DACA, 'Chain Migration' and the Government Shutdown: Quick Updates

Quick Updates in a busy week: DACA, ‘Chain Migration’ and the Government Shutdown

 

With so many things going on in immigration, it is difficult to keep up with developments that might affect all of us.  So here is a very brief review of some of the issues emerging this week:

 

DACA

 If you read our previous blog post, you are aware that a U.S. District Court in California granted an injunction against the President’s effort to terminate the DACA program.  The Court determined that the termination was based upon an erroneous legal presumption that the DACA program was initially unlawful.

This, of course, is only a temporary injunction and the U.S. Department of Justice has already appealed the Decision to the 9^th Circuit Court of Appeals – and perhaps seeking an expedited hearing with the U.S. Supreme Court.

Until then, however, the District Court ruling still stands – so based upon the Court’s instructions to USCIS and guidance published by USCIS, this is what you need to know for now:

*             If you have not previously been granted DACA benefits, you are not now entitled to have USCIS process a new DACA Application from you.

*             If you have previously been granted DACA benefits and it expired on or after September 5, 2016, you may file a renewal request.

*             If you have previously been granted DACA benefits and it expired before September 5, 2016, you may not file a renewal request; however, based upon previously existing policy, you may file a new DACA request.

Please check the uscis.gov website for more information.

 

                With the DACA District Court Decision as a backdrop, finding a permanent solution for children brought here by their families without authorization remains elusive, despite an apparent bi-partisan bill designed to grant relief to the same persons benefitting from the DACA program (‘Dreamers’).  There is some discussion by leaders of the Democratic Party that they will withhold support for a Continuing Resolution to keep the U.S. Government operations funded unless the bill includes a provision granting ‘Dreamers’ some type of authorized stay in the U.S.  If the U.S. Government does shut down, see discussion of the potential impact below.

 

 ‘CHAIN MIGRATION’ and ‘MERIT-BASED’ IMMIGRATION

‘Chain Migration’

The President’s refusal to approve a bi-partisan bill to grant relief to ‘Dreamers’ was quite infamously linked to a more troublesome discussion of so-called ‘Chain Migration’ and ‘Merit-based Immigration’.

In case you haven’t heard, the President recently advocated for the termination of Family-based immigration programs to be replaced by immigration programs based upon the ‘merit’ of the immigration applicant.

Much attention has been given to the language he is said to have used in describing Southern Hemisphere countries, such as Haiti and African nations, but that attention is misplaced; the real vulgarity was the underlying message that some human beings have greater or lesser value based upon their place of origin or skin color.  In this bleak context, I cannot help but hear the phrase ‘chain migration’ and associate it with a period of migration during the early centuries of our country’s origin when migration to the U.S. was forced.  This type of thinking, left unchallenged, is what creates an environment such as that which allowed human beings to be forcibly separated from their families and forced into servitude because they were deemed to be of inferior value than others, based upon their place of origin and skin color.

If we are being honest, our country has repeatedly shifted its immigration policies to favor – or disfavor – certain types of people from different places.  Interestingly, the family-based immigration programs currently under siege actually arose from an effort to insure that families from northern/western European nations were bringing in more family members from these same countries.  But the ultimate consequence of those programs, along with the intentional effort to spread American influence more globally through the Diversity Lottery program -  is that America became a more culturally diverse nation where anyone with the desire and initiative to seek a better life had the opportunity to reach those goals.  Eliminating family-based programs does nothing less than extinguish America’s unique position as the ultimate hoped-for destination for people around the world.

‘Merit-Based Immigration’

As for the ‘Merit-based’ immigration system, there has rarely been a more easily-resolved issue than this.

Of course, no one would argue that America shouldn’t want the ‘best and brightest’ to come to the U.S. to help maintain and grow our standing in the world.  The ‘best and brightest’ can come from anywhere, but those who have already had the opportunity to prove their ‘merit’ before they come to the U.S., should be given a greater opportunity to come to America and contribute to our greatness.  There is nothing wrong with the idea of ‘Merit-Based Immigration’

Fortunately, there is already a program that supports ‘Merit-Based Immigration’: it’s called the H-1B visa program.  The H-1B visa is for highly educated, highly-trained and skilled immigrants from around the world.

Unfortunately, the number of H-1B visas has been reduced, over the years, to an artificially-low number of 65,000.  It is now so restricted that nearly 2 out of every 3 H-1B petitions that are filed are returned because the limit on the number of visas is reached within the first 5 days that H-1B visas can be filed on April 1 of each year.  Put another way, nearly 2/3 of the ‘meritorious’ people who want to contribute their skills to the U.S. are refused because there are not enough visas to go around.  Often, they go to other countries to offer their skills instead.   [For more information, see prior blog posts on further discussion of the H-1B visa program.]

The point is, if the President wants to do more to allow the ‘best and brightest’ to come to the U.S., simply increase the number of visas available for the highly-educated, trained and skilled persons seeking to come to the U.S. each year.  It’s an easy fix.

 

THE U.S. GOVERNMENT SHUTDOWN

As discussed earlier, the negotiation of ‘DACA-type’ legislation is having an impact on efforts to keep the U.S. government operating.  Actually, not all government functions cease during a ‘government shutdown’ because ‘essential functions’ of the government would continue – to insure our safety and security.  However, there would be some impact on immigration-related functions:

·         USCIS and U.S. Department of State:  Since applicants pay fees for visa petitions and visa applications at U.S. consular posts, most of these operations would continue to function (since they largely depend upon your fees – rather than the U.S. budget - to operate).

 

·         ICE and the U.S. Customs and Border Protection:  These enforcement-based services at ports-of-entry are considered ‘essential’, so these would largely remain open, although some less-significant operations may be curtailed.

 

·         The U.S. Department of Labor neither relies upon fees nor is considered ‘essential’ for these purposes, so their services in support of Labor Certification Applications, PERM, Labor Condition Applications, etc. would be unavailable during a government shutdown.

 

By the time you read this, the shutdown issue may have already been resolved, but since the threat of a government shutdown is only slightly less frequent than ‘Old Faithful’, but just about as predictable, you may want to keep this in mind for the next Continuing Resolution deadline.

 

So that’s where we are on Friday, January 19, 2018…  Tune in next week for more!

 

 

DACA Program Revived by U.S. District Court

The DACA Program Gets Unexpected Reprieve

 

Just when you thought the DACA Program was virtually dead – left to rely only upon it’s unlikely rescue by a dysfunctional Congress – the U.S. District Court for the Northern District of California issued a surprise: an injunction ordering the U.S. Dept. of Homeland Security to maintain the DACA program in the same manner as it was operating prior to the September 5, 2017 decision to terminate it; (the exceptions being that it is not required to process any new DACA applications and it need not permit Advance Parole).

This is a fascinating development that requires a little explanation to fully understand what it means.

What Just Happened?

The District Court’s Order, shared here: U.S. Dist. Court Case - begins with a very helpful history of Deferred Action that is critical to understanding how the Court arrived at its Opinion.  We recommend reading the Order, but in a very brief summary, the Court points out that DACA derives from discretionary powers that have been recognized for decades of immigration law and implementation.  The Order shows where former Presidents from Eisenhower to Reagan used these discretionary powers to provide relief from deportation of classes of immigrants – even in some cases where there was no specific statutory authority for their actions.

This is important because this Court Decision is inextricably linked to the litigation filed in Texas by a number of states seeking to declare President Obama’s executive action allowing immigration benefits to the parents of U.S. citizen children – (known similarly as ‘DAPA’) – as unconstitutional.  In that case, the Texas Court enjoined the DAPA program from going into effect – along with some additional tweaks to the DACA program. 

But – and this is key – the Texas litigation did not address the constitutionality of the original DACA program instituted by the Obama administration in 2012.

Although the District Court in California provides an insightful discussion of why the original DACA program might be well within the authority of the President of the United States to implement, the point is that no Court had ever ruled that the original DACA program was unconstitutional. 

The criticism that President Obama acted outside of his executive authority is frequently a ‘talking point’ used by those who object to the DACA program, but it is no more than a personal opinion.  It has never been an Opinion from a court of law.  (Remember, the Texas case only addressed the ‘DAPA’ program and a few minor embellishments to the DACA program.)

Thus, when in June of 2017, 10 of the plaintiffs in the Texas case sent a letter to the new U.S. Attorney General Jeff Sessions demanding that he rescind the DACA program – or else they would amend the Texas Complaint to include a challenge to the original DACA program – the new Attorney General happily complied[1].  He then sent a letter to the acting Secretary of the U.S. Dept. of Homeland Security requesting its rescission, which was done the next day.

But it was the manner in which Attorney General Sessions acted that provides the basis for this new Order from the California District Court.

In his Letter rescinding the Deferred Action for Childhood Arrivals program, Attorney General Sessions cited the ‘illegal’ nature of the DACA program as the basis for terminating the program.  He further concluded that DACA was an ‘unconstitutional exercise of authority by the Executive Branch.’  The problem is, as stated above, this was no more than an opinion of the Attorney General – not a determination by a Court of Law – which is the only branch of the U.S. Government that can make such a determination.  As explained by the California case, whenever an Agency of the Government, (such as the U.S. Dept. of Justice), acts, it cannot do so if it is ‘arbitrary, capricious, an abuse of discretion or not in accordance with the law’.

The Administrative Procedures Act grants U.S. District Courts, (such as the one in California), the authority to set aside an act of a government agency if it is ‘arbitrary, capricious, an abuse of discretion or not in accordance with the law’.

The California Court stated:  “In sum, the new Administration did not terminate DACA on policy grounds. It terminated DACA over a point of law, a pithy conclusion that the agency had exceeded its statutory and constitutional authority”.  And basically, ‘you can’t do that’; only courts can draw such a conclusion.  The Court also cited tweets from President Trump and other comments to show that the decision to rescind the DACA program was improperly made, or in the words of the District Court: the Dept. of Homeland Security terminated DACA on “a flawed legal premise that the Agency lacked the authority to implement DACA”.

So what did the court actually order to be done?

The Court has essentially re-opened the DACA program to begin accepting applications for DACA renewals.  (This does not allow new DACA applications - the reasoning being that the plaintiffs were affected only by those who previously had DACA benefits – but not by persons who had never before applied for DACA.)

And the Court is serious – requiring USCIS to provide public notice to DACA recipients that they can apply for renewals, ordering USCIS to keep track of all applications it receives and even requiring a report to the Court on the first day of each quarter reflecting how it is processing the DACA renewal applications.

                So What’s Next?

                The U.S. District Court Order is certain to be appealed to the 9^th Circuit Court of Appeals by the Government, probably pretty quickly and asking that the Court Order be injoined until it can be heard by the U.S. Supreme Court. 

                Also keep in mind that the U.S. District Court’s order is itself only temporary until a Final Decision on the case can be heard on its merits.

                Finally, one cannot help but think that this Decision would have some impact on any negotiations in Congress that attempt to provide immigration benefits for ‘Dreamers’ – but it would be impossible to say whether it has a positive or negative impact on negotiations.  

Stay tuned…

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[1] As a matter of explanation – it is the U.S. Department of Justice, (led by the U.S. Attorney General), that prosecutes the removal (‘deportation’) of immigrants from the U.S.

What's Next For DACA Recipients?

What’s Next For DACA Recipients?

 

You can be excused if you feel like you have whiplash.  The turmoil and mixed messages that have swirled since the announcement was made terminating the DACA program on September 5^th make it difficult to keep up.

Here’s a quick assessment of where we are – at least as of 1:27 p.m. on September 14, 2017:

                The DACA program is still winding down (as described in our previous post on this Blog).   As the program slowly dies, no new petitions are allowed, but anyone whose existing DACA benefits are set to expire before March 5, 2018, still have until October 5, 2017 to file an application for renewing his or her benefits.  The March 5 deadline is significant because it represents a 6-month invitation to Congress to draft and pass its own legislation to provide immigration benefits to the young adults who benefitted from the DACA program – (also referred to as ‘DREAMERS’).

                Shortly after U.S. Attorney General Jeff Sessions announced the termination of the program, tweets from President Trump infer that he is still supportive of the beneficiaries of the DACA program, and even went so far as to say that if Congress did not act by March 5^th, he might consider taking some other action that might be beneficial to these persons.

                Then, last night, Democratic leaders meeting with President Trump announced that they had all agreed to support legislation that would give immigration benefits to DREAMERS, and that funding for ‘The Wall’ between the U.S. and Mexico would not be a part of the Bill being negotiated.  Reports indicate that President Trump did not agree to not continue pursuing construction and funding for ‘The Wall’ – just that he would not pursue funding in the same Bill that would give DREAMERS immigration benefits.  (From a practical standpoint, this would increase the likelihood of passage of a ‘DREAM’ Act, since including funding for ‘The Wall’ would prevent Democrats from supporting the Bill.)

                For all of the excitement these developments seem to create, we would caution against getting too optimistic at this stage.  The history here shows that positions on this type of immigration reform have been predictably inconsistent.  Furthermore, we should be reminded that the DACA program was created only after the President and some Congressional leaders supporting a ‘DREAM’ act failed to get a Bill through Congress – which is precisely the same situation we are now in. 

It takes more than a President and some Senators and Representatives wanting to pass legislation.  It takes a majority of Senators and a majority of Representatives to vote for legislation in both houses of Congress that supports giving benefits to immigrants who are not currently in status.

Given recent history, it’s far from a sure bet that they would work together to get such a Bill passed, even if the President supports it.

But to end on a more optimistic note, it does appear that there is a broad measure of support for these young adults and their plight that seems to transcend political parties and ideology.  So stay tuned to see what happens next. 

 

                Your Immigration Team at

               Hunter, Smith & Davis, LLP

DACA is Terminated

Termination of the DACA Program

 

Like the slow progression of a hurricane expected to make landfall, the Trump Administration today finally confirmed what had been anticipated for a number of months:  the ‘rescission’ of the Deferred Action for Childhood Arrivals, or ‘DACA’, program.

So what does this actually mean?

It could be worse.

Let’s start here: What is (was) DACA?

As referenced above, the ‘D A’ in DACA stands for ‘Deferred Action’.  ‘Deferred Action’ is a legal term that references a longstanding immigration administrative tool that has been in use since the 1970s.  ‘Deferred Action’ simply means that the act of formally removing a person from the U.S. will be deferred for a specific period of time.  From a functional standpoint, it can also be viewed that a prosecutor from the U.S. Dept. of Justice uses his or her discretion to not act to remove a person from the U.S. because of sympathetic factors or in deference to other ‘deportation’ priorities.  This is known as ‘prosecutorial discretion’.

Understanding this helps us clarify what ‘Deferred Action’ does not do.  It does not grant any type of ‘status’ to the individual.  The person is not eligible for a ‘green card’, much less U.S. citizenship – and the person cannot sponsor anyone else for an immigration benefit.  The only thing ‘Deferred Action’ does is temporarily shield the person from an action to remove him or her from the U.S.; in addition, the individual who is granted ‘Deferred Action’ is also permitted to seek work authorization in accordance with Federal Regulations.

On June 15, 2012, then-President Obama ordered the Department of Homeland Security to consider young persons who had already been brought to the U.S. before January 1, 2010 and were at that time under the age of 16, to seek ‘Deferred Action’.  Since it was being used for a specific sector of young people living in the U.S. his program was initiated as ‘Deferred Action’ specifically for ‘Childhood Arrivals’, (or ‘DACA’). 

It is instructive to note that the DACA program was not the creation of a new immigration benefit – (Deferred Action has been around for nearly 40 years) – it was simply identifying a specific segment of society for whom these existing federal regulations would systematically apply.  Each individual, however, would still need to prove eligibility for deferred action on a case-by-case basis by filing a Form I-821D – ‘Application For Consideration of Deferred Action’ – with U.S. Citizenship & Immigration Services.  If the applicant met the qualifications and successfully passed a background check, the individual could receive ‘Deferred Action’ for a 2-year period.

In November of 2014, President Obama sought to expand the DACA program to extend the period of Deferred Action from 2 years to 3 years and include a greater number of persons who arrived before the age of 16.  (These persons are often referred to as ‘Dreamers’ – which alludes to an earlier Congressional Bill that offered similar benefits known as “The Dream Act”.)  Several state attorneys general brought suit in a Texas federal court to enjoin the DACA expansion.  Their success against the DACA expansion was solidified when the U.S. Supreme Court deadlocked on a 4-4 vote on whether or not President Obama’s actions exceeded his executive authority as President of the United States.  The original DACA program was not included in the Texas lawsuit – but what seemed to prompt today’s announcement was the threat among several state attorneys general to sue President Trump if he did not terminate the program on the grounds that DACA exceeded President Obama’s executive authority.

Tennessee’s Attorney General, Herb Slatery was initially among 10 attorneys general who threatened to sue President Trump if he did not terminate the program – but appropriately backed-out of the threat in recognition of the “human element” represented by the many DACA recipients who “have outstanding accomplishments and laudable ambitions”– and encouraged Tennessee Senators Lamar Alexander and Bob Corker to support a legislative solution to the issue.  It is hard to avoid noting the ironic argument that the Trump Administration would have had to make: that the President did not have executive authority to act on these types of immigration matters, when numerous and significant changes to our immigration system have been made exclusively by executive order by President Trump since January of this year. 

Interestingly, when President Obama initiated the DACA program, his stated purpose was to create a temporary program until Congress could act to pass legislation to give these same young people actual immigration benefits including legal status, work authorization or even perhaps lawful permanent residency.  Proposed bi-partisan legislation authored by Republican Lindsey Graham and Democrat Richard Durbin seeks to ‘legislate’ these benefits which – if successful, would be a more reliable means to accomplish the same ends.

 

What Does President Trump’s Memorandum Issued This Morning Actually Do?

First – it formally and immediately rescinds President Obama’s Memorandum of June 15, 2012, discussed above.  In other words, the DACA program is immediately terminated.

But there are many logistical issues to consider, so the program will have to ‘wind down’ in an ‘orderly fashion’.  Thus, here are some of the other logistical ramifications of the President’s decision:

Second – USCIS will continue to adjudicate new DACA applications that have already been filed.  If you have not already filed a new DACA application, it’s too late now.

Third – USCIS will continue to adjudicate DACA renewal applications that have already been filed – and – will actually continue to accept DACA applications for renewal up until October 5, 2017 for persons whose current DACA benefits expire before March 5, 2018.

Fourth – the U.S. Department of Homeland Security will not terminate or revoke Deferred Action benefits from those who currently have them.  Of course, once they expire, they will not be renewed.

Fifth – Advance Parole:  if you have been previously approved for advance parole (the permission to travel abroad and then be admitted back into the U.S.), the Department of Homeland Security/Customs & Border Protection – states that it will continue to honor the permission to return to the U.S., but reminds us that it can also revoke or terminate this at any time.  [I think this means ‘travel at your own risk’.]

Furthermore, it will not approve any new applications for advance parole and will close any applications for advance parole that are currently pending.

 The Long-View

So what happens next?

The political calculation appears to be to give Congress a deadline to pass legislation that confers benefits to young people in this similar situation.  There seems to be some momentum for this since the majority of Americans polled seem to support benefits for ‘Dreamers’.  The less optimistic view is that the DACA program was born out of the same predicament: the inability of Congress to pass a law addressing this issue forced President Obama to issue a Memorandum instead.  Is it possible for Republicans and Democrats, Senate and House of Representatives to cooperate to pass legislation that amounts to immigration reform?

I am reminded of the great hope and momentum that emerged from the U.S. Senate in the summer of 2013 when a strong majority of the Senate – both Republicans and Democrats - voted to enact a Comprehensive Immigration Reform Act, only to see it completely abandoned by the House of Representatives.  That was our last best hope to help fix our ailing immigration system.

President Trump has now created a new opportunity for our Senators and Congressional Representatives to work together to solve this compelling issue. 

Here’s hoping that history will not be repeated.

 

HS&D Immigration