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On September 5, 2017, the Trump Administration announced that it would be ending the Deferred Action for Childhood Arrivals (“DACA”) program. As if the 2016 presidential election post-mortem wasn’t bad enough, now this. This change of policy impacts almost 800,000 young people, the so-called Dreamers, who entered the United States before they were 16 years of age, generally through no fault of their own. Dreamers have temporary protection from deportation (to countries where they have had very little contact with in their lives). In many cases, these individuals also received employment authorization.
A little reminder as to what DACA is (and soon to be “was”). In June 2012, former President Obama’s then-Secretary of Homeland Security Janet Napolitano announced a program, commonly known as DACA, whereby aliens who were unlawfully present in the United States, who had been brought to the United States as children, and who met other criteria, could receive “deferred action.” These young people were basically protected, albeit temporarily, from being removed from the United States. They were able to work lawfully, attend school, and basically live their lives without the constant fear of being deported. However, unlike legislation, DACA does not provide a permanent legal status to these young people, and it needs to be renewed every two years.
Now, effective immediately, no new applications for DACA will be accepted. Current DACA beneficiaries whose status will expire before March 5, 2018 are permitted to renew their status for an additional two years if they apply by October 5, 2017. Any person for whom DACA expires as of March 6, 2018 will no longer have deferred action or employment authorization.
So how did the current state of affairs come to be? Well, then candidate Trump repeatedly pledged to end DACA (and to construct a border wall) as part of his campaign platform. Indeed, right after his inauguration, the White House prepared a draft Executive Order (which was leaked to the press) dated January 23, 2017 titled Ending Unconstitutional Executive Amnesties. The Executive Order proposed to rescind the then-proposed DAPA program immediately, which was the subject of a federal court injunction, and to also stop processing new DACA applications. So bad on top of bad.
Back in June, 2017, not seeing any movement on the President’s campaign promise, Texas and nine other states sent a letter to Attorney General Jeff Sessions stating that unless the Department of Homeland Security (“DHS”) agreed to “phase out” the program by rescinding Secretary Napolitano’s memo authorizing DACA and halting approval of any new or renewal DACA applications, they would take legal action to challenge DACA. President Trump caved to their demands.
In this regard, on September 4, 2017, Attorney General Sessions sent a letter to Acting DHS Secretary Elaine Duke stating the DACA was an “unconstitutional exercise of authority by the Executive Branch” and that legal challenges to the program would “likely” result in DACA being deemed unlawful. On September 5, 2017, Acting Secretary Duke issued a memorandum officially rescinding the program.
There’s so many ways I can go with this. For today, let’s focus on Attorney General Sessions’ statement that DACA was an “unconstitutional exercise of authority by the Executive Branch.”
President Obama’s administrative action was, at the time, the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations. According to the American Immigration Council, since 1956, there have been at least thirty-nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together.
The Immigration and Nationality Act (“INA”) and its implementing regulations are replete with examples where DHS will either refrain from an enforcement action, like electing not to serve and thereafter file a charging document (commonly known as a Notice to Appear) with the Immigration Court, as well as decisions to provide a discretionary remedy when an immigrant is already in removal proceedings, such as granting stays of removal, granting parole, or granting deferred action.
The INA itself authorizes the President’s legal authority to exercise prosecutorial discretion, including by prohibiting judicial review of three (3) types of actions involving the exercise of prosecutorial discretion (i.e., the decisions to commence removal proceedings, to adjudicate cases, and to execute removal orders).
Congress has also legislated deferred action in the INA itself as a means by which the executive branch may use, in the exercise of its prosecutorial discretion, to protect certain victims of crime, abuse, or human trafficking.
Notably, the INA also has a specific provision which recognizes the President’s authority to authorize employment for non-citizens who do not otherwise receive it automatically by virtue of their particular immigration status. It is this provision, in conjunction with other regulations, that currently confers eligibility for work authorization under DACA.
Beyond this, memoranda issued by federal agencies authorized to implement and enforce our nation’s immigration laws recognize prosecutorial discretion too, including a seminal one issued by legacy-Immigration and Naturalization Service (“INS”) Commissioner Doris Meissner in 1990 to her senior agency staff. There are earlier memoranda as well opining as to the legality of prosecutorial discretion too.
Finally, the Supreme Court held in Arizona v. United States that a “[a] principal feature of the [deportation] system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue [deportation] at all . . . .” Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).
As a result of all of the above (i.e., the INA and its implementing regulations, Supreme Court decisions, and agency memoranda), there have been at least thirty-nine (39) instances since 1956 where a president has exercised his executive authority to protect aliens, generally in the interest of simply keeping families together.
Our history is replete with examples of U.S. presidents, in the name of prosecutorial discretion, issuing directives that provided for deferred action (or whatever they may have called it at the time) to non-citizens of the United States. Since his September 5, 2017 announcement ending DACA, President Trump has made positive comments about Dreamers, and now says he will “revisit” the program if Congress does not act. Let’s see if he has the political courage to do so.
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.
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.
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.” (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.”  The “due process” clause does not “acknowledge … any distinction between citizens and resident aliens.” This protection extends to U.S. citizens and noncitizens alike, provided that they have sufficient ties to the United States. 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.” More recently, in 1954, the Supreme Court held that this guarantee of equal protection is implicit in the Fifth Amendment’s “due process” clause.
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.
 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.
 U.S. Const. amend. V.
 Kwong Hai Chew v. Colding, 344 U.S. 590, 598 n.5 (1953).
 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).
 Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
 Bolling v. Sharpe, 347 U.S. 497 (1954).
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.