Articles Posted in deferred action

exclamation-point-icon-1147436-m.jpgExecutive Action still in Court Tangle

The Fifth Circuit Court of Appeals has unfortunately denied the government’s request for an emergency stay on Judge Hanen’s injunction against DAPA and expanded DACA. After the president announced these programs last November, a group of Republican state officials sued the administration over them. In February, a Federal District Judge put an indefinite delay on their implementation. The government appealed this decision to the Circuit Appeals Court, asking to essentially undo the delay. In a 2-1 ruling, the Appeals Court denied this request, putting DAPA and the DACA expansion into a very uncertain situation.

If allowed to carry on, these programs would provide temporary relief from deportation and give work authorization to up to five million undocumented immigrants. This group is still less than half of the undocumented population and is very deserving of protection. These are people that were either brought here before the age of 16 or are parents of lawful permanent residents or citizens. In both cases, recipients would have had to have been continuously present in the U.S. since 2010. We believe that these executive actions are legal and are good for the economy, so we are saddened by this situation and hope for a swift resolution. The ruling was only preliminary: in July the Court will hear arguments for and against the lower court’s delay. At the same time, the lower court will review the legality of the program, though those in favor of reform believe that this judge is biased against the administration’s efforts on immigration in general.

cgress.jpgSome bad bills that may adversely affect our clients (and immigrants in general) are being put forth by the House of Representatives. We do not believe that any of these bills stands a good chance of becoming law, but it is important for the public to know what Congress is up to.

The “Legal Workforce Act:” HR 1147

This bill would harm tens of thousands of qualified workers by requiring their prospective employers to put them through the clunky at best and unreliable at worst E-Verify system. The system is a way for U.S. employers to check to see if their potential hires are qualified to work in the country. Though the system has existed for almost 20 years, errors are alarmingly frequent. In 2012, one half of one percent of attempted uses of the system resulted in its erroneously reporting that a foreign national was ineligible to work. This seems small, but because this mandate would affect 30 million new cases each year, around 150,000 people can expect to lose a chance at employment because of it.

full.jpgThis article contains our discussion of the problems in Judge Hanen’s ruling on President Obama’s immigration executive action plan. (The judge placed an indefinite injunction on DAPA and the DACA expansion, thereby delaying their start. The DACA expansion was supposed to begin on the 18th of this month.) As we have made clear in another article, we expect this ruling to be reversed. This article contains the bulk of why we are confident that the administration will prevail in the end.

At the center of this case is the whether the administration is acting within its legal authority to expand DACA and create DAPA. But, the issue of standing (which in this case is whether the states the plaintiffs represent have been harmed by the action) must be settled first. A sheriff in Arizona recently tried to sue the administration on similar grounds but the case was thrown out because he couldn’t prove that his ability to enforce law was harmed in any way. Judge Hanen, on the other hand, did grant the plaintiffs standing, in part by agreeing with their view that the states will have to pay to educate “illegal alien children” as a result of the administration’s actions. This disregards the Supreme Court’s ruling in Plyler v. Doe that it is a constitutional requirement to educate all children. Thus, this particular “harm” comes from nothing less than the Constitution. In general, we think that there is no true injury done to the 26 states on account of the executive orders. Further, when Mississippi sued the administration over the original DACA plan in 2012, the courts found that the state could not demonstrate any harm done to it either–and threw the case out.

Even if standing is assumed to be a non-issue, there are still problems with Hanen’s ruling. The heart of it deals with an alleged violation of the Administrative Procedure Act. This act holds that some proposed or forthcoming executive rules must be published in the Federal Register, allowing for dialogue with the public before implementation, which can take many months. There is no wide agreement or clear-cut Supreme Court guidance on what needs to be put through the Federal Register, so his ruling isn’t absurd. That he gets it wrong, however, isn’t difficult to discover.

gavel-952313-m.jpgOn February 16th, a judge in Texas issued a temporary injunction against parts of the President’s immigration executive action plan, including DAPA and the DACA expansion. This means that they cannot take effect until this court or a higher one eventually rules in favor of the Obama administration or puts a stay on his injunction (which would essentially cancel it). This also means that we had to update our post from February 6th, which talked about the changes’ planned start on the 18th and how to prepare for them. However, the post’s main point is still that the administration was expecting the programs to go on without serious difficulty. It did so knowing about the legal challenges, meaning that it likely viewed them more as political frustration than valid legal analysis. This is an assessment that we share.

Shortly after the initial announcement, a group of Republican Governors and Attorneys General from 26 states got together to file a lawsuit against it. While there are many potential reasons this group of Republicans could have spent so much time fighting the executive action, it is likely not based on a true understanding of economics or the law. (We have written articles on why we think the action is both legal and economical.) So, the fact that they succeeded in at least delaying it may come as an unfortunate surprise for the plan and the millions of people who would benefit from it. However, some analysis will show that this ruling is little cause for concern.

There are two keys to understanding the ruling. The first is the identity of the judge: U.S. District Court Judge Andrew Hanen. This judge is known for calling Obama’s immigration enforcement policy “dangerous and unconscionable” and for saying that his administration “should cease telling the citizens of the United States that it is enforcing our border security laws because it is clearly not. Even worse, it is helping those who violate these laws.” He has also taken the opportunity to issue general swipes at U.S. immigration policy in several rulings, even though the cases did not require his opinion on those matters. The second is the nature of the way the case wound up in his lap.

exclamation-point-icon-1147436-m.jpgCitizen and Immigration Services (USCIS) has released an official update on the President’s immigration executive action plan’s enforcement rollout. (These details were unofficially released with the plan’s original announcement last November.) USCIS’ posting of this update represents its expectation that the mentioned changes in immigration enforcement are here to stay–and that it is working to implement them. The publication mostly concerns its aspects addressing undocumented immigrants.

On February 16th, a judge in Texas put a temporary hold on these parts of the plan. We have a general analysis of the situation here–and a review of the problems in the judge’s ruling here.

DACA Expansion

business-man-avatar-vector-1431598-m.jpgAs the President’s expansion of DACA and the creation of DAPA under his immigration executive action plan are rolled out, sadly, we can expect to see a spike in the unauthorized practice of law (UPL). (These things will extend protections to many undocumented immigrants.) While all UPL is a crime and can mean serious consequences for those involved, immigration UPL is one of the most dangerous kinds. Mistakes or inaccuracies on filed petitions can create the perception of carelessness or even fraud on the part of the immigrant, when he or she is in fact the victim of fraud. This is why one must be careful when choosing immigration council. Victims of immigration UPL have had negative consequences ranging from paying unnecessary fees to removal proceedings being filed against them.

The undocumented immigrant population is a vulnerable group. They expect little to nothing from government–and will avoid doing most things that might cause them to reveal their secret. According to Pew Research, there are 11 million undocumented immigrants in the United States, with up to 9 million of them being from Latino countries. While the exact number of these who are not English fluent isn’t immediately discoverable, over half of the entire foreign born population is of “Limited English Proficiency.” One can intuit that the proportion of undocumented immigrants from south of the Rio Grande that also have “Limited English Proficiency” is much greater than 50%, because immigrants from overseas tend to have had better education, or come from countries where English is a secondary, or even primary language.

Following the announcement of the Deferred Action for Childhood Arrivals program in 2012, many undocumented immigrants found themselves eligible to stay and work in the country without fear of deportation, if they filed the proper paperwork. Most of these people had never dealt with an immigration attorney, and as a consequence, may not have known what to look for when choosing one. Widespread language obstacles included, these factors provided the necessary conditions for the community to be victims of fraud. In many Spanish speaking countries, a holder of the title Notario Público can provide the same, if not more, legal services as a lawyer in the United States. However, the title Notary Public in the United States provides one with a legal authority that extends not much further than the attesting of signatures on forms. As if often the case, a direct translation of words causes a great difference in meaning. In this one, the results can be devastating for a vulnerable population.

igor.jpgWhether or not one thinks the immigration action that President Barack Obama is about to implement is the morally right thing to do, according to groups like the Immigration Policy Center, it is economically expedient. It’s true that the comprehensive immigration reform passed by the Senate last year would have been a great deal better for the economy, and Republicans have said that this executive action is (somehow) causing them to not work on the immigration reform bill. However, that bill was killed in the House last year, and the new Congress coming in next month appears to be even less friendly to the kind of reforms that the President supports. Thus, it seems like the choice is between executive action and no action at all.

The benefits of the reform will stem from two major areas, one being the modernization of the PERM process. (The PERM process is a step that those who would hire employment based immigrants must take in the greater process of hiring a foreign worker). It is a means of making sure immigrants aren’t displacing the U.S. citizen workforce.) As part of the President’s plan, the Department of Labor is working to make it smoother and more responsive to today’s labor needs. On the DOL’s website, it acknowledges that “advances in technology and information dissemination have dramatically altered common industry recruitment practices, and the Department has received ongoing feedback that the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.”

The DOL is planning a few things to combat this. It will address labor shortages, most likely by easing regulations on employers trying to hire in those fields with the biggest shortages (while tightening them in more crowded fields). The Department will do everything it can without additional tax revenue to make these regulations fall more in line with today’s job and labor practices. While these practices may not increase the net amount of visas available, the eventual changes should work toward the goal of admitting those immigrants that will make us (as a whole) as competitive as possible. The department will also look into the possibility of introducing premium processing and overlooking harmless errors on petitions. In addition, the USCIS is considering extending work authorization to H-4 spouses and those who are waiting “in line” for an employment based green card. These kinds of steps are what will keep the U.S. in the lead on innovation, because it will make immigrating here more attractive for innovators and high-potential families overseas.

old-bailey-1-301905-m.jpgAlmost as soon as President Obama unveiled his plan for executive action as a means of helping to fix the broken immigration system, Republican members of congress and state attorneys general began putting together a lawsuit to stop it. They claim that he is overstepping his authority as president and seek to nullify these executive orders. The Republican controlled House of Representatives voted 219-197 to make the plan “null and void and without legal effect.” (However, while President Obama is still in office, the Republicans are unable to pass any bills into law without his consent, because in order to override his veto power, they need at least 66% of the seats in both houses of Congress. They will still have less than 60% in both in the upcoming session.)

In order to defeat this executive action, it seems they will have to do so in the courts. However, it is our opinion that these executive orders are legal (and constitutional). The only politically (and perhaps legally) divisive aspect of the plan is the expansion of the deferred action program that will apply to over 4 million undocumented immigrants. The largest part of this is Deferred Action for Parental Accountability (DAPA), which for three years at a time grants relief from deportation to undocumented parents of U.S. Citizens who pay back taxes and pass a background check. (In addition to this, there is an expansion of the existing DACA program).

Nearly all of the claims against the executive action’s legality have to do with this deference of action. (In fact, the lawsuit doesn’t mention much else.) Some are arguing that President Obama is ignoring his executive duty by refusing to deport these people. Granted, they are eligible for legal removal. It may thus appear that offering them the opportunity to not be deported is ignoring the law. However, more extensive review indicates that it isn’t as simple as this.

kkkkkkkkkkkkkkk.jpgDACA Expansion

Almost two years ago, the President created the Deferred Action for Childhood Arrivals (DACA) program as a substitute for the proposed DREAM act, which did not receive approval from Congress. (He did this too through executive action.) DACA provides the ability to stay and work in the United States to qualifying aliens who entered without inspection (illegally) as children. The stated goal of this policy change was to keep families together and help prioritize immigration enforcement resources to those who pose actual threats to this nation’s security (and away from those who came as a result of their parents’ actions).

Last week, President Obama announced expansions to this policy. To begin with, the current DACA program has an age cut-off; it applies only to those who were born after June 15th 1981. (Those born on or before that date are ineligible.) This would change; there would be no age limit. Another requirement–that aliens must have had a continuous presence in the U.S. starting June 15th 2007 in order to be eligible–has been relaxed to January 1st 2010.

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In September of 2012 the United States Citizenship and Immigration Services (USCIS) began issuing work authorization cards to those that had applied through the Deferred Action for Childhood Arrivals (DACA) program. This program allows those who entered the United States without status to have action deferred in their case and receive a work permit valid for two years. Every two years, those granted DACA are required to renew their work permits as well as the grant of deferred action. For those who were the first to apply when the program was announced, their expiration dates are quickly approaching and USCIS has released preliminary information on how the renewal process will proceed.

The DACA program came into effect on June 15, 2012 through a presidential order signed into law by President Barack Obama. You may qualify for DACA if: (1) you were under 31 years of age on June 15, 2013; (3) you arrived in the United States before the age of 16; (3) you have lived in the United States since June 15, 2007 until the present time; (4) you were physically present in the United States on June 15, 2012 as well as at the time of requesting DACA; (5) you entered the United States without inspection or you entered with lawful status that expired before June 15, 2012; (6) you are currently in school, have received a GED, graduation from high school, were honorably discharged from the Coast Guard or Armed Forced of the United States, or are currently enrolled in a GED program; and (7) you have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and you do not pose a threat to national security or public safety.

Those who applied as soon as the DACA program took effect, June 15, 2012, will be coming up for renewal of their benefits within the next few months. Many applicants as well as attorneys have been wondering how the renewal process will proceed since this is the first time that anyone will have to renew and the DACA program is one of a kind.
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