Articles Posted in Deportation

With the recent escalation of armed conflicts in countries like Iraq and Syria, many seek to escape the war-torn areas in search of safety and freedom. The freedom of religion and political opinion that is greatly cherished here in America, is the cause of violence and turmoil amongst the Muslim nations in the Middle East.   In both Iraq and Syria, the ongoing tension and division between the Sunni and Shiite’s has many seeking refuge.

According to the Council on Foreign Relations, the ancient religious divide is helping fuel a resurgence of conflicts and the struggle between Sunni and Shiite forces have fed a Syrian civil war and spurred violence that is fracturing Iraq. This violence includes kidnapping, torture, rape and executions of civilians.

In a recently released report by Amnesty International, which covers human rights violations, it was revealed that Iraqi people are not only suffering from atrocities committed by ISIS militants but also from the armed government-backed Shiite militants. The report claims that the Iraqi government is responsible for the attacks on the civilians since the Shiite militias that target Sunni Iraqis, do so in response to the ISIS attacks. As a result, the ongoing cycle leaves the Shiite civilians targeted by ISIS, whereas the Sunni Muslim’s in Iraq are trapped between the Shiite Militia, the government and ISIS militants who attack anyone that opposes them (including the Sunnis).

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.

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

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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At some point in their lives everyone comes in contact with the police, many times for simple traffic violations that do not carry serious consequences. However, many criminal offenses can and often do carry serious consequences, especially if you are not a United States Citizen. The majority of non-citizens have no idea that a conviction for certain criminal offenses could lead to the loss of their current status and deportation.

The intersection of criminal and immigration law is extremely complicated. Many times the criminal defense attorney has no idea that there are immigration consequences to pleading guilty to an offense let alone the seriousness of those consequences. If you are a non-citizen who entered a guilty plea and your defense attorney did not advise you of the immigration consequences then there may be some relief if you come in contact with the immigration system as a result.

On March 31, 2010 the United States Supreme Court decided Padilla v. Kentucky which affirmatively established that the Sixth Amendment of the United States Constitution requires a defense attorney to advise anyone who is not a citizen of the United States of the immigration consequences of pleading guilty to a criminal offense. If the criminal defense attorney did not advise of immigration consequences then the non-citizen could bring a claim of ineffective assistance of counsel.

In order to bring a successful ineffective assistance of counsel claim, you must demonstrate that the attorney’s representation fell “below an objective standard of reasonableness” and there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668. This means that the attorney did not do what a reasonable person would have done knowing that a non-citizen was about to plead guilty to a criminal charge and that had the attorney not made that mistake, the non-citizen would be in a better position (e.g., the non-citizen would not have plead guilty).

The criminal defense attorney does not need to be well versed in immigration law and is not required to give the non-citizen a list of “what-ifs” but he is required to, at the very least, tell the non-citizen that the pending criminal charges against him may carry negative immigration consequences.
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