#Texas #immigration case is opportunity for #SCOTUS to show it’s not tainted by partisan politics

SCOTUS

Posted on The Hill Congress Blog by David Leopold

Earlier this month Chief Justice John G. Roberts Jr. lamented that “partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees.” Roberts was referring to the very real danger of institutional mistrust—the widespread belief among the American public that the Court is no longer an impartial judicial body focused on impartial interpretation of the Constitution, but that its decisions are increasingly aimed at moving a partisan agenda.

Robert’s concern is well founded. The political pressure on the justices—particularly from the right—is perhaps more intense than at any time in the nation’s history.

Republican reaction to the sudden death of Justice Antonin Scalia last week has only fed this perception. Senate Republican Leader Mitch McConnell (R-Ky.)didn’t even have the decency to wait until Scalia’s body was flown back to Washington before he declared—despite the clear language of the Constitution–that President Obama should not be permitted to appoint Scalia’s replacement. McConnell’s intent to obstruct the confirmation process disrespects the legacy of Scalia himself who would have unquestionably upheld the president’sconstitutional authority to name his successor—an irony obviously lost upon McConnell and the other GOP senators who dutifully fell in line behind their leader.

Yet despite the politically charged atmosphere left in the wake of Scalia’s passing, the eight justices of the Supreme Court—and Chief Justice Roberts in particular—are presented with a critical opportunity to dispel the impression the Court has been corrupted by politics—something Linda Greenhouse noted Roberts had a hand in creating; that it is indeed the dispassionate umpire of “balls and strikes” Roberts described in his 2005 confirmation hearing. And, as the Court moves on to tackle a docket laden with cases ranging from abortion to worker’s rights to affirmative action, no case presents the justices with a greater opening to eschew the intrusion of politics into the courtroom as U.S. v. Texas, the challenge to Obama’s executive actions on deportations.

Here’s why:

The lawsuit is unquestionably a brazen political attack on the president’s November 20, 2014 deportation deferral known as DAPA and DACA expansion. Before the ink was even dry on the deferred action guidance, Republicans in Congress tried repeatedly to block the President’s actions – and they failed repeatedly. Taking another route, 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 a legal assault. 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.” The GOP politicians took page from the playbook of birther queen Orly Taitz who identified Hanen as anti-immigrant and filed a lawsuit in Hanen’s court to stop the federal government from bussing immigrant minors from Texas to temporary detention centers outside the state. As predicted, Hanen blocked DAPA and DACA expansion and was later affirmed by the Fifth circuit, the most conservative appeals court in the country.

The Supreme Court agreed to hear the case in January and until Scalia’s death many court observers speculated that the key to upholding the president’s executive actions was Justice Anthony Kennedy, who has been a key swing vote in several immigration cases and wrote the majority opinion in Arizona vs. U.S. which recognized the president’s broad discretion over deportation matters, including deferred action.

Since Scalia’s passing the media has been ripe with speculation that the eight justice Supreme Court will divide equally along ideological lines and deadlock 4-4 with Justices Ginsburg, Breyer, Sotomayor and Kagan voting to uphold the President’s executive actions and Justices Roberts, Kennedy, Alito and Thomas voting to strike them down. A tie vote would not set a national precedent but would return the case to Hanen’s court. No doubt cases would be brought by advocates – and even states – to end the injunction in other states that welcome the president’s deportation deferrals. That’s the kind of judicial chaos that Roberts seems to want to avoid.

Fortunately, all this is rank speculation. It’s impossible to know what the Supreme Court—or any individual justice—will do in any case. The more important question is whether the justices will take the opportunity to demonstrate to the nation that they will not allow the judiciary to be used as a forum for partisan political attacks. If they do, there is no doubt that a healthy majority of the court will vote to dismiss the lawsuit, lift the injunction and make clear to the nation that political disputes are to be decided at the ballot box, not in the Supreme Court of the United States.

Leopold, an immigration attorney, serves as counsel to immigration reform groups and is the former president of the American Immigration Lawyers Association

.@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.

DHS Press release and links on work authorization for H-4 Spouses–>

DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

Finalizing the H-4 employment eligibility was an important element of the immigration executive actions President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.

“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” Rodríguez said. “It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

DHS expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. As such, the change should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them. The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.

For more information on USCIS and its programs or about this rule and filing procedures, please visit uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

– USCIS –

DAPA Eligible Immigrants Will Not Be Deported and 3 Other Things You Need to Know About the GOP #Immigration Lawsuit

Originally posted on Huffington Post

By David Leopold

Since Judge Hanen issued his controversial midnight order blocking President Obama’s executive actions on immigration there has been a lot of speculation about what will happen next. Will the Court of Appeals quickly reverse the ruling? How long will it take for the case to wind its way through the appellate courts? Will the U.S. Supreme Court have to weigh in?

I’ve been answering questions like these on DAPAQuestions.org and will continue doing so, but there are three key questions that many people are asking today.

What does the Republican Lawsuit against expanding DACA and the new DAPA program mean for the 5 million immigrants that would qualify for these programs?

The Republican lawsuit against DACA expansion and DAPA was undoubtedly a bump in the road, but it is not the final word. The law is clear and DAPA/DACA expansion policies are legal, despite what Judge Hanen thinks. Until the Texas case is resolved on appeal, DREAMers and parents who were preparing to apply should continue to do so.

Importantly, applicants for the DACA program created in 2012 can and should continue to apply. The lawsuit does not affect them.

Applicants for DACA expansion (the changes announced in 2014) should continue to collect documents and other proof showing of arrival in the U.S. before the age of 16 and that they were in the U.S. on January 1, 2010.

DAPA applicants should collect all necessary proof that they’ve lived in the U.S. since before January 1, 2010 and, on November 20, 2014–the day President Obama announced his immigration executive actions–were the parent of a U.S. citizen or lawful permanent resident.

And, of course, applicants should be prepared to pay the expected $465 application filing fee which includes the cost of criminal background checks.

Does the Republican lawsuit block all of President Obama’s immigration actions?

No! While the future of DAPA and DACA expansion could be tied up in the courts for the next few weeks or (maybe even months), Republicans cannot touch Obama’s immigration actions that are already being implemented.

Judge Hanen’s order does NOT affect the original, existing DACA program. Individuals who qualify for deferred action based on the criteria outlined in 2012 can and should continue to apply.

Judge Hanen’s order also has NO effect on the immigration enforcement priorities that President Obama laid out as part of his executive actions. These new priorities, which are detailed in a memorandum from Homeland Security Secretary Jeh Johnson, direct immigration agents to focus on the deportation of aliens who are national security threats, felons, criminal gang members, visa abusers and serious immigration violators.

This means that DREAMers and parents of U.S. citizens who meet the criteria for DACA expansion and DAPA generally should not be deported–even if they come into contact with ICE or CBP. They are only at risk if their deportation would service an “important federal interest” such as individuals who pose a threat to community safety.

Nobody has (or can) seriously question whether or not President Obama’s immigration enforcement priorities are legal. And they go beyond the confines of DACA and DAPA to prevent unjust deportation of other undocumented immigrants with roots and ties to the United States.

But how can we trust that these priorities are being implemented?

This is an important question given past experience with various iterations of “enforcement priorities” memos.

The good news is that so far ICE field offices seem to be following the new enforcement priorities. In Ohio, for example, ICE agents took it upon themselves to postpone the imminent removal of an undocumented mother of a U.S. citizen child after the policies were announced. While the woman still needs DAPA to get stability, at least her low priority removal status allows immigration enforcement agents to focus on dangerous criminals and national security risks. Vox’s Dara Lindreportedlast week that 1000 people have been released from immigration custody since DHS released its enforcement priorities in November.

Nevertheless, immigration advocates must remain vigilant. If a DREAMer, undocumented parent or long-term resident is apprehended, detained or facing removal, ICE officials should be notified immediately that the person is not an enforcement priority and should not be detained or removed. Ideally this should be done through a licensed attorney who is experienced with the deferred action process. If local officials appear to not be following priorities, attorneys should sound alarm bells to higher immigration agency authorities and immigration advocacy groups like America’s Voice Education Fund who can work to ensure that ICE agents closely follow the President’s smart enforcement priorities.

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.

Mayors de Blasio and Garcetti Announce Mayoral Coalition to File Amicus Brief in Support of President Obama’s Executive Action on Immigration Reform


From the City of New York, Mayor’s Office

January 23, 2015

 More than 30 mayors sign on in Texas vs. United States in defense of President Obama’s reform action

 WASHINGTON—Mayors Bill de Blasio of New York City and Eric Garcetti of Los Angeles announced today plans by more than 30 mayors to file an amicus brief in the Texas vs. United States lawsuit to support President Obama’s recent executive action on immigration reform. The brief opposes a lawsuit pending in Brownsville, TX brought by states seeking to block President Obama’s immigration reform efforts.

The two mayors led the effort to organize more than 30 cities, the National League of Cities, and the U.S. Conference of Mayors in filing a brief arguing that the public interest across the country is served clearly and overwhelmingly by implementing immigration reform by executive action. The brief also argues that blocking executive action with preliminary injunction will stall desperately needed changes to the federal government’s immigration policies. The cities represented by the amici mayors together account for approximately 28.2 million people, including 7.5 million immigrants.

“Our mission is urgent. Delaying implementation of the President’s executive action will further hurt our families, negatively impact our economies, and create unnecessary insecurity in our communities,” said Mayor Bill de Blasio. “Cities are where immigrants live, and cities are where the President’s executive action will be successfully executed. We are organized, and we will fight for the changes this nation needs and deserves, and fight those who oppose immigration reform, be it in the courtroom, in Congress, or in our communities. Our voices will be heard.”

“Our cities cannot afford delays to immigration reforms that will strengthen our economy and help families,” said Los Angeles Mayor Eric Garcetti, who established a Mayor’s Office of Immigrant Affairs. “This isn’t a blue or red issue, but a human and economic one.”

This joint effort to offer the court the crucial perspective of American cities is an outcome of the December immigration summit hosted by Mayor Bill de Blasio at Gracie Mansion and the organizing efforts of the Cities United for Immigration Action (CUIA) coalition. By submitting this “friend of the court” brief, America’s mayors are making a strong statement in support of the President’s plan to grant administrative relief to over 4 million undocumented children and adults. The amicus brief will demonstrate to the Court that executive action will benefit cities by providing work authorization to millions, increasing local tax revenue, and stimulating local economies, facilitating the civic engagement of immigrants, keeping families together, and improving public safety by strengthening our neighborhoods and communities.

In December, 25 states led by Republican governors brought a lawsuit captioned Texas vs. United States in the Federal District Court for the Southern District of Texas, seeking to halt the implementation of the President’s executive action. In response, a group of 12 states in January joined by the District of Columbia filed an amicus brief challenging the lawsuit by arguing that, contrary to the plaintiffs’ claims, the President’s immigration reform will in fact “further the public interest” of states and their residents, both immigrants and citizens. A group of 27 law enforcement leaders and other groups have also filed amicus briefs in support of the President’s executive action on immigration reform.

This is the first submission to the court from the city perspective.

“San Francisco is proud to file an Amicus Brief joining cities large and small from across the country and the U.S. Conference of Mayors to support our President’s bold action on immigration and create the change to help our residents succeed,” said San Francisco Mayor Ed Lee. “As the son of immigrant parents, this issue is very personal to me. Mayors must lead on this reform to provide all of our residents with hope, opportunities, and the services they deserve. We know our diversity drives our cities’ economies and makes us all stronger.”

“The President’s executive action on immigration is a step forward for America,” said Salt Lake City Mayor Ralph Becker. “We need to support his efforts to address our broken immigration system.”

“Filing an Amicus Brief is our way of saying: Pittsburgh stands on the right side of history. The President’s action on immigration was an important first step towards progress—for the growth and prosperity of our nation. We must not go backwards,” said Pittsburgh Mayor William Peduto.

“The City of Dayton is proud to be a leader in welcoming people from diverse backgrounds to its community,” said Dayton Mayor Nan Whaley. “This order will strengthen our commitment to inclusion by allowing all residents to fully participate and help grow the economic vitality of the region. It is essential that all citizens feel safe and engaged in the place they call home.”

“This proposal is fair, economically beneficial for everyone, and the right thing to do,” said Madison Mayor Paul Soglin.

“Right now, our immigration system invites the best and brightest from all over the world to come and study at our top universities, including Washington University and St. Louis University, and then once they’ve gotten the training they need to build a new invention or create a new business, our system too often tells them to go back home so that other countries can reap the benefits, the new jobs, the new businesses, the new industries,” said St. Louis Mayor Francis Slay. “It’s evidence of the broken system we have today and why we must fight to fix it.”

The following Mayors have signed on to the amicus brief:

Mayor Bill de Blasio, New York, New York

Mayor Eric Garcetti, Los Angeles, California

Mayor Kasim Reed, Atlanta, Georgia

Mayor Stephanie Rawlings-Blake, Baltimore, Maryland

Mayor Byron Browm, Buffalo, New York

Mayor Rahm Emanuel, Chicago, Illinois

Mayor Steve Benjamin, Columbia, South Carolina

Mayor Nan Whaley, Dayton, Ohio

Mayor Michael Hancock, Denver, Colorado

Mayor Muriel Bowser, Washington, D.C.

Mayor Pedro Segarra, Hartford, Connecticut

Mayor Annise Parker, Houston, Texas

Mayor Steven Fulop, Jersey City, New Jersey

Mayor Paul Soglin, Madison, Wisconsin

Mayor Ras Baraka, Newark, New Jersey

Mayor Michael Nutter, Philadelphia, Pennsylvania

Mayor Bill Peduto, Pittsburgh, Pennsylvania

Mayor Charles Hales, Portland, Oregon

Mayor John Dickert, Racine, Wisconsin

Mayor Tom Butt, Richmond, California

Mayor Lovely Warren, Rochester, New York

Mayor Ralph Becker, Salt Lake City, Utah

Mayor Ed Lee, San Francisco, California

Mayor Gary McCarthy, Schenectady, New York

Mayor Ed Murray, Seattle, Washington

Mayor Francis Slay, St. Louis, Missouri

Mayor Marilyn Strickland, Tacoma, Washington

Mayor Mike Spano, Yonkers, New York

The following mayors have expressed their support and will sign on to the brief, pending final local approvals:

Mayor Karen Majewski, Hamtramck, Michigan

Mayor Virg Bernero, Lansing, Michigan

Mayor Tom Barrett, Milwaukee, Wisconsin

Mayor Betsy Hodges, Minneapolis, Minnesota

Mayor Greg Stanton, Phoenix, Arizona

 pressoffice@cityhall.nyc.gov

%d bloggers like this: