Articles Posted in Prosecutorial Discretion

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.

Thumbnail image for outcast-2-1159994-m.jpgOn November 20, 2014, President Obama’s executive action on immigration effectively brought millions of our country’s unauthorized immigrants out from the shadows and onto a legitimate path toward citizenship. While the executive action promises to relax the threshold for extreme hardship while expanding the scope of who can experience hardship, the elements of what constitutes hardship stands to change very little in the world of Provisional Waivers.

Current doctrine

Under current doctrine, practitioners must show that 1) “refusal of admission to the United States would result in extreme hardship to the U.S. Citizen or Legal Permanent Resident spouse or parent, and 2) a waiver is warranted as a matter of discretion.” Not surprisingly though, extreme hardship is not statutorily defined and practitioners and their clients must instead rely on case law to decipher what rises to the level of extreme hardship. Guideposts identified by USCIS however, such as in the Matter of Andazola-Rivas, where the court found that “[e]xtreme hardship does not need to be unique or unusual,” and in the Matter of Nagi, holding, “extreme hardship is hardship that is greater than common consequences of the bar to admissions, i.e. separation, financial difficulties, etc…,” have proven to be quite helpful. With this in mind, practitioners have decidedly focused on demonstrating three to four factors that either in themselves, or in aggregate, rise to the level of extreme hardship: economic hardship, psychological or emotional hardship and physical hardship.

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.

file7651336773992.jpgWe filed a naturalization case last year that presented us with two very serious issues. The first was that our client had voted in an election without being a US citizen. And the second was that she had a burglary conviction when she was young. Both of these violations not only may prevent a person from becoming a US citizen, they also may render the person deportable from the United States.

We advised her that filing the N-400 application could be risky because she would be required to alert immigration authorities of things that could result in revocation of her green card and deportation. Although it may have seemed that these obstacles were insurmountable, we were able to analyze the specific facts of her case and draft a legal memorandum in support of her application.
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952313_gavel.jpgThe US Court of Appeals For the 10th Circuit held in a recent decision that an order from the immigration judge denying a discretionary waiver of removal cannot be overturned unless there is a constitutional claim or legal question. Munis v. Holder Case No. 12-9593 (C.A. 10, Jul. 2, 2013).

A foreign national who is in removal proceedings without a legal defense against the charge of removability, may request a discretionary waiver of removal. The immigration judge has discretion to decide whether or not to grant the waiver, and the foreign national does not have a legal right to a discretionary waiver. Rather, the government has the power to decide whether or not to grant the waiver. Once the government has made a decision to deny a discretionary waiver, this decision cannot be appealed because courts have said that they lack jurisdiction unless there is a question of law or constitution claim.
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868517_a_driver.jpgSince June 2012 many Ohio residents have been applying for Deferred Action for Childhood Arrivals (DACA), an executive order enacted by Present Barack Obama that allows those who arrived in the United States as children to have a reprieve from deportation and obtain a work permit for a period of two years. Once the DACA application is approved, the applicant is issued an Employment Authorization Document (EAD) from the U.S. Citizenship and Immigration Services (USCIS) that is valid for a period of two years. The recipient can then take his/her EAD to the local Social Security Administration office and obtain a Social Security number so that he or she may work and pay taxes. Additionally, in Ohio, a DACA recipient was allowed to obtain a driver’s license at any BMV location within the state. The Ohio BMV website
http://www.bmv.ohio.gov/acceptable_id_documents.stm provides a list of acceptable documents that can be presented in order to obtain a driver’s license. Among these acceptable documents are USCIS Documents, Social Security Card, and Employer Identification Card.

Until recently, approximately 200 DACA recipients in the state of Ohio received Driver’s Licenses by providing the BMV with the documents stated above. In January 2013 some BMV locations began denying DACA recipients Driver’s Licenses even though they had all the required proof. In the last month, all Ohio BMV locations decided to stop issuing driver’s licenses to DACA recipients. Ohio’s Administrative Code states that applicants for a driver’s license must have legal status in the United States. So the question is: Are DACA recipients considered to have legal status in the United States? Originally it was unclear whether DACA confers legal status, but recently USCIS clarified that DACA holders do have lawful presence in the United States for the two year period that they are granted deferred action.
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918333_u_s__capitol_building.jpgLegislation was introduced in the US Senate today that would give legal immigration status to young foreign nationals who came to United States as undocumented children. The bill looks similar to the new Deferred Action for Childhood Arrivals introduced by the Department of Homeland Security this summer. It goes even farther as it ultimately offers permanent legal status and ultimately US citizenship.

The bill was introduced by three Republicans, Arizona Sen. Jon Kyl, Texas Sen. Kay Bailey Hutchison, and Sen. John McCain. This shift in Republican immigration policy seems to come in response to the recent barrage from several political pundits and experts who have advised the Republican Party to reach out to the Latino community. However, it’s unlikely that Democrats will allow the Republicans to steal away their thunder on the immigration issue.
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caution.jpgUndocumented immigrants who are seeking help to file an application for Deferred Action for Childhood for Rivals (DACA) should avoid non-attorneys who hold themselves out as “notarios publicos,” the Spanish translation for notary public. In many Spanish speaking countries, the term notario publico is a title used for a highly esteemed professional who is licensed to practice law in a limited manner. However, in the United States, a notary public has a completely different meaning.

Many notarios take advantage of the different meaning in translation from Spanish to English to cause considerable confusion in Latino communities and mislead Latinos into believing that notaries can provide them with legal representation and legal services. On the contrary, only a licensed attorney can legally represent you and speak to the US government or in a court on your behalf.
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