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What is this “Diversity Visa Program” that President Trump is Talking About?
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.[1] 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.[2] 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.[3] 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.
[1] 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.
[2] 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.
[3] 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.
U.S.C.I.S. Proposes the International Entrepreneur Rule
I originally wrote about this last Fall, but given the current events in Washington, the general chaotic environment that my colleagues and I are practicing in, and the great concern that clients are showing about their future prospects of remaining in the United States (whether they are here lawfully or not), I thought it appropriate to provide a positive update for the alien entrepreneurs out there.
On January 17, 2017, the Department of Homeland Security (“DHS”) published a final rule to improve the ability of certain alien start-up founders to begin growing their companies within the United States and help improve our nation’s economy through increased capital spending, innovation and job creation.
Under the new rule, effective July 17, 2017, DHS may use its “parole” authority to grant a foreign national a period of authorized stay (that is, temporary permission to be in the United States), on a case-by-case basis, to those alien entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation. Those who are eligible may be granted a stay in the United States for up to 30 months, with the possibility to extend the period for an additional 30 months if they meet certain criteria, and in the discretion of DHS.
Here are the specifics. An applicant for parole would need to demonstrate that he or she meets the following criteria.
1. First, that the applicant possesses a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
2. Second, that the applicant has a central and active role in the start-up entity such that the applicant is well-positioned to substantially assist with the growth and success of the business.
3. Third, that the applicant can prove that his or her stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the start-up entity by:
A. showing that the start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
B. showing that the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state or local government entities that regularly provide such awards or grants to start-up entities; or
C. showing that they partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
Under the rule, parole eligibility may be extended to up to three entrepreneurs per start-up entity, as well as their spouses and children. It is important to note that alien entrepreneurs will be only be eligible to work for their start-up business.
This recently published final rule is a legacy of former President Obama. Some of you will recall that back in 2014, because of Congressional inaction, former President Obama vowed to take whatever steps he could, short of legislation, to advance his immigration agenda, and in this case, to make it easier for alien entrepreneurs to start up or scale up their businesses. Well, he made good on his promise. (Let’s hope our current president keeps this in place, or even improves upon it. There has been a smattering of news that suggests that he may try to kill it.)
A few other important points related to all of this. First, and significantly, there is no required wage obligation for the alien entrepreneur parole beneficiary. However, to maintain parolee status, the alien entrepreneur must maintain a household income that is greater than 400 percent of the federal poverty line for his or her household size as defined by the U.S. Department of Health and Human Services (“HHS”). HHS revises these guidelines annually.
The new rule also requires the alien entrepreneurs to immediately notify U.S. Citizenship and Immigration Services (“USCIS”) of any material changes that could reasonably affect USCIS’s determination that the alien entrepreneur provides, or continues to provide, a significant public benefit to the U.S.
Finally, USCIS has indicated that the required investment and revenue amounts will be automatically adjusted every three (3) years by the Consumer Price Index and USCIS will post the required amounts on its website.
As I have previously mentioned, the investment thresholds appear not to be overly-burdensome. The rule also seems to recognize that new businesses are not all funded the same way, and provides flexibility for entrepreneurs using new or novel funding models.
So that’s the good news. The bad news continues to be that there’s no “next step” for when the entrepreneur’s parole period comes to an end. That is, unless a foreign national has a vehicle in place to become a lawful permanent resident (i.e., a Green Card holder), under the 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 that’s even a viable option).
So, progress? Yes. Panacea for foreign national entrepreneurs? Not totally, but it is for sure a step in the right direction. Let’s hope it stays in place and Congress and our President improve upon it.
It’s H-1B Visa Filing Season, but is it “Cheap Labor”?
Here we go again. The start of the H-1B nonimmigrant visa filing season is once again upon us. And once again, immigration practitioners around the country are having difficult conversations with their clients who wish to hire foreign nationals into what are called “specialty occupation” positions. But this year, with President Trump in office, will the conversations be different than in previous years?
As always, a (reminder) primer is in order. The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field. Typically, a foreign worker with an H-1B visa is admitted to the United States for a period of up to three years, and his or her visa may be extended for a maximum of six years. (There are some exceptions to this.)
Notwithstanding what you read in the news, before an employer can file an H-1B petition with U.S. Citizenship and Immigration Services (“USCIS”), the employer must first take steps to ensure that hiring the foreign worker will not harm U.S. workers. First, employers must attest, on a Labor Condition Application (“LCA”) filed with and certified by the U.S. Department of Labor (“DOL”), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. (More on this below.) Employers must also provide existing workers with notice of their intention to hire an H-1B worker.
Since the H-1B category was created in 1990, Congress has limited the number of H-1B visas made available during each government fiscal year. The current annual cap is 65,000 visas, with 20,000 additional visas for foreign professionals who have graduated with a Master’s or Doctoral degree from a U.S. university. As I have indicated in previous articles, in recent years, the H-1B cap has been reached only a few days after the visas were made available.
Over the past year or so, now President Trump has spoken a lot about our immigration system, his theme being that we need to protect American workers. Although a lot of attention was placed on “building a wall” on our Southern Border, and making “Mexico pay for it”, a good deal was also said about overhauling other aspects of our immigration system, including the H-1B program.
During his campaign for president, then candidate Trump said the H-1B visa program was a “cheap labor program” that takes jobs from Americans workers.
Megyn Kelly asked about highly-skilled immigration. The H-1B program is neither high-skilled nor immigration: these are temporary foreign workers, imported from abroad, for the explicit purpose of substituting for American workers at lower pay. I remain totally committed to eliminating rampant, widespread H-1B abuse and ending outrageous practices such as those that occurred at Disney in Florida when Americans were forced to train their foreign replacements. I will end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program. No exceptions.”
“Cheap labor program”? Reality or myth?
I’ve written so much about this in the past couple of years my head is about to spin. There is a plethora (yes, a plethora) of evidence that foreign workers fill a critical need in our labor market, particularly in the STEM fields (i.e., Science, Technology, Engineering and Math). Foreign workers, including skilled foreign workers, help create new jobs and new opportunities for economic expansion.
So how do H-1B workers impact wages? Well, for starters, here are a few things to consider. As I noted above, prior to filing an H-1B petition with USCIS on behalf of a foreign worker, the employer must first file and have certified an LCA with the DOL. The LCA contains several attestations that the employer is required by law to make before the DOL may certify the LCA.
These attestations include, among others, that the employer will pay the required wage rate to the H-1B workers employed pursuant to the LCA. The required wage rate must be the greater of (1) the actual wage level paid by the employer to all other individuals at the job site “with similar experience and qualifications for the specific employment in question,” or (2) the prevailing wage level for the occupation in the area of intended employment. Cheap labor program? I think not.
Another attestation the employer must make is that it will offer the same benefits package on the same basis to similarly employed U.S. workers and H-1B workers. Eligibility and participation criteria must be the same for all workers. H-1B workers cannot be denied benefits because they are “temporary employees.” The employer must also attest that employment of H-1B workers will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
A violation of any one or more of these attestation can result in serious penalties to the employer, and ultimately in debarment from participating in the H-1B program.
So, what is the empirical evidence as to wages? According to one study, H-1B-driven increases in STEM workers were associated with a significant increase in wages for college-educated, U.S.-born workers in 219 U.S. cities. In fact, a one percentage point increase in foreign STEM workers’ share of a city’s total employment was associated with increases in wages of 7 to 8 percentage points paid to both STEM and non-STEM college-educated natives, while non-college educated workers saw an increase of 3 to 4 percentage points.
What else you ask? According to another study, from 2009 to 2011, wage growth for U.S.-born workers with at least a bachelor’s degree was nominal, but wage growth for workers in occupations with large numbers of H-1B petitions was substantially higher.
There is other data as well. And not only do H-1B workers positively impact wages, they positively impact employment rates as well.
Bottom line, there are too many myths (dare I say “fake news”) perpetuated about the H-1B visa category, and not enough focus on the important contributions H-1B workers make to the U.S. economy.
U.S.C.I.S. Proposes the International Entrepreneur Rule
I 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
So, 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
On 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
Do 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.
Could Donald Trump Legally “Ban Muslims from Entering US”?
A little substantive law for this piece.
In the wake of the tragic events in both Paris and San Bernardino, Donald Trump raised the rhetoric, proposing not only to deport 11 million undocumented immigrants, but to also ban Muslims from entering the United States. In the first television advertisement of his campaign, the narrator of Mr. Trump’s ad states that Mr. Trump is “calling for a temporary shutdown of Muslims entering the United States, until we can figure out what’s going on.”[1] (This verbiage was somewhat of a back-peddling from his earlier remarks for a “total and complete shutdown” of Muslims entering the United States.) New Jersey Governor Chris Christie also has a plan to bar Syrian refugees for the sake of national security.
In my opinion, and I am sure there are some of you who would disagree with me, Mr. Trump’s plan is un-American, inflammatory, and frankly stupid. But is a ban on Muslims entering the United States legal? Maybe, but I think the courts would have a field day with it.
Right out of the gate, most constitutional scholars loudly stated that a ban on Muslims from entering the United States would discriminate against a class of people based on their religion (not to mention to punish an entire class of people who have done nothing wrong). Certainly such a ban would violate constitutional guarantees of “due process of law” and “equal protection” for Muslim-Americans.
But what about those who are not U.S. citizens?
I don’t think anyone would argue that the United States, as a sovereign nation, has the authority to decide who may enter the country, and the conditions for entry by those who seek it. Most of this power lies with Congress, in its “plenary” power to control admission to the United States, how long a noncitizen is able to stay, and under what circumstances.
The Fifth Amendment of the U.S. Constitution provides that no person shall be “deprived of life, liberty, or property, without due process of law.” [2] The “due process” clause does not “acknowledge … any distinction between citizens and resident aliens.”[3] This protection extends to U.S. citizens and noncitizens alike, provided that they have sufficient ties to the United States.[4] So, noncitizen Muslims who are presently in the United States would seem to be protected. Those outside the United States, perhaps not so much.
What about the “equal protection” clause in the Fourteenth Amendment? The Fourteenth Amendment forbids the states from denying any person “equal protection” under the law. In 1886, the Supreme Court held that the “equal protection” clause is “universal in [its] application, to all persons within the territorial jurisdiction [of the United States], without regard to differences of … nationality.”[5] More recently, in 1954, the Supreme Court held that this guarantee of equal protection is implicit in the Fifth Amendment’s “due process” clause.[6]
So, the Fifth Amendment limits the federal government, and the Fourteenth Amendment limits the states. Again, it would seem that noncitizen Muslims who are in the United States are generally entitled the same protection under the law as U.S. citizens. But those outside the United States, that’s much less clear.
What about other grounds? Some constitutional scholars have argued Mr. Trump’s ban on Muslims would violate the First Amendment’s “establishment” clause. That provision forbids Congress from establishing an official religion. The argument goes that Mr. Trump’s policy would essentially require that the federal government make a determination as to who is really Muslim in order to know who to exclude from our borders, and that the “establishment” clause prevents the government from making these types of decisions.
If Congress were ever to take such a drastic step, and the issue thereafter reached the courts, it would be interesting to see what would then happen. The courts are required to apply “strict scrutiny” to all government actions that tend to discriminate on the basis of a “suspect class” (e.g., race) or upon a fundamental right (e.g., religion). Because strict scrutiny would apply, the courts will presume that such a law is unconstitutional, and the burden will then be on the government to provide a “strong basis in evidence” that shows the law achieves a “compelling” national interest and that the law is “narrowly tailored” to accomplish that goal.
Surely protecting against terrorism is a compelling national interest, but would such a law be the least restrictive means in order to do so? I’m not convinced.
One of the most famous Muslims (perhaps in the world) recently said of Mr. Trump’s inflammatory remarks, “True Muslims know that the ruthless violence of so called Islamic Jihadists goes against the very tenets of our religion.” Going on, this individual said that he believes “that our political leaders should use their position to bring understanding about the religion of Islam and clarify that these misguided murderers have perverted people’s views on what Islam really is.” Who was that? Muhammad Ali (a/k/a Cassius Clay). I could not agree more. Instead of Congress passing legislation to prevent Muslims from entering the United States, we should simply tone down the inflammatory rhetoric and educate ourselves as to what’s really going on here. Pure politics. Just a thought.
[1] The narrator goes on to say that Mr. Trump will “stop illegal immigration by building a wall on our southern border that Mexico will pay for.” I’ll save my commentary on this one for another day.
[2] U.S. Const. amend. V.
[3] Kwong Hai Chew v. Colding, 344 U.S. 590, 598 n.5 (1953).
[4] See Verdugo-Urquidez v. United States, 494 U.S. 259, 270-71 (1990) (“[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.”). However, aliens who are outside the United States are generally not afforded this constitutional protection. Id. at 269 (“[W]e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”) But see Ibrahim v. Department of Homeland Security, 669 F.3d 983, 997 (9th Cir. 2012) (an alien not currently in the country, but who had been lawfully present in the United States for four years before departing the country and who was latter prevented from returning, had established a “significant voluntary connection” to the United States sufficient to assert claims under both the First and Fifth Amendments).
[5] Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
[6] Bolling v. Sharpe, 347 U.S. 497 (1954).
Trump and Merkel Both Named Time Magazine’s “Person of the Year”
Just recently Time Magazine named German Chancellor Angela Merkel as its “Person of the Year”. Among other things, Time noted her role in Europe’s migration crises. Time wrote that Chancellor Merkel had provided “steadfast moral leadership in a world where it is in short supply.”
Do you know who came in third place? Donald Trump (just behind Abu Bakr al-Baghdadi, head of the Islamic State militant group, commonly known as ISIS).
So let’s see if I have this straight. Time said that Chancellor Merkel was deserving of the award because, among other reasons, by the end of 2015, “she had steered the [European Union] through not one but two existential crises” with the second being a “thunderclap. In late summer, Merkel’s government threw open Germany’s doors to a pressing throng of refugees and migrants; a total of 1 million asylum seekers are expected in the country by the end of December.”
Susan Rice, President Obama’s National Security Advisor, was quoted in Time that “[Chancellor Merkel] has demonstrated particularly bold moral and practical leadership on the refugee crisis, welcoming vulnerable migrants despite the political costs[.]” I could not agree more.
And what of Candidate Trump? Well, Candidate Trump has engaged in fear mongering, including proposing a plan to ban Muslims from entering the United States; that’s right, Candidate Trump says we need a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Constitutional? I doubt it.
Nevertheless, the tragic events in Paris and, more recently, in San Bernardino, California, have ramped up Congressional efforts to, among other things, halt the U.S. refugee resettlement program (which yes, includes Muslims trying to come to the United States because they’re fleeing persecution in their own countries).
Quite frankly, there is no need for Congress to end the refugee program for Syrians and Iraqis or to even impose additional security measures. The U.S. refugee program already subjects every individual who will enters the U.S. pursuant to it to extremely rigorous checks performed by multiple federal agencies. Indeed, after decades of operation, not a single refugee has committed a reported act of terrorism in the U.S.
Fortunately, most legal scholars believe that Candidate Trump’s plan would be unconstitutional. In fact, his plan was even rejected by politicians from both sides of the political aisle, including former Vice President Dick Cheney and House Speaker Paul Ryan. In a press conference, Speaker Ryan denounced Candidate Trump’s comments by stating that they don’t reflect who we are as a nation (or even the Republican Party for that matter).
The campaign trail rhetoric continues to be atrocious (as is some, but thankfully not all, of the rhetoric in Washington, D.C.). I can only hope that reasoned and informed opinions prevail.
INSIGHT INTO IMMIGRATION 