Tag Archives: White House

DACA, Provisional Waivers, and de Osorio?

4 Jan

nancy_just_say_no1

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

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

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

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

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

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

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

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

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

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

Immigration On Deck!

3 Jan

As most of us in Washington returned to work on January 2, 2013, we noticed that many of our fellow Washingtonians were bleary-eyed and slow-moving.  Unfortunately, their lethargy stemmed not from all night and day new year’s electro-funk raves, but from hours of C-SPAN, watching the country go over the fiscal cliff, then climb back up the cliff, and then just hang out somewhere in the middle.  Washingtonians barely had time to recover before the next big news hit- CIS will begin accepting provisional waiver in March and here are the rules!  AND- OBAMA’S IMMIGRATION REFORM PUSH TO BEGIN THIS MONTH! (said the Huffington Post)  Whiplash!

So, the emerging consensus in Washington now is that immigration reform, oddly enough, is the next matter on the nation’s legislative agenda and has the potential to bring the country together after the divisive election and fiscal cliff fights.  As someone who has spent over a decade fighting the immigration wars, the idea that immigrati0n reform may be a bonding force in the country’s polity is unthinkable.  But really, why is that?  Immigration is the one thing that nearly all of us have in common- we all came from somewhere else.  All of us came here or had ancestors who came here not to be part of some or some nationalistic entity, but for a chance to be part of “a nation conceived in liberty, dedicated to the proposition that all men are created equal.” (Yes, that is Lincoln and, yes, it is the Gettysburg Address).  If anything should bring us together, it is our common heritage as humans attracted to the promise of America.  Anyway, that is how it should be, even if it is not.

We think that the bruising fight over the fiscal cliff has pointed a way forward that can be helpful on immigration.  You may recall that the Senate easily passed the fiscal cliff bill 89-8, but the House of Representatives passed it in a much closer 257-167.  Although that is a comfortable 45 votes, the bill attracted the support of 85 Republicans while failing to get the other 151 Republicans.  Thus, the bill needed 172 votes from the minority Democrats to pass.  The combination of these 85 Republicans and the overwhelming majority of the Democratic caucus has established a new center that can break the grip of the anti-immigrant portion of the Republican party which has held up immigration reform for too long.  The willingness of the Speaker of the House to pass a major piece of legislation over the objection of the majority of his party shows that the Tea Party faction has slipped into irrelevancy.  As the 151 Republicans who voted against the fiscal cliff legislation are many of the same members who would never support any reasonable immigration bill, going around them is essential.

Last month, we wrote about the incoming Chairman of the House Subcommittee on Immigration, Trey Gowdy, and we noted that the anti-immigrant lobby was panicking that the new Chairman, a confirmed anti-immigrant extremist, would not get much of an opportunity to sculpt immigration legislation and that the Speaker would go around him.  If the results of the battle over the fiscal cliff have shown us anything is that there is a clear route around the Tea Party to get things done in Washington.

Mr. President, Let de Osorio Stand!

19 Dec

As ideas for immigration reform take shape, there is one thing that the administration could do without lifting a finger that would help thousands of immigrants.  This benefit would actually require the government to refrain from doing something.  If the government decides not to appeal the decision of the U.S. Court of Appeals  for the 9th Circuit in Cuellar de Osorio v. Mayorkas, the Court’s decision would stand and thousands of young immigrants would be able to apply to adjust their status after waiting years for that opportunity.

As we discussed before, in September 2012, the U.S. Court of Appeals for the 9th Circuit held that the Board of Immigration Appeals had misinterpreted the Child Status Protection Act (CSPA) in a way that excluded thousands of young immigrants from eligibility for immediate residence.  The issue arose in cases where a child was included as a derivative of an immigrant petition filed on behalf of their parent.  Due to backlogs, that child often aged-out of eligibility by turning 21 before the parent received her green card.  In that case, many parents, subsequent to receiving their residence, filed I-130 immigrant petitions on behalf of their children.  However, those children were sent to the back of the line of the unmarried sons and daughters of permanent residents, despite having already waited for years with their parents.  The CSPA attempted to remedy this by allowing these derivative children to recapture their old priority dates when their parents or an employer later sponsored them.  In Matter of Wang, the Board unnecessarily limited the class of derivative beneficiaries who could recapture their priority dates, basically undermining the congressional fix in the CSPA.  Now the 9th Circuit has joined the 5th Circuit in rejecting Matter of Wang and the government must decide how it will react to these rulings.

So far, their reaction is not encouraging.  The government filed and the 9th Circuit granted an unopposed motion to stay the mandate, which holds up the effectiveness of the de Osorio ruling.  The mandate has been stayed until December 26, 2012.  At the same time, the government filed a request to extend its time to file a Petition for a Writ of Certiorari to the Supreme Court, which is a request that the Supreme Court hear the case.  Their petition to the Supreme Court would also be due on December 26, 2012.  However, yesterday, the government filed another request to stay the mandate until January 25, 2013 to give the government more time to consider whether to file a cert. petition to the Supreme Court.  We expect that the court will grant this motion as well.  So, by January 25, 2013, we will know whether the case is over or whether it will go on.

The administration does not need to seek review.  It is hard to see what the compelling government interest is in demanding that these aged-out beneficiaries continue to wait.  An analysis of the backlogs revealed that certain Mexican nationals might need to wait over 100 years for a visa under the Matter of Wang interpretation.  By deciding to let the de Osorio decision stand, the government will demonstrate that it is firmly on the side of keeping families together, rational  immigration policy and that it is abandoning its practice of fighting to win for winning’s sake, regardless of the social costs.  As the administration begins the process of reviewing our immigration laws, it must look closely at the litigation positions it takes and ask whether those positions are consistent with humane and compassionate immigration policy.  Appealing de Osorio is not and the administration should leave the decision alone.

Many of the same factors that drive support for DREAMers can equally be said about those who would benefit from de Osorio.  de Osorio beneficiaries applied for residence, but due to processing delays and backlogs, did nothing more than grow up.  They did what they were supposed to do.  Their families have now received residence and they have been left behind.  Despite Congressional intent to help these beneficiaries, an interpretation by the BIA left them out in the cold.   The Obama administration now has a chance to fix this and give effect to the original intent of Congress to help these immigrants and to help keep families together.

The government has just over a month to decide whether to appeal de Osorio to the Supreme Court.  What it chooses to do will say a lot about the truth behind the rhetoric.