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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.

Strong Presidents are Great Presidents

17 Feb

Stop deports

On this President’s Day, we wish to add a historical perspective to the robust exercise of executive authority.  The President routinely tells audiences that he does not have the power to act unilaterally on immigration reform.  Frustration and anger have mounted as the toll from deportations rises, and the lost opportunities due to the lack of immigration reform are compiled.  The President’s claim of impotency is in direct conflict with how the right wing of the GOP (is there another wing?) sees the President.  Recently, the House Judiciary Committee held a charade of  hearing on the President’s duty to see that the laws be faithfully executed.  The theory: the President has abdicated his constitutional duty to faithfully execute the law by granting deferred action to childhood arrivals.  Apparently, the theory goes that the President has a duty to remove all deportable individuals and by granting deferred action to a sub-group of the deportable individuals, the President has failed to do his duty.  So, who is right?  Is the President a dictator who ignores the laws?  Or is he an executive with a limited vision of his authority, doomed to mediocrity?  That answer remains to be seen, in our opinion.  It will depend on whether the President follows the example of those presidents who have monuments on the National Mall and across the capital or those who are reviled, ignored and forgotten.  For a president as historic as Obama, we hope that he embraces a more robust view of Presidential power.

The earliest President who truly revolutionized the role of the Chief Executive was Andrew Jackson.  When Jackson took office, he viewed himself as the only national andrew jackson kingembodiment of the people’s will.  He scandalized the country by making arguments to the people in support of his policy decisions.  In addition, he broke tradition by vetoing pieces of legislation that he disagreed with.  Previously, Presidents would only veto legislation that they thought unconstitutional.  Jackson was the first President to veto legislation for the plain reason that he was opposed to it.  In addition, when South Carolina asserted that it could nullify a federal law that it did not like, Jackson stood for the not-yet-clear proposition that federal law was supreme and a state could not pick and choose which federal laws it wished to follow.  Jackson’s position on nullification provided historical precedent when another President was faced with rebellious southerners.

Before taking office, Abraham Lincoln was confronted with the “secession” of South Carolina and several other states.  Lincoln refused to accept that a state could secede and decided that his principal obligation was to preserve the Union.  Abraham_Lincoln_head_on_shoulders_needlepointWhen Lincoln called up 75,000 troops in the wake of the Southern attack on Fort Sumter, several other states, including Virginia, seceded. Lincoln arrested secessionist deputies in Maryland and advocated for a strenuous war against the rebellious states.  Lincoln exerted his powers as Commander-in-Chief to free the slaves in “territories in rebellion against U.S. authority” in the Emancipation Proclamation.  Just to be clear: Lincoln dissolved certain “property” rights in nearly half the country.

Franklin Roosevelt determined that the circumstances of the Great Depression required an energetic response by the federal government.  However, he found that the Supreme Court proved to be a formidable obstacle.  After the Supreme Court issued a series of opinions striking down New Deal federal legislation on matters previously considered solely the domain of the state as well as progressive state legislation, such as maximum hours and minimum wage laws, Roosevelt came up with the preposterous idea of adding additional justices to the Supreme Court.  After all, where is it written in the Constitution that there need to be 9 justices?  Roosevelt threatened to add additional justices– to pack the court— to get his agenda past the Court.  The crisis was averted when Justice Owen Roberts, a reliable Supreme Court vote against the New Deal agenda, changed his opinion and joined a group of justices supportive fdr2of the President giving Roosevelt a 5-4 win which upheld a Washington state minimum wage law.  Roberts’ switch and the retirement of Justice Willis Van Devanter provided Roosevelt with a solid majority to uphold the New Deal legislation.  The New Deal legislation significantly expanded federal authority over tremendous swaths of economic and commercial activity.

Each of these Presidents was derided during their terms as being despots, dictators, and wannabe kings.  A faction of the country called them tyrants bent on reshaping the country in some perverse way.  Yet today, each is honored with a place on our National Mall (True, Jackson is not on the mall- but his equestrian statute is right in front of the White House for the President to see every day.)  Each of these Presidents is understood as being an essential part of this country’s progress and their allegedly improper power grabs have been revalidated generation after generation.  This is not to say that they receive universal acclaim; there are plenty of holdouts who are anti-Lincoln for the Civil War and the modern day GOP and its court appointees are determined to undo the legacy of the New Deal.  Yet, when historians rank the best Presidents, all three will make that list.  They are on the list because they responded with energy to the crises facing the country.  In doing so, they expanded the power of the Presidency (without creating tyranny!) and pushed the country forward.

roosevelt-memorial-washington-dc

Contrast Lincoln with his predecessor James Buchanan.  Believing he could do nothing about secession or slavery, Buchanan allowed guerrilla warfare to rage in Kansas and Missouri through much of his term.  Buchanan felt he had no power to stop secession.  In other words, that the President of the United States was powerless to stop the dissolution of the union.  Little wonder that there is no monument to Buchanan and he routinely fills out the bottom slot when historians rank the Presidents.

All this is to say that history reveres Presidents who have a dynamic view of their power.  It has now become clear that Congress has no intention of taking up any meaningful immigration reform. This is despite an acknowledged crisis.  Lincoln-Memorial-4Families are being torn apart, the administration is closing in on 2 million deportations, businesses can not get the workers they need, and national security and public safety are compromised due to the failure of Congress to act on immigration reform.  It is time for the President to be worthy of the slurs hurled at him by the know-nothings in Congress.  It is time for the President to make a bold claim of Presidential authority and place a hold on all bust the most serious removals.  History will reward him if he does.  Lincoln or Buchanan?  The choice is the President’s.Andrew_Jackson_(2873018869)

Does the President Have the Power to Stop All/Most Removals?

25 Nov


As official Washington administers last rites to immigration reform for 2013 only to have it pop up again with a barely detectable pulse, undocumented immigrants and their allies continue to press the President to use his power as the executive to suspend removals.  Marches, sit-ins, hunger strikes, and social media combat for #notonemore deportation have reached a fever pitch as the House seems to be putting the last nail in the coffin for the comprehensive immigration reform bill passed by the Senate in June.  A family feud exploded into the open today when activist Ju Hong challenged the President of the United States as the President delivered a steaming bowl of bromides to a friendly pro-immigrant crowd.  Hong challenged the President and told the President that he has the power and the authority suspend deportations.  The President engaged Mr. Hong and said that he did not possess such authority.

So, who’s right?  Is Hong right and the President can, as a function of executive power, halt deportations?  Or is the President right that he is obliged to enforce the law and Congress must act in order to reform our broken immigration system?  The answer, like always, is very unclear.  In the President’s favor is that his constitutional obligation to “take care that the laws are faithfully executed” prohibits his ignoring the laws contained in the Immigration & Nationality Act.  However, in Hong’s favor is the fact that the President, through Deferred Action for Childhood Arrivals (DACA), relief for certain widows of American citizens, and the recent Parole-in-Place memo for military families, has already exercised his executive authority not to enforce certain portions of the immigration law.  As Hong might argue, if the President can choose not to enforce the law for certain sub-groups of immigrants, what is there to stop him from expanding the beneficiaries of his grace to other groups?  The question is whether there is a difference between a limited exercise of discretion versus a wholesale refusal to enforce the majority of the the Immigration & Nationality Act (“INA”).  Let’s also agree before we look at this that it would be better if Congress passed a humane and comprehensive reform that kept families together.  However, as it appears that Congress has no intention of doing that, let’s take a look at what the President could do without Congress.

In 1984, the Supreme Court heard a case called Heckler v. Chaney.  In this case, inmates scheduled to be executed by lethal injection argued that the lethal drugs were not being used in conformity with their use as approved by the Food and Drug Administration (FDA) and they brought suit to compel the FDA to take enforcement action against the sheriff’s departments that were improperly using the drug.  The Supreme Court held that the decision to initiate, terminate or suspend enforcement proceedings were squarely within the unreviewable discretion of the executive branch.  The Supreme  Court  wrote:

This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion (citation omitted).   This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.  The reasons for this general unsuitability are many.  First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise.  Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all.  An agency generally cannot act against each technical violation of the statute it is charged with enforcing.  The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.  Similar concerns animate the principles of administrative law that courts generally will defer to an agency’s construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute(citation omitted).  In addition to these administrative concerns, we note that when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect.  Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner.  The action at least can be reviewed to determine whether the agency exceeded its statutory powers (citation omitted).  Finally, we recognize that an agency’s refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict — a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to “take Care that the Laws be faithfully executed.” U.S. Const., Art. II,  3.

In this instance, the Supreme Court seems to support Hong’s position when it states that a decision not to prosecute or enforce is left to the agency’s unreviewable discretion.  This would support the argument that the administration could make a decision not to enforce the Immigration & Nationality Act.  Yet, the Supreme Court did not give the President the carte blanche to ignore the statute.  “We emphasize that the decision is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.  Thus, in establishing this presumption, . . .  Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers.  Congress may limit an agency’s exercise of enforcement power if it wished, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.”

As an example, the Supreme Court cited a discrimination case, Adams v. Richardson, in which a court ordered federal education officials to enforce portions of the Civil Rights Act of 1964.  In that case, a court determined that education officials had failed to enforce a clear statutory directive from Congress and ordered the officials’ compliance.  It could be argued that Congress provided in the INA very specific guidance to the executive branch about how to enforce immigration law.  The INA provides for mandatory detention of certain foreign nationals, bars many removable individuals from all relief, and restricts jurisdiction in federal court over agency actions.  In fact, when the President established DACA, a number of ICE bureaucrats brought suit arguing that the INA provides a mandatory duty upon ICE to initiate removal proceedings against all removable foreign nationals that ICE encounters.  While the ICE bureaucrats thankfully lost, they lost on an employment law/ standing issue and the initial decisions of the judge suggested that he accepted the bureaucrats’ claims.

Thus, while the President and his appointees have considerable discretion in choosing how to enforce the law, it is less clear that they have the ability to decide to suspend all removals, or even a substantial majority of them.  While principles of prosecutorial discretion– the authority of an enforcement agency to utilize limited resources in the best way it seems fit– legitimately empower the President to identify priorities, the President would not seem to have the power to decide not to enforce immigration law.

This is not to say that the President could not be bolder with his use of his discretionary authority.  DACA has been the boldest step he has taken so far in asserting his executive authority to remedy the harsh effects of U.S. immigration law.  Could the President extend his discretion to limit the removal of parents of U.S. citizens?  Could he expand DACA to include more people?  Could he decide that no children below 16 should be removed?  This is where the legal question turns political.  The anti-immigrant right wing already believes that, despite the record number of removals, the President is not enforcing immigration law.  Should the President grow the universe of those eligible for favorable exercises of discretion, it is likely that whatever life remains in positive immigration reform in Congress will evaporate immediately.  As long as the promise of immigration reform remains flickeringly alive, the President is unlikely to antagonize his Congressional tormentors.  The House GOP seems to get that and feeds us all little scraps of “immigration reform is alive” every now and then in an effort to stave off unilateral action.

We tend to look at our times as if the political atmosphere was never more poisonous.  That is simply not true.  There have been plenty of times in our history where a President took a very expansive view of his authority.  Andrew Jackson did it on a nearly daily basis.  Lincoln utilized his powers as commander-in-chief to imprison half of Maryland and emancipate millions of enslaved humans.  Franklin Roosevelt threatened to add six new justices to the Supreme Court to tilt the balance on the Court to favor his agenda.  Harry Truman took over steel mills during the Korean War.  These were bold political moves in response to urgAdelantoent situations.

As the atmosphere grows more poisonous, perhaps the President will channel his inner Jackson or Roosevelt and take these drastic steps.  Perhaps Mr. Hong’s biggest contribution was to serve as Jefferson’s “firebell in the night” to tell the President that the situation has grown desperate.  As the President spoke, young activists, chained themselves in civil disobedience at the Adelanto detention center in California.

As Congress fails to deliver any relief to immigrant communities, the pressure will continue to mount on the President to take a leap of faith and assert a robust exercise of discretion and reap whatever political harvest is unleashed.

Congratulations to the National Center for Transgender Equality: Let’s Hope ENDA Does Better than CIR!

13 Nov

Our moment

Last night, Jen Cook and I went to the National Council for Transgender Equality’s  (NCTE) 10th Anniversary event.  The evening was themed “Our Moment,” reflecting the organization’s intention to build upon the successes of the gay rights movement in the past year, including the repeal of Don’t Ask, Don’t Tell, the Windsor decision, and the many states that have enacted gay marriage.  In fact, even as the party went on, the festivities were interrupted to announce that Hawaii became the 16th state to allow for gay marriage.  As acceptance of full rights for gays and lesbians has grown tremendously over the past few years, acceptance of the essential humanity of the transgendered has not moved as quickly.  There have been victories- the Affordable Care Act provides increased access to needed medical services to transgender individuals, transgender individuals such as Chaz Bono, Laverne Cox, and Lana Wachowski have upped awareness of trans issues in our culture.  Even Chelsea Manning has forced us to confront the dilemmas facing trans people in the military and in prison.

There was palpable excitement in the room last night.  Last week the Senate passed the Employment Non-Discrimination Act (ENDA), which would make it illegal nationwide to fire or discriminate in employment issues against someone for their sexual orientation or gender identity. Employment discrimination against trans individuals is a serious problem, with 90 percent of trans individuals reporting that they suffered some form of employment discrimination in their lives.  The Senate ENDA bill is termed “trans-inclusive,” because it has expressly included discrimination protections for transgender individuals, whereas previous incarnations had sacrificed the “T” in GLBT as protections for trans individuals were just a bridge too far for some.  But this years ENDA is trans-inclusive and is now headed to the House of Representatives.   As immigration lawyers, our hearts sank as we heard people express optimism over the chances for its passage in the House.  Over the last four months, we have watched as the House has run out the clock on immigration reform.  Even after being confronted by young activists who brought their plights to him over breakfast, Speaker John Boehner made it clear today that no immigration legislation is moving this year.

 

If anyone believes that House members can be moved by hearing the personal stories of those effected by our terrible immigration laws or due to employment discrimination because of gender identity, Boehner’s cold response to these teenagers who spoke truth to power should put that notion to rest.  George Washington called the Senate the “cooling saucer” because it was meant to temper the excitable House of Representatives.  That role has changed and a group of 40 Tea Party Republicans in the House can stymie the hopes and aspirations of immigrants and trans men and women.  It is truly ironic because both pieces of legislation easily passed the Senate and would easily pass the House if the speaker would just bring it to a vote.  Yet, the Speaker cares more about the needs of his 40 Tea Party members than he does the suffering of 11 million immigrants or the need for employment discrimination protection for vulnerable minorities.

Our involvement in trans issues began when young trans women came into our office and asked us to help them apply for asylum.  Most had come from Central America and they all had stories of beatings, rapes, and rejection by their family.  They braved smugglers and human traffickers to make it to the U.S., where they found a chance to be themselves.  We have been able to obtain asylum for dozens of transgender individuals and not just from Central America.  Persecution of the non-gender-conforming is a worldwide pestilence.  To hear and know their stories and their bravery in leaving their homes under dangerous circumstances to have a chance to simply be themselves fills us with great admiration and respect for these individuals.  Their needs are far more fundamental than a job.  They come to America to be who they are.  It all starts there.  Over the years of representing trans individuals in asylum and then for green cards and, ultimately, citizenship, we have watched them grow into themselves, get stable employment, start relationships and family, and give back to their communities.  To watch a human being develop to her potential is like watching a flower bloom.  You can never grow tired of it.

The NTCE has done tremendous work to bring trans civil rights to the forefront of the political arena.  Like immigration reform, I am confident that full civil rights for trans people will occur in the future.  Last night, we heard from 33 year old Dylan Orr, a White House appointee, and 23 year old Sarah McBride, a political activist, about their professional experiences as a trans man and trans woman respectively.  They are the future and that gives us confidence and joy.