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Will the Courts Invalidate Deferred Action?

24 Apr[Crown]-Keep-Calm-And-Apply-For-Daca

There is much hue and cry over a federal district court judge possibly blocking the Deferred Action for Childhood Arrivals (DACA) program.

In a lawsuit filed by Kansas Secretary of State, Kris Kobach, on behalf of ICE Union head, Christopher Crane, challenging the DACA program, Judge Reed O’Connor (Northern District of Texas) has indicated that he is likely to find that the program violates federal law.

Previously, Judge O’ Connor had ruled that agents with the Immigration and Customs Enforcement had standing to bring suit as the prosecutorial discretion directive urged them to violate federal law, and the agents believed that by not following the directive, they would be subject to discipline and other adverse employment consequences.

Beneficiaries and recent applicants for the deferred action program should rest assured that even if the lawsuit is successful, it should not invalidate or affect their ability to legally work and reside in the country.

First, the judge has not yet issued a preliminary injunction against DACA. In fact, the case presents complicated issues of whether the federal judge even has jurisdiction to hear the case as it appears to be an employment dispute. Judge O’Connor has therefore asked the parties–the Department of Justice and lawyers for the ICE Union–to brief whether the  Collective Bargaining Agreement and the CSRA bars the federal district court from hearing the case.

Second, even if Judge O’ Connor grants a preliminary injunction, there are additional questions as to whether the injunction only affects applications filed in the Northern District of Texas. Regardless of the answer, the Department of Justice is likely to file an appeal to the Fifth Circuit, and seek a stay of the injunction, such that the operation of the deferred action program continues smoothly.

Third, upon appeal, the Fifth Circuit is likely to uphold deferred action. Prosecutorial discretion has a long history in U.S. immigration law and agency practice, so Judge O’ Connor is simply wrong in stating that immigration laws mandate the detention of non-citizens present in the U.S. without legal status. In fact, Judge O’ Connor erroneously finds that DHS has prosecutorial discretion in the latter stages through the cancelling of removal proceedings but not in the initial stages, which hardly makes any sense.

In the meantime, the DACA program continues to be available to eligible undocumented youth. Prosecutorial discretion is also unlikely to go away and a federal judge in Northern Texas does not have the ability to undo decades of U.S. immigration law.

We will continue to document the efforts of bureaucrats within ICE to stymie intelligent immigration enforcement through insubordination, lawsuits, leaks, and more generic tactics like refusal to complete trainings and sick-outs.

The lesson of the day is hence, keep calm and keep applying for DACA.

Immigration Reform Follies!

19 Feb

The past few days have revealed tremendous silliness in the immigration reform debate.  It is a true pity given the serious stakes involved for everyone persecuted by the U.S.’ brutal immigration laws.

Just today, we saw prominent immigrant rights groups’ applauding the honesty of ICE bureaucrat representative, Chris Crane because he stated in some forum or another:

For this pearl, Mr. Crane has been lauded by all sorts of ostensibly pro-immigrant types as a whistleblower.  After all, here is an ICE agent stating that ICE only cares about hitting its numerical targets for removal.  ICE has recently come under some well-deserved heat for conducting data-mining and all sorts of definition-expanding permutations to ramp up the removal of criminals.  It would seem that Mr. Crane is stating that ICE is going after low hanging fruit and not the dangerous criminals, who we all can agree, at least in theory, deserve removal.  At last, someone within ICE points out that the emperor has no clothes.  Right?

Well, only if you pay no attention to everything else Chris Crane has ever said.  Based upon his testimony, Mr. Crane believes that ICE is not being allowed to do its job of keeping the community safe because the ICE political leadership has instructed ICE officers to focus their removal efforts on those convicted of crimes or repeated immigration law violators.  Apparently, Mr. Crane believes that community safety would be enhanced if ICE agents were permitted to make arrests when they are “on duty in a public place and witness a violation of immigration law.”  If only ICE agents were empowered to make arrests in such circumstances, public safety would be enhanced.  This makes us wonder: what does it look like when a student falls out of status due to failure to maintain appropriate credits, or what does it look like when a tourist visa expires, or what does it look like when an undocumented person clear your plate, does it look that much different than when a documented individual re-fills your water?  If ICE agents were empowered to make arrests because of these and other “immigration violations” they witness, the U.S. would look a lot more like those totalitarian regimes where the only law is the presence of a gun and handcuffs.  No thanks.  Yes, ICE is doing everything can to pump up their removal numbers, but if Mr. Crane and his allies had their way, that number would be way higher than 400,000 and community safety would not be enhanced.  Recall that Chris Crane is the plaintiff in a lawsuit, where he is represented by uber litigation-loser Kris Kobach, where he alleges that DACA is illegal because it means he can not arrest and remove every undocumented youth he comes across.  Nonetheless, members of the non-profit industrial complex for immigration reform have embraced Crane’s quote, displaying an alarming lack of awareness of what Crane is actually saying.

This followed this weekend’s adolescent drama that occurred when the President’s plan for immigration reform was leaked to USA Today.  Immediately Marco Rubio and other Republicans groused that the President never spoke to them and that there were significant divides between the President and the GOP in Congress.  John McCain insisted that the President, by talking about immigration reform was trying to derail it.  And Newt Gingrich (why do we still have to listen to this pompous blowhard?) went on TV and blurted out the partisan truth that the Congressional GOP would not pass anything that had Obama’s name on it and the President had to call Senators McCain, Graham, and Rubio (Senator Flake was unavailable) and tell them “don’t worry, baby, I love you and your plan.”

The President’s proposal is very intriguing.  We will discuss it in detail in the next couple of days, but it goes to territory where none of the other plans go: shrinking the definition of “aggravated felony,” allowing for immigration recognition of expungements and other ameliorative statutes, and restoring suspension of deportation.  For those of us who care about due process in the immigration courts and greater flexibility in removal statutes who thought that immigration reform would be all about E-Verify, border fences, legalization at the back of the line and a guest worker program, the introduction of due process concepts into the debate is welcome.  The very real humanitarian considerations represented in the President’s plan should not be overshadowed by high school cafeteria antics


The Whine of the ICE Bureaucrats

3 Feb


It has been a tough week for the ICE bureaucrats who have sought to undermine the political leadership of this country to pursue their own restrictivist and nativist agenda.  Regular readers of this blog (my wife and my mother), will know that we have sought to document the efforts of bureaucrats within ICE to stymie intelligent immigration enforcement through insubordination, lawsuits, leaks, and more generic tactics like refusal to complete trainings and sick-outs.  But, like their pals Kris Kobach, Steve King, Jeff Sessions, and Joe Arpaio, time has passed them by and they continue their ignominious descent into laughable irrelevance.

Last week, we saw politicians competing to put forward the most comprehensive immigration reform.  The President outlined a plan.  We saw Republicans and Democrats, who could not agree on anything for close to four years, all agree that immigration reform is needed and that a path to citizenship is an essential to that effort.  We learned that the even the House has a bipartisan working group planning to develop its own immigration legislation.  Simultaneously, a federal judge in Dallas, Texas dealt a near fatal blow to the ICE agents lawsuit, where they alleged potential injury if they refused to follow the DHS secretary’s directives regarding DACA.  While the Judge did not entirely dismiss the lawsuit, FOBR Ben Winograd at the Immigration Policy Center described the lawsuit as” hanging by a thread.”  Bad week to be on the losing side of history.

Increasing the hope that immigration reform will finally happen in 2013 is the largely unanimous support of reform by the country’s major labor organizations.  The AFL-CIO and the SEIU, the country’s two largest union organizations, are major supporters of immigration reform.  But just when you thought that the unions had finally come together with the business community, there is one union that wants you to know that they are not on board.  Guess who?  The American Federation of Government Employees National ICE Council issued a press release to declare that the AFL-CIO does not speak for the ICE union.  The union wrote: “Respectfully, we see a lot of problems with the recently proposed reforms and we plan to exercise our rights as American’s to participate in the democratic process and voice those concerns publicly in the upcoming months; we hope to do so without groups like the AFL-CIO demonizing us for expressing a different opinion.”


With all due respect, the position of the ICE agents union is crystal clear.  They so believe in an anti-immigrant policy where their actions are not subjected to meaningful review that their views are meaningless in an effort to reform the immigration law in a way to break their power.  The ICE bureaucrats are afraid of being demonized for participating in the democratic process.  Well, welcome to the arena, folks.  You can’t continue to say outlandish and self-interested garbage and not be called out on it.  The bureaucrats have always had a weak grip on the basics of democracy.  While begging to be treated with kid gloves, the ICE bureaucrats union has staged a vote of no confidence in ICE’s political leadership, sued the Department to stop DACA, and has encouraged its members not to follow the direction of their management.  In the military and any other law enforcement agency, that is known as insubordination and can result in dismissal or, in the case of the military, the brig.  But ICE bureaucrats ask not to “be demonized.”

If the ICE bureaucrats do not want to be demonized, they should stop resisting efforts to create intelligent immigration policy and participate in implementing immigration law, both today’s and tomorrow’s in a more humane and useful way.

DACA, Provisional Waivers, and de Osorio?

4 Jan


The publication of the rule allowing for processing of provisional waivers for unlawful presence in the United States was another act of administrative rule-making that the President has undertaken to make the immigration laws more humane.  Over the past year, the effort at prosecutorial discretion, the introduction of Deferred Action for Childhood Arrivals (DACA), and the provisional waiver have created a much improved immigration system that attempts to solve real immigration problems for families.

The President has been justly criticized for an enforcement-only approach to immigration.  It is clear that, early in the first term, the White House miscalculated in believing that if it demonstrated that it could enforce U.S. immigration law, it could persuade Republicans in Congress to support sensible immigration laws.  It did not work.  Despite record removals, many members of Congress labor under the fallacy that the President has refused to enforce immigration laws.  As the intransigence of Congressional Republicans made any meaningful immigration reform an impossibility, the administration has taken significant steps to make the immigration system better.

And make no mistake- these steps taken by the administration have made the immigration system better.  Critics can cite the low numbers of cases where prosecutorial discretion has been applied and the individual instances where prosecutorial discretion has been refused where it seems like the individual fit within the criteria.  The systems have not been perfect, but they are improved.  If one case was terminated as a result of memoranda issued in the past year, a benefit was received.  In the past, a request for the exercise of prosecutorial discretion was a last ditch and usually fruitless effort reserved for the saddest of cases.  It is now a routine part of representation and utilized successfully in cases where the law provides no options for relief.

In addition, I have seen the exercise of prosecutorial discretion bleed into areas other than the termination of cases.  I have seen the government agree to join motions to reopen to allow the spouses of citizens to adjust their status in the U.S.  This was a rarity before.  I won’t go so far as to say that they are regularly joined these days, but I have had more joined in the past year than in the previous five years.  DACA has been an amazing experience. Watching all of these kids get a chance to go to college or put their education to work has been an inspiration.  The country has benefited tremendously from the energy and vigor they have brought to our communities when the smallest of welcome was extended to them.

Finally, the provisional waiver will allow families to regularize their status without the risk of long term separation.  Thousands of families have refused to risk separation and have thus continued with one partner without status fearful of being stopped by the police and unable to find meaningful work.  The provisional waiver process should allow thousands of undocumented immigrants to get their residence properly.

The President has done this in the face of a hostile Congress colluding with an insubordinate agency.  ICE bureaucrats have been in open rebellion against liberalized immigration policies since the beginning of the President’s terms.  They have teamed with their Congressional supporters to accuse the administration of everything from allowing jihadis to roam free to making cynical ploys for Latino votes.  Luckily, these rear-guard actions have failed.  They are the death shrieks of a disappearing order, where once can say of Joe Arpaio, Russel Pearce, Kris Kobach, and Steve King, as Bob Dylan once did, “something is happening here, but you don’t know what it is.

While there are countless other administrative actions that the administration can take, another step that would further demonstrate the administration’s willingness to place family unity and sensible immigration policy over “the way things have always been,” would be for the administration to forgo Supreme Court review in de Osorio v. Mayorkas, the decision of the 9th Circuit Court of Appeals that allows the unmarried sons and daughters of permanent residents who aged out of eligibility under petitions for their parents to receive credit for the time they waited under their parents’ petitions.  In de Osorio, the 9th Circuit joined the 5th Circuit in Khalid v. Holder rejecting the Board of Immigration Appeals decision in Matter of Wang.  Both Courts of Appeals decided that the plain language of the  Child Status Protection Act allowed kids who aged-0ut of eligibility under petitions filed for their parents to recapture the time that they waited when their parents, now permanent residents, filed petitions for them.  In Matter of Wang, the Board decided that the kids could not recapture that time and would have to go to the end of the line.  This resulted in what one brief in de Osorio calculated would be a 115 year wait for an unmarried adult son or daughter of a Mexican citizen!  The de Osorio decision has the potential to help ensure family unity for thousands of families where parents and minor children have received residence, but one or two older children aged-out.

The de Osorio decision came down on September 26, 2012 and the next stop for review is the Supreme Court.  The government has sought two extensions to decide whether to appeal to the Supreme Court.  As of now, their petition for Supreme Court review, known as a petition for a writ of certiorari, is due on January 26.  If the government files a petition, the Supreme Court may or may not take the case.  However, the de Osorio case will likely not take effect until the Supreme Court decides whether to take the case.  If the Supreme Court takes the case, then we will have to wait until the Supreme Court decides the matter before we know anything further.  If the Supreme Court does not take the case, the de Osorio case will take effect and many people will become eligible for adjustment of status.

Of course, the government does not have to file a petition for a writ of certiorari.  They did not seek certiorari in Khalid.  Moreover, WHY??  Why appeal this?  What is the possible compelling interest for the government?  The de Osorio decision allows the sons and daughters of permanent residents who waited in line with their parents only to lose their eligibility due to lengthy delays in the immigration process to rejoin their families.  How does the government have an interest in avoiding that happy result.  Immigration law has always been anchored in the concept of family unity?  Prosecutorial discretion, the provisional waiver and, to a lesser extent, DACA, reflect principles of family unity.  By letting the de Osorio decision stand, the administration can once again signal its firm alliance with immigrant families.

As one former President said, on a petition for cert, Mr. President, “Just say no!

The Role of Immigration in the President’s Re-Election

10 Nov

One of the most pivotal moments in the 2012 campaign was when former Massachusetts governor Mitt Romney attacked Texas governor Rick Perry for being soft on immigration. More than his famous “oops” moment, this moment doomed the campaign of Governor Perry. Perry never recovered from the sustained attack on him that occurred after the governor challenged GOP orthodoxy regarding the availability of in-state tuition for undocumented immigrants. Perry had signed the so called Texas Dream Act, which allows undocumented Texas residents to attend state institutions at tuition levels commensurate with their documented classmates. Despite Perry’s extreme conservative positions on everything else, this minor expression of compassion for the undocumented residents of his state ended the Tea Party’s romance with the Texas governor.

On this page, we have long argued that one of the motivating factors behind the emergence, and now, destruction of the Tea Party was antipathy towards undocumented immigrants. Tea Party politicians have long supported the “business death penalty,” as enacted in statutes like Arizona’s SB 1070, that would revoke business licenses from employers who were found to have employed undocumented immigrants. In addition, mandatory use of E-verify has been a staple of the GOP orthodoxy this year. The Tea Party’s antipathy to what they see as burdensome government regulation never trumped their effort to force employers to enforce federal immigration law and to provide draconian repercussions for their failure to engage in proper record-keeping. The Tea Party’s love of liberty also never stopped them from arguing that the government should deport over 12 million undocumented immigrants. The massive increase in the police authority that mass deportations would require hardly squares with the Don’t Tread on Me ethos the Tea Party claimed to represent.

Romney’s attack on Perry had the desired effect. Perry was gone within a month. But, it confined Romney in a box from which he never escaped. Romney brought in the anti-immigrant Kris Kobach as an adviser on immigration policy, he endorsed the Arizona and all the copycat laws, and he famously espoused the concept of self-deportation, the policy of making life in America so miserable for undocumented immigrants that they would voluntarily return.

Meanwhile, the President was having his own troubles with immigration. Latinos, who supported him strongly in 2008, were angry that the President who promised immigration reform had failed to deliver it and had presided over the most efficient deportation programs in history. With over a million removed during his four years, the President has “enforced the law” far more zealously than any of his predecessors. In addition, the DREAM Act failed in the Senate in 2010 with five Democrats joining nearly all the Republicans in killing the bill. Interestingly, Senator Lisa Murkowski, an independent who had been jettisoned by the Tea Party wing of the GOP in her native Alaska but returned to the Senate as an independent, voted for the bill, showing what reasonable Republicans can do when liberated from the Tea Party. The President’s failure on immigration led to a decided lack of enthusiasm among the Latinos who were responsible for the President’s election in 2008 and the Democrats maintenance of control of the Senate.

Perceptive Republicans saw their opening. Senator Marco Rubio began talking about reviving the DREAM Act, but with Republican modifications. Rubio teased and tantalized the country with his talk of introducing a new DREAM Act. He claimed to be in secret talks with members of the GOP caucus, but it became clear that he could not get any support from his own party. Republican stalwarts like Richard Lugar, a DREAM Act supporter, were facing serious Tea Party challengers. In fact, Lugar would be cashiered by the Indiana Republican party in favor of Richard Mourdock, who went down in defeat on Tuesday. However, Rubio’s tease drew some interest from the Latino community. Although the White House opposed the Rubio DREAM Act proposal (there never was a bill), because there was no path to residence, DREAM Act supporters reached out to Rubio. With Latino organizations and immigrant rights advocates considering supporting the Rubio alternative, the White House knew it had to act.

On June 15, 2012, the administration made the move that would win the election. It announced deferred action for childhood arrivals (DACA). The immense popularity of this program became obvious very quickly. When people could finally apply for DACA on August 15, thousands of people flocked to community events to learn about the benefits. As the first approvals trickled out in late September, thousands of young people received work permits and had hope for the first time in their lives. Republicans denounced the plan, some ICE bureaucrats filed suit against the plan, but it was clear that the Latino community had returned to President Obama. Mitt Romney vowed to cancel the plan and failed to appreciate the demographic shifts and the cumulative weight of the Republican assault on the Latino community.

On Tuesday, the full weight of years of Republican demonization of immigrants came crashing down on Mitt Romney as he attracted only 27% of the Latino vote.

In our next post, we will discuss the prospect of real and substantive immigration reform in the next two years.

Mitt Romney would honor DACA grants, not issue new ones

3 Oct

Thirty four days before the Presidential election, Republican nominee Mitt Romney has expressed a position on the Deferred Action for Childhood Arrivals (DACA) program, which has been in place since August 15.  In an interview with the Denver Post, Romney stated that if he were elected President, “The people who have received the special visa that the president has put in place, which is a two-year visa, should expect that the visa would continue to be valid. I’m not going to take something that they’ve purchased.”   He also said that, although he would honor the work permits and deferred action grants, he would not issue any new ones after his inauguration. 

This is certainly welcome news, but the wording of Romney’s support is worrisome.  First, I can not help but think that there is some sort of dog whistle to the anti-immigrant crowd in there.  By stating that the President is allowing people to “purchase visas,” Romney alludes to a common wingnut belief that the President is simply selling visas to whomever can come up with $465.  A common hallucination against DACA is that there is going to be extensive fraud and we will never know if we are helping the real DREAMers or whether we are giving status to criminals and terrorists.  I wonder if Romney is consciously indulging this fantasy.  Second, Romney views this as entirely transactional.  He makes no mention of the compelling circumstances of DACA applicants.  He views this as something that people have purchased and not as a program meant to shield a deserving class of youth from the fear of removal.  People deserve this benefit, in Romney’s worldview, because they have paid for it, not because of the circumstances of their arrival and their potential to contribute to our society.  By linking the program to a financial transaction, Romney undermines the moral validity of the claim to civil rights for the DREAMers.  Third, it is not a visa. Come on, get it right.  You are running for the Presidency not for the Topeka School Board.  Get your terms and facts straight.  I suppose the error can be easily explained by the fact that Romney’s number one immigration adviser is Kris Kobach, who rarely gets anything right on immigration law.

Romney also said that, at the end of the two years that DACA grants are good for, “Before those visas have expired we will have the full immigration reform plan that I’ve proposed.”  Romney is dangling major immigration reform.  Of course, we have no idea what his plan is or how he plans of getting it through a Congress that has been ceded to the likes of Steve King and Jeff Sessions.  The Republican party, with the help of certain feckless Democrats, has repeatedly stymied even the most sensible immigration reform.  Remember the DREAM Act passed the House and got 55 votes in the senate, which would have been enough had the Republicans not filibustered it.  Romney is attempting to woo Latinos by blaming the President for the failure to pass immigration reform between 2008 and 2010.  This fantasy argues that since the Democrats had a a filibuster-proof majority in both houses during that time (which is not strictly true- there was the Specter conversion and the Kennedy death) and failed to pass immigration reform, that a Republican president and a Republican Congress would do better.  Hogwash.  Republican President Bush could not get the wingnut portion of his party to support immigration reform and, since his first day in office, President Obama faced a Republican minority committed to defeating him and using the filibuster to prevent anything from happening in Congress.  Now, they have the chutzpah to imagine that Republican obstruction had nothing to do with the failure to get immigration reform.  While, we believe that most reasonable people reject this, it is disappointing to see otherwise astute observers of the political scene fall for this.

Finally, Romney also said this: “I actually will propose a piece of legislation which will reform our immigration system to improve legal immigration so people don’t have to hire lawyers to figure out how to get here legally.”  Now, that is hitting below the belt!  Romney wants to put us out of business.  Now, we can understand that the federal government may be getting tired of getting sued by us and losing, but this is personal.  We are small business owners.  Since we embarked on this venture, we have created four new jobs in the country.  We have obtained visas for people that have enabled them to open businesses and hire more workers.  As business owners, shouldn’t we be squarely within Romney’s sights?  Instead, he states that he wants a system that does not require lawyers.  We are all for simplifying the immigration laws and making them work for the United States.  We are tired of telling people that there is nothing we can do for them and their best option to is to save their money and spend it on a new home in their home country.  However, we remain committed to fighting for our clients and we envision that whatever reform Romney proposes will only increase our business as he is likely to cede immigration policy to the Steve Kings, Joe Arpaios and Kris Kobachs.  If that happens, our response is “see you in court.”

Oh No, he didn’t! Romney endorses anti-immigrant wingnut Steve King.

10 Sep


On Friday, Republican Presidential nominee Mitt Romney endorsed Steve King (R-IA) for another term in Congress.  King, who once compared selecting immigrants to dog breeding, represents the worst of nativist sentiment and  Romney’s solicitation of the know-nothing wing of his party makes a mockery of any analysis that indicates that demographics demand that Romney move off his “self-deportation” stance in the primary toward the more humane and comprehensive approach to immigration reform.

There has been tremendous speculation that Mitt Romney would “tack to the center” on immigration after the primaries.  During the Republican primaries, Romney staked out extreme anti-immigrant positions that made Rick Perry and Newt Gingrich almost seem sane.  In Florida, Romney embraced the “self-deportation” myth, that is, if life is made sufficiently miserable for immigrants they will leave of their own accord.  That approach is being tried in Alabama and Arizona and the result has been to detract from any meager economic recovery these states may have enjoyed.  But, as Romney consolidated his hold on the nomination, he distanced himself from anti-immigrant lawyer Kris Kobach and started hanging out with Marco Rubio, who made noises about how the Republican Party needed to take a different approach on immigration than “all deportation all the time.”  Rubio even started talking about a Republican version of the DREAM Act, but Romney would not comment on it.  When the President announced Deferred Action for Childhood Arrivals (DACA), Rubio dropped the DREAM Act and Romney dropped Rubio.

It now seems that Romney’s flirtation with the immigration mainstream is over and he is going back to the Brewer-Arpaio-Kobach-King axis.  His embrace of Steve King stating that he “wants this man as his partner in Washington DC” says all you need to know about Romney.  As the Spanish saying goes, “Dime con quien andes, y te dire quien eres.”  Tell me who you walk with and I will tell you who you are.  As the Proverbs say “the companion of fools will suffer harm.”

And, make no mistake, King is a fool.  Build the border fence?  Yes, says King.  Over turn the 14th Amendment’s birthright citizenship?  Yes!  English-only?  Yes!  King’s votes have earned him a 100% rating from the know-nothing Federation of Americans for Immigration Reform (FAIR).  But it is his mouth  that has really demonstrated his idiocy.  In addition, to his comparison of immigrants to breeding dogs, King has been good for the following nuggets:

There’s plenty more where that came from.  King is in the tightest race of his career as he is challenged by Christie Vilsack.  Immigrant’s List is a pro-immigrant PAC that works to raise funds against anti-immigrant incumbents and to elect individuals friendly to immigrant rights and has made King a top target for defeat.

Romney’s decision to spend his time with a politician who is on the losing side of history says a lot about where his campaign is these days.  He has chosen to appeal to the most extreme parts of the GOP base.  And while this may buy him some votes in 2012, it is not a good long term strategy.  Romney has set a target of 37% of the Hispanic electorate.  He has a long way to go.  Most polls show him hovering below 30%.    In addition, key states in this election such as Virginia, Florida, North Carolina, Nevada and Colorado have increasing numbers of Hispanic voters.  In addition, demographic trends show that more and more states are going to be competitive due to the increase in Hispanic voters.  The big prize in the Latino-inzation of the electorate is Texas.  While Texas is solidly GOP in this election, future elections are far from clear.  So Romney can pal around with dinosaurs like King and hope to nudge his numbers up in the Tea Party crowd, he is, long-term, helping to dig the grave of the modern GOP.

The Bureaucrats’ Revolt, Part III

24 Aug

We have paid a lot of attention to the complaint of some of the bureaucrats within ICE against their political leadership.  We have reported on the ICE Agents Union’s vote of “no confidence” in Director John Morton and the bizarre lawsuit filed by James T. Hayes against Janet Napolitano.  But yesterday, ten agents of  Immigration & Customs Enforcement filed a lawsuit against the administration charging that the President’s deferred action policy is illegal and enforcing it requires them to violate their oath of office.  This is, by far, the most ambitious effort by these unelected bureaucrats to undermine the political will of the people.

The agents assert that the new policy prohibits agents from doing their job, which they see as arresting and processing for removal proceedings every removable individual that they encounter.  They claim that they face disciplinary action if they arrest individuals who have been identified as “low priorities” by ICE leadership.  Finally, the agents claim that the public safety is at risk when they are not permitted to arrest certain removable individuals.  The agents filed in the Northern District of Texas, presumably because they thought it would be a friendly forum for their claims.

Their lawsuit is not likely to succeed.  The Supreme Court and the federal courts have emphasized over and over again that the decision to initiate and terminate removal proceedings lies squarely within the discretionary authority of the agency.  While one might think that these court decisions come from people challenging the agency’s initiation of removal proceedings, they have also been issued where people have sued the agency because they wanted the agency to initiate removal proceedings.  Over and over again, courts have stated that ICE has unreviewable discretion to begin or not begin removal proceedings.  The agents seems to think that these decisions give them as individual agents the authority to begin or not begin removal proceedings.  Wrong.  It gives the agency the authority  to make these decisions and these agents have supervisors and managers who are charged with enforcing the law as interpreted and defined by the agency.  The political leadership gets to make that call because, they, unlike the ICE agents, are the designees of the elected President.  For ICE agents to refuse to follow the legitimate directives of the political leadership is insubordination that would be intolerable in any other situation.

In addition, President Obama, Secretary Napolitano, and Director Morton did not invent deferred action.  Deferred action has been in place for over four decades.  In addition, although the bureaucrats claim that deferred action has always been an individualized determination and not used for large classes of individuals, that is not true.  The agency has granted deferred action to victims of domestic violence and certain widows of American citizens.  The size of the class of people eligible for deferred action does not render the deferred action designation inappropriate.

The lawsuit is clearly political.  It is a rearguard action by agents, and their political enablers, like anti-immigrant lawyer Kris Kobach and the restrictionist group Numbers USA.  These agents and their political handlers disagree with the policy and are airing their political differences as a legal issue.  The good news is that they are fighting a losing battle.  Their lawsuit will not survive and, politically, support for the deferred action program is growing.  An election is coming up and the voters will have an opportunity to decide whether the President should be re-elected.  The deferred action program will be included in the voter’s calculus.  Then, the right people, the American voters, will have a chance to pass on the program.  In the meantime, these bureaucrats have two choices: do their job or quit it.


Big win at the Supreme Court

25 Jun

In what was surely the most anticipated decision of the Supreme Court’s term, Arizona v. United States came down today and not in the way anybody expected. In a 5-3 decision (Justice Kagan took no part), the Supreme Court rejected three of the four contested provisions and cast serious doubt on the viability of the fourth provision. What remains of SB 1070 is a hollow shell of the legislation promised and promoted by Russell Pearce, Jan Brewer, and the Mario Mendoza of immigration litigation, Kris Kobach.

SB 1070, of course, is the notorious Arizona law that sought to achieve “attrition through enforcement” by making life miserable for immigrants, and those that looked like immigrants. The law sought to criminalize unlawful presence in the U.S. and sought to prohibit undocumented immigrants from seeking employment in Arizona. Most noxiously, it sought to turn all law enforcement personnel in immigration agents.

The four challenged provisions relate to new crimes created by SB 1070 and the authority of Arizona law enforcement to make demands on individuals to provide proof of lawful immigration status. Section 2B requires police officers to communicate with Immigration & Customs Enforcement (ICE) to ascertain the immigration status of anyone they lawfully stop, arrest or detain, if reasonable suspicion exists that the person is a foreign national and is unlawfully present in the U.S. Section 6 allows a state officer to, without a warrant, arrest a person if the officer has probable cause to believe that the person has committed an offense that makes him removable from the U.S. Section 3 creates a new state misdemeanor criminalizing an individual’s willful failure to carry an appropriate immigration document. Finally Section 5C makes it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.”

In an opinion by Anthony Kennedy, the Court found that the federal government had “occupied the field” of immigration criminal violations and that states were preempted from adding their own crimes and penalties onto exclusively federal violations. Thus, Sections 3 and 5C can conflict with the “careful framework Congress adopted” and are preempted by federal law. The Court also rejected Section 6, which would have allowed an Arizona law enforcement agent to arrest an individual for a perceived immigration violation even where the federal government has not chosen to act. The Court was skeptical that Arizona agents would be able to master the increasingly complex set of rules that govern unlawful presence in the U.S. In addition, the Court found that “a decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States.”

The Court did not strike down Section 2B, which has led a lot of unsophisticated commentators to declare that the Supreme Court “upheld” the “papers, please” provision of 2B. Section 2B requires Arizona law enforcement agents to ascertain the immigration status of those lawfully stopped, arrested or otherwise detained for some other non-immigration related reason. The Court held that it was premature to believe that Arizona would execute this provision in an unconstitutional manner. The Court addressed the legitimate complaints that such power could lead to pretextual stops, racial profiling or “driving while brown.” However, the Court provided that the section “could be read to avoid these concerns.” The Court saved for another day the question “whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention.” Justice Kennedy also reminds Arizona and the world that the opinion “does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” In his opinion concurring in the Court’s decision not to enjoin section 2B, Justice Alito recognized that serious constitutional concerns remain with 2B and that future litigation is all but guaranteed: “there is no denying that enforcement of 2B will multiply the occasions on which sensitive Fourth Amendment issues will crop up. These civil liberties concerns, I take it, are at the heart of most objections to 2B. Close and difficult questions will inevitability arise as to whether an officer had reasonable suspicion to believe that a person who is stopped for some other reason entered the country illegally and there is a risk that citizens, permanent residents, and others who are lawfully present in this country will be detained.” The day of reckoning is coming for 2B.

Overall, this is a smashing victory for immigrants. SB 1070 stands repudiated soundly in the Supreme Court and the other states that have enacted terrible immigration laws, such as Alabama, South Carolina, Indiana, Georgia, and Utah, should be aware of the severe restrictions on their ability to operate in this sphere. Given the fiscal health of many state governments, it is a wonder that citizens of these states put up with the state spending millions to defend these doomed laws. The survival of 2B is temporary. Given the track record of Maricopa County Sheriff Joe Arpaio in persecuting immigrants, it is only a matter of time before a challenge to an action under 2B makes its way through the courts. And when it does, it will come with damages for the victim of racial profiling, wasting more of the state’s resources that are desperately needed to create a future for Arizona.

Why I am supporting the President’s re-election

7 May

I do not intend to give a comprehensive discussion of the Presidency of Barack Obama.  I am only writing on the one issue that I have true expertise on: immigration.  From all of the articles I have read, the conversations I have had, I know that a discussion of President Obama’s record on immigration will provide plenty of controversy, such that there is no need to get into any other topic.

The case against Obama is strong: record numbers of deportations, failed legislative action, an apparent unwillingness to fight restrictionist fire with fire, the debacle that is Secure Communities.  There is no doubt that these factors are a tremendous disappointment.  We had such high hopes with a young and idealistic (or so we imagined him to be) President who had engaged the immigrant community and Democratic control of both houses of Congress.  The stage seemed set for some form of comprehensive immigration reform.  But then came the economy, Rahm Emmanuel, and health care and immigration went to the back of the line.  It is reasonable to conclude that Obama sold the immigrants out.  And now he needs the Hispanic vote.

Despite these clear problems, I intend to vote and campaign for the President.  My reasons are simple.

First, I have over a dozen clients who have received discretionary stays, deferred action or otherwise favorable treatment from immigration that was unthinkable before.  These people are largely DREAMers, those who would benefit should Congress pass the DREAM Act.  In the absence of Congressional action, the administration has quietly allowed hundreds, if not thousands, of DREAMers to remain in the U.S. with employment authorization.  The expansion of the discretionary authority known as deferred action has been remarkable and was unthinkable under previous administrations.  I remember the turning point.  It was July 2009 and we were doing one of the first DREAM Act deferred action requests.  It was down to the wire and the client needed to depart the U.S. if discretion was not exercised in his favor.  Shortly after submitting the request for deferred action, I got the Miami Field Office Director of ICE on his cell phone.  He spent 15 minutes yelling at me, asking me who did I think I was, and didn’t I understand what an order of removal meant.  He told me that he would have to look at the case not only of my client but of his family, who did not have removal orders.  An hour later, Senator Bill Nelson’s office called me and told me that deferred action had been granted.   Thirty minutes after that I received a letter signed by the same Director granting deferred action.  I was unable to get him on the phone, but it is clear that the earth had moved under his feet and he only realized it when the political appointees in Washington let him know that it was no longer business as usual.  Now, deferred action for DREAMers is pretty routinely granted.

Some DREAMers and their advocates have asked the President to announce a formal blanket-wide grant of discretion to the DREAMers and have used his reluctance to do so as proof that he is committed to lip service only.  I consider that wise politics on the President’s part.  A formal blanket-wide grant of deferred action would have been a direct challenge to Congress and invited even more controversy over whether the President is abusing his power to override U.S. immigration law.  It would have been a major talking point for the Fox News crowd and would have kept every immigration official testifying on Capitol Hill for weeks.  In addition, it would have placed a layer of notoriety on what is essentially a de facto situation.  I have heard some argue that, despite the rhetoric, the President is deporting DREAMers.  I suppose this is true.  One can not expect ICE to identify these folks on their own.  In my experience when ICE is alerted that a potential deportee falls within the very broad outlines of what is a DREAMer, favorable discretion is usually exercised.

I recently obtained deferred action and stays for DREAMers that expire after the next election.  I am worried about what is going to happen to them.  I do not believe that a Romney administration will extend their discretionary status.  These kids have no other legal options.  What happens to them if the President is not re-elected?  While their situation is far from perfect and the hope is that some form of the DREAM Act or immigration reform will pass, their ability to remain in the US with their families and to work and study is dependent upon continued administrative grace that has been exercised by this administration.

A second reason I am supporting this President is because I believe that he wants common-sense immigration reform.  His failure to achieve it says more about the poisonous state of political affairs where every piece of legislation requires sixty votes in the Senate and the Republican opposition has made it clear that they see their job as to thwart the President on every initiative he brings forward.  The DREAM Act failed with 55 votes in the Senate.  Five democrats voted against it as did 36 republicans.  While the five democrats that voted against it should be excoriated, the enmity that has flowed to President Obama when 52 out of 57 democrats voted for the Act is senseless when it was the other party that demanded the filibuster and provided the overwhelming opposition.  So-called moderates like Olympia Snowe and Susan Collins, previous supporters like Orrin Hatch, and finally, the inscrutable Marco Rubio all had a hand in bringing down the DREAM.  The failure of the DREAM Act is not the President’s fault.  It is the fault of a party captive by its most extreme anti-immigrant elements.

In addition, the President has taken several steps to liberalize the immigration process.  The administration has mandated that ICE officials consider whether their actions are consistent with the stated enforcement priorities of the agency.  This has resulted in the termination of removal proceedings for hundreds of people and has allowed many people to have an easier time seeking benefits. While more remains to be done in the discretionary realm (it takes a long time to turn a cruise ship around), the process has caught the attention of courts, which are now placing pressure on the government to exercise its discretion in cases before them.  The administration has unleashed this and one has to be pretty dim to think that they did not foresee these consequences.  In addition, the administration has also proposed changes to the waiver process that would allow people to seek waivers in the U.S. before traveling abroad and facing a lengthy stay abroad.  This step has the potential to provide residence to thousands of people without Congress lifting a finger.  Also, the Board of Immigration Appeals has become less hostile territory to the immigrant than it was before.  Many new appointees are beginning to have an impact and the Board’s recent decisions allowing for Judges to close cases over DHS objection and to hold the unlawful presence bar inapplicable to adjustment applicants who left on advance parole are enormous advances that will allow for more people to obtain status or protection without Congressional action.  Finally, the President has forcefully challenged hateful anti-immigrant statutes in Arizona, Alabama, and South Carolina.

Many challenges remain.  There are disappointments with this President, for sure.  However, this is not a race between Barack Obama and our vision of the perfect immigration President.  It is between President Obama and Mitt Romney.  Over the past year, Giovernonr Romney has staked out the most anti-immigrant position in the Republican field.  He has allied himself with Kris Kobach, the architect of SB 1070 and the other state laws.  He has promised to veto the DREAM Act.  In addition to the Governor’s own words, the Republican party has adopted the position of extreme anti-immigrant demagoguery.  This view of the world will be ascendant of Governor Romney wins.

One thing I have learned over the last five years is that Obama plays the long game.  He sees many moves ahead and while many folks on his team panic and jump ship, Obama steadily moves forward, slowly but resolutely.  If we have the nerve to follow, I am confident that a second term will bring significant positive change for immigrants in the U.S.