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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!

 

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

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

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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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Immigration Reform Update: Napolitano Pushes for Broader Executive Action!

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The Washington Post.  October 27, 2014.  1201 a.m.

The Washington Post this weekend reported that former Department of Homeland Security Secretary Janet Napolitano stated in an interview:

“If Congress refuses to act and perform its duties, then I think it’s appropriate for the executive to step in and use his authorities based on law . . . to take action in the immigration arena,’’ Napolitano, a lawyer and former U.S. attorney in Arizona, said in an exclusive interview with The Washington Post.

She made her remarks to the Washington Post ahead of what the Post has reported will be a significant speech by her scheduled for Monday, October 27, 2014 to be delivered in Georgia.  The Post has further reported that she is expected to detail the heated debate that took place inside the Administration in 2012 when the Administration and Napolitano announced and implemented the Deferred Action for Childhood Arrivals (DACA) program.  DACA  is now considered to be largely successful, benefiting over 580,000 young immigrants to date.  It is expected that Napolitano will detail how she urged much broader action in 2012.  It is expected that she will likely push for broader action now.

You can read the complete Washington Post Article by clicking here.

Hopefully, Secretary Nepolitano’s interview this weekend and her speech on Monday is part of a broader effort to lay the groundwork for a concerted push for expanded executive action once the November elections are over!  Stay tuned.

Not Just Children at Risk on our Southern Border!-UPDATED


 

August 28, 2013:  The eyewitness accounts continue to come in from Artesia.  Click here to see a video update from Laura Lichter (former AILA National President and others) about what is happening. Additional video accounts can be seen here.


 

statue_of_liberty_with_extract_of_poem_by_emma_lazarus_fixedIn the past two months, many of my professional colleagues and fellow members of the American Immigration Lawyers Association (AILA) have chosen to give up time from their practices and families to travel to Artesia, New Mexico.  Many for more than a week at a time. However, Artesia is not the latest resort city slated to host an AILA conference and golf outing!  They have chosen to travel to Artesia to provide pro bono representation to women and children, including infants, and to assure that, minimally, the government provides a fair credible fear hearing to those fleeing violence and likely death in their home countries of El Salvador, Guatemala and Honduras.

While, these women, children and infant detainees are legally entitled to this hearing process, they are are not entitled to an attorney at the government’s expense.  Consequently, without volunteer legal representation, these individuals are left to explain to the government why they qualify as refugees according to a legal definition they can’t read contained in a statute they don’t know exists in an environment that may has well be Mars to them.  Not only the children themselves are at risk on our border.  Our nation’s own commitment to due process equally hangs in the balance.

The threat to our basic national values is not theoretical, it is real and in practice.  Consider some of the examples shared from my colleagues:

  • Bond determination hearings in cases where the detained person has an attorney lasting an hour and half or more. (Typical bond determination hearings in Immigration Court last less than 30 minutes).
  • Only two bonds granted in cases represented by pro bono attorneys and no bond less than $25,000.  One additional bond granted in a case represented by a private attorney.  The vast majority of detainees are simply denied bonds altogether.  (The minimum Bond permitted under the Immigration and Nationality Act is $1500 and, even in cases where the person in removal proceedings may have minor convictions, an average bond before the Kansas City Immigration Court is $5000 to $7500). Of course, there is no such thing as bond agents or “10% cash allowed.”
  • Attorneys in cases where the detainee is represented, are generally not allowed to participate in the hearing in any meaningful manner other than to take notes.  (The USCIS Adjudicator’s Field Manual clearly details the role of the attorney to specifically permit the attorney to ask clarifying questions and to participate in creating a clear and complete record).
  • AILA attorneys are routinely harassed by Immigration and Customs Enforcement (ICE) agents for so much as attempting to access public legal reference materials and conducting detailed interviews of their detainee clients.

And the list of due process complaints goes on and one.  One can only shudder to think of what happens to the unrepresented detainees.

Accordingly, several non-profit groups, including the American Immigration Council, filed suit on August 22, 2014 in the Federal District Court for the District of Colombia bringing to light this attack on due process and abject failure of our immigration system to live up to the expectations of our American values.  The suit filed last week and can be read in its entirety by clicking below.

If you are interested in supporting the work of the attorneys providing pro bono representation to detainees in Artesia, New Mexico, please contact our office by clicking here and indicate your desire.  We will promptly follow up to get you in direct contact with them!

Download and read the entire law suit here: M.S.P.C. et al. v. Jeh Johnson, Secretary of Homeland Security

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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.

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