When Your Argument Is Wrong as a Matter of Law: The Texas Immigration Response

2016-03-29 SCOTUS

Image via Flickr (bufflehead)

Available in Spanish here.

The lawyers for 26 GOP Governors and Attorneys General, led by Texas Attorney General Ken Paxton, filed their response brief in the case challenging President Obama’s executive actions on immigration. Like everything else about this case, the brief is politically motivated and filled with confusion and obfuscation.  Quite frankly, and I don’t say this lightly, I believe that portions of the brief push the envelope on an attorney’s obligation of candor toward the tribunal.  

The Texas strategy appears to rely on the Justices of the Supreme Court not knowing or understanding the intricacies of Immigration law, which, admittedly, can be complicated and confusing. The crux of Texas’ argument depends on perpetuating that confusion — initially created by their District Court Judge of choice Andrew Hanen — about what the immigration law says and, specifically, between the concept of “lawful status” and “lawful presence.”  The former is a term of art that refers to formal immigrant, nonimmigrant (temporary visa classification) or parole status.  The latter is Hanen’s legally sloppy reference to undocumented noncitizens who are in a period of stay authorized by the Department of Homeland Security—whether or not they also have nonimmigrant, immigrant visa or parole classification.  

“Unlawful presence” refers to those undocumented noncitizens who are accruing time toward the 3/10 year bar to readmission—and not all undocumented noncitizens accrue “unlawful presence.”  For example, students and exchange visitors are admitted for duration of their study programs—not for a specific period of stay authorized by DHS.  If a student overstays his or her program she does not generally accrue unlawful presence toward the 3/10 year bar. To be sure, she is “out of status” and subject to deportation—but she is not accruing “unlawful presence” such that once she departs the U.S. she’ll be barred from returning for a 3 or 10 year period. These are more than legal technicalities.  In the complex world of immigration law lawful status has a precise legal meaning.  Lawful presence does not.

Importantly, as Professor Anil Kalhan has observed on two separate occasions, here and here, the concept of “lawful presence” does not exist as a legal concept in the sense that Hanen, the 5th Circuit, and now Texas use it.  Hanen, later followed by the 5th circuit, took the concept of unlawful presence—a legal term of art which specifically refers to noncitizens who entered the country illegally, overstayed their authorized period of stay, were found to be out of status or (in certain circumstances) worked without authorization —and proceeded—without any statutory authority whatsoever—to reason that noncitizens who had been accruing “unlawful presence” were rendered “lawfully present” by DAPA or DACA+.  Therefore, so Hanen reasoned, the President’s immigration executive actions unlawfully transformed an unlawfully present noncitizen into a noncitizen with lawful immigration status.  This was (and is) wrong as a matter of law.  

If, when reading through the Texas brief, or the lower court opinions, one substitutes “lawful status” for “lawful presence” Texas’ argument falls on its face because DAPA and DACA+ clearly state that the guidance creates no lawful status.  The strongest argument they have derives from various (unwise) political statements President Obama made about changing the law. For Texas, comments made by the President at press events now serve as valid legal sources – and their strongest argument.

Of course, there’s more. Some of this gets very technical, but, again, that’s apparently part of the GOP strategy. Texas perpetuates that Hanen-created confusion between lawful presence and lawful status to make several brazen misstatements which, frankly, I find appalling—especially in a brief filed in the Supreme Court of the United States. Here a few examples:

First, on page 5 of the Texas brief, they claim that on page 38 of its brief the Administration asserts “without any statutory citation, that an alien’s designation as ‘lawfully present’ is not a defense to removal…But defendants also assert [on page 9 footnote 3 of its brief] that an alien granted lawful presence is not ‘present in the U.S. without being admitted or paroled’…That directly negates the charge that an alien is removable as present ‘without being admitted or paroled.’  Lawful presence also appears to negate the charge that an alien is removable as ‘present in the US in violation of [federal law].'”  In fact, on page 9, footnote 3, the Administration’s brief asserts aliens granted Deferred Action “cease accruing unlawful presence for purposes of [the 3/10 year bar]…An alien is deemed ‘unlawfully present’ for this purpose if he is present ‘after the expiration of the period of stay authorized by [the Department of Homeland Security] or is present in the US without being admitted or paroled…DHS treats Deferred Action as a “period of stay authorized by the DHS” that tolls the accrual of [unlawful presence]”.

Contrary to the arguments made in the Texas brief, on page 5 of its brief the United States asserts “Deferred Action does not confer lawful immigration status or provide any defense to removal.  An alien with Deferred Action remains removable at any time, and DHS has absolute discretion to revoke deferred action, without notice or process.”

On page 41 of its brief Texas argues “Nor does it matter that DAPA can be ‘[revoked].’  An alien is still deemed lawfully present—and thus eligible for valuable benefits—until any revocation.  Visas too are revocable at any time in the Executive’s discretion.  But that Executive acts by issuing a visa, and the alien is lawfully present while holding one.” This is flat out obfuscation—and frankly, this is one of the statements that pushes the “candor to the tribunal” envelope.

First, to compare DAPA and a visa is beyond comparing apples and oranges.  DAPA has to do with a discretionary decision to temporarily forbear removal against a person who is in the U.S. without authorization under the civil immigration statute.  A visa is legally nothing more than permission to apply for admission to the U.S.—it is NOT, as the lawyers for Texas likely well know, authorization to be admitted or remain in the U.S.

Second, while the executive may revoke a nonimmigrant visa, that authority has little to do with lawful immigration status.  As stated, a visa generally gives a person permission to apply for admission to the U.S. in a specific immigrant or nonimmigrant visa classification e.g. employment- or family-based immigrant or visitor, worker, student status etc. It does NOT give anyone permission to be in the U.S.  So, a noncitizen with a 10 year visitor visa is typically admitted by U.S. Customs and Border Protection for a 6 month authorized period of stay.  If the noncitizen overstays the 6 month period his valid visa is rendered void by operation of law regardless of its 10 year validity and he begins to accrue “unlawful presence” toward the 3/10 year bar.

The bald assertion that an noncitizen is “lawfully present” while holding a visa is a flat out misstatement of law and fact.  Inexcusable in a SCOTUS brief.

Texas does not dispute that the Obama Administration’s enforcement priorities–including his authority to forbear removal of millions of undocumented noncitizens–are solidly legal. Nor can it. But it makes the argument throughout its brief that Texas will be harmed because DAPA recipients who otherwise would have left will cost the state money. On page 14 they argue, “DAPA will cause States to incur additional…costs.  The district court found, based on record evidence, that DAPA will cause aliens who otherwise would have left the country to remain and consume these costly services.” Either this is a an inappropriate political argument in favor of “self-deportation” or it’s flat out inconsistent with Texas’ concession that millions of undocumented immigrants will remain in the U.S. regardless of DAPA or DACA because of the Executive’s adherence to lawful enforcement priorities.

Texas argues that the law does not permit the DHS to grant employment authorization to deferred action recipients, other than in four specific categories authorized by statute–U visa applicants, family members of lawful permanent residents killed in the September 11 terrorist attacks, family members of U.S. citizens killed in combat and Violence Against Women Act (VAWA) applicants.  Here the Texas lawyers are trying to persuade SCOTUS to agree that “the 5th circuit correctly held that the Executive’s sweeping limitless conception of its power is beyond the scope of what the INA can reasonably be interpreted to authorize.”  In other words, they argue that the law does not permit the Administration to grant deferred action recipients employment authorization other than in the four specific enumerated situations.  Of course Texas conveniently ignores the statutory and regulatory provisions and historical practice making noncitizens granted deferred action eligible to apply for employment authorization based on a showing of economic need.  It was here that the 5th circuit went beyond what even Hanen did in his order blocking in DAPA and DACA expansion.  If allowed to stand, this portion of the misguided 5th circuit holding would upend deferred action as we know it.

Finally, and most surprising, the Texas argument for standing contains little, if anything, new. They must realize, given Chief Justice Roberts’ strong views on standing that this is probably  their biggest hurdle. But, to be honest, they don’t have much new to offer. They rely on the claim that Texas will be harmed through costs incurred by the issuance of driver’s licenses (as well as other costs incurred) as a result of deferred action.  However, on the question of whether states get special standing consideration Texas is clearly arguing to the justices on the Court who previously decided in favor of standing in Massachusetts v EPA.  The Texas lawyers incorrectly claim that to deny standing would require the Court to overrule Massachusetts, something courts—especially the Supreme Court—would be reluctant to do because of the hallowed tradition of stare decisis.  Also, Chief Justice Roberts authored the dissent in Massachusetts, in which he adhered to the Supreme Court’s traditionally rigorous standard for standing—an obvious problem for Texas in this case.  Fortunately, the Supreme Court can dispose of Texas’ standing argument, as did the Administration in its brief, because the Massachusetts case–which involved a very different set of circumstances–does not support Texas’ argument here.

Texas’ response brief makes it clear that the GOP’s case against DAPA and DACA+ depends on confusing the Justices about the intricacies of immigration law. That might have worked with Hanen and in the Fifth Circuit, but shouldn’t with the Supreme Court.  And, with gratuitous references to President Obama’s statements at press conferences, they underscored that their case is really a political dispute, which should be decided at the ballot box, not by the federal judiciary.

My take on #immigration and the 2016 presidential election

In case you missed it:

Six key reasons why President Obama thinks #SCOTUS should uphold his #immigration executive actions


Monday the Obama Administration filed its opening brief before the U.S. Supreme Court in U.S. v. Texas, the lawsuit challenging DAPA and DACA expansion, the President’s November 20, 2014 executive actions on deportations. Here are six key arguments the Administration has made to the Court:

  1. The lawsuit is a political, not a legal dispute and has no place in court.  The Administration stresses that the case is, at bottom, a policy dispute masquerading as a lawsuit.  “The court of appeals struck down a federal immigration enforcement policy at the behest of a group of States that are not the objects of that policy. Its ruling violates bedrock limits of Article III and forces the federal courts to resolve complex debates over immigration policy that the Constitution reserves to the political Branches of the National Government.” And later, “Within the National Government, it is the responsibility of the political Branches—not the federal courts—to establish and revise immigration policies for our Nation as a whole and, in so doing, to consider the views of different States. 6 U.S.C. 202(5). “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.”
  2. Texas and the 25 other states have no standing to sue the federal government over its immigration policy—they have no business taking their challenge to DAPA and DACA expansion to court.  Citing DaimlerChrysler v. Cuno, an opinion authored by Chief Justice Roberts himself, the Administration emphasizes that “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”  The Administration continues, citing Arizona Christian Sch. Tuition Org. v. Winn, (another case in which Roberts was in the majority) arguing that to “establish standing, a plaintiff must show, at a minimum, that it has suffered an individualized injury to a ‘legally protected interest,’ that the injury is ‘fairly traceable’ to the defendant’s challenged conduct, and that the injury is redressable by a favorable decision.”  The claimed harms to Texas, so the Administration argues, “are nothing more than allegations of indirect or incidental effects from the Guidance, not invasions of any legally-protected interest under the Constitution.”
  3. Chaos will ensue in the courts if Texas is permitted to sue the federal government over an immigration enforcement policy.  Allowing this case to go forward, the Administration claims, “would upend the constitutional design by enmeshing the courts in all manner of disputes between the federal government and a State, or competing factions of States, over immigration policy.” The government argues it will open the floodgates, drowning the federal courts in claims brought by states that disagree with a federal policy.  “If States could establish standing on the basis of the indirect effects of federal policy choices regarding immigration enforcement, federal courts would be drawn into all manner of generalized grievances at the behest of individual States that disagree with federal policy judgments. Such a rule would enable any State to make an end-run around the structural limitations on its authority and cause the very sort of harms those limitations are intended to prevent.”  Later, the Administration continues, “Allowing individual States to challenge such decisions based on their incidental effects would upend the federalism and separation-of-powers principles that form the foundation of our constitutional structure.”
  4. The case is not about Mr. Obama’s authority to grant temporary deportation reprieves—everybody agrees the President has that authority—it’s about the Republicans’ objection to allowing undocumented parents a chance to work legally to support their families. “[R]espondents do not dispute that the Secretary has discretion to establish policies for forbearing from removing every single person who is potentially eligible under the Guidance—and indeed for forbearing from removing the larger number of aliens who he has determined are not enforcement priorities. The Secretary thus has ample authority to notify these lowest-priority aliens that he has made a non-binding decision not to remove them for a period of time. The real focus of respondents’ legal objection is not deferred action itself, but the availability of work authorization as a result.”  The government then provides the Court a detailed explanation of the availability of employment authorization to undocumented immigrants granted deferred action demonstrating that it’s nothing new, and well-grounded in the law.
  5. Congress has effectively authorized DAPA and DACA expansion.  The Administration cleverly uses the Congressional Republicans’ failure to defund DACA and DAPA against the GOP plaintiffs arguing that the failure and subsequent funding of DAPA and DACA is tantamount to Congressional acquiescence. “Congress has considered a series of bills that would bar implementation of DACA (and later DAPA) or block funding unless they are rescinded, and that would limit the Secretary’s authority to grant work authorization. E.g., H.R. 5759, 113th Cong., 2d. Sess. (2014). None has passed both the House and Senate, much less become law. After much debate, Congress instead has enacted two appropriations bills that fund DHS—leaving DACA and DHS’s deferred action and work-authorization authority untouched. 2016 Appropriations Act 256; 2015 Appropriations Act, 129 Stat. 42.”
  6. The Republicans’ claim that the deferred action guidance violates the Take Care Clause is not worth the paper it’s written on.  The Administration all but dismisses the states’ claim that DAPA and DACA expansion violate the president’s obligations under the Take Care Clause, devoting a mere three (3) pages to it at the end of the brief.  The government argues that the states “merely use the Take Care Clause to dress up their misguided statutory arguments in constitutional garb… And in any event, the Secretary is faithfully executing the weighty and complex task of administering and enforcing the INA.”

Is the politically charged Texas immigration case about to become more politically charged?

As the 9 justices of the U.S. Supreme Court ponder whether to review the Republican lawsuit attacking President Obama’s immigration executive actions, back in Brownsville, Texas U.S. District Judge Andrew Hanen—whom Republican politicians, led by the state of Texas, sought out late last year to block the actions known as DAPA and DACA expansion—appears to be making an already brazenly political lawsuit more political.

In a little noticed order issued earlier this month Hanen commanded the parties to appear in his courtroom on Tuesday December 15 to explain the effect of a procedural decision of the 5th Circuit Appeals Court “on the rights of individuals to intervene in the case.” (The intervenors are people who have expressed an interest in becoming parties to the Texas immigration case).

When I read Hanen’s order the first question that came to my mind was: Why have a hearing now?  Hanen’s temporary injunction blocking the immigration executive actions is currently on appeal to the Supreme Court.  If the Court agrees to hear the case this term the lawsuit will not likely return to Hanen’s court room for months, if ever.  Most legal scholars and observers believe that Hanen was wrong to block the president’s executive actions last February.  If the Supreme Court hears the case this term there’s a pretty good chance they’ll toss out the entire case, rendering a hearing on the intervenors pointless.

Wouldn’t it make more sense for Hanen to put the whole case on hold until after the Supreme Court reviews it?  Why waste precious tax payer dollars and limited judicial resources on a procedural hearing about the role of the intervenors if there is a chance the case won’t survive Supreme Court review?  On that point even the GOP politicians who brought the case seem to agree. They’ve joined the Obama administration in a motion asking Judge Hanen to shelve the case until after the Supreme Court makes a decision.

What’s driving Hanen to go forward with a hearing at this point? Doesn’t he have other cases on his docket that need his immediate attention?

Maybe Hanen’s sense of urgency has more to do with who the intervenors are? Among those seeking to impose themselves on the litigation are Orly Taitz, queen of the disgraced and discredited birther movement, which challenged President Obama’s U.S. citizenship and legitimacy as President (Taitz specifically sought out Hanen to file several anti-immigrant lawsuits) and the infamous Maricopa County Sheriff Joe Arpaio, who’s built his brand by terrorizing Latino neighborhoods, surreptitiously investigating the wife of a federal judge and violating folks’ civil rights.  Arpaio lost a case on this same issue in the D.C. District and on appeal at the D.C. Circuit Court of Appeals.  It’s difficult to imagine that either Taitz or Arpaio have a “concrete, personalized, and legally protectable” interest in the case as required for intervention. Yet Hanen has set the hearing for Tuesday, December 15 and that presumably means the interests of Taitz and Arpaio will be heard.

All this underscores the real nature of the Texas GOP attack on DAPA and DACA which, as a panel of the 5th Circuit appeals court observed in its order affirming Hanen’s hold on DAPA and DACA expansion, involves “policy disagreements masquerading as legal claims”. Taking the court’s apt description a step further, the Republican challenge to the deportation deferrals is more about the party’s rabid disdain for “anything Obama” than the sanctity of the law.  DAPA and DACA wouldn’t have even been necessary if the GOP House leadership had allowed an up or down vote on comprehensive immigration reform in 2013.  Everyone knows that immigration reform would have passed Congress and the President would have signed it into law obviating the need for a deportation deferral.  In the aftermath of the House GOP’s intransigence Obama set forth immigration enforcement priorities which target felons, national security threats and recent border crossers rather than DREAMers and undocumented parents.  While he was able to slap a temporary hold on DAPA and DACA expansion, Hanen—who has not shied away from launching gratuitous attacks on the Obama administration’s immigration enforcement policies—knows that the President’s enforcement priorities are unassailably legal.

Is that why Hanen appears so eager to open his courtroom to a discussion of the role of the intervenors, including the infamous Sheriff Joe Arpaio and birther queen Orly Taitz, as the Supreme Court decides whether it will hear the Texas immigration case this term?

It seems that the participation of Apraio and Taitz will do little more than inject more nasty politics into the GOP’s shamelessly political lawsuit.

It’s time for the GOP to denounce Trump, clearly and unequivocally

I honestly did not think that Donald Trump could be any more vile and disgusting than he has been since he called Mexicans rapists and murderers during his campaign announcement last June. But today he outdid himself and I cannot remain silent.

Trump’s call to ban Muslims from entering the U.S. is hate speech pure and simple. There is no precedent for barring people from entering the U.S. based on religion. It’s never been done before. And the idea of a religioustest for admission to the U.S. flies in the face of everything this nation stands for as a beacon of liberty and freedom for people facing religious oppression around the word, including millions of Muslims who have been victimized by ISIS, Al Queda and other terrorist gangs.

Trump’s ugly call to ban Muslims from the U.S. raises a host of disturbing questions. How does Trump propose to enforce the ban? What about Muslim immigrants and visitors who are already here? Is he proposing to include them in the racist based mass deportation of Latinos that he has proposed? What about immigrants who convert to Islam after they arrive in the U.S.? What about American citizens who are Muslim?

Trump’s hateful, bigoted call to bar Muslims from entering the U.S. is un-American, illegal and immoral. Where does his brazen hatred stop?

Trump has run a campaign based on hatred and bigotry. He’s aimed his venom at Mexicans, Latinos, women, war heroes and others. It’s high time for the Republican Party, including all the GOP presidential hopefuls, to denounce Trump clearly and unequivocally. No major political party should tolerate such bigotry and hatred from a candidate regardless of his poll numbers. And Republicans should make clear that they will not support Donald Trump even if he is nominated as a result of the primaries.

Unfortunately Donald Trump isn’t the only GOP presidential candidate who is using hatred and fear mongering to round up votes. Ted Cruz’s shameful proposal to place a three year moratorium on refugees coming from Muslim countries where ISIS or Al Qaeda control a substantial amount of territory targets the very refugees who are most in need of protection. Let’s not forget that thousands of men, women and children are fleeing these despicable terrorists who have murdered an untold number of Muslims and Christians. Rather than play on Americans’ worst fears Cruz should stand up and fight for protecting all refugees in need of safe haven.

That’s what America is about.

On Immigration, “A Mistake Has Been Made” And The Supreme Court Must Fix It

Yesterday’s 2/1 decision by the 5th Circuit was expected, given the make-up of the panel.  But the sharp and persuasive dissent authored by Judge Carolyn Dineen King should not be overlooked, as it points the way for the Supreme Court to step in and correct this egregious mistake.

Judge King cogently asserts that, simply put, the Republican assault on Obama’s executive actions does not belong in court:

The policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process.  That this case essentially boils down to a policy dispute is underscored not only by the dozens of amicus briefs filed in this case by interested parties across the ideological spectrum—Mayors, Senators, Representatives, and law enforcement officials, among others—but also by the district court’s opinion, which repeatedly expresses frustration that the Secretary is “actively act[ing] to thwart” the immigration laws and “is not just rewriting the laws [but is] creating them from scratch.” The majority’s observation that this suit involves “policy disagreements masquerading as legal claims” is also telling.  Whether or not the district court’s characterization of this case is accurate—though the record number of removals in recent years demonstrates that it is not—to the extent some are unhappy with the vigor of DHS’s enforcement efforts, their remedies lie in the political process, not in litigation.

King’s biggest swipe is aimed at her colleagues, Judges Jerry E. Smith and Jennifer Walker Elrod, for their inexplicable slow-walking of the decision which threatened to delay Supreme Court review until June 2017, months after President Obama leaves office.

I have a firm and definite conviction that a mistake has been made.

King writes,

That mistake has been exacerbated by the extended delay that has occurred in deciding this “expedited” appeal.  There is no justification for that delay.

I dissent.

That’s some very tough language.  And it raises the obvious question—which many have been asking since the panel failed to decide the case within the 5th Circuit’s 60 day decision target: Did Judges Smith and Elrod intentionally delay their decision?

As King correctly observes, in March the 5th Circuit granted the Department of Justice’s request to fast-track the case.  On July 10, Smith, Elrod and King heard argument on the merits of the case.  Why then did it take four long months for the panel to decide; especially when there was little doubt about what Smith and Elrod were going to do?

Nearly everyone watching the case knew the two Republican appointees were all but certain to side with the GOP challenge to Obama’s deferred action program. That’s because in May they both refused to temporarily lift Hanen’s hold on the administration’s immigration actions, stating: “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”

King is right to highlight the court’s incomprehensible delay, which exemplified the legal maxim “Justice Delayed Is Justice Denied.”  This case does not just involve legal principles, it involves the lives of 5 million American children and their parents.

On the merits the ruling was hardly a surprise.  The 5th circuit appeals court is considered by many to be the most conservative federal appeals court in the country, and Judges Smith and Elrod are among the most conservative judges on the court. Most observers expected them to side with the Republican governors and attorneys general that filed the case in the courtroom of U.S. District Judge Andrew Hanen of Brownsville, Texas who earlier this year blocked President Obama’s immigration executive actions from being implemented.

At bottom, Smith’s and Elrod’s decision yesterday was a more detailed version of their order earlier this year refusing to lift the hold that Hanen had put on the executive actions.  In her dissenting opinion King methodically and convincingly dismantled their reasoning.  Her forceful analysis, which provides a clear roadmap for the Supreme Court to reverse the 5th Circuit decision, is perhaps best summarized by King herself:

Even if this case were justiciable, the preliminary injunction, issued by the district court, is a mistake. If the [President’s deferred action guidance] is implemented in the truly discretionary, case-by-case manner it contemplates, it is not subject to the APA’s notice-and-comment requirements, and the injunction cannot stand.  Although the very face of the Memorandum makes clear that it must be applied with such discretion, the district court concluded on its own—prior to DAPA’s implementation, based on improper burden-shifting, and without seeing the need even to hold an evidentiary hearing—that the Memorandum is a sham, a mere “pretext” for the Executive’s plan “not [to] enforce the immigration laws as to over four million illegal aliens.”…That conclusion is clearly erroneous.  The majority affirms and goes one step further today.  It holds, in the alternative, that the Memorandum is contrary to the INA and substantively violates the APA.  These conclusions are wrong.  The district court expressly declined to reach this issue without further development…and the limited briefing we have before us is unhelpful and unpersuasive.  For these reasons, as set out below, I dissent.

King also correctly makes a point of reminding her colleagues that deferred action to shield undocumented immigrants is nothing new. It dates back to the Eisenhower administration and has been used by every president since; the most notable example being the “Family Fairness” policy implemented by Presidents Ronald Reagan and George Bush, Sr.  As King writes:

Much like pretrial diversion in the criminal context—which also developed over a period of decades without express statutory authorization—deferred action channels limited resources by allowing certain low-priority offenders to work openly and contribute taxes, thus reducing their burden on the system.  Notably, such prosecutorial discretion is heightened in the immigration context.

It may seem counter-intuitive, but in legal terms yesterday’s decision was actually good news for supporters of Obama’s immigration executive actions and for the millions of DREAMers, American children, and parents who have been patiently waiting for justice.  There is still time for the U.S. Supreme Court to take it up this term and make a decision by June.

Of course the Department of Justice must now do everything in its power to get the case before the U.S. Supreme Court immediately.  And once it gets there will be incumbent on the Supreme Court to clean up the integrity that 5th Circuit majority besmirched; to decide the merits of the GOP assault on Obama’s immigration actions without politicizing the case on a partisan basis; to base its decision on facts and precedent rather than conjecture, and do it without engaging in political delays.

[Update:  The Department of Justice has announced it will petition the U.S. Supreme Court to hear its appeal of the 5th Circuit Appeals Court decision]

#MoreThanALabel: Immigrant Stories Define What It Means to be American @lorellapraeli & @juansaaa

Originally posted on SocialWork@Simmons

In my experience, there is no issue that impassions people more than immigration. Why? Fundamentally, I believe it is because immigration is visceral: It is about our essence as individuals, as a people, as a culture, and as a nation. It is about where we have been and where we are going. What kind of a country do we want to be? Do we want to be a welcoming nation that opens its arms to people from all over the world, and from all walks of life, or do we want to turn our backs on those in need, and restrict critical opportunities for engineers, entrepreneurs, researchers, and scientists like Einstein, who was, by the way, a refugee?

I know which nation I want.

Let me tell you about two immigrants who inspire me. Two outstanding individuals who have taught me much about what it means to be an American.

Lorella Praeli

Lorella was born in Ica, Peru. At 2 years old she lost her right leg in a horrific accident caused by a drunken driver. Determined that their young daughter receive the best medical care available, Lorella’s parents brought her to the U.S. several times a year for treatment for her high amputation. Eventually the travel took its toll, and Lorella’s parents had no choice but to permanently move the family to the U.S. so she could receive the health care she needed. The family settled in New Milford, Connecticut, where Lorella’s aunt lived.

Lorella excelled at school but also endured cyberbullying because she was physically challenged, a Latina, and an immigrant.

But Lorella was not deterred. In high school, she became active with the Anti-Defamation League’s Names Can Really Hurt Us program and worked hard to promote bullying awareness and reconciliation.

Lorella went on to graduate at the top of her high school class and was awarded a full academic scholarship to Quinnipiac University, where she went on to graduate summa cum laude.

But despite her amazing accomplishments, Lorella was burdened by a secret. She was an undocumented immigrant — a fact she had learned when she needed a social security number to apply for college. Like so many other undocumented immigrants who have been brought to the U.S. as children, Lorella lived with the constant gnawing fear of arrest, detention, and deportation.

Yet she was not deterred. Lorella eventually went public as an undocumented immigrant in the DREAM movement, the heroic campaign to pass the DREAM Act, legislation that would provide a pathway to earned citizenship for undocumented youth. Lorella fought successfully for in-state tuition for undocumented students in Connecticut and went on to become Director of Advocacy and Policy for United We Dream, the largest organization of undocumented youth in the United States. While at United We Dream, Lorella was a driving force in the struggle that eventually led the Obama Administration to institute Deferred Action for Childhood Arrivals program (DACA), which offers qualified individuals a temporary reprieve from deportation and a chance to pursue higher education.

In June Lorella became the Director of Latino Outreach for Hillary Clinton’s presidential campaignwhere she focuses on issues of critical concern to the Hispanic community across the U.S.

She has only begun to fight for what she believes in.

Juan Escalante

Juan is the oldest of three brothers, and the son of Vilma and Saul Escalante. When they arrived in the country in 2000, the Venezuelan family settled in Kendall, Florida, a suburb of Miami.

Although they entered the country legally on intracompany transferee visas, the Escalante family, including Juan, became undocumented in 2006. An immigration attorney provided bad advice, leaving them without visas and green cards. Even though they followed the rules, the Escalantes found themselves without legal documents and without a way to legalize their immigration status.

Despite these obstacles Juan persevered. He studied hard in school, earned a 4.0 grade-point average and a spot at the top of his high school graduating class. Juan was accepted into numerous universities across Florida, some of which awarded him scholarships. However, because he was undocumented, Juan did not qualify for either in-state tuition or for the scholarships that he’d earned.

But Juan refused to be cowed by the unfairness of a broken immigration system. Adept at social media and other forms of online communication, he became an advocate for the DREAM Act. Juan developed innovative strategies designed to maximize the impact of young people on the national immigration reform agenda. He was instrumental in the public defense of countless unjust deportation cases, and focused his energy on lobbying and educational outreach.

Juan also made continuing his education a priority. He earned his associate degree from Broward College in 2009 and, with the encouragement of Florida State University President T.K. Whetherell, enrolled in FSU. There Juan became active in the Student Government Association where he helped pass resolutions highlighting the DREAM Act. In 2011 Juan graduated with a bachelor’s degree in political science and international affairs.

But he didn’t stop there. In 2012 Juan, as a beneficiary of the DACA program, re-enrolled in FSU and, on August 8, 2015, earned a Master of Public Administration.

Today Juan is the Director of Digital Campaigns for America’s Voice, one of the most prominent immigration reform groups in the U.S. He frequently writes about immigration policy and provides cutting edge analysis on immigration issues to major media outlets, including the New York Times.

Promoting Immigrant Pride    

Lorella and Juan inspire me as do the thousands and thousands of immigrants with whom I have had the honor of working over the years.

When I think of immigrants, I think of research physicians in America’s foremost medical centers devoted to finding cures for life-threatening diseases such as cancer, cognitive heart failure, and AIDS. I think of engineers in Silicon Valley reining in the future with bold, creative ideas. I think of highly skilled workers in fields, farms, nurseries, hotels, and restaurants across this great land whose labor is the lifeblood of America’s economy.

In 1989, in his final address to the nation President Ronald Reagan described his vision of America as a shining city. He said:

[I]n my mind it was a tall, proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here.”

Reagan understood that America’s strength is its openness: its celebration of creativity and new ideas. We are a welcoming nation, and it’s our job to celebrate the immigrants who grace our shores, no matter how they got here.

David Leopold practices immigration law in Cleveland, Ohio. He is an immigration reform advocate and past president of the American Immigration Lawyers Association. To learn more about Mr. Leopold, visit his website www.immvisa.com

What happened to the lawsuit against Obama’s #immigration actions?

HOMESTEAD, FL - JULY 09: Donatila Diego, originally from Guatemala, (L) and Juana de Leon, originally from Guatemala, stand with others as they show their support for the Obama administration's immigration reform plan on July 9, 2015 in Homestead, Florida. The organizers held the protest the night before the 5th Circuit Court of Appeals in New Orleans is expected to consider lifting the injunction on the Obama administrations executive action to allow parents of U.S. citizens and legal permanent residents to gain temporary status in the U.S., as well as to expand the deferred action program for undocumented youth. (Photo by Joe Raedle/Getty Images)

Originally  posted on MSNBC.com by David Leopold

The legal maxim “justice delayed is justice denied” pretty much sums up the procedural posture of the Obama administration’s appeal of the Republican lawsuit attacking the president’s executive actions on deportation. The appeal—which asks the 5th Circuit Court of Appeals to vacate a hold placed on the deportation deferrals by U.S. District Judge Andrew Hanen—has been in the hands of a three judge panel of the court since it heard final argument on July 10.

But nearly three months later, the panel has failed to rule, leaving 5.5 million DREAMers and undocumented parents of U.S. citizens and lawful residents unable to apply for a deportation reprieve, undergo background checks and temporarily come out of the shadows until Congress sees fit to do its job and pass comprehensive immigration reform.

Were this a routine civil case, the panel’s delay in ruling probably wouldn’t raise an eyebrow. But this litigation is anything but routine. It directly impacts the lives of millions of Americans across the country – real people like Andrew of Stow, Ohio, who wakes up every morning fearing that his mom, Maria, will be taken from him. Or Ashley of Findlay, Ohio, who fears her undocumented husband, Manny, will be deported to Germany.

The Texas immigration lawsuit is unquestionably a brazen political attack on the president’s November 20, 2014 executive actions on deportation. Before the ink was even dry on the deferred action guidance, the state of Texas, joined by mostly GOP governors and attorneys general from 25 states, shopped for a friendly judicial forum in which to launch their legal assault on the deportation reprieve. And they found one in the Brownsville, Texas, courtroom of U.S. District Judge Andrew Hanen, who’d made a name for himself in other cases excoriating the Obama administration for what he described as its “failure to enforce current United States law.”

RELATED: The cruel reality of Trump’s deportation plan

Apparently Judge Hanen is unaware that under Obama more than 2 million immigrants have been deported, far outpacing any previous president. Nor does he seem to grasp that undocumented population in the U.S. has stabilized, reflecting the lowest levels of unauthorized immigration in many years. In February, as many expected, Hanen issued an order temporarily blocking DACA and DAPA. The Obama administration appealed and, in March, the 5th Circuit granted its request to fast-track the case. On July 10, a three judge panel of the court heard argument on the merits of the case.

That was three months ago and still no ruling.

Compounding the frustration of delay, there’s little doubt about what this panel is going to do – it’s all but certain to uphold Hanen’s injunction. We know that because in May, two of the three panel judges, Jerry E. Smith and Jennifer Walker Elrod – both Republican appointees – refused to temporarily lift Hanen’s hold on the administration’s immigration actions reasoning that “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”

Yet despite the uncertainty about when the 5th Circuit will rule, one thing’s for sure – whatever the court decides, the final word on the Obama’s executive actions will come from the U.S. Supreme Court. The GOP lawsuit is aimed at millions of mixed-immigration status American families and raises serious constitutional questions about whether the case is even properly before the court. In another challenge to the immigration executive actions brought by Maricopa County Sheriff Joe Arpaio, U.S. District Judge Beryl Howell dismissed the suit as improper, ruling that that “The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury – not to engage in policymaking better left to the political branches.” Moreover, observed another panel of the 5th Circuit earlier this year, the question of standing to sue the president is “especially rigorous,” when the lawsuit requires the court to decide whether an action taken by the commander-in-chief is unconstitutional.

But time is short. The Supreme Court begins its term this week. Unless the 5th Circuit rules soon – like in the next two or three weeks – it’s highly unlikely the Supreme Court will be able to decide the case before June 2017. That means the panel’s protracted delay will effectively leave 5.5 million low enforcement priority undocumented immigrants and their families in immigration limbo until well after Obama leaves office.

The panel’s delay feeds directly into the strategy of the GOP plaintiffs who clearly brought the suit to block the implementation of DAPA and DACA. Of course it’s impossible – indeed counterproductive – to speculate about why the 5th Circuit judges may be is taking so long to decide a case of such magnitude. But one thing is certain: It’s time for Judges Smith, Elrod and Carolyn King to rule. Further delay serves no purpose. To the contrary, it now threatens to deprive millions of American families of the justice they deserve.

David Leopold practices immigration law in Cleveland, Ohio, and is former president of the American Immigration Lawyers Association.

Immigrants sue USCIS and DOS over rollback of green card filing dates. READ COMPLAINT –>

Earlier this month, as part of President Obama’s executive actions, the U.S. Citizenship and Immigration Services and U.S. Department of State announced a streamlined green card process which allows applicants with approved immigrant visa petitions who are subject to backlog to file their adjustment of status (green card) applications BEFORE their priority dates are current.  This is significant because it will allow backlogged applicants to port to new employers and will permit them and their spouses to file for employment authorization and advance parole.  The development was welcome news to many long backlogged Chinese and Indian advance skill professionals.  Many were looking forward to October 1 when they could begin filing their applications for adjustment to green card status.

But last week the USCIS and DOS issued a revised visa bulletin pushing back the October 1, 2015 green card filing dates, effectively preventing many immigrants from applying for their green cards and sending them back to backlog purgatory.

Late yesterday immigrants from across the US who would have been eligible to begin filing their adjustment of status applications on October 1 filed a class action lawsuit in Seattle, Washington asking a federal judge to reinstate the previously announced green card filing dates.  You can read the lawsuit —> here.

The legal complaint was filed by Greg Siskind of Memphis, Tennessee.

BREAKING: State Department revises October visa bulletin, rolling back green card “Filing Dates”

Earlier this month, as part of President Obama’s executive actions, the U.S. Citizenship and Immigration Services and U.S. Department of State announced a streamlined green card process which allows applicants with approved immigrant visa petitions who are subject to backlog to file their adjustment of status (green card) applications BEFORE their priority dates are current.  This was significant because it will allow backlogged applicants to port to new employers and will permit them and their spouses to file for employment authorization and advance parole.  The development was welcome news to many long backlogged Chinese and Indian advance skill professionals.  Many were looking forward to October 1 when they could begin filing their applications for adjustment to green card status.

Not so fast.

Today the USCIS and DOS issued a revised visa bulletin pushing back the October 1, 2015 green card filing dates, effectively preventing many immigrants from applying for their green cards and sending them back to backlog purgatory.

Here’s who’s been moved back by today’s revised bulletin:

  • EB2 China: Moved from 5/1/2014 to 1/1/2013 (1 year 5 months)
  • EB2 India: Moved from 7/1/2011 to 7/1/2009 (2 years)
  • EB3 Philippines: Moved from 1/1/2015 to 1/1/2010 (5 years)
  • FB1 Mexico: Moved from 7/1/1995 to 4/1/1995 (3 months)
  • FB3 Mexico: Moved from 10/1/1996 to 5/1/1995 (1 year 5 months)

This is a shining example of the broken system.

%d bloggers like this: