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The Great Green Card Procurement Announcement Internet Freak-Out of October 2014.

23 Oct

Kim Jong un

In the past two months, North Korean despot Kim Jung-un disappeared and reappeared.  And earlier this week, the U.S. government sought bids on a potential government contract.  Both events caused massive speculation but little information regarding critical policy issues.

Those who watch the immigration issue with obsessive scrutiny noticed this week that the U.S. Citizenship & Immigration Service put out a request for bids for a contractor who could provide supplies to produce up to 34 million work permits.  Anti-immigration outlets quickly picked up on this obscure notice and sounded the alarm that the administration was preparing for “amnesty.”  Likewise, immigrant advocates were heartened and thought that this requisition orderCards was evidence that the administration planned to “go big” and announce expansive administrative measures to relieve the suffering caused by our merciless immigration laws.  The speculation grew so hot that White House Press Secretary Josh Earnest felt the need to tamp down expectations.  Yesterday, Earnest said, “I think those who are trying to read into those specific orders about what the president may decide are a little too cleverly trying to divine what the president’s ultimate conclusion might be. What I would caution you against is making assumptions about what will be in those announcements based on the procurement practices of the Department of Homeland Security.”

If people are “a little to cleverly trying to divine what the president’s ultimate conclusion might be,” the blame lies squarely with the White House.  On a topic of immense policy importance, the White House has been extraordinarily tight-lipped about that it plans to do or not do.  After resisting administrative action for several years while presiding over the most efficient deportation machine this country has ever known. the President raised hope of executive action in June 2014, announcing that he would take action on administrative reform by the end of the summer.  He charged the Secretary of Homeland Security with offering plans as to what steps the administration could take to relieve the suffering his removal policies have caused.  Of course, proposals for administrative reform have been around since before the President took office in 2009.  That deadline was scuttled to assuage skittish and vulnerable Democrats facing election in November.  So, the President announced that he would hold off on reform until after the elections.

Meanwhile, the tension mounts.  The anti-immigrant crowd is screeching about “Obama’s lawless amnesty” and the “ISIS-ebola-unaccompanied minor” threat.  Families continue to be torn apart and many Latino leaders are calling on people to sit out this election.  Everyone is waiting on the President to announce his plan.  The lack of information about what the President may do is what causes the internet to go berserk over “the procurement practices of the department immigration-protest-your-handsof Homeland Security.”  In the absence of real information, speculation and hysteria will fill the void.

Last month, the world engaged in speculation that North Korean despot Kim Jong-un had been overthrown because he had not been seen in weeks.  Reports of injuries to the dictator filled the airwaves until he reappeared in public.  Of course, such speculation makes complete sense in a country that tightly controls its media and in a government that operates by power and secrecy.  People interested in those affairs have learned how to divine what may be happening through little clues.  Just like in the Soviet era, insiders would try to figure out who was in and who was out by where they were seated at Party Congresses.

The internet freak-out caused by the White House’s lack of information about its plans and a cannily-timed procurement request can only be expected where the administration behaves more like the secretive cabal in North Korea than an American administration genuinely interested in solving a real problem.

What Might Executive Action on Immigration Look Like?

26 Aug

As Facebook is crowded with pictures of kids going back to school, we must face the inevitable end of summer.  However, for immigrants, it is possible that the end of summer will bring long-awaited administrative relief from the Obama administration.  In June, President Obama went to the Rose Garden to state that, in the absence of legislation from Congress, he was going to use his executive power to address the harshness of U.S. immigration laws.  He stated that he instructed Secretary of Homeland Security Jeh Johnson to present recommendations for changes that the administration could make to existing interpretations of immigration law that would ameliorate the inhumane consequences of current immigration policy.  The Secretary was instructed to produce his recommendations and plan by the end of summer.  With the President returning from vacation soon and the traditional end of summer holiday of Labor Day approaching, expectations are sky high that the President will announce meaningful administrative actions in the coming weeks.  Washington is awash in rumors, speculation, leaks, and hopes as to what the nature of immigration relief might look like.  In this blog, we take a look at some of the common possibilities that keep popping up in reports.  We have written in the past about steps that the President could take to make U.S. immigration laws less harsh.  This post is about those measures that have been commonly reported in the media.

  • Parole-in-place.  This would be the most ambitious use of presidential authority.
    • WHAT IT IS: The Immigration & Nationality Act gives the administration the ability to parole any immigrant into the U.S. if the administration determines that it would be in the national interest.  Ordinarily, parole is granted to allow someone to enter the U.S. from abroad.  However, parole-in-place is a mechanism to parole those already in the U.S. who have not been admitted, such as those who entered unlawfully.
    • WHAT IT WOULD DO:  By paroling those who entered illegally, parole-in-place would have the effect of making them eligible for adjustment of status to permanent residence based upon the petition of an immediate relative, such as a U.S. citizen spouse or a child over 21.
    • WHO IT WOULD HELP: Those who entered unlawfully and have close U.S. citizen family ties.  This could be more expansive than those who can benefit from the provisional waiver as the provisional waiver is not available to those who are inadmissible on criminal grounds or fraud grounds.  Conceivably, parole in place would allow immigrants to seek adjustment of status with the opportunity to apply for all of the waivers that are available to other adjustment applicants.
  • Deferred Action.   Conventional wisdom is that the President will utilize the deferred action method used for young people in 2012 which would provide no stable or durable status, but would provide a reprieve from removal and the ability to obtain employment authorization.
      • WHAT IT IS: in June 2012, the President created Deferred Action for Childhood Arrivals (DACA), which formalized a policy that the government was not interested in seeking the removal of young people who entered as children, stayed in school, and, generally, avoided trouble.  The President could expand the Deferred Action program to include other favored groups, such as the parents of U.S. citizen or the parents of DACA recipients.
      • WHAT IT WOULD DO: By granting deferred action, the administration would be formally recognizing that the individual is not a priority for removal and would not be sought for removal.  Deferred action comes with work permits, allowing individuals to live without fear of removal, to work legally, obtain social security numbers and driver’s licenses.
      • WHO IT WOULD HELP: This is hard to say.  The administration could create a class of individuals who would qualify for expanded deferred action.  There is general legal consensus that he may not grant deferred action to all undocumented individuals. Commonly discussed potential classes include the parents of U.S. citizens and the parents of DACA grantees.  Another broad class would be deferred action for those immigrants who would benefit under the immigration reform bill passed by the Senate in 2013.   It is likely that, like DACA, any deferred action grant would have eligibility requirements relating to length of time in the U.S, work history, an the lack of a criminal record.Deferred Action.  The President could simply expand Deferred Action beyond the DREAMers.  He could identify classes of individuals who the administration identifies as low priorities for removal from the U.S.
  • Recapture of visa numbers.  This is among proposals favored by the business community.  It would not necessarily apply to individuals without status, but would help fix the extraordinary backlog in employment-based visas.  Some individuals do fall out of status waiting for their spot in the backlog to become available to them.
    • WHAT IT IS: The Immigration & Nationality Act makes a limited number of visas (green cards) available every year and divides them among various categories.  Sometimes, because of the way the visas are allocated, many of those visas go unused every year.  This contributes to horrendous backlogs that hurt employers’ ability to retain key personnel.
    • WHAT IT WOULD DO: By changing the way visas are counted and allocated, this change would shorten lines for visas in the employment-based categories, shortening the time it takes for a foreign employee to obtain residence.
    • WHO IT WOULD HELP: Employment-based immigrants, their families, and their employers.  Reduction in the amount of time necessary to sponsor an immigrant through work could help many people who could seek residence through employment and fall out of status while waiting in the backlog.
  • Work authorization for H-4 Visa Holders.  This is another of the priorities for the business community.
    • WHAT IT IS: Individuals admitted in H-4 status are the spouses and children under 21 of H-1B visa holders, who may enter the U.S. to work for a U.S. employer in a professional capacity for up to six years.  Under current law, an individual admitted into the U.S. in H-4 status is not allowed to accept employment in the U.S.
    • WHAT IT WOULD DO: Administrative change could make H-4 visa holders eligible to apply for employment authorization.  Since the Immigration & nationality Act does not prohibit such employment authorization, regulatory change could create a category to allow H-4s to work.  There is precedent for this as changes to the law allowed L-2 visa holders, the spouse and children under 21 of L-1 intracompany transferees to obtain employment authorization.
    • WHO IT WOULD HELP: The spouses and children of H-1B visa holders and their families.  Businesses want this change because international candidates sometimes turn down offers to work in the U.S. because their spouse can not work.

Executive action seems all but assured.  The questions is not “if,” but “exactly what” and “when.”  The President has waited far too long to take this actions.  Millions have suffered in a cynical attempt to pacify the House GOP and enforcement-lust.  The President has returned from vacation and it is time for everyone to get back to the important work of addressing the colossal failure of U.S. immigration law and the even more contemptible failure of Congress to deal with it.

California Drops a Day and Improves the Lives of Immigrants

22 Jul

jerrybrown

In a move that will help thousands of immigrants, California governor Jerry Brown signed SB 1310 into law today.  This law imposes a maximum sentence of 364 days in prison for those convicted of misdemeanors in California.  The law is set to take effect on January 1, 2015.  Under current California law, a person convicted of a misdemeanor may be sentenced up to one year, or 365 days, in prison.  The change of subtracting one day from the maximum sentence can help many people convicted of minor crimes avoid certain detention and removal from the U.S.

U.S. immigration law attaches consequences to many convictions based upon what the potential sentence is or what the sentence imposed is.  Immigration law treats a suspended sentence as the equivalent of a served sentence.  So, an individual convicted of petty larceny who gets a year in prison with a full year suspended is considered to be an aggravated felon because he has been convicted of a theft offense with a sentence of a year.   Even though the sentencing judge s1.reutersmedia.netdid not see fit to incarcerate, the Department of Homeland Security will jail and likely removal such an individual.  The new law goes a long way to preventing this inequitable result.  For example:

  • A noncitizen is deportable for a single conviction of a crime involving moral turpitude committed within five years of admission, if the offense has a potential sentence of one year or more. INA § 237(a)(2)(A), 8 USC § 1227(a)(2)(A).   As of the effective date, a single California misdemeanor conviction will not cause deportability under this ground, because it will carry a maximum possible sentence of 364 days.
  • Conviction of certain offenses becomes an aggravated felony only if a sentence of a year or more is imposed. For example, crimes defined as: crime of violence, theft offense, obstruction of justice, forgery, perjury, receipt of stolen property are only aggravated felonies if the sentence imposed is a year or more.  And, yes, misdemeanors can be aggravated felonies.  However, with the change in California law, misdemeanor versions of these categories of offenses can not be aggravated felonies.  Designation of an offense as an aggravated felony is often very prejudicial to a non-citizen as not only does it establish removability, it causes mandatory detention and serves as exclusion to nearly all forms of relief from removal.

There are myriad other ways that this simple change in the law will aid immigrants and their families.  As Congress remains stuck, inventive advocates are pursuing a variety of creative remedies in a variety of fora to slow down the deportation machine and improve lives for thousands of immigrants, their communities and their families.

 

FOBR Olsi Vrapi Tries to Represent a Child in Artesia, New Mexico

21 Jul

kob ice facility artessia

Olsi Vrapi is a Friend of Benach Ragland who practices in Albuquerque, New Mexico.  He recently found himself on the front line of the battle of how to handle the major influx of refugee children at the Southern Border.  In this chilling blogpost entitled “The Artesia Experience,” Olsi describes his experience visiting his client in the new facility in Artesia, New Mexico where the government is detaining Central American children and families.  His conclusion is brutally honest:

My impression of the Artesia makeshift detention center is that it is a due process travesty.  Is it really coincidence that a detention center was set up overnight in the middle of nowhere where the closest immigration lawyer or non-profit (which by the way can’t provide direct representation) is 3+ hours away?  In the few weeks it has been in operation, there have been no non-profits doing legal orientation programs, there are no non-profits that provide direct representation to those detained there and asylum interviews and hearings are happening so fast and are so short that even the most diligent detainees can’t get counsel fast enough to be advised before they are interviewed or are given any meaningful opportunity to tell their stories.  It appears the government is paying lip service to due process and just going through the statutory and regulatory requirements as fast as possible so they can give a semblance of compliance while the airplane to central America is warming its engines in nearby Roswell.  This is the same as a child being asked to clean his room, and he stuffs everything under the bed to “comply” with the command and ends up making it worse, except in our cases it’s not a matter of putting dirty laundry in the hamper, it’s women and children that can get killed if returned home.  As a father of three small children, I can’t help the kids’ analogies.

To make matters worse, Congress is using the crisis as an attempt to roll back well-established asylum protections.  Yesterday, Dree Collopy wrote about the horrendous legislation being proposed by Congressman Bob Goodlatte (R-VA) that would undermine critical protections for refugees and asylum-seekers.  As bad as the current system is, Congress can make it worse.  The Capital Area Immigrants Rights Coalition has a good summary of the legislation and provides a quick link to contact Congress.

Thanks to Olsi for representing families in Artesia and sharing their story with the world.

We will keep you informed about pro bono opportunities and donation opportunities as this crisis continues to unfold.

 

The Obama Administration’s Border Disaster

30 Jun

kids

Media reports over the weekend indicate that the Obama administration is reacting in the worst way possible to the influx of unaccompanied minors along the Southwest Border.  As the prospect of comprehensive immigration reform dies and leading House GOP members call for removal of Deferred Action for Childhood Arrivals (DACA) grantees, the administration, once again, seeks to placate the most anti-immigrant portions of the population.  Such a move is consistent with the administration’s long-held, and far too long stuck to, policy of ratcheting up enforcement to appeal to the nativists in the House GOP, hoping that this show of good faith would get them to support CIR.  Well, that strategy has not worked ever, yet the administration has chosen to stick with it, even though it means causing untold hardship to children fleeing horrific conditions in their home countries.

The Southwest border has once again become a focal point for the immigration debate.  Since October, over 52,000 unaccompanied minors have been apprehended by U.S. Customs and Border Protection.  Most of these children are from El Salvador, Honduras and Guatemala, where gang violence, extreme poverty and broken homes force kids to make the very dangerous journey to the U.S.  Many of these children have a parent in the U.S., who may or may not be here legally.  And many of these children may have learned that, if you make it to the U.S., you have a chance of staying.  But what is clear is that it is conditions in their home countries that are driving these kids out of their homes and across deserts and rivers.  The know-nothing chorus on FOX News has bleated that the arrival of so many children means that the border is not secure, that the administration has encouraged these children to come to the U.S., and that these children represent a danger to America.  Meanwhile, CBP is overwhelmed with these children.  However, rather than following the law which requires a careful and humane screening process, CBP has embarked on tactics to convince these children to turn back around.  A recent lawsuit against CBP by the ACLU asserts that children are being held in horrific conditions, pressured to go home, and subjected to casual violence.

So, after a month of hesitation and half-measures, the administration comes up with a plan to increase CBP’s authority to expedite the removal of these children.  U.S. law requires CBP to place a child encountered at the border with the Department of Health and Human Services (HHS).  That child will still be placed into removal proceedings, where a judge will determine whether the child has any legal right to remain in the U.S.  Children in HHS custody are often put into the custody of a relative.  Those without relatives are kept in HHS custody in, generally, better conditions than adults in DHS custody.  Many of these children qualify for Special Immigrant Juvenile visas, which are available to abused, abandoned or neglected children for whom a state court has found that the best interests of the child require her remaining in the U.S.  Others may qualify for asylum.  A recent study from the United Nations High Commission on Refugees (UNHCR) estimates that a significant portion of these children meet the legal definition of “refugee,” the starting point for a grant of asylum.  There are systems in place and organizations dedicated to securing these benefits for children.  For example, I serve on the Board of the Capital Area Immigrant Rights Coalition (CAIR Coalition), which provides legal services to unaccompanied minors in the custody of HHS.  Part of CAIR’s funding comes from U.S. government grants.  An increase in those grants would seem appropriate at this time.

The administration’s proposal is a disaster.  It reminds me of the old saying, “If all you have is a hammer, everything looks like a nail.”  In addition to being cruel and heartless, it displays an amazing lack of imagination.  The administration’s response is to make enforcement easier, give children less due process, and increase the authority of an agency, CBP, that has shown time and time again that it can not be trusted with the authority it currently has.  What the administration seeks to do is to treat children from El Salvador, Honduras and Guatemala as it treats Mexican children.  Here is what the law allows CBP to do with Mexican children:

(A) DETERMINATIONS- Any unaccompanied alien child who is a national or habitual resident of a country that is contiguous with the United States shall be treated in accordance with subparagraph (B), if the Secretary of Homeland Security determines, on a case-by-case basis, that–

(i) such child has not been a victim of a severe form of trafficking in persons, and there is no credible evidence that such child is at risk of being trafficked upon return to the child’s country of nationality or of last habitual residence;

(ii) such child does not have a fear of returning to the child’s country of nationality or of last habitual residence owing to a credible fear of persecution; and

(iii) the child is able to make an independent decision to withdraw the child’s application for admission to the United States.

(B) RETURN- An immigration officer who finds an unaccompanied alien child described in subparagraph (A) at a land border or port of entry of the United States and determines that such child is inadmissible under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) may–

(i) permit such child to withdraw the child’s application for admission pursuant to section 235(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1225(a)(4)); and

(ii) return such child to the child’s country of nationality or country of last habitual residence.

Setting aside for a moment that this is grossly unfair to Mexican children, the administration should be pushing for more protection of all children and not less.  The administration is asking for $2 billion to help CBP detain and deport these kids.  This makes the CBP officer at the time of apprehension, the police, judge, jury and executioner.  The administration’s plan does not appear to be asking for additional resources to provide hearings before immigration judges, for interpreters and lawyers for children or to assist the non-governmental organizations that work with the children.  Rather the administration seeks funds to make it easier for CBP to remove kids who may qualify for relief and who may likely face danger in their home country.  Bob Goodlatte and Steve King could not have come up with a more cruel policy.

Another option that the White House apparently never considered is the fact that many of these unaccompanied minors have a parent in the U.S. with temporary protected status (TPS), a status which allows an individual from certain designated countries to remain and work in the U.S. but without any opportunity to bring family or seek residence.  Salvadorans who entered the U.S. before 2001 may have TPS and Guatemalans who entered before 1999 might as well.  Why not ask Congress to amend the TPS statute to allow for admission of children of TPS holders?  Why not ask Congress to covert some of these TPS beneficiaries into residents after over a decade of living here legally? Did anyone even consider these ideas?  Seems unlikely given that the administration’s response is to crack down (hammer meet nail) without any concession to due process or humanity.

Perhaps some of these children are the beneficiaries of petitions and are waiting for a visa.  Conditions in their home country deteriorated to the point that they decided to flee before the decade or so was up before a visa could be granted.  In the past Congress passed laws to grant temporary visas to people waiting in such queues.  But, alas, that was a different Congress and a bolder administration.

Finally, the USCIS Asylum Division has, historically, done a very good job dealing with asylum claims by children.  There are serious protocols that asylum officers must follow in dealing with juveniles and assessing their asylum claims in a generous light seems appropriate.  Yet, instead of providing the Asylum Division with the resources they need to address this humanitarian crisis, more and more funds are being thrown at CBP and expedited removal.  These children have navigated hundreds of miles and faced smugglers, deserts, trains, deserts, rivers and assorted criminals.  The least we can do is listen to their story as to why they did that.

Many have recognized for several months that the know-nothing caucus in the GOP has prevented the House from taking up immigration reform.  The hope, under such circumstances, is that the President would take decisive administrative action to ameliorate the human damage of our dreadful immigration laws.  The administration’s first effort to deal with immigration after CIR has been declared officially dead by the papers of consensus, the Washington Post and the New York Times, fails miserably and mocks the faith that many of us put in this President to do the right thing.

Cancellation Victory (well, sort of)

22 Apr

A couple of months ago, I got to enjoy my fifteen minutes of fame when my client became the poster child for problems caused for immigrants in immigration court by the government shutdown.  I wrote a blog piece, wrote another for the American Immigration Lawyer’s Association and, next thing I know, I am speaking to Robert Siegel of NPR’s All Things Considered and people I have not heard from in decades called me to say they heard me on the radio.  But, eventually, my fame wore off and I still had to fix this young woman’s situation.

what-up-with-that

As way of background, my client, a 21 year old college junior who has been here since she was four years old, applied for cancellation of removal from the Immigration Judge.  Cancellation is available to an individual who has been unlawfully present in the U.S. for at least ten years, possesses good moral character and whose removal would cause exceptional and extremely unusual hardship to a U.S. citizen or permanent resident spouse, parent or child.  Congress has decided that only 4000 cancellation cases should be granted every year.  For many years, the 4000 quota was enough for the entire country.  However, as the Obama administration put many more people into removal proceedings, more people applied.  And guess what?  Given a day in court, more people were able to convince judges that they were good people with longstanding ties to the U.S. and deporting them would cause their families tremendous hardship.  By December 2012, the Office of the Chief Immigration Judge announced that they had run out of cancellation visas for the entire fiscal year, which had started barely two months earlier.  My client had a hearing in December 2012, in which she was informed by the Judge that there were no more cancellation grants available and the case would need to be continued.  The case was reset until October 2013.  The irony at that time was that she had originally been scheduled in October 2012, when cancellation numbers were available, but had to be rescheduled when the court was shut down due to flooding in lower Manhattan as a result of Hurricane Sandy.10155981_741506099222830_2694746367904436600_n

Fast forward to October 2013 and the government shutdown cancels her latest hearing.  The New York, upon reopening, quickly sent out a hearing notice for March 30.  However, on March 28, the court called me to inform me that the case would need to be rescheduled because the judge had been selected for jury duty!  We were rescheduled for April 18 at 2:00 PM, a date that greatly concerned me as it was Good Friday.  Sure enough, the court called the day before and asked us to come in earlier, which we happily did.  At the hearing, the government informed the court that it agreed with our request to grant our client cancellation of removal.  It took all of fifteen minutes.  The Judge was glad to do so, but explained that there are no cancellation numbers and that my client would be placed in the queue based upon the date and time of her case and would be notified when a number became available to her.  The case could not be “granted” until then.  So, my client, while relieved that she will ultimately be granted, remains in a precarious limbo by another absurd anomaly of our immigration laws- that only 4000 of these may be granted in a given year.  Who knows where Congress got that number?

Here's where Congress got the 4000 number!

Here’s where Congress got the 4000 number!

My client is just one of millions of people left in a state of limbo by Congress’ inability to address the crisis of immigration law.  In this case, my client has DACA and I probably could have gotten the removal case dismissed.  The government stipulated to relief, meaning she would get her green card.  It is hard to say that, in this one case, the problem is the administration.  Like all other arbitrary caps and quotas, such as the H-1B cap, the former cap on asylee adjustment, and caps on immigrant visas, Congress needs to act.

Nine Ways Obama Could Make Immigration Law Better Without Bothering to Wake Congress

13 Mar

dwi-obama-copy

The House of Representatives passed the Enforce Act yesterday.  This piece of legislation, which is never going to become law, provides a cause of action to Members of Congress to sue the President for failure to enforce the laws as they see fit.  The Enforce Act is aimed squarely at the President’s Deferred Action for Childhood Arrivals program, which has given hope to so many young undocumented immigrants.  How this vote fits with the immigration statement of principles that the House GOP released in January is beyond us.  When in doubt, votes, much more than “statements of principles,” reflect where Congress truly is.  And the House actually managed to get worse on immigration.  So, in case, it is not perfectly clear- THE HOUSE HAS NO INTENTION OF PASSING ANY MEANINGFUL IMMIGRATION REFORM.  IF THE PRESIDENT WANTS TO BE A CHAMPION OF IMMIGRANTS, HE NEEDS TO DO SO ON HIS OWN.  Got it??Grumpy-Cat

My internet marketing professionals tell me that lists are very effective ways to get readers to a blog.  And cats in a foul mood.

So, here are nine things that the President could do administratively to grant some relief from the deportation machine.  That is, nine things that the President could do without Congress acting.  Any of these steps would ease the deportation crisis and provide relief and assistance to hundreds of thousands of people left hopeless by Congressional inaction.

Now, we have heard a lot from this President that he does not have the authority to simply ignore the law.  That simple statement is true enough.  However, the President does have broad authority to determine how to interpret ambiguous statutory language.  And the Immigration and Nationality Act is pretty darn ambiguous.  For example, Congress has stated that cancellation of removal for people who are not permanent residents is limited to those who have U.S. citizen or permanent resident family members who would suffer “exceptional and extremely unusual hardship” if the applicant were deported.  It is the role of the immigration agencies to define what is “exceptional and extremely unusual hardship.”  Whereas the Board of Immigration Appeals has been pretty stingy with that standard, the agency could depart from such a parsimonious interpretation and create a more generous standard.  The President’s power to fill-in the details and context of statutes was discussed by the Supreme Court in Chevron v. National Resources Defense Council.  In that case, the Supreme Court stated that it will defer to an agency’s reasonable interpretation of ambiguous statutory language.  As a practical matter, where a court finds a statutory command to be ambiguous, it will almost always defer to the agency’s interpretation of the statute.  Most statutory language is ambiguous.  Recently, for example, courts of appeals have found the term “when the alien is released” to be ambiguous as to time.  If an agency’s interpretation conflicts with an ill-expressed Congressional mandate, the Court reasoned, Congress could legislate more specifically.  It is here that the President can use Congressional inaction in his favor.  Since Congress seems incapable of passing any legislation, it is unlikely that the President’s liberalized policies will be overturned by a vengeful Congress.

Another Supreme Court case sheds some light on the powers of Congress vis-a-vis the President.  In INS. v. Chadha, the Supreme Court invalidated a statutory scheme in which the House of Representatives could veto a INS decision to grant relief from removal known as suspension of deportation to a particular individual.  The Court reasoned that the power to decide particular immigration cases has been delegated by statute to the executive and that it violated the Separation of Powers for the Congress to be able to veto a decision regarding a particular individual.  This case shows that Congress may disapprove of decisions that the agency makes, but absent legislation, can not do anything about them.  Again, the difficulty of getting legislation through Congress gives the President a lot of leeway.

Presumably, the President, a constitutional law professor, knows all that, so he is ready to take actions that would dramatically improve the lives of immigrants in America, re-capture his status as “immigration reform champion in chief,” and get himself measured for a monument on the Mall.

  • Parole in place.  This is the big kahuna of administrative reform.  Parole in place is a mechanism that would allow the agency to “parole” individuals who entered without inspection into the U.S.  While parole is normally thought of as something done to allow people to enter the U.S., parole in place allows the government to parole them from within the U.S.  The administration recently did this for the undocumented spouses of members of the U.S. military, but there is no reason why the concept can not be applied to tens of thousands of others.  Through parole in place, people who have U.S. citizen family members or job offers may be able to adjust their status.  Friends of Benach Ragland (FOBRs) Cyrus Mehta and Gary Endelman wrote the definitive piece on parole in place, so we will not go into excessive detail here.
  • Reconsider Matter of Rojas.  In Matter of Rojas, the BIA held that ICE may hold someone as a mandatory detainee regardless of how long it has been since the individual was released from criminal custody when ICE encounters the immigrant.  Many district courts have held that a person is only subject to mandatory detention if ICE apprehends them “when released” from criminal custody.  By reconsidering Rojas, ICE would allow immigration judges to determine whether particular individuals are dangerous or likely to flee before a removal hearing.  This would have the effect of drastically reducing the detained population.
  • Redefine custody.  Alternatively, ICE could interpret “custody” to include alternatives to detention such as ankle bracelets and home monitoring, as many criminal agencies do.
  • Issue a regulation stating that the separation of a parent from U.S. citizen child is, per se, presumptively “exceptional and extremely unusual hardship.”  This would allow parents of U.S. citizens to have more solid claims to cancellation of removal, removing the biggest obstacle to grants of cancellation of removal.  The INS created a presumption of hardship before when it issued regulations underillegal-immigrants-children-deport-parents NACARA allowing certain Central American and Eastern European immigrants to seek suspension of deportation.  The INS issued a regulation stating that NACARA applicants were entitled to a presumption of extreme hardship.  The immigration agency would be free to limit the presumption of exceptional and extremely unusual hardship, but should begin with the recognition that deporting the parent of a U.S. citizen child is an inherently traumatic act with horrific long term consequences.
  • Issue a directive to ICE and CBP stating that, unless significant criminal issues are present, the agencies should decline to enter administrative removal orders and instead seek removal through removal proceedings in immigration court.  DHS issues a wide variety of administrative removals.  Only about one-third of removal orders are entered by an immigration judge.  The rest are issued by ICE either due to reinstatement of a prior removal order, visa waiver overstays, expedited removal of arrivals and of non-resident criminals and voluntary returns.  DHS could issue a directive (not guidance or suggestions but orders) requiring ICE to bring these cases before an immigration judge, where the individual could apply for relief.
  • Issue a directive to ICE attorneys in immigration court to seek two year continuances in all cases in immigration court where there is no criminal ground of removability and no relief.  This would force ICE to work on the hardest cases and clear the backlog of cases where a person has done nothing more than entered illegally or overstayed a visa.
  • Issue a directive that detainers should only be lodged where a person has been convicted of a deportable offense.  Detainers are issued to people who have been arrested regardless of whether there is a conviction.  Removal proceedings are often started due to an arrest that does not lead to any criminal charge because a detainer has been issued.  Limit detainers only to those who have been convicted of a deportable offense.
  • Issue a precedent decision affirming the low standard for the exceptions to the one year rule for asylum.  The law requires an asylum applicant to seek asylum within one year of entry to the U.S.  There are exceptions to this rule and the statute requires that an applicant must prove the applicability of the exception “to the satisfaction of the attorney general.”  This is the lowest legal standard.  Yet, courts routinely hold applicants to a much higher standard.  The Attorney General can issue a decision making it clear to the courts that the exception to the one year rule should be liberally applied.I-821-TPS-Facts
  • Grant Temporary Protected Status to Mexicans, Salvadorans, Guatemalans, Hondurans, Venezuelans, and Ukrainians.  Temporary Protected Status is granted to nationals of countries where there is disaster or upheaval.  It provides individuals already in the U.S. with temporary status, protection against removal, and work authorization.  It is possible to make a cogent claim to TPS for each of those countries.  Mexico and the Central American countries have been beset by drug and gang violence creating a humanitarian disaster on the ground and Ukraine is the flashpoint of a major crisis in Europe.  These are all legitimate uses of Temporary Protected Status.

The House’s action yesterday makes it clear that the House has no intention of moving on immigration reform.  The only thing that the President has to lose is his dwindling support in the immigrant community.  And he loses that by not acting, rather than acting.