Insight into Immigration

Home » Posts tagged 'DREAM Act'

Tag Archives: DREAM Act

The Dreamers’ Nightmare (DACA)

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.

Immigration Reform by Executive Action – Were the President’s Actions Lawful?

Oranhall-Dreamstime.com

Oranhall-Dreamstime.com

Some time has now passed since President Obama announced on November 20, 2014 his intention to go it alone to “fix” of our “broken immigration system.”  Since that announcement, lawyers such as myself were hopeful that we could start working with clients on their applications for expanded relief under Deferred Action for Childhood Arrivals (“DACA”), and later this Spring under the President’s new “deferred action” program for the parents of U.S. citizens and lawful permanent residents (“LPR’s), commonly known as “DAPA”.

That all came to a screeching halt on February 16, 2015, when Texas federal district Judge Andrew S. Hanen granted a temporary injunction against the implementation of President Obama’s executive action regarding the DAPA program and the expansion of the President’s June 2012 DACA initiative.  The injunction temporarily blocks President Obama’s executive action aimed at providing administrative relief from removal to millions of immigrants.  President Obama has vowed to appeal.  This, of course, begs the question of whether the President’s actions were lawful.  I think they were.

A (Very) Brief History of Previous Exercises of Discretionary Relief

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.  So why all the fuss now?

Prosecutorial Discretion, the Immigration Law and Regulations, and the Supreme Court

DACA was established by executive action in June 2012, and was expanded by the President’s announcement in November 2014.  DAPA was first announced by the President in November 2014.  Prosecutorial discretion generally refers to the authority of the Department of Homeland Security (“DHS”) to decide how the immigration laws should be applied, and it is a legal practice that has existed in law enforcement for quite some time.

For example, 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 well as decisions to provide a discretionary remedies 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. See INA § 274A(h)(3).  It is this provision, in conjunction with other regulations, that currently confers eligibility for work authorization under DACA (and would do so again under expanded DACA and DAPA).

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.

So What Happens Now?

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, and indeed Judge Hanen, in his written decision, affirmed the executive branch’s right to exercise prosecutorial discretion.

Previous lawsuits against similar executive actions have failed in the past.  Indeed a similarly politically motivated lawsuit was thrown out in December 2014 when Maricopa County Sheriff Joe Arpaio argued that President Obama’s announcements were unconstitutional.  In 2012, the State of Mississippi challenged the legality of DACA in a case similar to the current Texas lawsuit, and that case was dismissed because the judge found the perceived economic hardship the state claimed was purely speculative.

As I have previously argued and substantiated in this blog, studies have shown that deferred action initiatives, apart from being the right thing to do, are economically beneficial to our country.  In his decision, Judge Hanen cites the government’s “failure to secure the borders” and then goes on to support the plaintiffs’ position of supposed costs to the states without any evidence whatsoever in the record. The American Immigration Lawyers Association (“AILA”) and others have argued that Judge Hanen disregarded information submitted by the government and AILA as to the widespread economic and social benefits that the expanded DACA and DAPA programs would provide.  They’re right.

Again, the Obama Administration has indicated it will appeal, and at the same time seek a stay to the enforcement of Judge Hanen’s order.  I am cautiously optimistic that the government will prevail.  In the meantime, it’s noteworthy to point out that those who have previously been granted DACA are not at all affected by Judge Hanen’s ruling.  This ruling only delays the start of DAPA and the expansion of DACA.

Obama’s Executive Action : Expanding Deferred Action Initiatives to Unlawful Aliens

??????????????????????????????????????????????????????????????????????????????????????????????OK, so let’s break it down.  Clearly the centerpiece of President Obama’s administrative “fix” of what he has repeatedly described as a “broken immigration system” are his initiatives to grant “deferred action” (essentially, temporary relief from being removed or deported from the United States) to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here.  A second group of aliens unlawfully present in the United States who will benefit under the President’s actions are those who have children who are U.S. citizens or lawful permanent residents (“LPR’s”, or “Green Card” holders).

Deferred Acton for Childhood Arrivals

So what are the specifics?  In June 2012, President Obama’s then-Secretary of Homeland Security Janet Napolitano announced a program, commonly known as Deferred Action for Childhood Arrivals (“DACA”), whereby aliens 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.”  In many cases, these individuals also received employment authorization.  Eligibility for DACA, however, expressly excluded aliens unlawfully present who were over the age of 31, or who had entered the United States on or after June 15, 2007.

On November 20, 2014, President Obama modified the DACA program by eliminating the age ceiling and making individuals who began residing in the United States before January 1, 2010 eligible.  Moreover, the President announced that DACA grants and accompanying employment authorization will, as of November 24, 2014, last three years instead of two.  We’re informed that those eligible under the new criteria should be able to apply within 90 days of the President’s announcement.

Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents

Hand-in-hand with the expanded provisions of DACA was the President’s announcement that his administration would also be granting “deferred action” to the parents of U.S. citizens and LPR’s.  This initiative is commonly called DAPA.  Like those eligible for DACA, some applicants for DAPA will be eligible for employment authorization too.

Specifically, aliens unlawfully present in the United States, and who have children who are either U.S. citizens or LPR’s, will also be eligible for deferred action (and employment authorization) pursuant to the President’s announcement.  To be eligible, in general, these aliens must be able to show “continuous residence” in the United States since before January 1, 2010, physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they request deferred action, (3) not being an enforcement priority under the administration’s newly announced enforcement priorities, and that they present no other factors that, in the exercise of discretion, would make the grant of deferred action inappropriate.

The Obama Administration estimates that approximately 5 million aliens unlawfully present in the United States could be directly affected by the expanded DACA and new DAPA initiatives.  However, the actual number who apply for benefits under either program may be much smaller, depending on outreach, access, cost, and numerous other factors.

So What did President Obama Actually Do?

Immigration reform has arguably become the third rail of politics.  Those on the political right will say that the President granted “amnesty” to all these aliens.  I suppose whether that’s true depends on what your definition of amnesty is.  I personally don’t believe that’s the case. Here’s what I can tell you.

A grant of deferred action is not “legalization” as that term is commonly understood in the world of immigration.  Legalization is typically a process whereby aliens who are unlawfully present in the United States acquire legal status, typically as LPR’s.  LPR’s can then typically apply for U.S. citizenship after a statutory period of time (and assuming they meet certain conditions).  That’s not at all what happened here.

Aliens granted deferred action are generally “lawfully present” in the United States under federal law.  That’s it.  They may also be eligible for certain benefits, like applying for driver’s license, but by and large, they would not be eligible for public benefits.

Being “lawfully present” in the United States is not the same as being in a “lawful status.” Aliens granted deferred action are not in a lawful status.  Thus, a grant of deferred action, in and of itself, does not result in an alien obtaining a Green Card, and as a result, such an individual cannot eventually apply for citizenship.  Indeed, aliens granted deferred action could conceivably have their status terminated by Congress in the future.

Of course, I personally hope this will not be the case, but one never knows.  The next two years may tell us a lot.  Politics is a funny thing.

It’s About Time : Comprehensive Immigration Reform

“Now is the time.” That’s what President Obama said on January 29, 2013 in Las Vegas, Nevada when he introduced his four (4) part plan for Comprehensive Immigration Reform. The four principles that the President feels should guide the overhaul of our immigration laws are as follows:

1. Securing our borders;imm_6

2. Strengthening accountability for businesses that break the law by undermining American workers and exploiting undocumented workers;

3. Strengthening our economic competitiveness by creating a legal immigration system that reflects our values and diverse needs; and

4. Creating accountability from those people who are living in the United States illegally.

I think the President’s quote should have been “It’s about time.” Our immigration system is broken, and it’s been broken for a very long time.

I “enjoyed” my first taste of our immigration system when I started working for U.S. Sen. Alfonse D’Amato in the 1980’s. Back then, constituents would call, both individuals and HR professionals for companies doing business in New York, complaining, e.g., that they could not get their relatives into the United States for a visit, or there were delays processing their company’s H-1B  worker petition either at legacy-INS or the Department of State. Eventually, the primary company complaint in the 1990’s was that there weren’t enough H-1B nonimmigrant visas to go around. (Sound familiar?)

In those same conversations, I would no doubt hear about all the “illegals” that were streaming across our border, or hanging out on Westchester street corners waiting to be hired for day jobs. (I’m not picking on Westchester, but I was working in Sen. D’Amato’s New York City office at that time and a lot of my calls came from that area.)

In 1997, I went into private practice, focusing the majority of my practice on immigration and nationality matters. Although the times have changed, the issues have not. In fact, they’ve gotten worse. Much worse.

The Department of Homeland Security (including the three agencies that make it up – U.S. Citizenship and Immigration Service, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection) is an enormous agency. The U.S. Department of State is pretty big too. To be fair, I’ve met many people over the years who work at these agencies who are good people and who do exceptional work. But the system within which they work, and which we are stuck with, is very much broken.

Just before the President’s announcement, a group of U.S. Senators offered some guiding principles for comprehensive immigration reform. President Obama followed suit a couple of days later with the four principles noted above. Thus far, we’ve heard a lot of dialogue, both for and against comprehensive immigration reform, as one might expect (and in this author’s opinion, some good and some not so good). We’ve seen little yet in the form of actual legislative proposals.

In the House, Congressman Mike Honda (D-CA) introduced the “Reuniting Families Act,” which contains provisions for reducing family immigration visa backlogs and promoting timely reunification of immigrant families. Specifically, the bill includes provisions that would (a) ensure that immigration visas are allocated efficiently, (b) alleviate lengthy wait times that keep legal immigrants and their families separated for years, and (c) decrease measures that prevent family members from obtaining visas. The bill also includes other provisions, such as eliminating discrimination in immigration law against same-sex, permanent partners and their families who are seeking to reunite.

In the Senate, on March 18, 2013, Senator Grassley (R-IA) and Senator Sherrod Brown (D-OH) introduced the H-1B and L-1 Visa Reform Act of 2013. The jury’s still out on this proposed legislation, but at first glance, if passed without change, the H-1B and L-1 nonimmigrant visa programs will have some big changes (e.g., requiring that all companies make a good faith effort to hire Americans first, requiring prospective H-1B employers to list available positions on a Department of Labor sponsored website for a period of 30 days prior to petitioning for foreign labor, etc.). Companies that regularly use the H-1B visa program will no doubt not like these provisions.

It will be interesting to see the politics of all this as immigration in general, and reform in particular, has become the “third rail” of politics. But reform – well thought out reform – is absolutely necessary.

%d bloggers like this: