#Immigration Enforcement Run Amok? 24-Year-Old Pleads With @DHSgov To Let Her Fly Back To #Australia

Originally posted on Huffington Post Politics by Elise FoleySARAH JANE MCCROHAN

WASHINGTON — Sarah Jane McCrohan, a 24-year-old Australian, says she stayed in the U.S. for about 11 hours longer than she was supposed to, and it’s landed her in detention for three weeks.

She was traveling from New York to Ottawa on March 26 to go to the Australian embassy when a Canadian border officer noted that she had been in the U.S. longer than the 90 days allotted by the Visa Waiver Program, according to McCrohan and her boyfriend, Chauncey Carter, who was with her at the time. The officer suggested they go back to the American side to sort it out, they said, and they wanted to do the right thing. The point of going to the Australian embassy was for McCrohan to speak to someone there about legal avenues for her to return — she said she hadn’t even realized she had overstayed and had intended to leave the U.S. on time.

So they turned around and went back to the American side of the border crossing. Once they got there, officers detained McCrohan, and she is now set to be deported to Australia.

McCrohan, her lawyer and her supporters aren’t disputing her removal, or that she stayed longer than she was supposed to, albeit unintentionally. But they say it’s absurd that she has been detained for so long based on a mistake.

“It’s such an innocent mistake, and they tried to leave,” said her attorney, David Leopold. “The worst thing you can say about her is maybe she should have planned her trip a little better. … We’re not talking about a significant overstay, we’re talking about a matter of hours.”

Immigration and Customs Enforcement spokesman Khaalid Walls said the agency chose not to exercise prosecutorial discretion and release McCrohan because “recent violators who, in the judgment of an ICE field office director, have abused the visa or Visa Waiver Programs” are a priority for removal.

“Additionally, under the Visa Waiver Program, Ms. McCrohan is subject to mandatory detention and her case is not eligible for immigration court hearings,” Walls said in an email. “She will remain in custody while the agency finalizes her removal.”

In a phone interview from the facility, McCrohan said she wanted to go home and that the uncertainty of not knowing when her detention would end was difficult.

“They give you a mythical date [for removal]. Like they say 10 days, but it’s been 21 days,” she said. “I don’t know anything.”

Gilles Carter, Chauncey’s father, said he offered to pay for her flight back to Australia.

“Yes, she overstayed her visa waiver,” he said. “Should that translate to jail time? In my view, that’s pretty close to insane.”

There will be other repercussions for the mistake when McCrohan gets back to Australia, because she will be barred from returning to the U.S. for a decade. The couple had been planning to travel the country in a refurbished school bus, which they named the Wandering Bus. The aim of the bus project was to give a positive image of the U.S. to the world, Carter said.

Now, their website says in large text that “the wandering has been put on ICE.”

The deportation will also make their lives difficult if they decide to get married. Chauncey Carter and McCrohan have been dating for about two and a half years after meeting at a restaurant management school in Switzerland, and he said he intends to marry her even if he can’t be with her in the U.S.

“This is the woman I want to spend my life with, and if I have to, I won’t do it in this country,” he said.

Obama’s appeal of the Texas GOP anti-#immigrant lawsuit remains strong

This morning the 5th Circuit announced the three judge panel that will hear the Obama Administration’s motion to stay (lift) Judge Hanen’s order temporarily blocking DACA expansion and DAPA; and, as expected, it’s a very conservative panel.  Ian Millhiser of thinkprogress.com described the panel—which includes, Judges Jerry E. Smith (Reagan appointee), Jennifer Walker Elrod (G.W. Bush appointee) and Stephen A. Higginson (Obama appointee)—this way:

Two members of the three-judge panel that will decide whether to reinstate these programs are extraordinarily conservative judges. One of them once described himself, admittedly somewhat jokingly, as a former ‘right-wing activist.’

But here’s the good news.  These judges are not likely to decide the Obama Administration’s full appeal.  Their job is to rule on the Administration’s motion to temporarily lift Judge Hanen’s order so DACA expansion and DAPA can begin to go forward while the 5th circuit appeals court decides the full appeal of the preliminary injunction.

Importantly, the April 17 hearing is not a hearing on the appeal of Judge Hanen’s preliminary injunction.  It is a hearing on the Obama Administration’s motion to stay (lift) the injunction while the court of appeals considers the appeal.  In effect, the Obama administration is asking is that the court of appeals stop Judge Hanen’s order from taking effect until it decides the entire appeal.  If this panel does not postpone the injunction it will be disappointing for sure, but it doesn’t mean the Obama Administration will have lost the appeal.  It will just mean the panel will have decided to continue to let Judge Hanen’s temporary delay of DACA expansion and DAPA stay in place while the 5th circuit considers the full appeal of Judge Hanen’s order temporarily blocking the President’s actions on deportation.

It’s confusing.  But the upshot is that while today’s announcement may be a Monday morning bummer, it’s hardly a death knell to the Obama Administration’s appeal or the underlying case .

The appeals court has not yet scheduled oral argument on the full appeal of the preliminary injunction itself. Nor has it released the names of the three judge panel that will hear it.  That should happen near the end of May or beginning of June once the parties are finished briefing the case.

Given the fast track briefing schedule, the 5th Circuit Court of Appeals could issue a decision on the Obama Administration’s full appeal of the preliminary injunction sometime in June or July.  That means that regardless of whether or not the Court of Appeals temporarily lifts the injunction after Friday’s hearing, if the Obama Administration wins the full appeal, DACA expansion and DAPA could be back on track this summer.

Finally, regardless of the makeup of this or the panel that hears the full appeal, the law and facts are solidly on the side of the President’s immigration executive actions.  As a panel of the 5th circuit recently emphasized in Crane vs Napolitano the law of standing–which is the major issue in this appeal–is designed to keep politics out of the courtroom. And a court should be especially careful, the 5th appeals court cautioned, when it’s being asked to decide that an executive policy is unconstitutional.

Stay tuned.

The beginning of the end of the GOP lawsuit against President Obama’s #immigration executive actions

Also posted at americasvoiceonline.org

No, the 5th circuit court of appeals has not issued a final decision in the lawsuit brought by the State of Texas and 26 other Republican Governors and Attorneys General against DACA expansion and DAPA.  But it did issue an opinion yesterday dismissing Crane vs. Napolitano, a challenge to the Administration’s 2012 DACA program.  The Crane lawsuit was filed by a several ICE agents and the State of Mississippi.

A three judge panel of the 5th Circuit Court of Appeals, (including two (2) GOP appointees), unanimously ruled that the lawsuit should be dismissed because the ICE agents and the State of Mississippi lacked standing to sue.  The 5th circuit concluded they could not show DACA caused them “concrete and particularized” injury which is a legal requirement for standing.  And while the case did not involve the Texas challenge to DAPA and DACA expansion, yesterday’s appeals court’s decision in Craneis enormously important to the Texas lawsuit for two reasons:

First, the 5th circuit emphasized that the law of standing is designed to keep politics out of the courtroom.  A court should be especially careful, so the 5th appeals court stated, when it’s being asked to decide that an executive policy is unconstitutional:

“’The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.’ ‘In keeping with the purpose of this doctrine, ‘[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.’”

That’s directly applicable to Judge Hanen’s decision in the Texas case because he found the plaintiff states had standing to challenge the constitutionality of the President’s executive actions on deportations.  (Coincidentally, yesterday, Judge Hanen also refused to lift the stay of his injunction.The 5th Circuit holds a hearing on that very issue next Friday, April 17th and will soon hold a hearing on the injunction itself.)

Second, the 5th Circuit’s decision in Crane severely undercuts Judge Hanen’s opinion that DACA expansion and DAPA violate the technical rule making requirements of the Administrative Procedures Act.  To get there Judge Hanen concluded that executive actions did not allow for individualized, case-by-case decisions on deferred action.  In Crane the 5th Circuit pretty much eviscerated this theory stating:

The Napolitano Directive makes it clear that the Agents shall exercise their discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis:

[Our Nation’s immigration laws] are not designed to be blindly enforced without consideration given to the individual circumstances of each case.

****

With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE) . . . [and] who meet the above criteria, ICE . . . should immediately exercise their discretion, on an individual basis . . . .

(So much for Judge Hanen’s conclusion that DAPA and DACA expansion violate the rule making requirements of the APA)

And, while DAPA and DACA expansion were not before the appeals court in Crane, the Court nevertheless noted the programs’ similar case-by-case discretionary approach to deferred action:

The 2014 supplemental directive, which also supplements DACA, reinforces this approach to the application of deferred action:

Under any of the proposals outlined above, immigration officers will be provided specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.

While Crane does not control the outcome of the Texas litigation, it’s certainly a very good sign for the 5 million DREAMers and undocumented parents who may be eligible to apply for a temporary deportation reprieve under the President’s executive actions.

It also shows what can happen when Judges leave their politics at the courtroom door.

What to watch for in the appeal of the Texas #immigration lawsuit to the 5th Circuit

Originally posted by America’s Voice

by David Leopold

In March, the 5th Circuit appeals court granted the Obama Administration’s request to fast-track its appeal of Judge Hanen’s preliminary injunction which temporary blocked implementation of DACA expansion and DAPA. The Administration and the plaintiff states agreed to a briefing schedule which requires that all written arguments be filed with the appeals court by the third week in May.

In the meantime, on April 17, the court of appeals will hear oral argument on the Obama Administration’s request that it stay (or temporarily postpone) the hold Judge Hanen placed on DACA expansion and DAPA when he issued his preliminary injunction on February 16.

Importantly, the April 17 hearing is not a hearing on the appeal of Judge Hanen’s preliminary injunction.  It is a hearing on the Obama Administration’s motion to stay (temporarily postpone) the injunction while the court of appeals considers the case.  In effect, what the Obama administration is asking is that the court of appeals stop Judge Hanen’s order from taking effect until it decides the entire case.  So the April 17 hearing is not the final hearing on the appeal.  If, for some reason, the court of appeals does not postpone the injunction that doesn’t mean the Obama Administration has lost the appeal.  It just means the court of appeals has decided to continue to let Judge Hanen’s temporary delay of DACA expansion and DAPA stay in place while they consider the case.

It’s confusing.  But the upshot is that while the April 17 hearing is very important, it’s hopefully just another step along the way to getting the GOP lawsuit thrown out of court—where it belongs.

The appeals court has not yet scheduled Oral argument on the appeal of the preliminary injunction itself. That should happen toward the end of May once the parties are finished briefing the case.

Given the fast track briefing schedule, the 5th Circuit Court of Appeals could issue a decision on the Obama Administration’s full appeal sometime in June or July.  That means that regardless of whether or not the Court of Appeals temporarily lifts the injunction after the April 17 hearing, if the Obama Administration wins the appeal the delay to DAPA/DACA expansion could be no more than a few weeks.

Stay tuned.

READ: Obama appeal brief in GOP’s lawsuit against #immigration actions #DACA and #DAPA

Here is a copy of the brief filed in the 5th circuit appeals court by the Department of Justice on behalf of the Obama Administration in support of its appeal of the preliminary injunction entered by Judge Andrew Hanen in the GOP lawsuit against DACA expansion and DAPA, the executive actions on deportations announced on November 20, 2014.

Download the government’s brief here —–> Immigration CA5 – US PI brief

A Summary of Today’s Orders Of The 5th Circuit Appeals Court in the Texas #immigration Case

Here is a summary of the orders issued today by the 5th Circuit Appeals Court in the Texas Immigration lawsuit:

  1. The Court granted the Obama Administration’s motion to expedite the appeal of Judge Hanen’s preliminary injunction;
  2. Texas (and the plaintiff states) and the Obama Administration agreed to a briefing schedule lasting until about the third week in May;
  3. On April 17, 2015 the Court of Appeals  will hear oral arguments on the Obama Administration’s motion to stay (lift) Judge Hanen’s preliminary injunction pending appeal. Each side will be allowed one (1) hour for argument (Note: it’s rare for a Court of Appeals panel to hear oral argument on a motion to stay.  These are usually decided on papers alone); and
  4. The states opposing the preliminary injunction–Washington, California, Connecticut, Delaware, Hawai’i, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, and Vermont and of the District of Columbia–are granted leave to file amicus briefs in support of the Obama Administration’s appeal of the preliminary injunction.

Note: The Court has set oral argument on the motion to stay the injunction.  Oral argument on the appeal itself has not yet been scheduled. Presumably oral argument on the appeal will be set in the next few weeks.

The Fifth Circuit website indicates that the names of the judges hearing oral argument will not be posted until at least a week before the beginning of the court week.

Given the expedited briefing schedule, the 5th Circuit Court of Appeals could issue a decision on the Obama Administration’s appeal of  Judge Hanen’s order sometime in June.  This means that regardless of whether the Court of Appeals temporarily stays (lifts) the injunction, if the Obama Administration wins the case the delay to DAPA/DACA expansion could be no more than a few weeks.

That’s good news.

.@USCIS Posts Updated L-1B Adjudications Policy for Public Feedback

From U.S. Citizenship and Immigration Services

USCIS Posts Updated L-1B Adjudications Policy for Public Feedback

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez today announced the release of an updated policy memorandum on the L-1B nonimmigrant visa classification for workers with specialized knowledge. The memorandum, which clarifies for USCIS officers how L-1B petitioners may demonstrate that an employee has specialized knowledge, will be posted online for a 45-day public feedback period. The memorandum will go into effect on Aug. 31, 2015.

“This policy memorandum, once it goes into effect, will help companies in the United States better use the skills of talented employees in the global marketplace,” said Rodríguez. “These changes maintain the integrity of the L-1B program while recognizing the fluid dynamics of the 21st century business world. We listened to the concerns of our partners to develop this policy and look forward to the public’s feedback.”

Issuing a final policy memorandum on L-1B adjudications is one of the executive actions on immigration that President Obama announced in November 2014. Release of the memorandum is part of the Administration’s effort to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.

The policy memorandum consolidates previous guidance and provides updated guidance to USCIS officers in adjudicating petitions filed by employers seeking to transfer employees to the United States. Employees who work in any industry and serve in any type of position may be classified as L-1B nonimmigrants, so long as the position described in the L-1B petition requires specialized knowledge.

Officers make the adjudications on a case-by-case assessment, based on the totality of the circumstances and a preponderance of the evidence presented.

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