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Here we go again. On January 20, 2021, President Biden sent the U.S. Citizenship Act of 2021 to Congress. On February 18, 2021, Representative Sánchez (D-CA) introduced the U.S. Citizenship Act of 2021 in the House. On the same day, Senator Menendez (D-NJ) introduced an identical bill in the Senate.
From a macro level, the bill includes changes that will strengthen and improve our legal immigration system, reunify families who have been separated by years long visa backlogs, and provide a path to citizenship for Dreamers and other undocumented people residing in the United States while, at the same time, addressing the root causes of migration to the United States from Central America.
Let me focus on the one area which, in the Trump administration, caused so much consternation among the far right-wing of the Republican Party that it caused “the wall” to become one of the central pillars of Trump’s immigration policy.
President Biden’s immigration bill creates an earned roadmap to citizenship for undocumented individuals. Specifically, the bill allows individuals in the United States without status to apply for temporary legal status, with the ability to apply for green cards after five years, if they pass criminal and national security background checks and they pay their taxes. In addition, “Dreamers,” those in temporary protected status, and immigrant farm-workers who meet specific requirements are, under the legislation, eligible for green cards immediately. Furthermore, after three years, all those green card holders who pass additional background checks and also demonstrate knowledge of English and U.S. civics can apply to become U.S. citizens.
There are other requirements too, including a requirement that applicants must have been physically present in the United States on or before January 1, 2021 (although the Secretary of the Department of Homeland Security (“DHS”) can waive the physical presence requirement for those who were removed on or after January 20, 2017 (i.e., Trump’s inauguration day) if they were physically present for at least three years prior to their removal, in the interest of family unity and other humanitarian purposes). Finally, President Biden’s bill address some Progressive’s concerns by changing the word “alien”to “noncitizen” throughout our immigration laws and regulations.
As constructed, the Immigration and Nationality Act (“INA”) has three primary approaches to addressing unauthorized individuals in the United States: removal / deportation, deterrence (e.g., imposing criminal sanctions on employers who hire unauthorized or undocumented workers, etc.), and to a far lesser degree, legalization (which exists today in the form of, e.g., asylum and other humanitarian provisions of the INA, but not nearly at the level that’s needed to address all the individuals in the United States who are here without status).
This notion of a pathway to permanent residence (or possibly even U.S. citizenship) has been problematic for many or even most Republicans for as long as I can remember. I feel like I’ve written about it seemingly forever. The original “Dream Act” dates back to 2001. That year, the Development, Relief, and Education for Alien Minors Act (the original “DREAM” Act) was introduced in the 107th Congress. It provided a pathway to lawful permanent resident (i.e., “Green Card” or “LPR”) status for eligible individuals. In most cases, Green Card holders must first have resided in the United States for five years before they could naturalize. However, instead of the focus singularly being on the 11 to 13 million unauthorized individuals in the United States, and the diametrically opposite policy choices of somehow either removing all of them or “regularizing” them in the United States, the focus shifted to a subset of that overall population.
That is, the original bill in 2001 provided immigration relief to what was referred to as “unauthorized childhood arrivals” who, like the larger unauthorized population, were typically also unable to work legally and were also subject to removal from the United States. But many policymakers, and indeed the majority of the general population today, viewed and continue to view this portion of the unauthorized population more sympathetically than unauthorized immigrants on the whole because unauthorized childhood arrivals had arrived in the United States as children, generally through no fault of their own, and consequently, they were not seen as being responsible for their unlawful status.
Whether we continue to focus on the overall unauthorized population, or the subset of that population now commonly known as the Dreamers, the reality is the problem of any or all of them being here is not going to go away until we as a nation take steps to resolve the issues of why they came here in the first place and, now that they’re here, what we do with (and for) them.
From an economic standpoint, President Biden has history on his side that some sort of legalization program would be a boon for the U.S. economy; that is, the notion of legalizing unauthorized individuals is not only a humanitarian gesture, but it will also create an economic benefit to the United States. Studies show that individuals who are in the United States lawfully earn more than those who are unauthorized. What’s more is that these extra earnings generate more tax revenue for federal, state, and local governments; they also result in more consumer spending which sustains more jobs in U.S. businesses. There’s no shortage of substantive economic (and legal) arguments why President Biden should not fight, and fight hard, to get his legislation passed.
The U.S. Citizenship Act of 2021 is President Biden’s first, and may end up being his best (and only), effort to address these incredibly important issues. I hope that Americans, all of us, can get our acts together and support this sensible and reasonable solution to a problem that has vexed our policymakers for generations. The U.S. Citizenship Act of 2021 is legislation that builds upon the contributions of immigrants in and to the United States, reunites families, strengthens our economy, expands humanitarian protection programs, and importantly, provides legal status and ultimately citizenship for the 11 to 13 million unauthorized individuals, young and old, who currently live in the shadows. Let’s create some sunlight for them.
 There’s probably two subsets that have received attention, the second one being agricultural workers. I’ll save that discussion for a separate article.
Haven’t we been down this road before? Many times now? Will we be reading about Comprehensive Immigration Reform 2.0, 3.2, or Version 7? I don’t know how to characterize it anymore. Or are we instead heading into a period of Executive Orders to effectuate change because, despite the Democrats being in control of Congress, there’s no desire (seemingly) by Republicans to work with their Democratic counterparts across the aisle for meaningful, and yes, comprehensive immigration reform? Time will tell.
Suffice it is to say, we should all keep an eye on the news during the first 100 days of the Biden Administration to see what unfolds. The President’s campaign promises were bold. Candidates’ election promises almost always are. And then, with victory in hand, the cold reality of actually governing sets in.
I personally sat in front of my television and watched President Biden’s inauguration speech in real time. It gave me hope, not only after having watched the events unfold at the Capitol building two weeks earlier, but after four long years of dealing with Donald Trump and his evil minion Stephen Miller, the tone was actually postive. At long last, someone else would be occupying the White House, and the Democrats controlled Congress, slim as their margin in both houses may be.
So, with that, President Biden, on January 20, 2021, sent the U.S. Citizenship Act of 2021 to Congress. Highlights of the proposed legislation include changes to strengthen and improve our legal immigration system, reunifying families who have been separated by years long visa backlogs, and providing a path to citizenship for Dreamers and other undocumented people residing in the United States while, at the same time, addressing the root causes of migration to the United States from Central America. There’s so much more in the bill.
The bill is strikingly similar in so many respects to a predecessor bill introduced years ago by a bipartisan group of Senators, known then as the Gang of 8, during the second term of the Obama Administration. No surprise in the current environment, the only two remaining Republican Senators from that group are no longer interested in supporting President Biden’s proposal. Go figure.
So, as Senator Bob Menendez (D-NJ) and Representative Linda Sánchez (D-CA) lead the introduction of the U.S. Citizenship Act in their respective congressional chambers, President Biden is busy at work, signing Executive Orders which, in the immediate term, will reverse President Trump’s executive order excluding undocumented immigrants from the reapportionment count, preserve and fortify protections for Dreamers, reverse the Muslim Ban, repeal President Trump’s interior enforcement Executive Order, and stop construction on the border wall, among other actions.
Governing by Executive Order is of course not the preferred means, but as I wrote some time ago, according to the American Immigration Council, between 1956 and 2014, 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, here we go again.
President Biden has repeatedly voiced his commitment to ending the Trump administration’s inhumane and unfair immigration policies and, in doing so, laying out his own bold and expansive agenda that will ensure our immigration system reflects our values and undergoes the reform that we all agree is desperately needs. Day 1 of the Biden Administration has now come and gone. He has at least honored his promise to get the ball rolling by introducing the U.S. Citizenship Act of 2021 to Congress, and by signing a myriad of Executive Orders to lessen the toll of the Trump Administration’s terrible immigration policies. Let’s see where it goes from here.
 The Gang of 8, as they were known in 2013, included Senators Chuck Schumer, Dick Durbin, Lindsey Graham, Bob Menendez, Marco Rubio, and Michael Bennet. Also included in that group were the late Senator John McCain, and former Senator Jeff Flake.
As I write this article, we’re now into September, the end of summer is here, and my kids are heading back to school. One of my sisters-in-law is an elementary school teacher in the area, and invariably when we gather at family events, she tells me that her best and hardest working students are those from other countries. She also tells me that those kids’ parents support their kids and their education in ways she does not see with their U.S. citizen counterparts. As she states it, it just seems to mean more to them.
This always makes me think about immigration and education in America. There are so many ways to approach this. From elementary school through college and beyond, foreign students and their parents face a myriad of challenges, including simply attaining their educational goals, including accessing college.
All children, regardless of their immigration status, have a constitutional right to attend our nation’s public schools from kindergarten through high school. While a quality education can provide low-income Americans and immigrants with a path out of poverty, the challenges confronted by students who are not proficient in the English language create additional hurdles for immigrant students. Yet, as my sister-in-law always notes, they and their families work very hard to succeed. And this success can be measured.
During the Trump presidency, we’re becoming numb to the inflammatory rhetoric about immigrants, and it seems that the President’s focus for the 2020 elections will not be on traditional kitchen table issues, but rather divisive and misleading statements about America’s borders, asylum seekers, and the like. The undertone of all this is that some how immigrants pose both a physical and economic threat to native-born Americans. Nothing could be further from the truth.
Here are some facts:
- According to the Brookings Institution, children of immigrants tend to attain educational outcomes that are like those of native-born Americans, but with higher rates of college and postgraduate attainment (i.e., they are more likely to be highly educated).
- According to the Cato Institute, 43% of all recently-arrived immigrants are college graduates, compared to 29% of native-born Americans.
Fast-forward to what happens after these kids get out of college:
- A June, 2011 report from Partnership for a New American Economy states that 40% of Fortune 500 companies were founded by immigrants and their children, employing over 10 million people worldwide.
According to Inc., immigrants launch 20% of U.S. businesses despite being only 13% of the population.
There’s no shortage of data on the positive impact of immigration on our economy. And an argument can be made that it all starts with a quality education. While the federal government imposes significant restrictions on foreign students who wish to come to the United States to study (e.g., they most show that they have sufficient funds to cover all their expenses during their anticipated course of study), many states, including New York, are now becoming more progressive in enacting tuition equity laws for those foreign nationals already present in the United States.
Generally, these laws permit certain students who have attended and graduated from secondary schools in their state to pay the same tuition as their “in-state” classmates at their state’s public institutions of higher education, regardless of their immigration status. Some states, New York again also included, offer financial assistance to students who meet certain criteria, regardless of their immigration status.
These laws are being enacted to help young people (like Dreamers), who were brought to the United States by their parents, through no fault of their own, who have worked hard in school with the hope of going to college and often discover that they face obstacles preventing them from doing so, again not of their own making.
And, playing it forward from what my sister-in-law tells me, the students (and their parents) who benefit from these policies tend to be very goal-oriented, with very high academic standing. Why in the world would we want to hinder their academic success when the resulting benefits of their education are so positive for America? Among other things, immigration makes America great … and always has.
Plyler v. Doe, 457 U.S. 202 (1982).
Should the title be Immigration Reform 2.0 or 22.0? Maybe Immigration Reform Redux? Really, how many times have we started down this road, only to be disappointed (or, at least that’s the way I feel anyway)? Well, we’re starting down this path … yet again (albeit with some difficulty). So what’s the latest iteration?
On January 25, 2018, the Trump Administration House released its “Framework on Immigration Reform and Border Security”, a one-page outline of its plan to legalize the status of so-called “Dreamers” in exchange for what it calls sweeping reforms to the immigration system. The reforms are hardly sweeping, but they are dramatic.
The President’s framework proposes significant cuts to the “legal” immigration system (i.e., U.S. citizen or lawful permanent resident family members sponsoring their own qualified family members, e.g., possibly spouses, children, parents and siblings). This is referred to as eliminating “chain migration” or as the White House is calling it, “protecting the nuclear family.” The President is also looking for massive funding for border security and interior enforcement, including $25 billion for the border wall as well as more spending for Customs & Border Patrol and Immigration & Customs Enforcement agents. The President is also calling for the elimination of the Diversity Visa Lottery Program.
In exchange for all of this, the President’s plan would offer legal status to young people who currently have DACA status or who are otherwise DACA-eligible (estimated to be about 1.8 million people), including an opportunity to apply for citizenship after waiting a minimum of 10 years.
Not surprisingly, there’s been a public outcry against it from the Democrats and their progressive base. The official statement from the American Immigration Lawyers Association (“AILA”) reads as follows:
This proposal isn’t a serious effort to reach a deal on the crisis created by the administration when it terminated the DACA program. The dubious relief it offers to a questionable number of Dreamers is dwarfed by its offensive assault on families, the waste of tens of billions of taxpayer dollars on harsh enforcement that does next to nothing to improve national security, and a repudiation of Constitutional principles of due process. This proposal is completely untethered from common sense, decency, or American values.
There are several angles from which I could argue against the President’s “framework”, but I will limit myself to his efforts to end what he calls “chain migration” and the economics of that.
Every year, over 1 million new immigrants (i.e., Green Card holders) are admitted to the United States. About half of these individuals are the first in their family to permanently settle in the United States. The other half are joining their family members who arrived earlier. This is commonly known as “chain migration.” The starting point for these new immigrants may have been different (e.g., the family-based Green Card process, the employment-based Green Card process, or perhaps refugees who were resettled in the United States, among other possibilities). Ultimately, though, these permanent residents and perhaps eventual citizens of the United States can thereafter start to bring their own or other family-members to the United States.
The contributions of family-based immigrants to our U.S. economy, to our local communities, and frankly to the national fabric are great. The data suggests that they account for a significant portion of the United States’ domestic economic growth, contribute to the well-being of our current and future labor force, and play a key role in business development and community improvement. They are also the most upwardly mobile segments of the labor force. Here’s some data from the Migration Policy Institute.
- Immigrants accounted for 17%, or 27.6 million, of the 161.8 million persons in the civilian labor force in 2016.
- Of the 26.2 million employed foreign-born workers ages 16 and older in 2016, the largest share, at almost 32%, worked in management, professional, and related occupations.
A 2016 panel put together by the National Academies of Science Engineering and Medicine found that “immigration is integral to the nation’s economic growth. The inflow of labor supply has helped the United States avoid the problems facing other economies that have stagnated as a result of unfavorable demographics, particularly the effects of an aging workforce and reduced consumption by older residents.” Among its findings:
- Immigration has an overall positive impact on long-run economic growth in the U.S.
- In terms of fiscal impacts, while first-generation immigrants are more costly to governments, mainly at the state and local levels, than are the native-born, in large part due to the costs of educating their children, as adults, however, the children of immigrants (the second generation) are among the strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than either their parents or the rest of the native-born population.
I could go on, and I am sure that those who oppose my views would come up with their own data to contradict mine.
In 1965, liberals and conservatives in Congress compromised their differences and created an immigration model that would favor “family unification.” That’s the system we have today. By no means is it perfect. If we restrict it, however, we will no doubt negatively impact our country’s economic growth.
Family-based immigration is essential to our economic growth, not only because of immigrants’ contributions in the workforce, but because the current policy does indeed attract the talent we hope to bring and need to bring from around the world. The United States trains entrepreneurs and other highly skilled individuals from across the world at our renowned universities. We want them to stay, to build companies and drive innovation right here in the United States. Consider, for example, that the current CEO’s of Tesla, Google, and Amazon were all born overseas. Many well-known companies would not exist at all if our immigration system had not enabled their founders or their parents to move to the United States in the first place.
If we create obstacles for individuals to bring their relatives to the United States, we will no doubt lose them to other countries with more progressive immigration regimes. We need to remind ourselves that “chain migration” is not a threat to the United States, but rather an essential economic strategy.
 The White House officially defines this as follows: The process by which foreign nationals permanently resettle within the U.S. and subsequently bring over their foreign relatives, who then have the opportunity to bring over their foreign relatives, and so on until entire extended families are resettled in the country.
 In 2016, about 1.49 million foreign-born individuals moved to the United States, which was a 7 percent increase from the 1.38 million that entered in 2015.
 “Civilian labor force” is defined as civilian persons ages 16 and older who were either employed or unemployed but looking for work in the week prior to participation in the U.S. Census Bureau’s American Community Survey (ACS) and Decennial Census.
Can someone tell me the difference between an “executive order” and a “presidential proclamation”? I don’t think I learned that in law school, and for sure it was not on the bar exam. Frankly, before September 24, 2017, I would likely have used the phrases interchangeably. And yet, as of September 24, 2017, many of my colleagues are wondering about the purported difference.
The definitions of “executive orders” and a “presidential proclamations”, including their differences, is not easy to express as the U.S. Constitution does not contain any provision referring to them. The most widely cited explanation came in 1957 from the House Committee on Government Operations, which explained the difference as follows:
Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law . . . . In the narrower sense Executive orders and proclamations are written documents denoted as such . . . . Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute. The President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority. The difference between Executive orders and proclamations is more one of form than of substance . . . (Emphasis added.)
So why would the president’s first two efforts at a travel ban be in the form of “executive orders”, and his most recent effort be in the form of a “proclamation”? Frankly, I’m not quite sure, but I suspect that whether the courts find Travel Ban 3.0 to be enforceable, either in part or in total, will turn more on its substance and not by whether it’s a presidential proclamation instead of an executive order.
So, then, what’s the deal with Travel Ban 3.0? The President’s proclamation, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats,” was issued by President Trump following a worldwide review of information sharing practices between the U.S. and nearly 200 foreign countries. The purported purpose was to assess whether nationals of each country seeking to enter the United States pose a national security or public safety threat to the United States. As a result of this review, eight (8) countries have been deemed to have inadequate identity management protocols, information sharing practices, and risk factors. They are Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. It was also determined that Iraq did not meet the baseline requirements, but nationals of Iraq will not be subject to an outright ban on travel, but rather will be subject to additional screening measures.
There are exemptions under the President’s proclamation, such as the travel restrictions do not apply to lawful permanent residents (i.e., Green Card holders) of those countries, and foreign nationals who have been granted asylum in the U.S., refugees who have been admitted to the U.S., or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture. There are other exemptions as well.
There are also waivers available if a foreign national can demonstrate that (a) denying entry to the United States would cause the foreign national undue hardship, (b) entry would not pose a threat to the national security or public safety of the United States, and (c) entry would be in the national interest.
Not surprisingly, the anti-administration forces argue that this is yet another attempt by the President to further his discriminatory and anti-immigrant policies and does nothing to strengthen our national security. I tend to agree.
The new travel ban goes (or went, depending on when you’re reading this) into effect on October 18, 2017, but the ban is effective immediately for anyone whose entry to the U.S. was previously barred by the administration’s prior travel ban (Executive Order 13780 dated March 6, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”) (i.e., nationals of Iran, Libya, Somalia, Syria and Yemen who do not have a bona fide relationship with a person or entity in the United States).
Also, until October 18, 2017, citizens of Iran, Libya, Somalia, Syria, and Yemen are exempt from the new travel ban if they have a “bona fide relationship” with a U.S. person or entity. (This is actually an issue in the courts at the moment.)
And finally, unless an exemption does apply or an individual is eligible for a waiver, the restrictions of Travel Ban 3.0 apply to individuals of the eight (8) designated countries who (a) are outside the U.S. on the applicable effective date, (b) do not have a valid visa on the applicable effective date, and (c) do not qualify for a reinstated visa or other travel document that was revoked under the President’s earlier travel ban (Executive Order 13769 dated January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”).
I have written before, and no doubt will do so again, that immigrants and refugees contribute in a positive way to our nation by strengthening our local businesses, communities, and national economy. Travel Ban 3.0 will do little more than simply harm families, negatively impact our business community, and undermine our national values.
 Staff of House Committee on Government Operations, 85th Congress, 1st Session, Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Committee Print 1957).
 Both executive orders and proclamations have the force of law, akin to regulations issued by federal agencies, so they are codified under Title 3 of the Code of Federal Regulations (“CFR”), the CFR being the formal collection of all of the rules and regulations issued by the executive branch and the federal agencies. Neither executive orders nor proclamations are legislation, however. Neither require approval from Congress, and Congress cannot overturn them. On the other hand, Congress can pass legislation that can make it difficult, or even impossible, to carry out an executive order or presidential proclamation. Nevertheless, only a sitting President can overturn an executive order or proclamation by issuing another executive order or proclamation to that effect.
Hot off the press. Today, President Trump issued two (2) executive orders relating to immigration, one on border security (e.g., calling for the construction of a wall along the U.S.-Mexico border, etc.) and one on interior enforcement (e.g., including various provisions relating to enforcement of United States immigration laws, including withholding federal grant money from sanctuary cities).
Like President Obama before him (who he all so often criticized for using executive actions to enforce our immigration law), President Trump is using executive actions to enact these new immigration policies. (Thus far, there have been no changes announced as to President Obama’s Deferred Action for Childhood Arrivals (“DACA”) program.)
Here’s a high-level overview of what we know.
1. Southern Border Wall. The President announced that the United States will construct a wall along our U.S. – Mexico border, based apparently on authority under the Secure Fence Act of 2006 signed into law by President George W. Bush (which called for 700 miles of “reinforced fencing” along the U.S. – Mexico border, along with enhanced surveillance systems). At this point, there are just rumors as to how this will be paid for.
2. Detention for Illegal Entry. The President is seeking new policy guidance for all Department of Homeland Security personnel regarding the appropriate and consistent use of lawful detention authority under the Immigration and Nationality Act, including the termination of the practice commonly known as “catch and release” (whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law).
3. Curbing Funding to Sanctuary Cities. The President’s executive orders also seek to end Sanctuary Cities by stripping grant funding for those cities.
4. Temporarily Halting Refugee Admissions. The President is seeking a 120-day pause in refugee admissions to the United States, with the exception of those fleeing religious persecution if their religion is a minority in their country of nationality.
5. Banning Foreign Nationals from Certain Muslim-Majority Countries. The President is banning entry into the United States for at least thirty (30) days all immigrant and nonimmigrant nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. He also may require that all applicants from those countries (and perhaps others) demonstrate that he or she is not a security or public-safety threat to the United States.
6. Uniform Screening for Immigration Benefits. The President announced that there will be added requirements to screenings and procedures for all immigration benefits to identify fraud and to apparently detect an applicants’ intent to do harm. (Perhaps this is the “extreme vetting” we heard so much of on the campaign trail.) The President is also suspending the Visa Interview Waiver Program, essentially requiring all visa applicants to attend a visa interview, unless they are otherwise exempt from doing so under the law.
This is obviously a fluid situation, so I will endeavor to update this as appropriate.
“We, the citizens of America, are now joined in a great national effort to rebuild our country and to restore its promise for all of our people.” These were essentially the very first words uttered by now President Trump in his inaugural address.
When I first went back to re-read the President’s speech, I didn’t think much of this particular statement. Upon reflection, though, given the President’s rhetoric on the campaign trail, and even since he was elected, I find it a bit ironic that he in the same sentence speaks how “the citizens of America” would restore our country’s promise “for all of our people.”
“All of our people.” Presumably this means everyone that’s here, right? Citizens and non-citizens alike? Or does “our people” have a more limited meaning? Just citizens? What about permanent residents (i.e., Green Card holders)? What about people lawfully here on temporary visas? Am I reading too much into the President’s statement?
I just received an email from a colleague who, in a very different context, said “Language is important. Actions are important.” He was right in the context he used it. On Day 1 of a Trump presidency, language is very important. For every other day, actions will be very important.
“Every decision on … on immigration … will be made to benefit American workers and American families.” Really? What about everyone else who are lawfully living in the United States?
I have clients and colleagues calling me daily about what a Trump presidency means on the immigration front. And not just what I describe as at risk, or undocumented folks. Professionals too. I’ve tried to answer that question so many times, but the truth is, I really don’t know. Frankly, no one knows beyond those that are closest to the President. I suspect we’re about to find out.
Anecdotally, the news has not been good, and by all accounts, the Executive actions that former President Obama took (e.g., DACA, etc.) are no doubt in jeopardy.
President Trump quoted the Bible in his inaugural speech; specifically, “how good and pleasant it is when God’s people live together in unity.” I agree. “All of our people” should be able to remain here and live here in unity. Now let’s get to work on a compassionate way to make that happen. (And for God’s sake, let’s tackle some meaningful immigration reform in the process.)
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, the Court also directed the parties to brief and argue the plaintiff-states’ Take Care Clause claim. 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. 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.
 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.
 The question presented here was “[w]hether the Guidance violates the Take Care Clause of the Constitution, Art. II, §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.
OK, to close the proverbial loop on President Obama’s administrative “fix” of our “broken immigration system”, here’s a few other things that the President announced on November 20, 2014. For more details on all aspects of this Executive Action, please see my two previous blog posts.
Provisional Waivers. This was a biggie, and just about the day after the President’s announcement, I had someone walk into my office who will benefit under this provision (once implemented). The President has decided to expand an earlier program his administration put into place which provides for “provisional waivers” of the 3- and 10-year unlawful presence bars on the admission of aliens who have accrued more than 180 days of unlawful presence in the United States. Currently, this program only assists the spouses, sons, or daughters of U.S. citizens. Under the President’s proposed expansion, it will now also benefit qualifying relatives of lawful permanent residents (i.e., Green Card holders).
Miscellaneous. The President also announced several other initiatives, not all of which can be neatly categorized I have done in earlier blogs. First, the President announced some personnel reforms involving immigration and customs officers. He also is trying to promote naturalization for eligible Green Card holders by, for example, directing U.S. Citizenship and Immigration Services (“USCIS”) to start accepting credit cards for paying naturalization fees, to consider partial waivers of naturalization fees in its next biennial fee study, and to launch a comprehensive media campaign to promote naturalization. He also is establishing an interagency task force on “New Americans” so as “increase meaningful engagement” between immigrants and the communities where they settle. Finally, the President is also establishing an interagency working group to address the interplay of immigration and employment law. I personally think it will be interesting to see what develops out of this last one.
As I have previously said, it seems clear to me that what President Obama announced was very necessary and very welcome, even if the manner in which it did it was controversial (along obviously with what he did). Last week, the House of Representatives passed a funding bill for the U.S. Department of Homeland Security that defunded his initiatives. Although the measure passed, interestingly, 26 Republicans voted against Rep. Marsha Blackburn’s amendment which would have defunded the President’s original 2012 Deferred Action Against Childhood Arrivals (“DACA”) initiative. This bill is now on to the Senate, where I doubt it will pass, but it certainly create a forum for debate that may very well impact the 2016 presidential elections. Let’s see what happens.