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Melania, Stephen Miller, and Immigrant “Haves vs. Have Nots”

dreamstime_xs_62076674-copyOn the one hand, we have a President who is married to a naturalized citizen of the United States.  To my understanding, Melania Trump was originally an O-1 nonimmigrant in the United States (a temporary visa status reserved for, in her case, a fashion model of extraordinary ability in business) who later used a comparable immigrant category to obtain lawful permanent residence.  She then, eventually, applied for naturalization and became a citizen of the United States.

Fast forward, in what can only be described as a case of chain migration (something the President has professed to being opposed to), the President’s wife then petitioned for her own parents to come to the United States as immigrants, as she has the legal right to do under the law. Fast forward one more time, Mrs. Trump’s parents do come to the United States and, after a period of time, they apply for naturalization themselves, something they also have the right to do under the law.  These naturalization applications, according to recent news reports, were granted.  I work with clients every single day under similar fact patterns.

Juxtapose this with the fact that the President, himself individually and through his minion, Stephen Miller, is actively pursuing a policy to make it harder to become a lawful permanent resident (i.e., a Green Card holder), or for some lawful permanent residents to obtain citizenship.  This is on top of all the other ridiculousness we’ve witnessed thus far over the summer, including the forced (and in many instances continued) family separations, actively opposing the continuation of Deferred Action for Childhood Arrivals (“DACA”), among other acts of stupidity and egregiousness.

How is this so?  How can a man who’s own wife (indeed even his own ex-wife too) and who’s own in-laws are immigrants to this country be so callous and cold-hearted to literally an entire class of human beings (i.e., anyone who was not born in the United States but yet wants to permanently reside in the United States)?  Can someone explain this to me?  Is the President’s family better than all the other aliens who want to become permanent residents of the United States?  Or do they simply have more means?

And what about Mr. Miller?  It seems that his family too were immigrants to the United States, arriving through Ellis Island from what is now Belarus.  It seems that Mr. Miller’s relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century.  According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket.  He peddled street corners and worked in sweatshops.  And by all news accounts, he worked hard and become very successful.  That’s a great story.

With that as backdrop, the President, through Mr. Miller, is now pushing to enact a policy that could penalize legal immigrants whose families receive a wide array of public benefits and make it more difficult for them to obtain citizenship.  At its core, the President’s proposal would penalize lawful permanent residents if they or their family members (including their U.S. citizen family members) have ever used government benefits (e.g., health care subsidies under the Affordable Care Act, some forms of Medicaid, the Children’s Health Insurance Program, food stamps and the Earned Income Tax Credit).  If I was a permanent resident, because one of my sons receives services from the county, I could actually be impacted under this law.

Up until 1996, lawful permanent residents were eligible to receive public benefits on the same terms as U.S. citizens.  In 1996, however, Congress passed a welfare reform law that barred permanent residents who resided in the United States for less than five years from participating in any means-tested public benefit programs (e.g., Temporary Assistance for Needy Families, Supplemental Security Income, Medicaid/Children’s Health Insurance Program, and food stamps).  The 1996 law labeled newly arriving immigrants who might not be able to provide for themselves as “public charges,” making them inadmissible unless they could demonstrate that they were not subject to that provision of the law.

The law still allows for the removal of lawful permanent residents who, within five years of their arrival to the United States, become public charges.  That said, administrations prior to the current one have limited the public charge definition in this context to immigrants who use cash welfare programs or long-term institutional care funded by the government.  Consequently, very few people have been removed from the United States.  All this could change, however, if Mr. Miller gets his way.  How so?

The law would redefine the terms “public charge” and “means-tested public benefits” to include a much wider variety of federal programs. Second, the government could remove legal permanent residents for using benefits. Under the President’s proposed policy, lawful permanent residents could be removed for using a wide variety of public benefits, potentially including food and nutrition assistance, federally subsidized health insurance through Medicaid or the Affordable Care Act, and even education benefits.  Third, although the law currently allows immigration officials to refuse to admit prospective immigrants to the United States who could become public charges, the new policy, as currently written, could be interpreted to make a high-school degree or better a prerequisite for admission to the United States, or for someone to have a certain amount of assets. (This would obviously not impact the President’s in-laws, but could severely impact low-income or less well-educated immigrants from coming to be with their families).  And finally, although also on the books now, the new policy would instruct federal agencies to request reimbursement for benefits used by legal immigrants. (This rarely happens now.)

So, where does that leave us?  The haves and have nots?  It sure sounds like it.  It sure sounds like the President and Mr. Miller are attempting to portray legal immigrants as a drain on our system, somehow taking advantage of people like you and me.  This is simply not the case.   According to the CATO Institute, “[o]verall, immigrants are less likely to consume welfare benefits and, when they do, they generally consume a lower dollar value of benefits than native-born Americans.”

Mr. Miller’s family is an example of how immigrants can come to the United States, work hard, and become successful.  But not everyone’s experience in America will be perfect, and sometimes individuals need to lean on our government for some help.  No one should be forced to make a decision between ensuring their legal status in the United States is preserved against making sure their family is healthy and can eat.  No one should ever have to make that decision.

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.

“Should I become a U.S. Citizen?” The Case for Naturalization and Trump’s Executive Order

 

imm_6Not everyone who is a permanent resident becomes a U.S. citizen (i.e., naturalizes), nor is there any legal requirement that one must naturalize. However, permanent residents who naturalize gain important benefits, not the least of which (these days) is security from deportation (in most cases) and the ability to travel with a U.S. passport.

Under the law, to qualify for U.S. citizenship, permanent residents must (a) be at least 18 years of age, (b) reside continuously in the United States for five years (or three years if they are spouses of U.S. citizens), (c) be of good moral character, (d) demonstrate the ability to read, write, speak, and understand English (unless they are exempt from this requirement), (e) pass an examination on U.S. government and history (unless they are exempt from this requirement), and (f) be willing and able to take the naturalization Oath of Allegiance.

Seems simple, right? Sometimes it is. Other times, however, issues arise as to whether someone is a person of good moral character (because of something he or she might have done in his or her past), continuous residency in the United States, to name just a couple.

Is it worth it? I don’t often counsel clients to become a U.S. citizen. I think that’s a very personal decision, and there are many factors that go into that decision. However, these days, I personally think there’s much more at stake for permanent residents, whether they’re from one of the seven predominantly Muslim countries designated in President’s Trump’s Executive Order of January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” or otherwise.
Few people expect to be arrested for a crime. But the risks for permanent residents who are arrested for a crime, even a seemingly minor one (like a misdemeanor under state law) are much, much higher. Permanent residence can be revoked and the individual can be deported. While there are many benefits associated with being a permanent resident, “permanent” does not necessarily mean “permanent.”

And if not for you, what about your children? We all know that kids make mistakes, and many times they’re really stupid ones. Immigrant kids are especially at risk if they make stupid mistakes. For example, with few exceptions, most convictions related to the use of illegal drugs can result in deportation of a permanent resident. So can a conviction related associated with sexual conduct by a young adult with a person who is a minor. Indeed, many immigrants who have lived in the United States with their families as permanent residents since they were very young children have been deported after being convicted of crimes they committed as youth or young adults. Becoming a U.S. citizen can protect you and your children from deportation.

We are living in an unprecedented moment in history, and it feels like the rules of engagement in the world of immigration are changing by the day. I would not normally counsel clients (or anyone for that matter) to become a U.S. citizen. However, in these uncertain times, I think it’s very much worth looking into.

Tags: President Trump, Executive Order, Refugees, Muslims, Deportation, Removal, Citizenship, Naturalization.

Election Post Mortum – At Risk Population of Immigrants

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I have noted this before.  President Obama’s administrative action was but the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations.  According to the American Immigration Council, since 1956, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together.  Today, however, the climate is very different, and what essentially should be a legislative issue being resolved in Congress is now a political issue being resolved in the federal courts.

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

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

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

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

Could Donald Trump Legally “Ban Muslims from Entering US”?

muslim preacherA little substantive law for this piece.

In the wake of the tragic events in both Paris and San Bernardino, Donald Trump raised the rhetoric, proposing not only to deport 11 million undocumented immigrants, but to also ban Muslims from entering the United States.  In the first television advertisement of his campaign, the narrator of Mr. Trump’s ad states that Mr. Trump is “calling for a temporary shutdown of Muslims entering the United States, until we can figure out what’s going on.”[1]  (This verbiage was somewhat of a back-peddling from his earlier remarks for a “total and complete shutdown” of Muslims entering the United States.) New Jersey Governor Chris Christie also has a plan to bar Syrian refugees for the sake of national security.

In my opinion, and I am sure there are some of you who would disagree with me, Mr. Trump’s plan is un-American, inflammatory, and frankly stupid.  But is a ban on Muslims entering the United States legal?  Maybe, but I think the courts would have a field day with it.

Right out of the gate, most constitutional scholars loudly stated that a ban on Muslims from entering the United States would discriminate against a class of people based on their religion (not to mention to punish an entire class of people who have done nothing wrong).  Certainly such a ban would violate constitutional guarantees of “due process of law” and “equal protection” for Muslim-Americans.

But what about those who are not U.S. citizens?

I don’t think anyone would argue that the United States, as a sovereign nation, has the authority to decide who may enter the country, and the conditions for entry by those who seek it.  Most of this power lies with Congress, in its “plenary” power to control admission to the United States, how long a noncitizen is able to stay, and under what circumstances.

The Fifth Amendment of the U.S. Constitution provides that no person shall be “deprived of life, liberty, or property, without due process of law.” [2] The “due process” clause does not “acknowledge … any distinction between citizens and resident aliens.”[3]  This protection extends to U.S. citizens and noncitizens alike, provided that they have sufficient ties to the United States.[4]  So, noncitizen Muslims who are presently in the United States would seem to be protected.  Those outside the United States, perhaps not so much.

What about the “equal protection” clause in the Fourteenth Amendment?  The Fourteenth Amendment forbids the states from denying any person “equal protection” under the law.  In 1886, the Supreme Court held that the “equal protection” clause is “universal in [its] application, to all persons within the territorial jurisdiction [of the United States], without regard to differences of … nationality.”[5]  More recently, in 1954, the Supreme Court held that this guarantee of equal protection is implicit in the Fifth Amendment’s “due process” clause.[6]

So, the Fifth Amendment limits the federal government, and the Fourteenth Amendment limits the states.  Again, it would seem that noncitizen Muslims who are in the United States are generally entitled the same protection under the law as U.S. citizens.  But those outside the United States, that’s much less clear.

What about other grounds?  Some constitutional scholars have argued Mr. Trump’s ban on Muslims would violate the First Amendment’s “establishment” clause. That provision forbids Congress from establishing an official religion.  The argument goes that Mr. Trump’s policy would essentially require that the federal government make a determination as to who is really Muslim in order to know who to exclude from our borders, and that the “establishment” clause prevents the government from making these types of decisions.

If Congress were ever to take such a drastic step, and the issue thereafter reached the courts, it would be interesting to see what would then happen.  The courts are required to apply “strict scrutiny” to all government actions that tend to discriminate on the basis of a “suspect class” (e.g., race) or upon a fundamental right (e.g., religion).  Because strict scrutiny would apply, the courts will presume that such a law is unconstitutional, and the burden will then be on the government to provide a “strong basis in evidence” that shows the law achieves a “compelling” national interest and that the law is “narrowly tailored” to accomplish that goal.

Surely protecting against terrorism is a compelling national interest, but would such a law be the least restrictive means in order to do so?  I’m not convinced.

One of the most famous Muslims (perhaps in the world) recently said of Mr. Trump’s inflammatory remarks, “True Muslims know that the ruthless violence of so called Islamic Jihadists goes against the very tenets of our religion.”  Going on, this individual said that he believes “that our political leaders should use their position to bring understanding about the religion of Islam and clarify that these misguided murderers have perverted people’s views on what Islam really is.”  Who was that?  Muhammad Ali (a/k/a Cassius Clay).  I could not agree more.  Instead of Congress passing legislation to prevent Muslims from entering the United States, we should simply tone down the inflammatory rhetoric and educate ourselves as to what’s really going on here.  Pure politics.  Just a thought.

[1] The narrator goes on to say that Mr. Trump will “stop illegal immigration by building a wall on our southern border that Mexico will pay for.”  I’ll save my commentary on this one for another day.

[2] U.S. Const. amend. V.

[3] Kwong Hai Chew v. Colding, 344 U.S. 590, 598 n.5 (1953).

[4] See Verdugo-Urquidez v. United States, 494 U.S. 259, 270-71 (1990) (“[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.”). However, aliens who are outside the United States are generally not afforded this constitutional protection. Id. at 269 (“[W]e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”) But see Ibrahim v. Department of Homeland Security, 669 F.3d 983, 997 (9th Cir. 2012) (an alien not currently in the country, but who had been lawfully present in the United States for four years before departing the country and who was latter prevented from returning, had established a “significant voluntary connection” to the United States sufficient to assert claims under both the First and Fifth Amendments).

[5] Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

[6] Bolling v. Sharpe, 347 U.S. 497 (1954).

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

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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.

Immigration Reform by Executive Action – What Else Did the President Do?

imm_6OK, 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.

Obama’s Immigration Executive Action: Some Lawful Immigration Changes

So of course the centerpiece of President Obama’s administrative “fix” of our “broken immigration system” are his initiatives to grant “deferred action” to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here.  But the President did much more when he announced on November 20, 2014 several other initiatives which affect lawful immigration, and which are supposed to assist our country’s high-skilled businesses and workers.  Here’s a brief overview.

 1.  Immigrant Visa Issuance.  The President wants to ensure that all available immigrant visas (basically, “Green Cards”) are used each year, and the President has created a new interagency task force to modernize and streamline the immigrant visa system.  Because of delays in processing applications for immigrant visas, some visas going unused each fiscal year.  Given the unbelievable backlogs in some of the family- and employment-based immigrant visa categories, this is clearly unacceptable.  The President’s action is an attempt to ensure that all immigrant visas available for issuance in a year are used.

 2.  Optional Practical Training.  The President announced that he would expand the duration of any “optional practical training” (commonly known as “OPT”) engaged in by foreign national students who studied science, technology, engineering, and mathematics (commonly known as “STEM” fields) at institutions of higher education in the United States on F-1 nonimmigrant student visas.  The President also proposed to expand the degree programs eligible for OPT.

Presently, foreign national students studying in the United States on F-1 nonimmigrant visas may request 12 months of post degree temporary employment, or OPT, in their field of study.  In 2008, regulations were promulgated which permitted students in STEM fields to request an additional 17 months of OPT, for a total of 29 months of OPT.  However, only students in STEM fields are eligible for this 17 month extension, and these students can participate in OPT for no more than 29 months.

3Aliens Whose Admission to the United States is in the National Interest.  The President proposes to expand the use of the immigrant visa category which allows aliens with advanced degrees or “exceptional ability” to obtain an immigrant visa without a sponsoring employer if their admission to the United States is in the “national interest.”

 4.  Inventors, Researchers, and Founders of Start-up Enterprises.  The President proposes to use the authority granted to the executive branch in the Immigration and Nationality Act (“INA”) to “parole” foreign nationals into the United States when there is a “significant public benefit” to allow some inventors, researchers, and founders of start-up enterprises to enter and lawfully remain in the United States without a visa.

5.  L-1B Specialized Knowledge Aliens.  For companies who wish to hire foreign nationals as “intra-company transferees” using the L-1B nonimmigrant visa program, the President’s proposal seeks to clarify and standardize the meaning of “specialized knowledge” for purposes of the L-1B visa program.  The L-1B nonimmigrant visa allows companies to transfer certain employees who are executives or managers, or have “specialized knowledge” of the company or its processes, to the United States from the company’s foreign operations.

 6.  I-140 Portability under AC21 §106(c).  The President seeks to clarify what is meant by the “same or similar job” for purposes of INA §204(j), which provides that employment-based immigrant visa petitions remain valid when the foreign national employee changes jobs or employers so long as the new job is in the “same or similar occupational classification” as the job for which the original petition was filed.

 7.  Labor Certification (“PERM”) Modernization.  The President seeks to review the Labor Certification program (commonly called “PERM”), whereby the U.S. Department of Labor (“USDOL”) certifies that the issuance of an employment-based immigrant visa will not displace U.S. workers, or adversely affect the wages or working conditions of similarly employed U.S. workers.  More particularly, the President wants to identify methods for aligning domestic worker recruitment requirements under the PERM regulations with demonstrated occupational shortages and surpluses.

 8.  Human Trafficking and Crime Victims.  The President announced that the USDOL will certify (a) applications for T nonimmigrant visas for foreign nationals who have been victims of human trafficking, as well as (b) applications for U nonimmigrant visas for eligible victims of extortion, forced labor, and fraud in foreign labor contracting that the USDOL detects in the course of its workplace investigations.

The President announced other initiatives too (which I will write about at a later time).  As you can see from the above, not everything the President announced was controversial (even though some feel how he went about it was).  It seems clear to me, however, that what he announced was very necessary and very welcome (by most, anyway).

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