Immigration

Election Post Mortum – At Risk Population of Immigrants

??????????????????????????????????????????????????????????????????????????????????????????????I think I went to bed around 10:30 PM on election night.  Pretty early for sure.  But once the analysis was coming in on voting trends in Florida and Michigan, I knew the writing was on the wall.

So what does a Trump presidency mean in the world of immigration?  Potentially a lot.  I am very fortunate to have a diverse law practice, and within our immigration practice, we serve both corporate clients (e.g., from start-ups to mature businesses) and individuals and families.  A fair amount of the individuals that we serve are what I consider to be at-risk; some are here in the United States lawfully, and others not.  Many do not want to go home.  These are amazing people, with amazing and often horrifying stories to tell of why they came to the United States, and how.  Unfortunately, because of what we’re seeing in the aftermath of the election, many of them are now scared, really scared (including some of our corporate clients)!

On the one hand, we have business clients who are concerned about their foreign national employees, whether they’re going to be able to remain here, whether their working status will be able to be extended, whether they can safely take business trips outside the United States and return unimpeded.  All sorts of questions.  I try to assure these folks that nothing, yet anyway, has changed, as far as their employees are concerned.

And then we have what I refer to as our at risk clients, some here lawfully and some not, many who came to the United States leaving terrible and dangerous situations back in their home countries, and who are legitimately fearful to return.  Many of these individuals are unaccompanied minors, kids who have been abandoned by their families back home and who made perilous journeys across our Southern border, seeking a better life.  I am very concerned about this population.

This is the time when scammers, and so-called notarios, are likely to come out of the woodwork.  We’re advising clients not to fall for scammers or notarios who will prey on this at risk population, people who are often confused and are no doubt fearful about the election results.

We’re receiving daily calls from clients and potential clients who are afraid of what the next four years may mean to them and their families, their businesses, and their communities.  Our job now, more than ever, is to work with them, help them realize the American dream, and help them overcome any obstacles that may be created by our new President and our immigration laws and regulations.

When we receive these calls, our first response is “don’t panic”!  With perhaps one or two exceptions, we do not know for sure exactly what will happen when President-elect Trump takes office in January.  We’re advising our clients not to make any hasty or rash decisions, and instead take the time necessary to review their particular situation, get the facts, review the law, and know their rights.

One of the things that the President-elect said he would do on “Day 1” is rescind many of the executive actions put into place under the Obama Administration.  The biggest one, in the immigration arena, is no doubt President Obama’s 2012 initiative known as Deferred Action for Childhood Arrivals (“DACA”).  That program allows some aliens who are unlawfully present in the United States, and who had been brought to the United States as children and met other criteria, to also receive deferred action and, in many cases, employment authorization.

As of June 30, 2016, U.S. Citizenship and Immigration Services (“USCIS”) had approved close to 750,000 DACA applications (since 2012).  We do not know if, how or when DACA might end.  President-elect Trump could take action on DACA immediately or soon after his inauguration, weeks or months later, or perhaps not at all if he softens or changes his position (as he has so often done of late).

Finally, one of the biggest things that we are highly recommending to our clients is, if they are eligible, to apply for citizenship in the United States.  Of course, everyone’s situation is not the same, but if someone meets the basic eligibility requirements for becoming a U.S. citizen, and they have no adverse factors in their background that would make them ineligible for citizenship (or worse, potentially removable from the United States), we’re advising them to take a hard look at applying for U.S. citizenship.  Citizens of the United States have so many more protected under the law than someone who is not.

These are interesting times we live in.  And its only just begun.

Creative Lawyering for Colleges, Universities and Entrepreneurs

droopy flagI saw an interesting article the other day in the Connecticut Law Tribune.  The premise of the article related to institutions of higher education using “creative solutions” to deal with the lack of available H-1B nonimmigrant worker visas for their graduates who wish to remain in the United States as entrepreneurs.  A little background (or refresher for some of you) is probably in order.

The H-1B nonimmigrant visa (or status) may be granted to foreign nationals who will perform services in a “specialty occupation.”  A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement for entry into the occupation in the United States.  Examples of speciality occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

The U.S. government operates on a fiscal year basis that begins each year on October 1 and runs through the following September 30.  For those employers who wish to hire foreign nationals as H-1B workers, unless the position is “exempt”, a key concept here, there is an annual cap of 65,000 nonimmigrant visas that are available in each fiscal year (and an additional 20,000 H-1B nonimmigrant visas for foreign nationals who have earned a master’s degree or higher from a U.S. institution of higher education).  In recent years, the H-1B cap has been reached within days of April 1 (which is the first day that cap-subject employers can file a petition with USCIS for the non-exempt H-1B visa numbers).  Because of the incredible popularity of the H-1B worker program, which has resulted in the H-1B cap being reached within days of April 1 each and every year in recent memory, not every cap-subject employer is able participate in the H-1B program in a given fiscal year.

Consequently, employers, and yes, now even institutions of higher education, are trying to think outside the box so they can retain some of the best and brightest minds from having to leave the United States after they’re educated in the United States.  In doing so, these institutions of higher education are partnering with states and cities across the country to create programs that take advantage of an exemption to the H-1B cap for foreign nationals that are employed (or have received an offer of employment) by or from an institution of higher education or a related or affiliated nonprofit entity, or a nonprofit research organization or a governmental research organization.

Being employed by an institution of higher education is a wonderful exemption, and I am able to use it in my practice for clients every day.  But in addition to that, entities affiliated or related to institutions of higher education and nonprofit and governmental research organizations (that is, not the actual institutions of higher education themselves) are also eligible to petition for eligible foreign nationals.  According to the Adjudicator’s Field Manual (which is what USCIS examiners use as a reference when they are adjudicating H-1B petitions):

Congress deemed certain institutions worthy of an H-1B cap exemption because of the direct benefits they provide to the United States. Congressional intent was to exempt from the H-1B cap certain alien workers who could provide direct contributions to the United States through their work on behalf of institutions of higher education and related nonprofit entities, or nonprofit research organizations, or governmental research organizations. In effect, this statutory measure ensures that qualifying institutions have access to a continuous supply of H-1B workers without numerical limitation. … Congress chose to exempt from the numerical limitations… aliens who are employed ‘at’ a qualifying institution, which is a broader category than aliens employed ‘by’ a qualifying institution. This broader category may allow certain aliens who are not employed directly by a qualifying institution to be treated as cap exempt when needed to further the essential purposes of the qualifying institution.”

AFM ch. 31.3(g) (13), H-1B Classification and Documentary Requirements.

So, one scenario that employers can consider to use this exemption is by having a “third-party petitioner” file the H-1B petition to employ a foreign national who will perform all or a portion of his or her job duties “at” a qualifying institution of higher education (e.g., basically, a private company sponsors a foreign national, and some of the job duties are performed “at” the institution of higher education).  There are other possibilities as well.  The third-party petitioner must establish that there is a logical nexus between the work predominately performed by the foreign national and the normal mission of the qualifying sponsoring entity.  Specifically, the third-party petitioner must demonstrate how the foreign national’s duties are directly and predominately related to, and in furtherance of, the normal, primary or essential purpose, mission, objectives or function of the qualifying institution, namely, higher education or nonprofit or governmental research.  There are plenty of ways to accomplish this.

Also important for this creative lawyering example, and highlighted by the article in the Connecticut Law Tribune, is that once the foreign national is employed by the cap-exempt employer, a cap-subject employer can then concurrently file their own H-1B petition on behalf of the same foreign national to allow them to also work for the cap-subject employer part-time. Because these foreign nationals are already working at least part-time for a qualified institution, this concurrent petition is also exempt from the H-1B cap (despite being filed by an employer that is otherwise subject to the cap).

Until there is an expansion of the H-1B program specifically, and reform to our immigration system in general, immigration lawyers are being forced to be more creative to accomplish the goals of their clients.  This is just one example of what’s possible.

 

U.S.C.I.S. Proposes the International Entrepreneur Rule

imm_3I think my colleagues in the immigration bar will agree that in order to achieve your client’s immigration goal, whatever it may be (e.g., a “Green Card,” citizenship, or whatever), sometimes you need to take baby-steps (e.g., enter the U.S. on a temporary visa before you try to obtain a Green Card). I’ve over-simplified the example, but the point remains the same. And sometimes, unfortunately, there are a lot of baby-steps that need to be taken during the process.

Here’s another issue. I recently had a conversation with a client about how to get a prospective hire into the United States to he could work for the client (in the absence of any immediately available H-1B nonimmigrant worker visa numbers). I told my client he had two (2) options. First, he could wait until Spring, 2017, file a petition with to U.S. Citizenship and Immigration Services (“USCIS”) to qualify his prospective hire as an H-1B nonimmigrant worker, hope that petition would be one of the lucky 65,000 petitions selected by USCIS, and then wait for an October 1, 2017 start date. His second option would be to engage in what I described as some “creative lawyering” and hope for the best. His immediate response to the latter was, “that sounds expensive.” And it would be, with no assurances that it would work.

Alas this is often what my colleagues and I would have to explain to foreign national entrepreneurs when they want to be part of a “start-up” company, either as an investor-owner and/or as an employee. The path to permanent residence (i.e., a Green Card) is not easy, usually time-consuming (i.e., years and years and years), often expensive, and unfortunately, never a sure thing.

Well that may soon be changing, at least in terms of getting away from “creative lawyering.” On August 26, 2016, USCIS announced the proposal of a new rule, which would
allow certain international entrepreneurs to be considered for “parole” (that is, temporary permission to be in the United States) so that they may start-up or scale their businesses in the United States.

The new rule would allow DHS to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. Under the rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises: (a) who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations; (b) whose startup was formed in the United States within the past three (3) years; and (c) whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by: (1) receiving significant investment of capital (i.e., at least $345,000.00) from certain qualified U.S. investors with established records of successful investments; (2) receiving significant awards or grants (i.e., at least $100,000.00) from certain federal, state or local government entities; or (3) partially satisfying one or both of the prior two criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the rule, foreign national entrepreneurs may be granted an initial stay of up to two (2) years to oversee and grow their startup entity in the United States. In addition, USCIS would entertain a later request for re-parole (for up to three [3] additional years) if the foreign national entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.

In general, most commentators agree that the proposed parole period is very reasonable, and the investment thresholds appear not to be overly burdensome. Indeed, the proposed rule seems to recognize that new businesses are not all funded the same way, and provides flexibility for entrepreneurs using new or novel funding models.

While the rule is not yet final, my primary concern is next steps once an entrepreneur’s parole period comes to an end. That is, unless a foreign national has a vehicle in place to become a permanent resident, under the proposed rule, they will not be allowed to change their status from their parole status to some other type of lawful nonimmigrant status while they’re in the United States. That means the entrepreneur would have to leave the United States, try to apply for a temporary visa abroad, and then re-enter the United States (assuming this is even a viable option).

While this is not the panacea perhaps foreign national entrepreneurs would hope for, it’s definitely a step in the right direction. Stay tuned for the final rule.

Provisional Waivers Promote Family Unity

??????????????????????????????????????????????????????????????????????????????????????????????Back to the law. Although the Supreme Court ruled against the Obama Administration in the case Texas v. United States, 15-674, one of the immigration “reforms” that the Obama Administration proposed back in November, 2014, which happily was not part of the lawsuit, was recently implemented. Specifically, expanding the use of “provisional unlawful presence waivers” beyond spouses and minor children of U.S. citizens to also include the spouses and minor children of lawful permanent residents (commonly known as LPR’s or Green Card holders) as well as the adult children of U.S. citizens, and clarifying the “extreme hardship” standard that must be met to obtain this waiver.

In general, aliens who are lawfully present in the United States who have spouses or parents that are U.S. citizens or Green Card holders may be eligible to apply for an immigrant visa with a U.S. embassy or consulate outside the United States, or apply for “adjustment of status” with U.S. Citizenship and Immigration Services (“USCIS”) in the United States. In order to obtain an immigrant visa, the alien is required to depart the United States so that he or she can apply for his or her visa at a U.S. embassy or consulate outside the United States.

However, those aliens who have been unlawfully present in the United States prior to their departure generally trigger a three (3) or ten (10) year bar from returning to the United States if the alien has been unlawfully present in the United States for more than 180 days (the three year bar) or one (1) year or more (the ten year bar).

Under current law, these bars from returning to the United States can be “waived” if the denial of the alien’s admission to the United States would result in “extreme hardship” to the alien’s U.S. citizen spouse or parents. However, the time involved in an alien obtaining a waiver, and the attendant risk associated with the alien having to leave the United States not knowing whether he or she will actually receive the waiver and be able to return to the United States, has kept many unlawfully present aliens who could legalize their status in the United States from doing so.

To deal with this issue, in 2013, the Obama Administration began allowing spouses or children of U.S. citizens who are unlawfully present in the United States to request and obtain “provisional waivers” of the three and ten year bars to their admission while they are in the United States. (Once approved, they still need to leave the United States to apply for an obtain their immigrant visa.) This relief, however, was not available to the spouses and children of LPR’s. Until now.

On July 29, 2016, the Department of Homeland Security (“DHS”) published a final rule expanding eligibility for provisional unlawful presence waivers to all individuals who are statutorily eligible for an unlawful presence waiver and who can establish extreme hardship to a U.S. citizen or LPR spouse or parent.

The provisional waiver process is meant to promote family unity by reducing the time that eligible individuals are separated from their family members while they complete immigration processing abroad. The provisional waiver process is a welcome contrast to the normal waiver application process, which requires aliens to first depart the United States and then apply for a waiver. Under the normal process, the alien may be outside the United States for many months, waiting for a decision on their waiver application. This separation, and the uncertainty of whether the waiver will actually be approved, has caused many individuals to simply forgo the opportunity legalize their status. The provisional waiver process eliminates most (but sometimes not all) of the uncertainty by allowing for pre-approval of the waiver prior to the alien’s departure from the United States.

I always counsel my clients that it’s much easier to fight their battles with DHS when they’re physically in the United States. These new regulations now allow them to do so. This is a very welcome change.

The Presidential Field is Set, and We Need Real Comprehensive Immigration Reform

dreamstime_xs_69677827So, the presidential field is set.  Hillary Clinton is the presumptive nominee for the Democrats, and Donald Trump for the Republicans.  To say that our immigration system is broken is an understatement, and although the Obama Administration has made some efforts at reform (whatever you may think of them), Comprehensive Immigration Reform (“CIR”) remains an elusive goal.  And, absent something incredibly positive coming out of the Supreme Court in the case Texas v. United States, 15-674, we’ll likely not see anything significant come out of Washington on the immigration reform front until, at the very earliest, next January (but likely much much later, despite what we hear from one of the candidates).

And yet there are so many important issues to consider (some of which we’ve already been hearing too much about on the campaign trail, although not necessarily in a meaningful way), including, among others, the border wall and enforcement, mass deportation, the overwhelming need for CIR, and the list goes on.

What are the candidates saying on the campaign trail?  At a campaign stop recently in Los Angeles recently, Hilary Clinton said, “Immigration is at the center of this presidential campaign. In my first 100 days I will introduce legislation for comprehensive immigration reform … When he [Trump] talks about deporting 11 million immigrants, he’s talking about ripping apart families.”  She’s right about the latter.  We’ll see about the former.

And the Donald?  At a FOX News GOP debate in Detroit, he said the  following: “I’m not playing to anybody’s fantasies. I’m playing to the fact that our country is in trouble. We have a tremendous problem with crime. The border is a disaster. It’s like a piece of Swiss cheese, and we’re going to stop it. We’re going to … be stopping people from coming into our country illegally. We’re going to stop it.”  How?  By building a “beautiful” wall, no doubt.

What we really need here are creative and progressive ideas to effectuate CIR, to ensure that the U.S. economy continues to grow from the recent recession, and to also ensure that families stay united or are reunited.  Unfortunately, much of what we’re really hearing (from the Donald, anyway) is ridiculous and divisive rhetoric offering non-practical immigration policies, such as removing 11 to 13 million immigrants unlawfully living in the United States, or securing our Southern border with a bigger and more “beautiful” wall that Mexico will (no doubt not) pay for.

Let’s talk details. On the issue of border security and enforcement, quite frankly our U.S. – Mexican border is more secure today than it ever has been. By all accounts, spending on border patrol agents, infrastructure (i.e., the existing “wall”, among other things), and new and improved surveillance technologies to interdict unlawful crossings have grown exponentially; at the same time, unlawful border crossings are at their lowest level in decades. Consider the increase of staffing at the border: in 2014, U.S. Customs and Border Protection (“CBP”) had approximately 21,000 border patrol agents, a more than 500 percent increase from 1992 when there were only about 4,000 agents.

As well, enforcement under the Obama Administration is extremely high.  Federal criminal prosecutions of immigration-related offenses are at their highest point in history.  Since 1992, convictions for all immigration crimes (the vast majority of which are illegal entry and reentry crimes) rose from just 5 percent of all federal criminal convictions to 30 percent in 2014.  Immigration offenses in the first seven years of the Obama Administration totaled 555,974 convictions compared to 251,952 during all 8 years of the Bush administration.  President Obama, a Democrat, deported 2 million illegal aliens after just about five years in office.  It took George W. Bush, a Republican, eight years to reach that number.

I can also state from first-hand experience that Immigration and Customs Enforcement (“ICE”) continues to try to remove people from the United States who pose no threat to our communities, breaking apart families (many of which include U.S. citizen children, spouses and parents).  While the Obama Administration’s policies on the exercise of prosecutorial discretion have no doubt resulted in more fair outcomes for some, anecdotal evidence from my colleagues in the field suggest that prosecutorial discretion is not being exercised evenly (or some would say even fairly).

Hard is this may be to believe, there actually is widespread agreement across the country that Congress should pass CIR that allows unauthorized immigrants to remain in the country so that they may continue to contribute to our economy and the communities that they already reside in. Indeed, a May 2015 Pew Research Poll found that 72 percent of Americans say that undocumented immigrants should be allowed to stay in this country legally (assuming they meet certain requirements).

What about all the discussion about mass deportations?  It’s just not rational to believe that 11 to 13 million undocumented immigrants living in the United States, in our own communities, working and raising their families, are going to leave the United States, or that we frankly have the resources to remove them.  According to the American Action Forum, it would take 20 years and between $100 to $300 billion to arrest and remove the 11 to 13 million immigrants unlawfully living in the United States.  And this is just the cost to remove them back to their home countries.  This doesn’t even take into consideration the huge negative economic impact of removing these workers from the jobs and employers who depend on them every day.  Industries that depend on immigrant labor (e.g., our own dairy farmers in New York States) would falter badly.  Frankly, the effect of employers losing these workers would impact every part of our economy.

Is that how we want to spend our resources?  What we need is a path for these people to obtain a legal status.

Finally, our family- and employment-based immigration system needs reform.  Because our current immigration system is generally built around limited categories of temporary and permanent visas, many who want to come and contribute to our economy, or remain here after their schooling is done, are not able to do so.  I recently spent some time with a friend of mine, a co-founder of a local and very successful technology company, and he was echoing what many in his industry say: the United States loses out when talented immigrants (often who are schooled here) are prevented from using their skills here after graduation, prevented from starting and building businesses, and prevented from using their talents to strengthen our economy. These talented and U.S. educated entrepreneurs and workers take their skills elsewhere, benefitting other countries, to the ultimate detriment of our own.

This needs to stop.  We need real solutions to this problem from serious candidates.  Whether or not you believe border enforcement is a priority (and it is), securing our borders does not need to be a prerequisite for CIR.  We can do it concurrently.  We just need to do it.

Is the Glass Half Full or Half Empty? Supreme Court Texas vs. United States

imm_6On Monday, April 18, 2016, the U.S. Supreme Court heard oral arguments in the case Texas v. United States, 15-674, which is the action by the State of Texas (along with 25 other states) to block the Obama Administration’s implementation of expanded Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”).

I noted in an earlier piece that in addition to the questions presented by the Obama Administration’s petition,[1] the Court also directed the parties to brief and argue the plaintiff-states’ Take Care Clause claim.[2]  Another big issue that the Court would need to address, indeed a threshold issue, is whether the State of Texas had “standing” to bring the action in the first place.

Prior to oral argument, most commentators (whether legal or otherwise) thought that Chief Justice Roberts might avoid dealing with the main issues in the case, and instead focus on the threshold issue of standing, the question being whether the states challenging the Obama Administration’s plan to implement DAPA and expanded DACA suffered the sort of direct and concrete injury that gives them standing to sue.  Historically, Chief Justice Roberts has not been a proponent of resolving political disputes in the courts, which this one obviously is.

Texas (and the other states) argued that they have standing because they might incur  additional costs when issuing drivers’ licenses to beneficiaries of the DACA and DAPA initiatives.  In reality however, these claims are nothing more than allegations of indirect or incidental effects, and interestingly, since the State of Texas subsidizes driver’s licenses, any alleged harm is really of its own creation.

In my view, the issue of standing became much more important with the passing of Justice Antonin Scalia in February, 2016.[3]  If Chief Justice Roberts was really focused on the threshold issue of standing, he might then try to decide the case on more narrow procedural grounds, and avoid what could end up being a deadlock of 4 – 4 among the remaining voting justices (and thereby allowing the district court’s injunction prohibiting the implementation of the Obama Administration’s November 2014 immigration program to stand).

And then came April 18.  Within minutes of the opening of oral arguments, Chief Justice Roberts seemed troubled, if not unpersuaded, by the Obama Administration’s argument on standing.  Essentially, Chief Justice Roberts stated that if Texas did deny licenses to DACA and DAPA beneficiaries, those individuals would then likely sue the state, perhaps on Equal Protection grounds.  Chief Justice Roberts opined that this would put Texas in “a real Catch-22” (i.e., the state can remedy the legal harm by refusing to give licenses to some immigrants, but in doing so, it would open itself up to a lawsuit).  Not a good start at all.

The Court then went into the real issues, and not surprisingly, the justices were pretty much split down ideological grounds.  So, what could happen?

First, I suppose the Court could still dismiss the action for a lack of standing.  If this happens, the entire case will come to an end.  The Obama Administration could then implement DAPA and expanded DACA.  Unfortunately, I don’t see this as likely (but I can still dream).

Second, the Court could reverse the Fifth Circuit on any number of legal issues, thereby allowing the Obama Administration’s initiatives to move forward. If it did so, however, this would likely not be the end of the lawsuit. That’s because the district court could then go on to decide if the Obama Administration’s initiatives are constitutional. And, then the decision of the district court could be appealed, basically meaning the entire case could go back to the Fifth Circuit and the Supreme Court … again.

Finally, the Court could affirm the Fifth Circuit, which would uphold the district court’s preliminary injunction. This means the case would also go back to the district court for the case to simply continue on.  As with the second scenario, any resulting district court decision could later be appealed, meaning the case could again go back to the Fifth Circuit and the Supreme Court.

I have noted this before.  President Obama’s administrative action was but 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.  Today, however, the climate is very different, and what essentially should be a legislative issue being resolved in Congress is now a political issue being resolved in the federal courts.

Now it’s a waiting game until the end of the Court’s term in June.    It seems to me, based upon Chief Justice Roberts’ questions, that the odds of a favorable decision from the Court at this juncture are not very high.

[1] The questions presented by the Obama Administration were (a) whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action, (b) whether the Guidance is arbitrary and capricious or otherwise not in accordance with law, and (c) whether the Guidance was subject to the APA’s notice-and-comment procedures.  The “Guidance” refers to the Secretary of Homeland Security’s memorandum dated November 20, 2014 directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents.

[2] The question presented here was “[w]hether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.”

[3] Clearly nobody who follows the Supreme Court was counting on Justice Scalia to vote in favor of the Obama Administration’s position in this case in any event.

The Right to Counsel in Immigration Court Proceedings for Indigent Children

boydadimmigrationrallyDo you remember the game “Sorry!”? I play it with my 7 year old sometimes.  And every once in a while when I pick a card that sends one of his game pieces back to his Start circle, he slaps his forehead and yells, “Are you kidding me?”

The other day, I had the same reaction (albeit to something a lot different).  You may have read about this.  Jack H. Weil, an assistant chief immigration judge who is actually responsible for training other judges, stated in sworn testimony in a case in which the American Civil Liberties Union (“ACLU”) and other immigrant rights groups are seeking to require the government to provide appointed counsel for indigent children who cannot afford a lawyer in immigration court proceedings, stated:

I’ve taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time.  It takes a lot of patience. They get it. It’s not the most efficient, but it can be done. … You can do a fair hearing.  It’s going to take you a lot of time.

Are you kidding me?

Not surprisingly, afterwards, Judge Weil was quoted as saying that his statements did not “present an accurate assessment of [his] views on this topic,” and the Justice Department then quickly chimed in that “[a]t no time has the Department indicated that 3 and 4 year olds are capable of representing themselves.  Jack Weil was speaking in a personal capacity and his statements, therefore, do not necessarily represent the views of [the Executive Office for Immigration Review] or the Department of Justice.”

I have repeatedly said in various forums that our immigration laws are extraordinarily complex.  If you’re not an attorney, or if you’re an attorney but don’t practice in the area of immigration, you might be surprised to see the back-and-forth that immigration practitioners themselves engage in on various professional listservs about the meaning of a statute, rule or agency memorandum.  If we sometimes cannot understand or come to agreement as to what the Congress has written, or a Court has decided, do we really expect a 3 or 4 year old to?

Our government does not guarantee legal counsel to asylum seekers and other vulnerable populations facing deportation from the United States. In the past two years, more than 112,000 families and unaccompanied children have appeared before Immigration Judges without lawyers.  It’s virtually impossible for non-English speaking asylum seekers, especially young (or frankly any) children, to understand or navigate our complex immigration system, let alone make sense of legal terms of art such as “persecution” or being a member of a “particular social group.”

In an attempt to rectify this sorry state of affairs, in February, 2016, Senator Minority Harry Reid introduced S. 2540, the Fair Day in Court for Kids Act of 2016, which mandates that unaccompanied children and vulnerable immigrants receive legal representation. Two weeks later, Representatives Zoe Lofgren, Luis Gutierrez, and Lucille Roybal-Allard introduced the House companion bill, H.R. 4646.

Among other things, the law would require the appointment of counsel for children, families and other vulnerable individuals, and the government would also be required to ensure access to counsel for anyone in detention, including border detention facilities, as well as for families and individuals subject to fast-track asylum screenings conducted in border regions.

Just recently, Senator Patrick Leahy of Vermont questioned Attorney General Loretta Lynch why the Department of Justice does not prohibit immigration proceedings from moving forward until children have representation. Attorney General Lynch responded: “I think we’re looking to find any various ways to support that and we’re looking at various ways to get legal counsel appointed in every situation,” responded Lynch. This is a rather ironic response given that the Department of Justice, the very agency which Attorney General Lynch leads, continues to fight the ACLU’s lawsuit that seeks to require that all such children receive legal representation.

I’ve been in the courtroom for these types of hearings.  Children are facing the same charges as adults, and consequently are also being asked the same questions by the Immigration Judge as adults.  I can tell you with absolute certainty that most adults, even with court-provided interpreters, do not understand what they’re being asked by the Immigration Judge.  The charges range from entering the country illegally to  overstaying a visa. The Immigration Judges ask questions that include when and how they arrived in the United States and whether they fear persecution in their home country if they were to return.  You would think these are simple questions, right? Far from it.

The Immigration Judge would also be asking if the child wants to leave the country voluntarily or whether the child would rather be deported. Depending on the child’s answer, he or she may be foreclosed from applying for certain forms of immigration relief in the United States, such as political asylum.

And, these hearing typically happen very quickly.  Indeed in some courtrooms, the average time for a Master Calendar Hearing has been reported to be about 7 minutes.  Imagine trying to make sure a child facing deportation from the United States understands all of his or her rights within 7 minutes (especially if the child is not represented by an attorney).

On the election trail recently, Univision hosts at a CNN debate pressed both Bernie Sanders and Hillary Clinton to make definitive statements that neither would deport children (or immigrants with no criminal record) should they become president. The both did so. That’s a start, at least as far as the Democrats are concerned.  But we still need to worry about the Republicans, and of course the real issue of the right to an attorney for an indigent child still needs to be resolved.

 

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