The Faces of Delay: Executive Action Will Come Too Late for Families Facing Deportation

National Immigration Advocates and Ohio Families Decry Political Gamesmanship, Highlight Real Human Costs of Obama’s Delay

 

To listen to a recording of today’s call, click here.

 

OHIO – With President Obama’s decision to delay executive action on immigration until after the November elections, the hopes of thousands of American families facing deportation were dashed. On a press call today, national, local immigration advocates, legal experts, and family members—including those profiled by Julia Preston of the New York Times today—discussed current Ohio deportation cases in the pipeline and the many good people and families who simply don’t have two months to wait for action on immigration. 

 

As Veronica Dahlberg, Executive Director of HOLA Ohio, explained “As an advocate working with Latino communities in the small towns of northern Ohio, I can tell you that the lack of action on immigration from both Congress and the administration has created a disaster with a very real and devastating human toll, particularly on American children who are being impacted by the loss of a parent by the tens of thousands. We are in a state of emergency.”

 

The situation in Ohio has captured national attention in the past.  The cases outlined on today’s call provide a representative sampling of what other communities are experiencing all across the nation as both Congress and the President fail to act.

David Leopold, Ohio based immigration attorney and past president of the American Immigration Lawyers Association (AILA), is currently representing Pedro Hernandez-Ramirez—husband to a U.S. citizen and primary caretaker to his stepson, Juan, who has cerebral palsy.  After being granted a one-year stay of removal in 2013, Immigrations and Customs Enforcement (ICE) Detroit Field Office Director Rebecca Adducci denied Pedro’s recent request to renew his stay despite the fact that no equities in his case have changed (ready more about Pedro and his family in today’s New York Times or on America’s Voice’s websitehere).

 

“ICE’s decision to tear Pedro away from his family is incomprehensible. Not only is it a brazen act of cruelty, it blatantly ignores the enforcement priorities already put in place by the President.  ICE Detroit seems to have missed the memo which says they are supposed to remove violent criminals and security risks, not people like Pedro Hernandez or Luis Nicassio Padilla,” said Leopold on today’s call.  “The President’s postponement of action on deportations until later this year would be less worrisome if ICE consistently adhered to the Administration’s enforcement priorities.  Truth be told, if ICE field offices actually followed the prosecutorial discretion directives that Obama has already issued, millions of undocumented immigrants would be granted temporary reprieves from deportation now.  Yet, unfortunately that is not the case. We are forced to fight tooth and nail for each reprieve—even in cases like Pedro Hernandez’s where deportation directly threatens the health and well-being of a severely disabled US citizen.”

 

Said Pedro’s wife, Seleste Wisniewski-Hernandez, “I really need the government to have mercy on my family and other families feeling this pain.  I have a lot of physical pain within my body, but there’s no pain deeper than leaving my soul mate and the glue to our family behind.  I can’t imagine life without Pedro.  This is a living nightmare.  Let him step up to the plate and let him continue being the good husband and father he’s been.  We can be productive individuals of the United States but only if we’re together.”  She added, “I cannot do it without Pedro.  It’s just not going to be able to happen.  I’m begging for mercy.”

 

Pedro’s stepdaughter, Stephanie Rodriguez, said, “Breaking apart a family…I don’t think it’s the correct way to do anything.  The whole puzzle that we’ve built over the years is going to fall apart over something that can be fixed right now, but ICE refuses to do so.  Pedro’s the one who helps my brother, who helps me make decisions like whether to join the Marine Corps, the reasons why or why not.  If they deport him, I can’t go and leave my family torn apart.  It’s like I’ve been saying, Mexico doesn’t need him as much as we do.  We’ve been through enough already, and he can’t be replaced.”

 

Fatin Askar is a Columbus, OH based immigration attorney currently representing Marinela Martinez-Magana, who is facing deportation and separation from her long-time partner and three U.S. citizen kids.  After trying to pay a traffic ticket, ICE whisked her away in handcuffs and issued an immediate deportation order, demanding that she leave the country by the end of the month (read more about her story at NBC 4 i here).

 

Said Askar on today’s call, “Every day immigration reform is stalled means a thousand more a day are being deported, including individuals like Marinela who would have qualified for protection under executive action, but because she is being forced to leave the US and her 3 young children by next month she will not have the opportunity to do so.”

 

“Separation will be really hard for us,” added Neri Diaz, Marinela’s longtime partner and father to their three U.S. citizen kids. “I just want the president to keep families together. We’re really not criminal people. We just want to raise our kids.”

 

Concluded, Lynn Tramonte, Deputy Director of America’s Voice, “These are just a few examples of the types of heartbreaking cases we’re seeing in Ohio and across the country.  ICE agents are using tortured definitions of ‘enforcement priorities’ to ensnare peaceful, productive residents.  Pedro and Marinela are not priorities for deportation, they’re priorities for their families.  They can’t afford to wait two months for the elections to be over.  They need the Administration to act now.”

 

To listen to a recording of today’s call, click here.

 

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


www.americasvoice.org

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Obama cannot afford to break another promise on #immigration

Posted on The Hill Congress Blog

Is President Obama about to delay his executive authority to make the immigration system work better until Congress acts?

It’s an important question, especially in light of what he said on Labor Day.

“Hope” Obama declared “is what gives young people the strength to march for women’s rights and workers’ rights and civil rights and voting rights and gay rights and immigration rights.”

Obama’s inclusion of “immigration rights” together with the epic struggles of American democracy – civil rights, women’s rights, voting rights, gay rights and workers’ rights – suggests he sees the struggle for immigration reform as an historic movement not tied to party or politics but inherent to the American democratic experience.
Notice the president used the term “immigration rights” not “immigrants’ rights”?

“Immigration rights” carries with it political, social and cultural significance while “immigrants’ rights” is a more direct reference to redress of rights through the courts. “Immigration rights” on the other hand suggests something inherent; rights that may not yet be on the books, but are nevertheless embedded in our Constitution as are the rights of minorities, women, and LGBTs.

If the president truly views “immigration rights” with the same reverence he does the rights of minorities, women, and LGBTs then how can he morally, ethically or politically justify not using his constitutional authority to fix the system where he can? Did President Kennedy, postpone confronting Gov. George Wallace at the University of Alabama when he tried to block the admission of African American students in 1962 before the enactment of the Civil Rights Act?

It’s also a question of integrity. The president stood in the Rose Garden on June 30, lambasted the House GOP for refusing to take up immigration reform, and promised that he would “act without delay” once he received recommendations from the Department of Homeland Security.

It’s a promise Obama cannot afford to break.

Those words resonated loudly among Latino voters, nearly a quarter of whom have a relative or friend who’s been detained or deported by the Obama administration. Latinos remember that in 2008 candidate Obama promised he would champion immigration reform during his first term in office, but then he broke his promise and deported two million people. They remember that June 2012 when he needed support for his reelection, Obama apologized to the Latino community, granted a deportation reprieve to young undocumented immigrants, and again promised he would fix the immigration system if he was reelected. And Latinos remember that the president was reelected with over 70 percent of their vote.

It’s true that the president is under pressure from some in his own party to wait until after the midterm election to act on immigration. They believe it’s the “safe” thing to do. But voters actually prefer politicians who keep their word, exercise leadership, and take chances over those who play it safe. And the political considerations are far less salient than the moral imperative of doing what the President knows is right—using his executive authority to blunt the harshness of an outdated, rigid, anti-family immigration law.

The president has been called the “Deporter-in-Chief,” and after six years of relentless deportations, his legacy is surely on the line. If he wants to be remembered for an immigration record other than record deportations, he must keep his word to the American people and do what he can to make the immigration system work—without delay.

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

Does Mr. Obama’s reference to “immigration rights” suggest executive action is imminent?

In light of the President’s Labor Day speech it’s a reasonable question to ask.

Mr. Obama’s inclusion of the “immigration rights” with the epic struggles of American democracy–civil rights, women’s rights, voting rights, gay rights and workers’ rights–suggests Mr. Obama sees the struggle for immigration reform as an historic movement not tied to party or politics but inherent to the American democratic experience.

Notice the President used the term “immigration rights” not “immigrants’ rights”?

“Immigration rights” carries with it political, social and cultural significance while “immigrants’ rights” is a more direct reference to redress of rights through the courts.

Mr. Obama’s use of the phrase is significant because if he truly views “immigration rights” with the same reverence he does “civil rights” he can neither politically nor morally justify further delaying the the use of his lawful authority to make the immigration system work better until Congress acts.

Importantly, it suggests executive action is imminent.  After all, how can Mr. Obama postpone protecting any right?

Obama Plugs ‘Immigration Rights’ in Labor Day Address

David Leopold:

The President’s inclusion of “Immigration Rights” with the epic struggles of American democracy–civil rights, women’s rights, voting rights, gay rights and workers’ rights–suggests Mr. Obama sees the struggle for immigration reform as an historic movement not tied to party or politics but inherent to the American democratic experience.

Notice he used the term “immigration rights” not “immigrants’ rights”? “Immigration rights” carries with it political, social and cultural significance while “immigrants’ rights” is a more direct reference to redress of rights through the courts. Mr. Obama’s statement is significant because if he truly views “immigration rights” with the same reverence as he does “civil rights” he can neither politically nor morally justify further delay in the use of his lawful authority to make the immigration system work better until Congress acts. The President’s reference to “immigration rights” together with the other epic American civil liberties movements suggests executive action is imminent. After all, how can Mr. Obama postpone protecting any right?

Originally posted on TIME:

Delivering a fiery address marking Labor Day in Milwaukee on Monday, President Barack Obama for the first time indicated his support for the rights of immigrants in the U.S.

“Hope is what gives us courage; hope is what gave soldiers courage to storm a beach,” Obama said, harkening back to his 2008 presidential campaign. “Hope is what gives young people the strength to march for women’s rights and workers’ rights and civil rights and voting rights and gay rights and immigration rights.”

It was the first time “immigration rights” had been included in the president’s familiar riff on civil principles, and the first time Obama has used the phrase outside the context of referring to “immigration-rights activists.”

The statement, seemingly delivered off the cuff, is the latest indication of Obama laying the groundwork for unilateral executive action that could defer prosecutions for millions who arrived in the United States illegally.

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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


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