Media Advisory: #Immigration Law Experts to Discuss Options for Administrative Relief and Executive Action

*** MEDIA ADVISORY***

 

 

TUESDAY: Immigration Law Experts to Discuss Options for Administrative Relief and Executive Action

 

(Washington, DC) – Experts on immigration law will discuss the legality of potential administrative relief and executive action for American families and businesses on a reporter conference call on Tuesday, August 26, 2014 at 12:00 PM ET. Law professors and authorities will provide possible options that the Administration may be considering, background on legal precedent, and guidance on how only a permanent legislative solution can fundamentally fix the country’s broken immigration system.

 

WHO:       

 

Bo Cooper, Former General Counsel of the Immigration and Naturalization Service; Adjunct Professor at American University, Washington College of Law; Partner at Fragomen, Del Rey, Bernsen & Loewy

 

David Leopold, Past President and Past General Counsel, American Immigration Lawyers Association

 

Stephen Legomsky, The John S. Lehmann University Professor, Washington University School of Law, and former Chief Counsel of USCIS, Department of Homeland Security

 

Cristina Rodriguez, Yale Law School; formerly Office of Legal Counsel, Department of Justice

 

Frank Sharry, Executive Director of America’s Voice, moderator

WHAT: Immigration Law Experts to Discuss Options for Administrative Relief and Executive Action

 

WHEN:           Tuesday, August 26, 2014 at 12:00 PM (ET)

 

WHERE:         Via Conference Call

 

NOTE:           Members of the media MUST RSVP to press@fwd.us by 10:00 AM (ET) Tuesday, August 26, 2014 to obtain conference call dial-in and access code.

 

FWD.us is an advocacy organization created to help organize the broader tech community to promote a bipartisan policy agenda – including comprehensive immigration reform, education reform, and support for scientific research – that will boost the knowledge economy to ensure more jobs, innovation and investment, now and in the future. You can learn more at  www.FWD.us.

 

# # #

 

Contact:

Kate Hansen

202-677-7693

kate@fwd.us

 

6th Circuit Appeals Court rules that employers must pay H-1B visa costs; not as clear on physican waivers

By Heather Drabek Prendergast

Yesterday, the U.S. Court of Appeals for the Sixth Circuit issued its decision in Kutty v. DOL, No. 11–6120 (6th Cir. 08/20/2014) and affirmed the lower court’s ruling, which held the employer liable for the costs of obtaining H-1B visas an J-1 waivers (under the Conrad 30 program). 

The Sixth Circuit found that the Administrative Review Board’s (“ARB”) determination that the costs of obtaining H-1B visas – including attorneys’ fees – are business expenses within the meaning of the regulation was a reasonable interpretation of the regulation.  20 C.F.R. § 655.731(c)(9)(iii)(C).  The court also found that the regulation is not inconsistent with the statute.  8 U.S.C. § 1182(n)(2)(C)(i)(II).  In affirming the lower court’s ruling, the Sixth Circuit took a narrow view when it upheld the inclusion of J-1 waiver costs as business expenses.

We note that we understand the ARB’s decision on the J1 waiver expenses to be based on the facts of this case and the propriety of the remedy based on those facts, and not a determination that the Administrator has the discretion to treat J1 waiver expenses as business expenses of the employer in every case, regardless of the facts.  We will not assume that the ARB would so decide, and leave that question to a case in which it is properly presented.

Kutty p. 10-11.  The decision in Kutty is binding throughout the jurisdiction of the Sixth Circuit (Ohio, Michigan, Kentucky, and Tennessee).  Given the court’s ruling, we recommend that employers – particularly those located within the jurisdiction of the Sixth Circuit – pay the costs of obtaining H-1B visas and J-1 waivers.

 

Link to Kutty:  http://aila.org/content/default.aspx?docid=49842

.@americasvoice: Two Key Points Regarding #Immigration Executive Action

For Immediate Release:                                             Contact: Michael Earls

August 12, 2014                                                                                202-494-8555

 

Two Key Points Regarding Immigration Executive Action

Opposing Legislative Reform and Executive Action Perpetuates Immigration Status Quo;

Former AILA President David Leopold Explains Why Executive Action is Legal

 

Washington, DC—Two new opinion pieces, in Spanish and English, further two of the key points to understand regarding potential executive action on immigration:

 

  1. Doing nothing, either via legislation or executive action, is the true radical option on immigration and an endorsement of the failed immigration status quo
  2. President Obama has broad legal authority to act on immigration policy

 

A new column from America’s Voice Senior Advisor Maribel Hastings, running in leading Spanish-language outlets, captures that Republicans are endorsing the broken immigration status quo by refusing to legislate on reform and then preemptively criticizing the president for taking executive action.  Writes Hastings:

 

“Only in the twisted world of immigration politics do the contradictions win out: The House of Representatives won’t legislate, but they blame the president for believing he’s a king if he issues executive orders.  They denounce ‘illegality’, but with their inaction they perpetuate the status quo of real illegality where it’s impossible to know who is among us.

 

Authority and discretion exist and they’re legal.  If they’re not used now for partisan political considerations it’s another matter.  But the last thing Obama should care about is what the obstructionist Republican opposition says.  If they don’t like executive action, then legislate.”

 

Former president of the American Immigration Lawyers Association (AILA), David Leopold, writes a new opinion piece in The Hill that adds to the volume of existing analysis showing that potential executive action on immigration rests on solid legal footingLeopold writes:

 

“Even Mr. Obama’s most ardent critics must concede that his constitutional duty to faithfully execute the immigration law gives him wide latitude in its enforcement.  What’s less clear are the limits of that authority.  How far can the President go?

 

The reason this is not an easy call is because the line between exercising discretion over enforcement and crossing over to policy making is often blurred.  One thing that exemplifies this is determining when a case-by-case grant of discretion crosses over to a categorical grant.  Critics like to argue that case-by-case exercises of discretion are acceptable but categorical are not.

 

But it does not follow that this crosses that line.  As long as the administrative decision to defer the removal of a group of undocumented immigrants is legitimately aimed at more efficient use of law enforcement resources, it arguably falls well within the President’s discretion.  This includes the discretion to defer the deportation of undocumented immigrants—individually or as a group—if doing so allows the administration to focus resources on keeping the country safe.

 

In fact, Presidents of both parties have used categorical grants of deferred action to postpone the deportation of large groups of undocumented immigrants, including abused women, hurricane victims and refugees.

 

Therefore, to violate the constitution, the President’s action must be a dramatic, extraordinary departure from universally accepted exercises of executive discretion.  DACA or its expansion don’t even come close…

 

…Legally therefore, DACA is not much different than executive discretion contemplated by the Morton Memo, which even conservatives concede was well within the president’s authority to issue.  Like the Morton Memo DACA or its expansion is nothing more than a temporary postponement of deportation for undocumented immigrants whose removal is a low enforcement priority. This temporary reprieve from removal falls far short of amnesty which, presumably, would offer qualified undocumented immigrants a new set of rights and obligations, including lawful immigration status and a pathway to citizenship coupled with due process rights, including the right to defend against denial or revocation.

 

Critics like to say that the availability of employment authorization or the use of forms and fees pushes the DACA process or its expansion over the blurry line from lawful discretion to executive lawlessness. But they conveniently forget (or are not aware) that the president’s authority to authorize employment of immigrants is long-standing and already well-established in the law.  The regulation that grants work authorization to immigrants granted deferred action predates DACA and applies to many other categories of people granted deferred action, such as abused women, hurricane victims, and refugees.  The president’s authority to grant work status long precedes DACA, and while it does apply to DACA and would apply to its expansion, it is not an outgrowth of either…

 

…Those who challenge President Obama’s authority to act on his own to limit deportations fail to make the case that DACA or its expansion is such a dramatic departure from the Morton Memo (or other universally accepted forms of prosecutorial discretion) that it constitutes the naked power grab they claim.  It’s not enough that it looks different, it must be different; significantly different from what is accepted as lawful discretion.  But it isn’t significantly different.

 

In other words, it’s legal.”

 

Follow Frank Sharry and America’s Voice on Twitter @FrankSharry and @AmericasVoice.
America’s Voice – Harnessing the power of American voices and American values to win common sense immigration reform


  1. americasvoice.org

###

Obama well within his authority on deportations

Originally posted on The Hill Congress Blog

With the House GOP’s refusal to take up immigration reform legislation, the debate has shifted to the extent to which President Obama can act on his own to make the immigration law work better until Congress provides a permanent solution.

Among the administrative actions rumored to be under consideration is the expansion of DACA—the deportation deferral Obama gave to qualified undocumented youth in 2012.  The administration is reportedly considering expanding it to the undocumented parents of U.S. citizen children and perhaps others.

Critics have questioned the president’s authority to do so.  A broad, categorical deferral of deportation, they contend, grossly exceeds the President’s executive authority amounting to “amnesty by fiat.” The Washington Post Editorial Board went so far as to warn that Congressional dysfunction “does not grant the president license to tear up the Constitution.”  New York Times columnist Ross Douthat characterized it as an “extraordinary, reckless and (yes) ceasarist” abuse of executive authority, “worthy of outcry and opposition.”

Those are some pretty serious claims.  Fortunately, they are not even close to correct.

Even Obama’s most ardent critics must concede that his constitutional duty to faithfully execute the immigration law gives him wide latitude in its enforcement. What’s less clear are the limits of that authority.  How far can the president go?

The reason this is not an easy call is because the line between exercising discretion over enforcement and crossing over to policy making is often blurred. One thing that exemplifies this is determining when a case-by-case grant of discretion crosses over to a categorical grant. Critics like to argue that case-by-case exercises of discretion are acceptable but categorical are not.

But it does not follow that this crosses that line.  As long as the administrative decision to defer the removal of a group of undocumented immigrants is legitimately aimed at more efficient use of law enforcement resources, it arguably falls well within the president’s discretion. This includes the discretion to defer the deportation of undocumented immigrants—individually or as a group—if doing so allows the administration to focus resources on keeping the country safe.

In fact, presidents of both parties have used categorical grants of deferred action to postpone the deportation of large groups of undocumented immigrants, including abused women, hurricane victims and refugees.

Therefore, to violate the constitution, the president’s action must be a dramatic, extraordinary departure from universally accepted exercises of executive discretion.  DACA or its expansion don’t even come close.

In 2011, two years before DACA was announced, former ICE Director John Morton authorized enforcement agents to exempt a broad group of undocumented immigrants from immediate removal based on several factors—including length of time in the U.S., family ties, education, health, criminal history. The Morton Memo, which was the culmination of more than a decade of agency enforcement guidance, drew criticism from immigration hardliners as lax enforcement and from advocates for not going far enough. But no one seriously challenged the administration’s authority to issue it.

DACA, which was announced a year later, took the Morton memo a step further by applying deferred action—a specific form of prosecutorial discretion—to a distinct category of undocumented youth.  It made them eligible for a temporary two year deportation reprieve and employment authorization. This, according to critics, crossed the constitutional line because unlike the Morton Memo, DACA contained all the trappings of law making, including a public announcement, employment authorization and a bureaucratic process.

That may be a useful political argument.  And there is no question that DACA looks and feels different than undocumented status—it permits undocumented youth to step into the sunlight of their communities, work legally, complete school and obtain a driver’s license.  But legally neither DACA (or is expansion) nor the Morton Memo, offer undocumented immigrants any vested right under existing law.  They provide no new lawful immigration status and beneficiaries remain vulnerable to removal. Like any grant of administrative grace DACA can be revoked by the government with the stroke of a pen, at any time, and for any reason.

Legally therefore, DACA is not much different than executive discretion contemplated by the Morton Memo, which even conservatives concede was well within the president’s authority to issue.  Like the Morton Memo DACA or its expansion is nothing more than a temporary postponement of deportation for undocumented immigrants whose removal is a low enforcement priority. This temporary reprieve from removal falls far short of amnesty which, presumably, would offer qualified undocumented immigrants a new set of rights and obligations, including lawful immigration status and a pathway to citizenship coupled with due process rights, including the right to defend against denial or revocation.

Critics like to say that the availability of employment authorization or the use of forms and fees pushes the DACA process or its expansion over the blurry line from lawful discretion to executive lawlessness. But they conveniently forget (or are not aware) that the president’s authority to authorize employment of immigrants is long-standing and already well-established in the law.  The regulation that grants work authorization to immigrants granted deferred action predates DACA and applies to many other categories of people granted deferred action, such as abused women, hurricane victims, and refugees.  The president’s authority to grant work status long precedes DACA, and while it does apply to DACA and would apply to its expansion, it is not an outgrowth of either.

Nor do use of forms and fees and a bureaucratic process evidence executive law making.  Putting aside that the government uses forms and fees for a variety of discretionary benefits—including stays of removal (Form I-246), protection under the Violence Against Women Act (Form I-360), Parole (Form-I-131)—the establishment of a bureaucratic process merely promotes agency efficiency and uniform adjudication.

Those who challenge Obama’s authority to act on his own to limit deportations fail to make the case that DACA or its expansion is such a dramatic departure from the Morton Memo (or other universally accepted forms of prosecutorial discretion) that it constitutes the naked power grab they claim.  It’s not enough that it looks different, it must be different; significantly different from what is accepted as lawful discretion.  But it isn’t significantly different.

In other words, it’s legal.

Leopold is an Ohio-based attorney and the former president of the American Immigration Lawyers Association (AILA).

 

Obama’s Imperial Presidency? Ctd

David Leopold:

NYT’s Ross Douthat fears an imminent Obama power grab on immigration. In response, Greg Sargent talks to experts about the limits of executive power.

Originally posted on The Dish:

Douthat fears an imminent Obama power grab on immigration. In response, Greg Sargent talks to experts about the limits of executive power. Here’s an important point by attorney David Leopold, “former president of the American Immigration Lawyers Association and immigration reform advocate who has consulted with the White House on immigration law”:

Though many argue that [deferred action for childhood arrivals (DACA)] grants its beneficiaries work status, in fact, the regulation that grants work status to undocumented immigrants who have been granted deferred action predates DACA and applies to many other categories of people granted deferred action. The federal regulations governing employment under immigration law existed well before DACA. Under those regulations, any undocumented immigrant granted deferred action — under programs that preceded DACA or coincide with it — had already been able to apply for employment authorization. It requires them to demonstrate economic necessity. That applied to anyone granted…

View original 244 more words

@americasvoice: Game Plan from the GOP and Allies on Child Refugees: Grandstand; Distort; Do Nothing; Repeat

From America’s Voice

The Same Game Plan Used by the Republicans on Every Immigration Debate

 Washington, DC – When it comes to addressing the ongoing child refugee crisis at the border, Republicans and their allies have solidified a strategy of trying to score political points, driving memes that are fact-free, and then ending with a flourish of inaction.  See below for recent evidence of the GOP game plan in motion:

Perry Steps Up Effort to Protect Texas from “Invasion” of 12-Year Old Refugees Fleeing Violence: In a shameless attempt to revive his presidential prospects, Texas Governor Rick Perry scored another day of media coverage when he announced yesterday he’ll be sending 1,000 national guard troops to “secure the border.”  Because, after all, when young kids run to border patrol agents rather than from them, the appropriate response is to send troops, right?  We can’t wait for the photos of National Guardsmen processing paperwork and changing diapers.  Perry’s move is as transparent as his new glasses.

Senator Ted Cruz Attacks Relief for DREAMers as the Root Cause of Child Refugee Issue: Senator Ted Cruz (R-TX) continues to be the lead voice claiming that the cause of the child refugee crisis President’s popular Deferred Action for Childhood Arrivals (DACA) program.  Violence in three of the top five most violent countries in the world?  Nah.  It’s that Obama granted relief to young people who arrived in America before June 2007 that spurred an exodus from three specific countries in June 2014!  The political fallout from this anti-immigrant posturing was demonstrated on Capitol Hill yesterday, as DREAMers mobilized to hold a funeral for the Republican Party.  As Greisa Martinez, organizer for United We Dream, said, “The GOP will not stand for us. They will not fight for us. The GOP is dead to the immigrant community.”

Extremist, Anti-Immigrant Leaders Call for Obama’s Impeachment AND Public Lynching: Anti-immigrant groups just can’t help themselves when it comes to the ongoing child refugee crisis.  Senior Policy Analyst Stephen Steinlight of the nativist group Center for Immigration Studies – a group routinely called by House and Senate Republicans to testify as “experts” at immigration hearings – called for the President to not only be impeached, but also to be “hung, drawn, and quartered.”  Instead of being called as witnesses by Congressional Republicans, this guy should be called to account by the Secret Service.

What if Steve King Held Another Anti-Immigration Rally and Again No One Showed Up?  Nativist opponents of immigration reform were supposed to make their big stand this last weekend, spurred on by the Murrieta, California protest against Central American kids.  Mostly led by two internet groups, Make Them Listen and Overpasses for America, extremists had rallies planned in every state.  In an Iowa rally where Steve King was the headliner, attendance was so sparse it prompted comparisons to his infamous failure of a Richmond rally last August.  Other rallies around the nation were also a bust, highlighting — as Right Wing Watch put it — “the truth that the anti-immigrant movement is desperately trying to hide: it just doesn’t have that much support.”

On His So-Called “HUMANE” Bill, Cornyn Touts More Lies & Makes the Case for More and Faster Cursory Interviews with Terrified Children and Border Patrol Agents with Weapons:  In a new National Review op-ed, Senator John Cornyn (R-TX) distorts his own bill, the so-called “HUMANE Act.” He writes, “A new bill would help fix the immediate crisis and assist thousands of children.  Now, some on both sides of the aisle have expressed concerns about this legislation. On the right, they have said this bill would make it easier for illegal minors to achieve legal and asylum status. That is wrong. The HUMANE Act would not change current law with regard to either claim.  It would, however, make sure current law is actually enforced by speeding up court dates and the removal process for unaccompanied children.”  In fact, instead of current law, which provides children with the opportunity to secure legal counsel and prepare a case to be heard by an asylum officer or immigration judge, his bill would take scared kids who just survived a harrowing journey and subject them to cursory interviews by border patrol agents in green uniforms with a sidearm strapped to their waist.  A recent UNHCR review of the process used for Mexican unaccompanied minors, found that 95% of the kids interviewed by border patrol agents are denied relief and sent home when the UN estimated that 58% had protection claims.

Rep. Phil Gingrey asks CDC to Check Kids for Ebola Virus—Despite the Fact that Not One Case of the Disease Exists in the Americas:  As Ken Sepkowitz of the Daily Beast writes in a piece entitled, “D.C. Moron Phil Gingrey Spread Ebola Fever Over Immigrants”: “The red hot topics of immigration across the Mexican border and infectious disease epidemics converged this month when Rep. Phil Gingrey (R-GA), a retired obstetrician-gynecologist, claimed that ‘illegal migrants carrying deadly diseases such as swine flu, dengue fever, Ebola virus, and tuberculosis’ represent a threat to American health and well-being.  It is a new, if very old argument in the immigration wars, but Dr. Gingrey’s suggestion, in a letter to the director of the Centers for Disease Control, is unusually dim-witted.  Were I, an infectious disease guy, to write to a federal agency about an obstetrical matter, I at least would run my tractate past a colleague in the OB field.  Gingrey, apparently, was in too big a hurry to have a friendly local ID expert point out that swine flu is not in season (indeed, the brief dust-up of a few cases among immigrant children reported a week ago has gone nowhere fast); that dengue fever is not transmitted person to person; and that Ebola has not appeared in the Americas—North, South, or Central—and shows no signs of doing so. OK, so TB is always a threat, sort of, but we know how to screen for it and, from the evidence one can find, are doing so not only at the Mexico entry point but across all immigration points.”

According to Frank Sharry, Executive Director of America’s Voice, “The GOP’s strategy is on full display.  Grandstand, distort and then do nothing.  It’s what the GOP did on immigration reform.  It’s what they are doing on the supplemental budget request before Congress.  And, as always, Speaker Boehner and his ‘leadership team’ finish with a blame game pirouette in which all is Obama’s fault.  So be it.  The GOP will play it’s game, focused on whipping up the 30% of the country that believes anything Fox News and talk radio say.  But if Rick Perry, Ted Cruz and other Presidential wannabes are curious about how this strategy might pan out, perhaps they should ask Mitt Romney.”

Hate groups seize on suffering of Central American Children to spread their filthy message

Hate groups are exploiting the suffering of Central American Children to spread their ugly message.  Are we going to remain silent?

http://www.addictinginfo.org/2014/07/11/texas-right-wing-militia-to-child-immigrants-get-back-or-you-will-be-shot/

Texas Right-Wing Militia To Child Immigrants: ‘Get Back … Or You Will Be Shot’

 

http://www.theblaze.com/stories/2014/07/12/operation-normandy-seeks-3500-volunteers-by-next-may-to-stop-an-invasion-at-u-s-mexico-border/

‘Operation Normandy’ Seeks 3,500 Volunteers by Next May to ‘Stop an Invasion’ at U.S.-Mexico Border

 

“The Federation for American Immigration Reform, a national group, is sponsoring the trip. FAIR seeks to improve border security, stop illegal immigration and promote consistent immigration levels, according to its website.”

 

http://www.fredericknewspost.com/news/politics_and_government/sheriff-heading-to-texas-for-firsthand-look-at-border-crisis/article_b0fae1c4-af18-57bf-8548-74fafb53afaa.html

Sheriff heading to Texas for firsthand look at border crisis

 

http://www.buzzfeed.com/andrewkaczynski/gop-congressman-kids-at-border-gang-members-from-culture-of

GOP Congressman: Kids At Border “Gang Members” From Culture Of “Rape”

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