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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!

 

##########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!).

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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?

 

 

 

Immigrants, Immigration Courts and Chicken Littles–all by the Numbers!

statue_of_liberty_with_extract_of_poem_by_emma_lazarus_fixed

Many folks have passionate opinions about our immigration system and how to fix it.  Usually these opinions flow from what people believe about our immigrant new Americans and how the immigration and enforcement process in this country functions or fails to function.  As in any debate, however, the old adage holds firmly true:  “Everyone is entitled to their own opinion, but they are not entitled to their own facts”.  So, the facts (and in this case, the hard numbers) really do matter.

And that’s where the University of Syracuse comes in.  The University provides a great public service which is completely free (donations welcome of course) that is invaluable to ensuring an intelligent and productive immigration debate.  The service is called the Transactional Records Access Clearinghouse (TRAC) and is a free public repository of seemingly endless government data, often obtained through the Freedom of Information Act. The data pertains to a wide variety of topics, is published online and is easily accessed by the public.  You can find the TRAC database by clicking here.

One of the most interesting “reality checks” that emerges by sifting through this data can be gleaned using a particular data set tool on the TRAC site which can be found here. This particular tool analyzes data related to immigrant children in removal proceedings; by state, by whether the child in proceedings has legal counsel and by whether they actually show up for their court cases. Any person in removal proceedings (in this case a minor) who does not appear before the court as scheduled is usually ordered removed from the county in abstensia (in the person’s absence).  Thus, in abstensia orders of removal serve as a near perfect proxy for failures to appear.

Now, consider the heated rhetoric of many elected politicians shrieking that the unaccompanied minors pouring over the border, if not immediately returned home, would simply disappear into the US population and never bother to appear in immigration court as ordered.  Some Chicken Little politicians have publicly warned that as many as 90% of all unaccompanied minors in removal proceedings currently fail to appear.  This argument might seem like common sense–surely the sky must really be falling.  But again, one is entitled to their opinions, but not their own facts.  And the facts, or in this case the numbers, just don’t support the Chicken Littles.

Back to TRAC.  By utilizing the tools linked above, one can easily examine the following data sets:

2005 to present: Number of minors in removal proceedings unrepresented (pro se) whose cases were closed by an in abstensia order of removal (i.e. they failed to appear for their court case):  29% failed to appear, over 70% appeared.

Juveniles – Immigration Court Deportation Proceedings — all states-pro se

2005 to present: Number of minors in removal proceedings with legal counsel whose cases were closed by an in abstensia order of removal (i.e. they failed to appear for their court case even though they had a lawyer):  4.5% failed to appear, over 95% appeared.

Juveniles – Immigration Court Deportation Proceedings–all states–with counsel

Being from the generation who grew up watching Bugs Bunny on TV, I can’t help hearing the famous rabbit TV star’s words ring in my head:  “what’s all the hubbub, bub?”

Funny thing about facts–sometimes they just won’t get with the agenda! And in this case, the facts show that an enormously high percentage of minors in removal proceedings really do show up for court.  Fair enough, nearly 30% who aren’t fortunate enough to afford a lawyer don’t go to their court date and overall slightly more than 18% don’t show up. (Set aside for the moment what this might say about the inequity of being in removal proceedings without counsel–save that for another post!) But 90% no show–no way! Myth busted!

For now, our nation’s collective conscience is fixated on the racial inequities that have been exposed by Michael Brown’s death in Ferguson, Missouri–and rightfully so.  However, sooner than we may realize, our collective focus and, hopefully the Administration’s as well, will again shift to the other great human rights calamity challenging our nation–our broken immigration system.  When attentions shift back, you can bet the fever pitched Chicken Little rhetoric prophesying the sky’s fall will crescendo.  When it does, best to take a breath, look at the numbers and separate rhetoric from reality.

We certainly will! Stay tuned!