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EXECUTIVE REFORMS TO IMMIGRATION: Top Six Changes

1 Dec

immigration_reform

The President’s executive reforms to the U.S. immigration system make a number of very positive changes that have the potential to help millions of people.  Although we have written about various components of the reforms individually, we have summarized six major portions here in one place.

Benach Ragland will be offering several free community meetings throughout December and will be offering reduced fee consultations for people who may benefit from these reforms.  To get the latest information about where we will be, please “like” us on Facebook and follow us on Twitter: @benachragland.  To schedule a reduced fee consultation, please email: consult@benachragland.com or call 202-644-8600.

  • Deferred Action for the Parents of U.S. Citizens and Permanent Residents

The centerpiece of the President’s immigration reforms announced yesterday is the expansion of deferred action to cover certain foreign national parents of United States citizens. Here are the details:

The U.S. Citizenship & Immigration Service will give deferred action and employment authorization to individuals who:

  • As of November 20, 2014, have a son or daughter who is a United States citizen or lawful permanent resident.
  • Entered the U.S. prior to January 1, 2010
  • Are not in lawful status as of November 20, 2014
  • Are not an enforcement priority
  • Do not present other factors that weigh against a favorable exercise of discretion

People who fall within the DHS’ new enforcement priorities will be ineligible for deferred action.  With a new memo issued today, Nobama immigration reformovember 20, 2014, the DHS has revised the enforcement priorities for the agency.  The new enforcement priorities are divided into three levels of priority of decreasing priority.  Presumably, those not within the enforcement priorities memo are not enforcement priorities and should qualify for benefits and not be subject to efforts to seek removal. We have summarized the new enforcement priorities memo here.

Applicants will be required to provide fingerprints and undergo national security and criminal background checks.  The filing fee will be $465.  CIS has been directed to begin accepting applications no later than 180 days from the date of the announcement (May 19, 2015).  Work permits will be valid for three years and individuals granted deferred action can also seek advance parole to travel internationally.

  • Expanded eligibility for Deferred Action for Childhood Arrivals (DACA)

Another significant development coming out of the Presidential reforms announced yesterday is the expansion of DACA beyond its original parameters established in 2012.  For descriptions of the original DACA requirements, please see here. 

The executive reforms announced yesterday make the following reforms to the DACA program:

  • The date of entry for DACA eligibility has been changed from June 15, 2007 to January 1, 2010.  Individuals who entered the U.S. prior to their 16th birthday and prior to January 1, 2010 can qualify for DACA under the revised guidelines.
  • The age cap has been eliminated.  Originally, DACA was limited to individuals under 31 years of age as of June 15, 2012.  The upper age limit has been eliminated and those who entered the U.S. before January 1, 2010 and were under the age of 16 will qualify regardless of their current age.
  • DACA work authorization will now be valid for three years as opposed to two.

These reforms will be implemented within 90 days. The other DACA requirements regarding education and criminal issues remain unchanged.  The new parole provisions should also assist DACA grantees.

  • The New Enforcement Priorities Memo

s1.reutersmedia.netAs part of the executive actions reforms announced by the administration yesterday, the administration has redefined the enforcement priorities for Immigration & Customs Enforcement.  Briefly, any law enforcement agency with limited resources can not realistically enforce the law against everyone who may have broken it.  Law enforcement agencies must pick and choose how to allocate their limited resources and where to expend their efforts.  The new enforcement priorities memo provides very clear guidance to ICE as to who their efforts ought to be focused upon.  Groups of people have been classified into three priorities for enforcement, in declining orders of priority.  Individuals not within this memo are, presumably, not priorities, and should be eligible for benefits and not subjected to enforcement actions like detention and removal.  The three classes of priority are as follows:

Priority 1 (Most serious)

  • individuals suspected of terrorism, espionage or who are otherwise a threat to national security
  • individuals apprehended at the border while trying to enter the country illegally
  • individuals involved in gangs or gang activity
  • individuals convicted of a felony unless the essential element of the offense is the individual’s immigration status
  • individuals convicted of an aggravated felony

Priority 2 (Medium serious)

  • individuals convicted of three or more misdemeanors, not including traffic offenses or offenses where an essential element is the individual’s immigration status
  • individuals convicted of a “significant misdemeanor”, which is defined as: an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug trafficking or distribution, driving under the influence, or any offense not included above for which the individual was sentenced to 90 days or more in custody (unlike in most immigration situations, a suspended sentence does not count)
  • those who have entered the U.S. unlawfully after January 1, 2014
  • significant visa or visa waiver abusers

Priority 3 (Less serious)

  • Individuals with a final order of removal entered after January 1, 2014, unless there are other factors that suggest that the individual should not be a priority for enforcement.

Once again, presumably, an individual not on any of these lists should not be considered a priority for removal and ICE is directed not to expend resources of seeking their detention and removal.  We will be watching ICE to see how the agents in the field respond to these revised priorities.

  • Clarifications and increased use of Advance Parole

Another positive change to the immigration laws announced last night is the Secretary of Homeland Security’s instruction that DHS counsel should prepare a legal memorandum forthcoming that departures pursuant to advance parole will not trigger the three and ten year bars.  This memo is to ensure that all departures on advance parole are treated consistently across the country for unlawful presence purposes.

Individuals who have been unlawfully present in the U.S. for more than 180 days who then depart the U.S. are subject to a three year bar on returning.  Individuals with a year or more of unlawful presence face a ten year bar after departure.  In Matter of Arrabally and Yerabelly, 25 I.&N. Dec. 771 (BIA 2012), the Board of Immigration Appeals ruled that individuals who deAPparted on an advance parole granted due to a pending application for adjustment of status have not made a “departure” for purposes of triggering the three or ten year bars.  while this was a welcome decision, there was confusion and disagreement whether this applied to all departures on advance parole or only to those who departed on advance parole issued to applicants for adjustment of status.  For example, DACA recipients can get advance parole and it was unclear whether their departure would subject them to a bar to return due to unlawful presence they may have accrued prior to DACA’s existence.

The new memo is to clarify that any departure from the U.S. under advance parole no matter why that parole was granted would not be considered a departure for purposes of triggering the three and ten year bars.  This means that people with advance parole, perhaps as a result of DACA, or through the new “DAP” program, for parents of U.S. citizens, will be able travel to visit family abroad without having to lose everything they have achieved in the U.S.

  • Expansion of the Provisional Waiver

Another positive development is the proposed expansion of the provisional waiver program, which the President initiated in 2013.  The provisional waiver, as initially introduced allowed the spouses and children of U.S. citizens to seek a waiver of inadmissibility for the three and ten year bars due to unlawful presence to seek a waiver in the U.S. rather than after proceeding abroad to seek a visa at a U.S. consulate abroad.  This program has been successful and we have had several provisional waivers approved and been lucky to witness reunions made possible by the provisional waiver.

The provisional waiver was initially limited only to spouses and children of American citizens.  The new memo instructs CIS to “expand access to the provisional waiver to all statutorily eligible classes of relative for whom an immigrant visa is immediately available.”  This will clearly include the spouses and children of permanent residents, but could also potentially include a larger group of  individuals such as the adult sons and daughters of U.S. citizens.

Also, for tremendous significance, the Secretary of Homeland Security has directed the CIS to “clarify the factors that are considered by adjudicators in determining whether the “extreme hardship” standard has been met.  Most importantly, the Secretary has directed CIS to consider whether a legal presumption of extreme hardship may be determined to exist.  The creation of the presumption of hardship would reduce the burden on applicants seeking to show extreme hardship.  We particularly love this idea, because we suggested it here while pointing out the legal authority for such a move. 

  • Parole in Place for family members of those seeking to enlist in the military

The package of reforms introduced by the President includes new policies on the U.S. of parole-in-place or deferred action for the family members of those seeking to enlist in the military.Military

Parole in place is a function of the Department’s discretionary authority to parole anyone into the U.S.  Parole in place is a mechanism to allow the Secretary of Homeland Security to parole an individual into the U.S., providing that individual with legal status and the ability to seek adjustment of status.  Recently, the government has used parole in place to allow the undocumented spouses, parents and children of Servicemembers, including Veterans, to adjust status We discussed this process here in August.

The new policy builds on this use of parole in place.  The Secretary of Homeland Security has instructed the CIS to work with the Department of Defense to “address the availability of parole in place and deferred action to the spouse, parent or child of a U.S. citizen or resident who seeks to enlist in the armed forces.

The “seeks to enlist” criteria is a major expansion of this authority and may provide residence to the close family members of those who want to join the military.

These reforms present many exciting opportunities for immigrants. In connection with other parts of the law, it may be possible to achieve more than a work permit.  We are excited about the possibilities for so many immigrants and look forward to the chance to serve you.

 

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.

DACA Renewals Begin!

5 Jun

 

DACA_benefits2

On June 5, 2014, the renewal process for the Deferred Action for Childhood Arrivals starts for more than half-million DREAMERs who are already enrolled in the program. DREAMERs or DACA beneficiaries will continue to benefit from renewing driver’s licenses, working, and obtaining in-state tuition in at least 16 states.

To renew DACA, applicants must complete the recently released dual-use Form I-821D for initial and renewal DACA applications. Additionally, forms I-765, Application for Employment Authorization, and I-765 Worksheet must be submitted, along with a $465 filing fee check or money order.

Renewal applicants are only required to submit new documents pertaining to criminal or removal proceedings history that have not already been submitted to USCIS.  Renewal applicants do not have to demonstrate initial eligibility all over again and must only provide updated information where information has changed.

Initial applications remain available for new applicants who meet all of the following requirements listed on the June 15, 2012 Napolitano memorandum:
• Entered the United States under the age of 16;
• Have continuously resided in the United States for at least five years preceding June 15, 2012;
• Were present in the U.S. on June 15, 2012;
• Were not in lawful status on June 15, 2012;
• Were under the age of 31 as of June 15, 2012;
• Are currently in school, has graduated from high school, have obtained a GED, or are an honorably discharged veteran of the U.S. Coast Guard or Armed Forces; and
• Have not been convicted of a felony, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to the national security of public safety.

To avoid a lapse in employment, DACA renewal applications should be submitted 120-150 days prior to their DACA expiration date.

Should you have any questions, please do not hesitate to contact us.

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.

How Bob Dylan Helped me Understand the Dream 9

28 Jul

Dream 9

“Something is happening and you don’t know what it is, do you, Mr. Jones?

It wasn’t until Tuesday night at a Bob Dylan concert that I saw the limits of my own vision. I had avoided taking a position on the efforts of the Dream 9.  As a lawyer, you hate to see people take actions that can jeopardize themselves.  As as someone who only vaguely knows, but cares deeply about, Lulu, Marco and Lizbeth, I was worried for them.  Worried that emotion, anger, frustration would lead to a lifetime of regret.  That may yet come to pass.

Moreover, it seemed to me that the reaction from DHS would be utterly predictable.  The requests for humanitarian parole would be denied.  They would be subjected to expedited removal and returned to Mexico within a few hours.  What good was done there?  Ah, but the Dream 9 had a trick up their sleeve.  They asked for asylum.  By asking for asylum, the Dream 9 would be detained by the CBP until they could have a hearing on whether they had a credible fear of persecution.  I have no idea whether they have meritorious claims for asylum, but I do know that an honest application, even if a losing application, is not a frivolous application.  The Dream 9 were then transferred to Eloy Detention Center in Arizona.  Eloy is one of the bigger detention centers in the U.S. where immigrants in removal proceedings are housed.  It is a contract facility by the Corrections Corporation of America, a company that believes so little in America that it makes extraordinary profits by detaining people under contract with the government.  Moreover, CCA lobbies hard for draconian and vindictive immigration laws that increase the use of detention in civil, and not criminal proceedings.  Lest a market opportunity be lost, CCA also loves laws like California’s three strikes law, which mandates lengthy jail time upon conviction of certain third offenses, no matter how minor.  In Eloy, the Dream 9 began to meet with other detainees to get their stories out, to shine a light in the darkest of places operated by the government and its privateers.  CCA reacted by placing them into solitary confinement, a practice increasingly viewed as torture, and limiting their access to telephones.  Of course, this is civil detention.  No crime has been committed here.  These are people who are trying to return home and trying to seek the U.S. government’s protection from a fear of harm in Mexico.

CCA fingerman

Whether the Dream 9 intended to or not, they have exposed the profound ugliness of the immigration detention complex.  Young adults who have lived their entire lives in the U.S. have sought to return home, claimed a fear of persecution in their home country and are being held in solitary confinement and deprived of communication with the outside world.  They are being held by a system that treats all immigrants like criminals and is fed by an unholy trinity of corporate greed, government subservience and Congressional posturing.  These are the laws.  They are unjust, immoral and corrupt.  The Dream 9 are  heroic for their willingness to endure these deprivations and for risking so much to expose this system.

“I was so much older then, I’m younger than that now.”

Some have said that the Dream 9 got what was coming to them.  That they knew that this would happen and, therefore, what is happening to them is just desserts.  This is the poking the tiger theory of political action.  However, I think that analogy is wrong.  More appropriate are the people who say that women who dress in provocative ways invited their sexual assaults.  This theory states that there is evil in the world and we are best not to court it.  This theory wrongly fails to focus on the acts of the one committing the wrong and focuses on the one set upon.  It is the rapist that deserves our scorn.  It is the detention industrial complex which deserves our recrimination. Very little has been gained in the world by not confronting evil.  It is only when evil is confronted head on that it wilts in front of the power of justice and right.

It has also been said that the Dream 9 are jeopardizing immigration reform.  As a supporter of the passage of S.744, I am very concerned about the fate of the bill.  While I am in favor of the bill, I am disappointed that it does little to address those problems that the Dream 9 have sought to expose.  The unholy alliance between private prison contractors and Congress, the revolving door between DHS and the privateers, and the use of detention in a civil system remain unchecked, and possibly even enhanced.  It is a flawed bill, but, on balance, worth supporting.  The Dream 9 are reminding us of the failures of our efforts to show the basic inhumanity of the detention system.  If the bill passes, many will think that immigration is “done.”  As long as the gulag archipelago exists, our systems required comprehensive reform and the Dream 9 remind us of that.

The Dream 9 have shown courage in seeking to expose the dark underbelly of immigration reform- what is actually done, what has been left out.  They fit within a great American tradition of civil disobedience against unjust laws.  The reaction of the power structure has been the same both times- excessive force.  It is not firehoses and German Shepherds today, but solitary confinement and prolonged detention.

I did not understand that this would be the outcome of these efforts, but as Bob sang “I was so much older then, I am younger than that now.”

Will the Courts Invalidate Deferred Action?

24 Apr

KeepCalmStudio.com-[Crown]-Keep-Calm-And-Apply-For-Daca

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

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

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

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

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

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

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

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

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

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

Things are about to get really interesting

10 Apr

time is now

As Washington, DC has seemed to jump from winter to summer, the politics of immigration reform are heating up.  For the rest of this week, the Capital will be inundated with activists, lawyers, politicians and celebrities all advocating for immigration reform.  Among all this activity, the Senate “Gang of Eight” is prepared to release their proposed bill.  Rumored to be nearly 1500 pages, the Gang of Eight will provide the meat on the bone that all of us have been waiting to chew on.  Benach Ragland will provide you with the latest and most comprehensive information regarding the politics, the proposal, and discussions as to how the proposals will affect the lives of immigrants.

Today, April 10, 2013 at 3:30 PM on the West Lawn of the Capitol, tens of thousands of immigrants and their friends will hold a rally for commonsense immigration reform that includes a path to citizenship.  Over the past few days, buses of immigrant supporters have departed from cities all across the United States to attend the rally.  Along with the rally, immigrants are lobbying Congress, meeting with the media, and demonstrating the urgent need for immigration reform.

Tomorrow, on April 11, the American Immigration Lawyers Association (AILA) National Day of Action for Immigration Reform is being held.  Immigration lawyers and their clients will meet with their representatives to share their stories of the  hardships of the U.S. immigration laws.

If you can not make any of these events, we urge you to make your voice heard by contacting your representatives. 

Finally, we learned today that the Gang of Eight will release their bill as early as Thursday, April 11 and the House is not far behind.  As deportations continue, people organize, and the CIS runs out of H visas in a week, the urgency of immigration reform could not be more obvious.