Tag Archives: Deferred Action for Childhood Arrivals

USCIS Clarifies its RECALL of DACA 3 Year Work Document’s (EAD’s).

THIS IS AN IMPORTANT UPDATE ABOUT THE USCIS RECALL OF CERTAIN THREE YEAR EAD’S ISSUED TO DACA RECIPIENTS:

On July 1, 2015, USCIS Headquarters personnel in Washington, D.C. hosted a public engagement conference call to clarify their efforts to retrieve certain Employment Authorization Documents (EAD’s) issued to Deferred Action recipients under the 2012 Deferred Action for Childhood Arrival (DACA) program.

Recently social media and other media outlets have been buzzing about the return of certain EAD’s issued with a three year validity generating fear that some DACA recipients may be in jeopardy  of losing their DACA status all together or that they may receive a visit from DHS agents to their homes. USCIS therefore attempted to ease much of this fear and clarify who is and who is not required to return a three year EAD.

The problem arose because immediately after the President’s November 20, 2014 Executive Action announcement (which included an expansion of the 2012 DACA program from two year to three year approvals), USCIS began issuing EAD’s to new and renewal DACA applicants with a three year validity period. On February 16, 2015, Judge Hanen issued an injunction as part of the Texas et al. v. U.S.A. litigation in the Southern District of Texas halting the expansion of the 2012 DACA program to three years as well as the implementation of Deferred Action for Parental Accountability (DAPA).  According to Judge Hanen’s Order, USCIS should have stopped issuing three year EAD’s immediately on February 16, 2015.  However, USCIS took some time to implement the terms of the Order and to switch back to issuing two year EAD’s.  As a result, approximately 2100 EAD’s were issued AFTER February 16, 2015 valid for three years.

In addition, USCIS also reported that approximately 500 EAD’s valid for three years were actually approved and first issued before February 16, 2015 but were returned to USCIS by the US Postal Service as undeliverable and re-mailed by USCIS AFTER February 16, 2015.

What you need to know about the RECALL is:

  • ONLY THE 2100 THREE YEAR EAD’S ISSUED AFTER FEBRUARY 16, 2015 AND THE 500 EAD’S RE-MAILED AFTER FEBRUARY 16, 2015 ARE SUBJECT TO THE RECALL. 
                • USCIS was very clear that the approximately 108,000 three year EAD’s issued prior to February 16, 2015 ARE NOT SUBJECT TO THE RECALL.
                • The recall is being carried out by Notice Letters being mailed to all affected DACA recipients.
                      • All three year EAD’s described above (about 2600 EAD’s nationwide) MUST be surrendered to USCIS no later than July 30, 2015.  Failure to surrender and affected three year EAD’s will expose the recipient to termination of their DACA status.  If a recipient has their DACA status terminated because of a failure to surrender an affected three year EAD subject to the recall, their failure will be considered as a negative consideration in any future application for DACA.
                        • If a DACA recipient has a three year EAD and is not sure if their EAD is subject to the recall, the recipient should call USCIS at: 800-375-5283 and select option #8.   At the time of this posting, the option provides recorded information about this recall and the opportunity to speak with USCIS customer service agents who USCIS states will be able to confirm if a specific recipient’s EAD is subject to the recall.
                • Recipients of three year EAD’s subject to the recall should follow the instructions in the Notice Letter to mail the affected EAD back to USCIS by overnight mail to the address provided by the July 30, 2015 deadline.  If a recipient returns an affected EAD by mail, it is strongly recommended that you use a receipted and tracked service such as UPS or Federal Express or DHL which will provide you confirmation and signature proof of delivery.
        • USCIS also advises that recipients who are unable to meet that deadline by mail can also walk into any USCIS Field Office nationwide to surrender their affected three year EAD.  An Infopass appointment is NOT REQUIRED and the recipient can walk in to surrender the EAD.  The St. Louis USCIS Field Office is located in the Young Federal Building in downtown St. Louis at 1222 Spruce Street, Room 2.205 Saint Louis, MO 63103-2815 The Kansas City USCIS Field Office is located at 10320 NW Prairie View Rd. Kansas City, MO 64153. If a recipient returns an affected EAD in person at a USCIS Field Office, the USCIS personnel should provide a receipt for the surrendered EAD. DO NOT LEAVE the USCIS Field Office without a receipt.
        • USCIS has confirmed that if a DACA recipient had a three year EAD affected by this recall but is now unable to surrender the EAD because it has been lost or stolen or destroyed, the recipient must provide a sworn statement to that effect and the submission of the statement will constitute surrender of the affected EAD.
    • As of the date of this posting, USCIS states that ALL recipients of three year EAD’s which are subject to the recall have been mailed replacement EAD’s with a two year validity period. 
  • USCIS expects that a DACA recipient who is required to return a three year EAD should receive their two year replacement EAD very shortly after if not before the deadline to surrender their three year EAD. There should be very little if any time that the DACA recipient will be without a valid EAD.
  • USCIS has confirmed that in the case of an affected EAD that is not timely surrendered, USCIS personnel may be sent to the residence of the DACA recipient in an effort to retrieve the affected three year EAD.  USCIS has explicitly confirmed that these visits will not be by ICE, CBP or other law enforcement agents. USCIS also reports that if a home visit is going to be attempted, USCIS will make an effort to contact the recipient by phone the day before the intended visit.  If a USCIS employee makes a visit, they should be in plain clothes and provide identification and a badge proving they are employed by USCIS.  They are not authorized to question any person in the residence or search any part of the residence and the sole purpose of the visit will be to retrieve the affected three year EAD.

The USCIS senior directorate level personnel who conducted this conference call were very explicit that the only purpose of these efforts was to bring the 2012 DACA program into full and complete compliance with Judge Hanen’s February 16, 2015 Order and that USCIS’ overriding concern is to assure that all current DACA recipients are able to remain in full compliance with the program and maintain their valid work authorization.

If you have any further questions about this recall, please contact us at:

US Legal Solutions, LLC

Kenneth K. Schmitt

Gustavo Arango

8714 Gravois Road, St. Louis, Missouri 63123

314-729-1049

You can also visit the USCIS website for more information by clicking here.

Executive Action Update!

President Obama announces Executive Action.

President Obama announces Executive Action.

It has now been nearly two months since the President announced his Executive Action on Immigration November 20, 2014.  In preparation to implement the President’s announcement, USCIS has moved forward in preparing the necessary forms for expanded DACA this month and to implement Deferred Action for Parental Accountability in May.  USCIS has had at least two public engagement conference calls in preparation to implement these programs and is expected to issue more detailed guidance for these two programs in the next several weeks.  USCIS has also announced on its website that it will begin accepting applications under the expanded DACA guidelines February 18, 2015. (click here to read more from USCIS).

As expected, there has been push back from the Republicans on two different fronts.  In Congress, the House leadership crafted and voted out of the House a DHS funding bill that contains language which, if it became law, would impede the Administration from implementing the President’s November 20, 2014 directives.  As expected, however, this bill has stalled in the Senate where the Republicans lack the 60 votes necessary to end debate and call a vote on this bill.  As a result, this effort to stall the President’s initiatives has failed to date and will continue to fail as long as the opponents of this effort continue to filibuster the bill and prevent a vote.

Unfortunately, because the Republican majority has insisted on holding DHS funding hostage in their effort to stop the President’s initiates, DHS now risks running out of operational funding later sometime in February 2015. We are now on the brink of a possible DHS shut down.  This threatens our country’s national security at every level.  The agencies that fall under the Department of Homeland Security which are now threatened with a possible loss of operational funding include:

  • TSA agents providing security at our nation’s airports,
  • The Secrete Service protecting our President and other elected leaders,
  • The Federal Emergency Management Agency which provides local assistance in the event of tornadoes, earthquakes, hurricanes, flooding and other natural and man made disasters,
  • The Transportation Safety Administration that keep our highways, trains and commercial flying safe,
  • Even Customs and Boarder Protection that secures our boarders.

Without question, the Republican strategy of holding DHS funding hostage over their frustration with the President’s Executive Actions threatens to leave this nation more vulnerable to attack and will not succeed at stopping the President’s initiatives.

The President’s initiatives have also been challenged in the Federal District Court for the Southern District of Texas.  More than 20 Republican Governors have joined as Plaintiffs in this lawsuit claiming to be interested parties and claiming that their states have been “harmed” by the President’s actions.  They have asked the Texas Federal District Judge to issue an Injunction to stop implementation of the President’s Executive Actions until their claims can be fully adjudicated.

Many different interested parties have weighed in on this lawsuit by filing Amicus Curiae (” Friend of the Court”) arguments on both sides.  Supporting the President and his Executive Action include arguments submitted by New York Mayor Bill de Blasio with help from our own St. Louis City Mayor’s office.

At the end of the day, the Plaintiffs’ legal efforts to stop the President’s Executive Actions are most likely to fail on the issue of standing.  Standing is the legal requirement that the Plaintiffs must show that in some way they are personally injured by the President’s actions.  This will be very difficult for the Plaintiffs to show.  Admittedly, the Federal District Judge hearing this case is very conservative and the Plaintiffs chose to file their suit in this court because of its conservative leaning.  However, the law is not on the Plaintiffs’ side as explained in further detail by David Leopold, former National President and General Counsel of the American Immigration Lawyers Association.

You can read David Leopold’s well written blog/analysis by clicking here: 2.4.2015 Leopold blog on Texas lawsuit.

We at US Legal Solutions expect that the President’s Executive Actions will go into effect and the Republican efforts to interfere with the President’s sensible prioritization of limited enforcement resources will fail.  We fully expect that, if the President’s initiative is able to proceed, millions of immigrants in our communities will benefit and so will our Nation!

Deferred Action is here. What does it mean for you?

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President Obama announces Executive Action.

President Obama announces Executive Action.

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Deferred Action is here. What does it mean for you?

November 24, 2014

Below will follow a brief overview of the more important highlights of the Presidents November 20, 2014 Executive Order.  It is posted for your general information.  However, it is critical that you seek experienced legal counsel before you present yourself to the Federal government with any application under the President’s Executive Order.  The consequences of an error in judgment can be catastrophic!

US Legal Solutions Has the experience of successfully representing hundreds of deferred action applicants and is ready to offer the experience of its lawyers to make sure your case is given the best possible chance of success.  In that effort, US Legal Solutions will be offering free informational sessions at its offices as follows:

CLICK HERE TO SEE THE CURRENT UPDATED SCHEDULE OF “CHARLA INFORMATIVAS” OFFERED BY US LEGAL SOLUTIONS.

 So what did President Obama do?

This past Thursday, President Obama made good on his resolve to act within his constitutional powers to make our country’s immigration system work as well as possible in face of Congressional failure.  In effect, the President has moved to make the best of the mess he has been handed by Congress.

The practical effect of President Obama’s Executive Order has been that Jeh Johnson, Secretary of Homeland Security, has now issued a number of policy memoranda to the immigration related agencies within his jurisdiction: US Citizenship and Immigration Service (USCIS), Immigration and Customs Enforcement (ICE) and Customs and Boarder Protection (CBP).  Three of these memoranda are of particular significance.

Expanded Deferred Action.

First, as we reported would likely be the case, Director Johnson has directed Leon Rodriguez, Director of USCIS, to expand the existing Deferred Action for Childhood Arrivals (DACA) program in two important respects.

  • To expand the existing DACA program by removing the age restrictions, by adjusting the date by which a DACA applicant must have last entered the United States to qualify for DACA and by extending the period of deferred action granted from two year increments to three year increments; and
  • To further expand the exercise of deferred action to permit a second basis for application —   parents of US citizen and lawful permanent resident (holding a green card) children who have been in the United States since January 1, 2010.

As a result of this first November 20, 2014 policy memorandum, individuals will now qualify for DACA if the meet the following criteria:

  • Have last entered the United States and have continuously resided in the US since not later than January 1, 2010;
  • Are physically present in the United States when filing;
  • Were younger than the age of 16 years at the time they last entered; and
  • Had no lawful status as of November 20, 2014;
  • Have a clean criminal record which is generally defined as no felony convictions, no more than two misdemeanor convictions (other than minor traffic offenses) and no significant misdemeanors (as defined in a separately issued policy memorandum on prioritization of removal cases); and
  • Meet the preexisting educational requirement of being in high school, having obtained a high school diploma, being in GED classes, having obtained a GED or have been honorably discharged from the military.
  • There is no longer any requirement that an applicant be at least 15 years old or younger than 31 years old to apply.

The DHS memorandum further directs that USCIS should begin accepting applications under these new DACA requirements not later than 90 days from November 20, 2014 or by February 18, 2015.  Additionally, those granted DACA are to be given deferred action and work authorization for three years, including any applications approved after November 24, 2014 under the prior requirements.

Additionally, individuals will also qualify for deferred action if they meet a second set of criteria:

  • As of November 20, 2014, they have a son or daughter who is a US Citizen or Lawful Permanent Resident (green card holder);
  • They have continuously resided in the United States since January 1, 2010;
  • They were physically present in the United States on November 20, 2014 and at the time of filing their application;
  • They have no lawful status as of November 20, 2014;
  • Have a clean criminal record which is generally defined as no felony convictions, no more than two misdemeanor convictions (other than minor traffic offenses) and no significant misdemeanors (as defined in a separately issued policy memorandum on prioritization of removal cases) and they don’t fit into any other enforcement/removal priority groups as defined in a separately issued policy memorandum;and
  • They present no other factors that would make a grant of deferred action inappropriate.

USCIS is directed to begin accepting applications under this new category of deferred action requirements not later than 180 days from November 20, 2014 or by May 19, 2015.  Additionally, those granted deferred action under this criteria will also be given deferred action and work authorization for three year increments.

In general, both the expansion of DACA and the new category of “Deferred Action for Parents” represents an opportunity of an estimated 5 million additional hard working, contributing members of our community to come out of the shadows.  However, a couple of cautionary points should be observed.

First, this is far short of immigration reform and does not grant “Status” to any recipient of deferred action.  Those who qualify for deferred action are merely identified as non-priority individuals so that the administration can focus removal resources “priority” individuals (mostly threats to national security, gang members, individual with serious criminal offense convictions or multiple or significant misdemeanor offense convictions and very recently arrived individuals who are undocumented or caught at the boarder).

Deferred action is not a pathway to citizenship or legalization.  Deferred action is not amnesty!

Secondly, a grant of deferred action is absolutely discretionary and even if a person meets the criteria set out above, they can be denied. All deferred action applications are evaluated on a case by case basis. There is no appeal from a denial of an application for deferred action.

Consequently is it absolutely vital that if you believe you qualify, you should seek competent and experienced legal counsel before filing your application.  Find a lawyer who has significant experience with the DACA program who can bring their experienced eye (gained from successfully handling hundreds, not a handful, of successful DACA applications) to expertly evaluate and prepare your case.

Expanded Provisional Stateside Unlawful Presence Waivers.

The second policy memorandum issued on November 20, 2014 that will impact many of our clients’ lives is the expansion of the provisional stateside waiver for the unlawful presence bar.

Those who are subject to an unlawful presence bar trigger the bar by leaving the country to attend a consular appointment in an effort to “get in line”. Generally, more than fifty percent of these waivers are granted but, in the process, applicants are required to remain outside the country, separated from their families, for many months or years while their waiver is adjudicated and ultimately approved.

In 2013, USCIS amended its regulations to allow for an applicant to apply for an unlawful presence waiver and obtain a provisional approval of the waiver before they leave the country so that they aren’t separated from their families while the waiver is being adjudicated. However, this provisional stateside waiver is currently limited to beneficiaries of petitions filed by US citizen spouses.

The November 20, 2014 Stateside Provisional Waiver Memorandum directed USCIS to begin the process of amending this 2013 regulation to provide for provision stateside waivers in all family based visa applications filed where a visa number is available.

Prioritization of Removal Cases

Secretary Johnson also issued a November 20, 2014 policy memorandum directed to the immigration agencies to realign their prioritization of removal cases in a more formal, three tiered manner.  In general, the agencies are to consider individuals for removal according to three priority categories:

  • Priority I — Those who represent a threat to national security, boarder security and public safety (aggravated felons under the Immigration and Nationality Act, terrorists, street gang members etc).
  • Priority II — Those who have been convicted of more than two misdemeanors (excluding minor traffic offenses), significant misdemeanors and recent immigration violators.
  • Priority III — Those who have committed other immigration violations.

While all of this falls far short of what this nation deserves and hardly constitutes a sane immigration system, it is what we are left with given the Congress’ failure to act in any sensible fashion. Those who dislike the idea of executive action should pressure their elected members of Congress to do their job and enact comprehensive immigration reform!

 

##########END OF UPDATE##########

Deferred Action Is Coming! — UPDATED: November 19, 2014.

immigration-reform-rally

President Obama set to Address the Nation Tomorrow Night – Main Points of Executive Action already Leaked.

November 19, 2014.

Today, the President confirmed, as we suggested in our earlier posts, that he does not foresee any likelihood of meaningful cooperation by the Republicans on immigration reform in the next two years — certainly not reform that seriously addresses a legalization process for the estimated 12 million undocumented immigrants presently in the United States.  On the White House website President Obama posted a recorded message announcing that tomorrow, Thursday, November 20, 2014 at 8:00 p.m. Eastern Time (7:00 p.m. St. Louis time) he will address the nation to explain why executive action is necessary.  He further announced that he will then travel to Las Vegas, Nevada to provide further details of his expected Executive Order.  This order is expected to be directed to the Department of Homeland Security to carry out his directive for a massive exercise of prosecutorial discretion, likely dwarfing the scope of his 2012 Deferred Action for Childhood Arrivals (DACA) directive. You can watch the President’s message here.

What do we expect the President’s Executive Order to direct?

Confirming much of what has already been suggested late last week by various news outlets, the Washington Post published today their “Complete Guide to Obama’s Immigration Executive Action“.

You can download the complete Washington Post Guide here:

Your complete guide to Obama’s immigration executive action

In general, as we have reported earlier, it is expected the President will order the Department of Homeland Security to expand on its previous Memorandum pertaining to DACA in at least two, maybe three, respects:

  • To expand DACA to include individuals who last entered the United States in January 2010, as opposed to June 15, 2007 as previously required to qualify for deferred action; and
  • To expand the criteria necessary to receive deferred action consideration to include undocumented parents of United States citizen children.
  • Possibly, the order may also include deferred action relief for undocumented parents of children who are lawful permanent residents (i.e. have green cards) and undocumented spouses of US citizens and lawful permanent residents.

Currently, most sources believe that the order will not include relief for undocumented parents of children who have been granted DACA but who have no US citizen children.

Of course, until the exact terms of the Executive Order are released, there is no certainty as to who will be covered.  Even once the order is released, the specific criteria and finer details will not be precisely known until Department of Homeland Security and its immigration related agencies (United States Citizenship and Immigration Services, Immigration and Customs Enforcement and Customs and Boarder Protection) each issue their respective policy guidance.  Much of this guidance may well come in the form of Frequently Asked Questions (FAQ’s) similar to the DACA FAQ’s published and updated over the past two years on USCIS website.

What to watch for tomorrow night and Friday?

Watch for the President to lay out in general terms the broad groupings of people who he expects to be eligible to request deferred action.

Watch for the President to announce that those who qualify for relief under his executive order will also be granted work authorization.

Watch for an announcement of how many years at a time the expanded deferred action will be granted if approved. Currently, recipients of DACA are granted deferred action in two year increments requiring DACA recipients to renew their DACA application every two years.

Watch to see if the President will announce or if he will leave it to DHS to decide if recipients of the expanded deferred action will be granted permission to travel abroad and return to the United States while in deferred action.

Watch for any announcement about how this will be funded and, if addressed, expect a filing fee to be associated with the order.  The exact amount of any filing fee will likely not be specified by the President but will be left to Department of Homeland Security and USCIS to determine.  Likely a filing fee close to the existing DACA filing fee can be expected — somewhere between $350 and $550. Currently, the fee to file for DACA is $465.

Expect the President to justify his action by explaining that the enforcement mandate in the Immigration and Nationality Act is way to big for the resources appropriated each year by Congress and by pointing the finger back to Congress for failing to address the issue of undocumented immigrants in any meaningful or serious fashion. Expect the President to argue that this action is about conserving limited enforcement resources to focus on removing convicted felons and other bad people.  The President will argue that this really about smart use of limited resources and making our communities safer.

Expect the Republican leadership to continue crying foul but not much else.  There may well be various lawsuits filed by elected leaders here and there. However, any such suit will face significant legal hurdles and is not likely to go far.  Keep in mind that various lawsuits have been filed over the last two years against the Federal government challenging DACA but these have gone nowhere.

Expect more talk about “defunding” any executive action.  However, given the fact that any expanded deferred action is likely to be fee based and, therefore, self funding, and also given the fact that soon to be Senate Majority Leader Mitch McConnell has already ruled out a government shut down over the appropriations process, efforts to defund the President’s order will likely also go nowhere.

What happens after Friday?

If things follow in the same manner as it did after the announcement of DACA in June 2012, the President will direct Homeland Security and its underlying agencies to issue their guidance and publish all required forms for applying for expanded deferred action within a certain time frame.  In June 2012, DHS ordered USCIS to finalize its guidance and publish necessary forms within 60 days.  In compliance with that directive, USCIS in fact did publish the required forms by early August 2012 in time to begin filing for DACA in mid-August 2012. Expect a similar time frame for this process.

What will US Legal Solutions be doing after Friday to help you in this process?

Stay tuned here and register in the upper right of this page to receive updates about the President’s order and informational clinics we will be providing.  We will be scheduling informational clinics at our office to take place at regular times throughout the weeks following the President’s announcements. There will be no charge to attend the informational clinics.

After the informational presentation at the clinics, you will have an opportunity to meet for a consultation with a qualified and highly experienced attorney of our firm to find out exactly how the President’s announcement may benefit you and your family.  Keep in mind that US Legal Solutions has been a preeminent leader throughout Missouri and Southern Illinois in successfully assisting individuals to obtain relief under DACA.  We stand ready to apply our very successful experience to your potential case under the President’s new Executive Order.

US Legal Solutions is committed to making the President’s Executive Order a successful opportunity for as many members of our immigrant community as possible.

################# END OF UPDATE#################

Republicans Spin their Response on Weekend News Shows

November 17, 2014

Alberto Gonzalez, former Attorney General appointed by President George W. Bush.

Alberto Gonzalez, former Attorney General appointed by President George W. Bush.

Republican legislators over the weekend continued to insist on various news programs that the President’s plan to issue an Executive Order expanding deferred action for up to 5 million undocumented immigrants is overly provocative and possibly illegal.  Former Attorney General Alberto Gonzalez did concede however that, generally speaking, the President has a great deal of discretion delegated to him to decide how to enforce immigration law. He noted that those who would challenge the President’s executive action would face very significant legal hurdles to overturn it.

Interestingly, Gonzalez, a Republican darling, urged that what was needed was a “comprehensive plan” to reform the immigration system, not the president acting alone.  Perhaps someone could mail him a copy of S. 744?

Other Republican House members insisted that NOW they are ready to work with the president on a number of things (mostly Republican priorities) and the President should wait some time to “relationship build” for a few months (mostly to pass Republican priorities) and THEN they would be ready to work on immigration reform.  (Yea, right after peace breaks out in the Middle East!).

images1

Representative Boehner (Ohio-R) the current Speaker of the House and likely will remain Speaker in January 2915.

Others have been making the argument that the Republican House has passed x-number (pick your number) of bills addressing pieces of immigration reform but it has been the Democrat controlled Senate that refused to take up their bills.  Of course, in the light of S. 744 which cleared the Senate over 16 months ago, not a single one of the piecemeal bills out of the House addressed the status of undocumented immigrants.

President Obama.

President Obama.

And then, reported in various newspapers, there are those rattling the “impeachment” and “defund” sabers.  Given how poorly the impeachment of Bill Clinton worked out for Newt Gingrich’s popularity and what the attempts to defund “Obamacare” last Christmas season did to goose Obama’s poll numbers, these seem like particularly hollow threats.  In fact, soon to be Senate Majority Leader Mitch McConnell (Kentucky-R) has already ruled out a government shutdown which seems to stop the defund effort in its tracts. Besides, DACA, (as well as likely any expansion of deferred action) is entirely fee based and so requires no appropriation by Congress to implement.  Congress can’t “defund” what does not require funding in the first place!

All in all, as the anticipation of Obama’s action on immigration mounts, so does the rhetorical push-back. However, Obama appears set in his analysis that there is no relationship left to lose between himself and the Congress and the Republican leadership wouldn’t seriously consider a path to legalization even if there was. And he’s probably right.

Consequently, the President appears as resolved as ever to take executive action shortly since  time is passing. Stay tuned.

As the Washington political establishment squabbles, people are waiting.

As the Washington political establishment squabbles, people are waiting.

################# END OF UPDATE#################

 

President Obama Vows Executive Action while Millions Hold Their Breath!  

Friday, November 14, 2014.

With the November 2014 Mid-Year Elections barely a week past, the Washington DC antics are in full swing.  Center stage in this capital city drama is the fate of the 12 million undocumented immigrants who live in our communities.  President Obama has vowed to act by Executive Order to further prioritize how the very limited enforcement resources appropriated by the Congress should best be directed to keep our nation safe and to not waste resources on law abiding immigrants who benefit our economy and our communities.

President Obama announces Executive Action.

President Obama announces he is committed to sign an Executive Order to provide temporary relief to as many as 5 million or more undocumented immigrants by the end of December 2014.

Of course the Republicans (who take control of the US Senate when the new Congress convenes in January 2015) are livid.  However, as pointed out in previous postings by this author, President Obama is well within his constitutional prerogative to act in this manner.  The President’s right to exercise prosecutorial discretion is protected by the US Constitution’s Separation of Powers Doctrine.  Given the complete failure by Congress (and in particular, the Republican-controlled House) to act in any meaningful way in the last six years to address our broken immigration system, the President’s proposed exercise of prosecutorial discretion is particularly appropriate at this time and in this fashion. To read more about why the President has the authority to act in this manner, click here and click here.

boehner immigration executive order

Representative Boehner (Ohio-R) is (and will likely continue to be) the Speaker of the House of Representatives and opposes the President’s Proposed Executive Order.

The details of President Obama’s anticipated Executive Action have been slowing emerging on various news outlets since Thursday afternoon. According to a number of different news sources, the anticipated Executive Order is expected to provide relief from removal for up to 4.5 to 5 million individuals.

Key among the proposals are reported to be  Deferred Action for a new class of individuals–undocumented parents of US citizen sons and daughters — as well as an expansion of the existing Deferred Action for Childhood Arrivals (DACA) program.

Providing deferred action for parents of US citizen children alone would benefit several million people.  Perhaps more important, however, are the many more millions of US born children of these parents whose birthright as US citizens would also be protected.  Significantly (and unknown to most Americans) tens and hundreds of thousands of US born citizen children are forced to relocate each year from their homes in the United States to some of the poorest and most violent neighborhoods in the most violent countries on the planet when their mothers and fathers are removed by our Immigration Courts.  For many of these children, promising futures are ended overnight as infants and children face a reality of virtually no education, little if any access to healthcare and the constant threat of extreme violence.  It will not just be the millions of undocumented fathers and mothers who would benefit, but their tens of millions of US citizen children as well.

It is also suspected that the President stands ready to order the expansion of the existing DACA program by moving up the date since which a person must have resided in the United States to be eligible for DACA – from June 15, 2007 to January 1, 2010.  Currently, a person who last entered the United States after June 15, 2007 is ineligible to request deferred action under DACA.  However, if the contemplated change is enacted, all those who last entered the United States between June 15, 2007 and January 1, 2010 (and who meet all the other DACA criteria) would become eligible for DACA.  Some reports estimate the number of new individuals who would become eligible for relief under DACA resulting from this change may be as many as of 300,000.

None of these changes are a satisfactory substitute for actually fixing our broken immigration system. While Congress bickers, our food growers go without workers, our research institutions and leaders in technology scream for high tech visas and families remain broken in the land where “family values” are supposedly cherished.  But at least if and when the stomping crybabies on the Hill ever decide to legislate like adults on this issue, they will then be forced to do so in a way that seriously addresses the 12 million or more decent, hardworking people who live and work in the shadows but deserve better.  They will have to address these folks because the President’s action will move them out of the shadows and shine the light of day on their value to our communities.

And there will be a price paid for the President’s Executive Order — paid in the currency of increased acrimony and a further eroding of trust between the President and the Republicans on the Hill. Though of course, many might observe, what loss?

 

 

 

GO VOTE: Election Day is Tomorrow, November 4, 2014!

GO VOTE: Election Day is Tomorrow, November 4, 2014!

vote button uncle-sam-vote-2751

 

 

 

 

 

 

With all the talk of the Republicans being poised to take control of the Senate, you may think you have a million other things to do more compelling than standing in line to vote. And you could not be more WRONG!

Even if Republicans do win the Senate and control both houses of Congress after tomorrow, they will not gain enough seats to effectively pass legislation without Democratic support in the Senate since it requires 60 votes to invoke cloture and vote on legislation. It also takes 66 votes to override any veto by President Obama. As a result, a minority Democrat party will still be in a position to defend the precious few but important gains achieved in the immigrant community, such as DACA. While many vocal Republicans in the House and Senate have squawked about repealing or ending DACA, this will be impossible with the slim control they may have after tomorrow–provided the new Democrat minority stands up against them.

But consider, what incentive will this new Democrat minority have to stand up and defend these important gains if our voices are not heard on Tuesday? If in the minority on Wednesday, the Democrats will be on the defensive on many many different fronts: Budget, Taxes, Appropriations, Keystone, etc. etc. etc. The Democrat party, which has benefited greatly from the immigrant advocacy over the last decade, MUST know that we demand they stand up for our community and push back to preserve what immigration gains we have made.

AND President Obama MUST now be willing to go big on administrative prosecutorial discretion relief. With the Senate Democrats forming the firewall against any Republican push back, now is the time for Obama to bring the majority of undocumented immigrants, who are law abiding, productive, tax paying members of our communities, out of the shadows!

Doing so will set the table and the standard against which any Republican effort at immigration reform will be judged (if indeed they even have the backbone to address the issue in the run up to 2016). Failure to do so will leave a huge indelible stain on any legacy Obama hopes to have!

I’ll see you tomorrow morning, bright and early!

 

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Update: Napolitano Provides DACA Insider Story at University of Georgia.

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As foreshadowed in her interview with the Washington Post this past weekend, former Department of Homeland Security Secretary, Janet Napolitano, addressed a University of Georgia School of Law symposium on Monday, October 27, 2014.  Her remarks constituted the 112th Sibley Lecture at the campus and was titled “Anatomy of a Legal Decision”.

The address is a fascinating read and provides a detailed insight into the complicated and heated debate within the administration that took place in the summer of 2012 and ultimately culminated in the Deferred Action for Childhood Arrivals (DACA) program.

The complete address can be downloaded by clicking here: President Napolitano Sibley Lecture UGA School of Law 10.27.14.

Nepollitano observes very early in her remarks:

The story of immigration policy in this land, including the development of DACA, is a story of shadows and shades of gray – it’s no area for absolutists.

She continues to observe that in the effort to address our broken immigration system:

.     .     .      all too often immigration policy, and the debate that envelops it, resemble a washing machine at work – load, inject soap and water, churn, (also known, interestingly, as agitate,) , rinse, drain, spin, repeat. The main difference is that in the immigration realm, we never seem to graduate to the dryer—we just do it all over again.

Napolitano goes on to provide a thoughtful account of the nuanced and intertwined issues of policy and law that affect not just the debate that ultimately coalesced into the DACA program but the broader immigration debate in this country.  The remarks are a great read and go a long way to explain why we have the disastrous immigration system we have.

 

DACA Update and Things to Come?

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Earlier this week, the United States Citizenship and Immigration Service (USCIS) published its updated performance statistics for the Deferred Action for Early Childhood Arrivals (DACA) program.  The data is published through June 2014 and therefore covers almost a solid two years of data since DACA applications first could be filed in August 2012.  The performance data can be reviewed in its entirety here:

USCIS DACA Stats through to mid year 2014.

Of some note, the data reflects that nearly 581,000 DACA approvals have been issued since August 2012.  Nearly 24,000 DACA denials have been issued during the same time period.

While 581,000 may seem like a fairly large number indicating a successful program, this number actually falls significantly short of the nearly 937,000 immediately eligible individuals estimated at the announcement of the program in July 2012.  See the below analysis by Rob Paral prepared for the American Immigration Council / Immigration Policy Center.

 7.31.2012 IPC Article on Who and Where the Dreamer DA Cases Are

In the meantime, The Hill newspaper reported yesterday that Obama is facing extreme pressure from immigration reform groups to move forward on an expanded prosecutorial discretion program – one which would benefit a much broader class of individuals.  Of course, the President is also facing fierce push back from the Republicans on the right.

The Hill article quotes our own Professor Legomsky of Washington University School of Law who is back on the faculty after serving two years as Chief Counsel to USCIS then director, Mayorkas.  As Chief Counsel, Professor Legomsky was truly in the USCIS inner circle and had a significant hand in guiding the formulation of the USCIS Policy Memorandum that eventually resulted in the DACA program.

The Hill article can be downloaded here:

8.26.2014 The Hill-obama-pressed

To understand the current debate over any expanded executive action which may or may not occur this year, it is very important to realize that what is being considered is purely an exercise of the President’s discretion to decide where and where not to expend the very limited resources appropriated by the Congress to enforce the immigration law.

By the way, this discretion is actually a well established constitutionally protected prerogative of the Executive branch of the federal government rooted in the separation of powers doctrine. On many past occasions, the Supreme Court has explained that if the Executive did not have the power of prosecutorial discretion, the Congress would be too easily enabled to move from writing the law into meddling with the enforcement of the law.  The constitution unequivocally delegates the power to write laws to Congress but the power to execute the law to the Executive.

Since it is well established that there are in excess of 11 million undocumented individuals currently in the United States and the Congress only appropriates each year enough money to remove approximately 400,000 people a year (including removals of new arrivals at the boarder, not just folks already living in the interior United States), the President is left with no option but to prioritize where and how removal resources should be expended.

Importantly, this reality we find ourselves in is entirely of the Congress’ own creation by its complete failure to address comprehensive immigration reform, the blind insistence by some Congressional members that immigration law be enforced to the maximum extent possible all coupled with the Congress’ refusal to budget anywhere near the money necessary to do so.  It’s a classic example the child stomping his feet and demanding to have all the goodies but not wanting to pay for them.

Consequently, the President is left to a triage approach to immigration enforcement.  Under these conditions, it is simply common sense that the President must prioritize enforcement and focus the very limited enforcement resources available to him on the folks who pose the gravest threat to our communities such as those convicted of violent felony crimes.  Meanwhile, the undocumented immigrants technically subject to removal but who work, pay taxes, go to church, raise their children, cook our food, clean our houses, mow our yards (i.e. the VAST MAJORITY of the undocumented immigrants in our communities) will certainly end up being given a pass. Same old rule applies Congress, you get what you pay for.

The upshot to all this is that our communities will actually be better for it.

Stay tuned, Autumn will be interesting even after the elections.