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]

The shocking reality of Donald Trump’s plan to deport millions

Posted on MSNBC.com by David Leopold

DALLAS, TX - SEPTEMBER 14: Republican presidential candidate Donald Trump speaks during a campaign rally at the American Airlines Center on September 14, 2015 in Dallas, Texas. More than 20,000 tickets have been distributed for the event. (Photo by Tom Pennington/Getty Images)

DALLAS, TX – SEPTEMBER 14: Republican presidential candidate Donald Trump speaks during a campaign rally at the American Airlines Center on September 14, 2015 in Dallas, Texas. More than 20,000 tickets have been distributed for the event. (Photo by Tom Pennington/Getty Images) Photo by Tom Pennington/Getty

It’s not clear what was the most shocking about Donald Trump’s rally Monday night in Dallas, Texas: his description of undocumented immigrants as part of a “dumping ground for the rest of the world,” or the reaction of the nearly all-white crowd who awarded his rhetoric with a standing ovation and chants of “USA, USA.”

One day – hopefully soon – when the presidential candidacy of Donald Trumpreaches its ignoble end, perhaps we’ll better understand how a real estate mogul-turned-reality TV star turned-politician could become the front-runner in the Republican primary. But for now, we must take Trump at his word: If elected president, he plans to deport all 11 million undocumented immigrants – including their U.S. citizen children. What’s more, Trump claims he’ll do it all within 18 months to two years. It is, according to Trump, just a question of “good management.”

It is surprising, then, that as we head into the second Republican debate Wednesday night at the Reagan Library in Simi Valley, California, that Trump’s brazen call for mass expulsion of all undocumented immigrants has largely escaped scrutiny in the media, either because he isn’t taken seriously or journalists are afraid of offending him and losing access. But now that the “summer of Trump” has turned into fall, it’s high time that someone call on Trump to explain what he means when he declares that undocumented immigrants “have to go.”

We’re left asking this question in 2015: How would Trump actually deport 11 million people in less than two years?

The leading GOP candidate is talking about ferreting out, arresting, and forcibly removing a population of men, women and children roughly the size of the state of Ohio. Setting aside the Constitution for the moment – something most of Trump’s immigration platform ignores – let’s imagine what a grand scale deportation would mean in real terms. It’s frightening, extreme – and decidedly un-American.

First there would be the rooting out of undocumented men, women and children throughout the entire United States. Department of Homeland Security enforcement agents would have to fan out all over the country looking for undocumented immigrants. Since many work in agriculture, we’d likely see agents combing through rural areas and small town America – places like Painesville and Findlay, Ohio.

We got a glimpse of what that would look like in 2008, when Immigration and Customs Enforcement (ICE) agents raided the Agriprocessors kosher meat packing facility in Postville, Iowa. Hundreds of armed ICE agents swooped into the town – population 2,000 – with helicopters and prison buses to arrest nearly 400 undocumented immigrants, most of whom were Guatemalan laborers. ICE then locked up the immigrants at the National Cattle Congress – which had been turned into a makeshift immigration prison – in nearby Waterloo, where they awaited criminal trials and deportation.

But Postville was just one small town in Iowa. Trump’s mass deportation plan would recreate that disturbing scene in every American community in all 50 states – every county, town and city. As Malcom Harris recently observed, “Sending an amped-up ICE on a mass-deportation mission wouldn’t just be an assault on undocumented people and their families, it would be an attack on American cities, where more than 90 percent of them live.”

Trump’s deportation dragnet would likely start by wreaking havoc on the lives of millions of U.S. citizens. To find undocumented immigrants, immigration enforcement agents would have to whittle down who they question about their immigration status, and that would include interrogating U.S. citizens. Further, because so many undocumented immigrants are part of mixed immigration status families, Americans would be put in the untenable position of having to decide whether to stay in their country, separated from their loved ones facing deportation, or leave the U.S.

In Trump’s America, where the newly inaugurated president would seek to make good on his campaign promise to deport 11 million people within 2 years, what would happen to core American values including family, hard work, community and fairness?

Would our citizens be coerced into becoming immigration informants? Would Americans rat on their neighbors, friends or relatives out of a misguided feeling of patriotism or, perhaps worse, vengeance and retribution? Would undocumented women, children and elderly be exposed to abuse by those who would take advantage of Trump’s deportation machinery to extract control, money or other unspeakable forms of abuse under threat of being exposed to homeland security agents?

Would non-white American citizens and lawful residents be at greater risk of stop, arrest and investigation based on their manner of dress, accent or skin color? And what about unscrupulous employers? One of the strongest arguments in favor of comprehensive immigration reform is that a pathway to earned legal immigration status will reduce workplace exploitation, including sweatshop wages and sexual abuse. One can only imagine the horrible price a corrupt employer might extract from an undocumented immigrant who is desperate to avoid deportation and separation from her family.

Even if Trump were elected president, he would not be able to fulfill many of his draconian promises on immigration – including mass deportation of all undocumented immigrants. Trump’s ugly agenda assumes there is no Constitution, no separation of powers, and no checks and balances which would prevent him from carrying out mass expulsion of undocumented immigrants. Nevertheless, the media has a professional and ethical obligation to the American people to press Trump for specifics on how he would implement his stated immigration agenda, so that voters know exactly what they’d be signing up for if they accept Trump’s offer to “make America great again.”

Tomorrow night in Simi Valley would be a good time to start.

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

Anti-immigrant debate shows GOP still hasn’t learned from 2012 defeat

Republican presidential candidates from left, Donald Trump, Jeb Bush, Mike Huckabee and Ted Cruz take the stage for the first Republican presidential debate at the Quicken Loans Arena Thursday, Aug. 6, 2015, in Cleveland. (AP Photo/Andrew Harnik)

Republican presidential candidates from left, Donald Trump, Jeb Bush, Mike Huckabee and Ted Cruz take the stage for the first Republican presidential debate at the Quicken Loans Arena Thursday, Aug. 6, 2015, in Cleveland. (AP Photo/Andrew Harnik)

Posted on MSNBC.com by David Leopold

On November 7, 2012, the idea of Republicans embracing comprehensive immigration reform was a no-brainer. That was the day after Mitt Romney got hammered by Hispanic voters who rejected his candidacy for president by a 44 point margin.

GOP leaders stunned by the major electoral smackdown couldn’t get to fixing the immigration system fast enough. “While I believe it’s important for us to secure our borders and to enforce our laws,” Speaker John Boehner said the next day, “I think a comprehensive approach is long overdue, and I’m confident that the president, myself, others, can find the common ground to take care of this issue once and for all.”

Fast forward to last night in Cleveland.

“We need to build a wall, and it has to be built quickly,” Republican presidential front-runner Donald Trump declared to resounding applause. Sadly, and dangerously for the GOP, that’s what has become of the party’s official platform on immigration.

There were 10 Republican hopefuls on stage last night. Not one took issue with Trump’s ludicrous contention that the immigration problems in the United States can be solved by building a wall. Not one pointed out that illegal immigration has fallen to its lowest levels in 20 years and that the nation’s undocumented population has dropped by 1 million since 2007. And, sadly, not one offered a detailed, thoughtful policy proposal in response to Trump’s doubling down on his hateful message about Mexican immigrants.

To the contrary, Ohio Gov. John Kasich, who is by many considered a thoughtful, moderate presidential contender, pandered to Trump on immigration, declaring that he “is touching a nerve because people want the wall to be built. They want to see an end to illegal immigration. They want to see it, and we all do. But we all have different ways of getting there. And you’re going to hear from all of us tonight about what our ideas are.”

To be fair, some Republican candidates alluded to fixing the immigration system, but only after “securing the border” – which has become more nuanced politician-speak for “we’ll never do immigration reform because we can always claim the border is not secure enough.” Jeb Bush, who’s gone further than any of his GOP rivals in suggesting he’d support comprehensive immigration reform, reiterated his support for some sort of “earned legal status” for undocumented immigrants, but was disappointingly short on specifics.

Unfortunately, despite Kasich’s promise earlier in the evening, none of the GOP candidates outlined serious proposals to fix the nation’s broken immigration system.

Nor is the GOP’s failure on immigration confined to the presidential candidates. Senate Majority Leader Mitch McConnell declared yesterday that there would be no immigration reform this year, claiming that “the atmosphere for dealing with that issue in the wake of” President Obama’s executive actions on deportations “is not appropriate” – a position that makes little sense given that Obama’s executive immigration actions have been enjoined by a federal judge at the request of GOP governors and attorneys general.

The refusal to embrace or even talk about comprehensive immigration reform demonstrates a major disconnect with Republican constituents across the country. Despite the hard-line presidential campaign rhetoric, recent polling shows the GOP candidates are at odds with the majority of their voters. Recent polling has found 53% to 55% of Republican voters favor some sort of path to earned legal status for the 11 million undocumented immigrants in the U.S. That means that most Republicans are ultimately pragmatic; they want immigration policy solutions, not pandering to the extremists in the party.

The takeaway is clear: When it comes to immigration, the GOP candidates didn’t do the party’s eventual nominee any favors last night. It’s one thing to veer to the right during a Republican presidential primary to capture the base of the party. But the GOP presidential hopefuls – including real estate mogul and reality TV star Donald Trump – would be wise to heed the words of Katie Packer Gage, Romney’s 2012 deputy campaign manager, who recently cautioned the GOP not to repeat her former boss’s mistake on immigration. Romney’s championing of the mean-spirited, inhumane and unworkable policy of “self-deportation” may have helped earn him the support of party extremists, but it drove him over the cliff in the general election.

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

The Texas Lawsuit Challenging Obama’s Immigration Executive Actions Will Be Thrown Out — If the Judge Follows the Law

Originally posted in Huffington Post by David LeopoldUS-POLITICS-OBAMA-IMMIGRATION

Supporters of immigration reform are gearing up for what many expect to be bad news out of a federal court in Brownsville, Texas. Judge Andrew Hanen is about to decide whether or not to block the executive actions on deportations President Obama announced late last year. The actions, which have been challenged in federal court by the State of Texas and 25 other states, expand DACA — the deportation reprieve offered to undocumented immigrants who arrived in the U.S. as children — and create DAPA, a temporary deportation reprieve for undocumented parents of U.S. citizens and lawful residents.

The conventional wisdom is that Judge Hanen will enjoin implementation of the executive actions, perhaps as early as this week. Observers cite to a 2013 opinion Judge Hanen wrote in U.S. v. Navara-Martinez, an unrelated criminal prosecution for alien smuggling. There Judge Hanen, using extremely harsh language, lamented what he described as “the apparent policy of the Department of Homeland Security of completing the criminal mission of individuals who are violating the border security of the U.S.” He went on to say the “Department of Homeland Security should enforce the laws of the United States — not break them.”

To many that sounds like a jurist itching to rule against Mr. Obama’s executive action on deportations. And it’s likely why the State of Texas filed the case in the Southern District of Texas where Judge Hanen presides. The 30 page lawsuit prominently citesNavara-Martinez in an obvious effort to remind the judge that he has already found that the Administration has colluded in a criminal conspiracy to violate the law.

But the conventional wisdom could be way off. In fact, there’s a strong chance that Judge Hanen will throw the case out — if he correctly follows the law.

Here’s why:

First, and perhaps most importantly, the State of Texas has filed a bogus complaint; it reads more like a factually inaccurate press release than a legal document. It fails to describe exactly how the plaintiff states are or will be concretely harmed by the temporary deportation reprieves; especially when the Administration has used all resources allocated to it annually by Congress to detain and deport undocumented immigrants — approximately 400,000 people a year — leading some to label President Obama the “deporter-in-chief.” Further, at least one federal court has dismissed a similar challenge to the President’s executive actions brought by Joe Arpaio, the infamous anti-immigrant sheriff of Maricopa County Arizona, concluding Arpaio lacked standing to sue. While the decision is not binding on Judge Hanen, its cogent analysis of the complex legal doctrine of standing certainly provides persuasive authority for the dismissal of the Texas lawsuit.

Second, there’s no question Judge Hanen is extremely frustrated with DHS’s policy of reuniting unaccompanied minors with their undocumented parents in the U.S. But his opinion in Navara-Martinez was just that, an opinion. While reasonable minds may differ as to the prudence of using a judicial forum to express such views, nothing Judge Hanen did exceeded the bounds of his authority as a federal judge. Indeed, he noted judges are not authorized to make policy. “This Court takes no position on the topic of immigration reform,” Judge Hanen wrote, “nor should one read this opinion as a commentary on that issue. That is a subject laced with controversy and is a matter of much political debate which is not the province of the judicial branch.”

Third, while Judge Hanen severely criticized what he termed the Administration’s “failure to enforce current United States law,” he did so in the context of an alien smuggling prosecution. Whether or not one agrees with the judge’s views, it’s clear he was neither criticizing the Administration’s civil immigration enforcement priorities nor questioning prosecutorial discretion in general, including deferred action on deportations. “This Court is not opposed to the concept of prosecutorial discretion,” wrote Hanen, “if that discretion is exercised with a sense of justice and common sense.” And it would seem — at least to me — that common sense immigration enforcement includes processes like DACA and DAPA which allow the Administration to focus limited resources on deporting dangerous felons, national security risks and recent border crossers rather than DREAMERS and mothers and fathers of U.S. citizens and lawful permanent residents.

Judge Hanen, like all federal judges, has sworn to “faithfully and impartially discharge and perform” his duties under the Constitution. That is a serious oath which requires him to fairly apply the law — regardless of whether or not he personally agrees with the President’s executive actions on deportations. In the meantime many will take comfort in knowing that whatever Judge Hanen decides he will not likely have the last word. That’s all but certain to come from the appellate courts.

New Anti-Immigrant GOP Judiciary Committee Readies Itself for Loretta Lynch Hearing

From America’s Voice

Will Senate GOP Really Turn Critical Hearing on Attorney General Nominee into Anti-Immigrant Brawl?

Washington DC – In Congress and on the campaign trailRepublicans have been busy in the new year burnishing their anti-immigrant brand image.  In Washington, most of the anti-immigration action has taken place in the House of Representatives, where the GOP passed legislation straight from the top of the restrictionists’ wish list, including proposals that block the sensible and legal immigration actions announced by the President last November, end the DACA program for DREAMers, and maximize the deportation of all undocumented immigrants in America.

On the other side of the Capitol, Republicans on the Senate Judiciary Committee are preparing to turn the Attorney General confirmation hearings into yet another anti-immigration slugfest.  Rather than focusing on Loretta Lynch’s qualifications to serve as the next Attorney General for the United States, they are planning to spend much of their time criticizing President Obama’s actions on immigration.

Of course this should surprise no one, since the Republican side of the Senate Judiciary Committee is now stacked with hardliners who have promised to make immigration a dominant focus of the proceedings.

According to Lynn Tramonte, Deputy Director of America’s Voice, “It’s safe to say that Republicans in Congress are obsessed with immigration.  With all of the issues facing the nation today—terrorism, cybercrime, individual liberties, the role of law enforcement in communities, and so much more—Republicans’ decision to turn the Attorney General confirmation hearings into another anti-immigration press conference is just as irresponsible as it is reprehensible.”

It is difficult to predict which Republican Senator will express his anti-immigration obsession the most colorfully, and earn the most headlines.  There certainly are a lot of contenders on the Committee, such as:

“It seems that Republicans in Congress don’t feel they have sufficiently alienated voters who care about immigration reform.  They have to turn every occasion—no matter how important—into an opportunity to attack President Obama on immigration.  It’s a level of obsession that cries out for an intervention,” said Tramonte.

America’s Voice will be commenting on the hearings via Twitter; follow @AmericasVoice to stay informed.

Follow Frank Sharry and America’s Voice on twitter @FrankSharry and @AmericasVoice.

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STATES’ LAWSUIT AGAINST EXECUTIVE ACTION HAD FIRST HEARING YESTERDAY; WHAT HAPPENS NEXT?

Originally posted by America’s Voice

Yesterday, the case filed by 25 states suing President Obama over executive action received its first hearing with federal judge Andrew Hanen.  The defendant (the federal government) has requested until the end of January to file another brief, which means that Hanen’s ruling won’t come until at least February.  There are several things that might happen in his ruling:

  • Standing — this is the first thing that the plaintiff states must establish.  If they can’t demonstrate that they suffer a particular harm due to executive action (and they are claiming all sorts of harms), then they don’t have standing, and the case will be thrown out.
  • Injunction – the states have asked that the judge hand down preliminary injunction while the case is pending.  This would block executive action while the case winds through the legal system.  If the judge has ruled that the states have standing, Hanen can either 1) deny the motion for an injunction, thereby allowing executive action to begin being implemented, 2) grant an injunction, or 3) grant an injunction only in the 25 states that have sued.
  • Stay — if Hanen hands down an injunction, a higher court can issue a stay.  That would freeze Judge Hanen’s decision granting the injunction and once more allow executive action to proceed while the case winds through the courts.

Below, with an informal quick-take and more details is David Leopold, an immigration attorney, legal consultant to America’s Voice and past president of the American Immigration Lawyers Association:

Does Hanen first need to rule on standing, or can he rule on standing and the injunction at the same time?

Think of standing as the question of whether or not the plaintiffs have shown they have suffered a harm that he can rule on. In other words, I could not sue because someone broke a contract with you. You would have to sue. I would have no standing.

So the judge first needs to agree there is standing, e.g. that the plaintiffs have articulated some harm to them over which he has the authority to rule. If, like the judge in the Arpaio case, he concludes there is no standing, he could dismiss on that basis alone. If he concludes there is standing he then (in the same opinion) will likely rule on the injunction. He could conceivably agree there is standing, but deny the injunction, so the two are not necessarily mutually dependent. Bottom line, the 25 states must show they have standing to sue. If no there is standing, there will be no injunction and the case fails. That would be the best result. According to many observers however, it’s more likely, given the judge’s background, that he’ll agree there is standing and will grant the injunction.

If Hanen issues an injunction would it affect DACA and Morton memos as well as executive action, or just executive action (i.e. DACA expansion, DAPA, new priorities enforcement memos, etc)? 

First, this is a hypothetical question. Let’s remember, the immigration executive actions are solidly legal; they are based constitutional and statutory authority and are consistent with deportation reprieves implemented by presidents of both parties dating back to Eisenhower.

That said, this is a much more difficult question because it involves complicated jurisdictional questions. And I don’t believe scholars are of one view about the answer. The rules governing declaratory judgments give the court authority to declare the rights of parties. Whether or not a ruling declaring the president’s executive actions unlawful would immediately apply across the country is a matter of debate. What’s clear is that an adverse ruling declaring the immigration executive actions unconstitutional, if allowed to stand (which I believe is unlikely at best), would affect DAPA and DACA expansion nationally. It would not impact the Morton memos because those are agency policy directives which are not targeted by the suit, and their legality has not been challenged. Nor would it likely affect most of the immigration executive actions related to business immigration issues. I think an adverse ruling would also effect DACA because the complaint asks for a ruling on the “deferred action program.”

Would an adverse final decision (from SCOTUS) affect DACA and the Morton memos as well as executive action, or just executive action (i.e. DACA expansion, DAPA, new priorities enforcement memos, etc)? In the 25 states or nationwide? 

Again, hypothetically, an adverse SCOTUS ruling would likely affect the well-settled tradition of prosecutorial discretion in general—and throw the entire immigration enforcement system into disarray because it could impact all exercises of deferred action, and, therefore all enforcement decisions. In other words, it wouldn’t be clear how much authority the president has to grant exercised prosecutorial discretion in immigration matters, including deferred action. It would be a royal mess.

But this is outcome his highly unlikely. As recently as its decision in Arizona vs U.S. SCOTUS reaffirmed that “a principal feature of the removal system is the broad discretion exercised by immigration officials.” Moreover, as stated, for decades presidents of both parties have granted deportation reprieves to large classes of undocumented immigrants. According to the Immigration Policy Center perhaps the most striking historical parallel to today’s immigration challenges is the “Family Fairness” policy which led President George H.W. Bush to offer a blanket deferral to as many as 1.5 million spouses and children of immigrants who were legalizing, provided they met certain criteria.

If Hanen issues an injunction and it’s stayed, will DHS be able to continue implementation of the program nationwide?

This is exactly what I predict will happen. And DHS will be able to continue implementation of DAPA and DACA nationwide. At some point some court is going to have to correctly apply the law. My hope is that it will be Judge Hanen who has sworn to uphold the law. But if not, my guess is that it will be the 5th circuit court of appeals—not because they like DAPA or DACA or Obama—but because as a federal appellate court they must ensure the integrity of the judicial system. The 25 states clearly lack standing to bring this suit and that’s exactly what I think the ultimate ruling will turn on.

How much time could pass between the issuing of a preliminary injunction and having it stayed by another court? 

Going out on a limb here, but I believe it will be very short—a matter of hours, if that much. My guess is that in the event of an adverse ruling the government will immediately ask the judge to stay his own order granting the injunction pending appeal. He may or may not do that. If he doesn’t, the government will probably immediately appeal to the 5th circuit and request an emergency hearing. And if that doesn’t work, the government will likely ask SCOTUS to intervene.

What the #Immigration Executive Actions Mean for You and Your Family: 8 Things You Need to Know

Originally posted on Huffington Post

Last week President Obama announced he will take series of executive actions designed to strengthen the border, hold undocumented parents of U.S. citizens and lawful permanent residents accountable by giving them a chance to register, pass criminal background checks and pay taxes. The Administration also plans to use the existing immigration law to promote investment and make the immigration system work better until Congress finally passes immigration reform.

1. There’s Nothing to Apply for Yet And Immigrants Should Be Careful Not to Get Scammed.

While the President has a released a broad outline of his immigration executive actions, the details, including the application process, have not been finalized. In other words, there is nothing to apply for yet and potential applicants should heed the warning posted on the U.S. Citizenship and Immigration Service’s website:

Important notice: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam.

2. The Deferred Action Program Will Apply Only to The Undocumented Parents of U.S. Citizens and Lawful Permanent Residents.

Perhaps the most dramatic of the executive actions is the President’s decision to offer a temporary deportation reprieve — formally known as Deferred Action — to undocumented immigrants with U.S. citizen and lawful permanent resident children.

The intent is to give parents a chance to come out of the shadows and get right with the law — register, pass criminal background checks and pay taxes.

To qualify an applicant will have to show, among other things, that he/she has been in the U.S. since before January 1, 2010, and is the parent of a citizen or lawful permanent resident born on or before November 20, 2014. The Administration hopes to have the application process in place within 180 days.

3. DACA Will Be Expanded To Make More DREAMERs Eligible.

Two years ago Mr. Obama offered a temporary deportation reprieve to qualified undocumented youth who had arrived in the U.S. as children. The process, known asDeferred Action for Childhood Arrivals or DACA, brought hundreds of thousands of DREAMERs out of the shadows so they could work and study. To be eligible a DREAMER had to show, among other things, that he/she had arrived before June 15, 2007 and been in the U.S. and under the age of 31 on June 15, 2012. While the process was a game changer for many DREAMERs, others did not qualify because of the entry deadline and age cap.

The executive actions will extend the entry requirement to June 1, 2010 and remove the age cap, permitting many more DREAMERs qualify for a temporary 3 year reprieve from deportation.

While the expanded DACA program is not yet in place, it is expected that the USCIS will begin receiving applications within 90 days.

4. Provisional Family Unity Waivers Will Be Expanded to Included the Undocumented Husbands and Wives Of Lawful Permanent Residents.

Most people think that if an undocumented immigrant marries a U.S. citizen or lawful resident he/she can get a green card. That’s both right and wrong. Many undocumented immigrants who qualify for a visa must apply at a U.S. consulate abroad, not from within the US. But when they leave the U.S. to apply, another part of the law bans them from returning for up to ten years.

The pain of this legal Catch-22 was eased somewhat in 2013 when the Obama Administration tweaked the application process so that undocumented husbands and wives of U.S. citizens could apply for family unity waivers before traveling abroad. The change spared many American families from prolonged separation from their loved one she traveled abroad and waited — sometimes for years — for the waiver to be processed.

The executive actions announced last week tweak the Family Unity Waiver process a bit more by a permitting undocumented spouses of lawful permanent residents (green card holders) to apply for waivers before departing the U.S, shielding many more American families from the pain of prolonged separation. The change will also save tax dollars by making the visa processing system more efficient and reducing the burden on government agencies.

5. Family Unity Will (Hopefully) Become the Rule Rather Than the Exception.

Some immigrants that are eligible for green cards first have to prove that their deportation would impose “extreme hardship” on their U.S. citizen or lawful resident spouse, parent or child.

The executive actions promise a new interpretation of “extreme hardship” which, hopefully, will recognize that separating parents from (American) children or spouses from (American) spouses is, by nature, an “extreme hardship.” A pro-family interpretation of the standard would ensure that, absent negative factors, more families remain whole.

Stay tuned on this one.

6. Immigrants With Green Card Applications or Other Temporary Status May Travel Abroad With Greater Assurance of Their Ability to Return.

The legal Catch-22 that keeps husbands and wives separated from their families for up to 10 years after foreign travel can also bar immigrants with lawful green card applications or other temporary status — even if they traveled home to visit an elderly parent or attend a funeral with advance permission (parole) from the Department of Homeland Security.

The President’s executive actions will give greater assurances to immigrants that they will be permitted to return to the U.S. and complete their pending green card applications or continue their authorized presence after necessary foreign travel on advance parole.

7. Existing Law Will Be Used to Expand Opportunities for Business, Investment and Job Creation.

The executive actions will include efforts to strengthen the economy and create jobs for U.S. workers by enhancing options for foreign entrepreneurs, attracting investment and generating tax revenue to ensure economic growth and extending existing post-graduate training programs for science, technology, engineering and math graduates of U.S universities. The Administration will also look for ways to improve the legal immigration system by reducing government costs, reducing burdens on employers and families and eliminating fraud.

8. The President’s Immigration Executive Actions Are An Important First Step, But They Are Not A Substitute Congressional Action.

The actions Mr. Obama has taken to make the immigration system work better are a bold and courageous (and yes-solidly legal) use of his lawful authority as President of the United States. But only Congress has the power to fix the antiquated, rigid and outdated immigration policy that plagues this country, devastates families, stymies American business and inhibits job creation.

We can only hope that amid the calls for lawsuits and legislation to block the President’s executive actions Republican congressional leaders will find the guts to do the right thing by the American People.

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