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]

USCIS announces important changes to green card application process

Updated 9/12/15

New Immigrant Visa Application Procedures

As part of President Obama’s executive actions the U.S. Citizenship and Immigration Services and U.S. Department of State have been working to streaHow-to-obtain-a-green-card-by-PERMmline the family and employment-based immigrant visa processes. Now applicants with approved immigrant visa petitions who are subject to backlog will, under specified circumstances, be able to file their adjustment of status (green card) applications BEFORE their priority dates are current.  This is significant because this will allow backlogged applicants to port to new employers and file for employment authorization and advance parole.

The USCIS has posted a Fact Sheet on its website entitled “When To File Your Application For Family-Based or Employment-Based Immigrant Visas” which describes the new procedure in detail.

New Visa Bulletin Charts

The Visa Bulletin will now have two different charts because of the revised procedures. DOS will post two charts per visa preference category in the DOS Visa Bulletin. The charts are:

Application Final Action Dates (dates when visas may finally be issued); and
Dates for Filing Applications (earliest dates when applicants may be able to apply).
When USCIS determines there are immigrant visas available for the filing of additional adjustment of status applications, the Dates for Filing Applications chart may be used to determine when to file an adjustment of status application with USCIS. Otherwise, the Application Final Action Dates chart must be used to determine when to file an adjustment of status application with USCIS.

In coordination with the DOS, USCIS will monitor visa numbers each month and post the relevant chart on this page under When to File.

PLEASE NOTE: This information is posted solely for informational purposes and is not legal advice. Transmission of this information does not create, and receipt by you does not constitute, the formation of an attorney-client relationship. Any on-line readers should not act upon any information contained in this post without first seeking advice from a qualified attorney. For more information please contact our office at 216.696.4676.

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.

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

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

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

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

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

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

That’s good news.

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

From U.S. Citizenship and Immigration Services

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

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

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

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

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

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

Obama Admin files emergency request to lift #immigration injunction; READ IT HERE–>

2015-02-23 Gov Motion for Stay

2015-02-23 Affidavit 1

2015-02-23 Proposed Order

2015-02-23 Affidavit 2

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.

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