DAPA 0, H-4 EAD 1

In two separate opinions authored by separate courts, the judiciary allowed H-4 EAD applications to proceed, and continued to hold back DAPA hopefuls from receiving EADs (Employment Authorization Documents, work permits basically).  

DAPA and expanded DACA: The State of Texas and other states sued DHS over Deferred Action for Parents of Americans (DAPA) and an expansion of the DACA program to remove the age cap and issue 3 year EADs, arguing the State of Texas would lose money by issuing driver's licenses to those who received DAPA and expanded DACA.  The District Court in Texas blocked the program by issuing a court order (an injunction), and on May 26, 2015, the Fifth Circuit Court of Appeals in a 2 to 1 decision upheld the injunction.  So for now, at least until the Supreme Court takes up the case, DAPA and expanded DACA continue to be on hold.

H-4 EADs: A group of technology workers who used to work for Southern California Edison sued DHS over the regulations allowing work permits for H-4 dependent spouses of those H-1B workers who have had an immigrant petition approved on their behalf or who are eligible for extensions beyond the sixth year of H-1B status due to the initiation under certain circumstances of a green card process.  On May 24, 2015, the District Court in the District of Columbia denied the tech workers' request to issue an injunction like the one in the DAPA case.  So H-4 EAD applications will proceed.  Today is the first day allowed for H-4 EAD applications.  

Mississippi Governor Loses Lawsuit Against DACA

A challenge by the Republican Governor of the State of Mississippi and some agents of Immigration and Customs Enforcement (ICE) to the DACA program was dismissed by the Fifth Circuit Court of Appeals in a decision filed today.  The Fifth Circuit ruled that the lawsuit could not prove injury to either Mississippi or ICE by implementation of the DACA program, and that it had to be dismissed because federal courts lack jurisdiction to hear cases that aren't controversies, which requires something at stake in the case.  The Fifth Circuit Court of Appeals is the same court as the one which is about to hear arguments on the President's DAPA program, which was temporarily blocked by a federal district court judge in Texas.  The panel of judges on the DAPA case is not likely to be the same.  It is unclear to what extend the decision today will impact the decision on the DAPA case, but the issues are very similar.  A brief report on the case has just appeared on The Hill Blog.

Turn Self In for Deportation Alternative to DAPA?

Original February 23, 2015 post updated with May 26, 2015 Fifth Circuit ruling:  A Texas judge ordered a temporary hold on #immigrationaction Deferred Action for Parents of Americans (DAPA).  The Feds have appealed, but they just lost in the Fifth Circuit.  Now that all but the nation's highest court has halted the DAPA program, the question remains: Is DAPA the only way to enact smart enforcement?  Arguably, the White House has another potential option to defer deportation and grant work permission for low priority undocumented immigrants - a Turn Self In for Deportation program.

How would that work?  The answer lies in the laws that Congress passed in 1996.  If a person in the United States without authorization can show 1) 10 years of continuous physical presence in the U.S. (with allowances for breaks of 90 days or less if totaling 180 days or less), 2) good moral character, 3) a lack of conviction for certain crimes, and 4) establishes that their removal would result in exceptional and extremely unusual hardship to the person's spouse, parent or child who is a U.S. citizen or lawful permanent resident, then that person can apply for a green card from an immigration judge, and have their deportation cancelled.  The law is 8 U.S.C. 1229(b) and it is called "Cancellation of Removal."  Yep, Congress said that if you have been here a long time and deportation would work a hardship on your kids, then you should be able to stay here as a lawful permanent resident.  That's the law.

It is probably no coincidence, therefore, that the DAPA program was established for otherwise law abiding individuals who have been here a number of years and are parents of American citizens.  If the government were to put all the estimated 4 million individuals who might qualify for DAPA into removal proceedings, a large portion of them would likely qualify for Cancellation of Removal, and would be entitled to a trial where they could prove the elements of the Cancellation of Removal claim.  This would completely cripple the removal system and prevent the removal of more dangerous individuals.  According to a Wall Street Journal Article, removal hearings are now being set 5 years into the future due to an already long backlog of cases waiting to be heard.  With 230 immigration judges around the country already handling 375,000 cases per year, the system is at the absolute limit. Add 4 million more to the list of pending cases, including mostly those with Cancellation of Removal claims (requiring more court time to handle than many other cases), and hearing dates could be set not 5 years away, but 50 or 100 years in the future.  Add to that the annual limit on 4,000 grants of Cancellation of Removal, and meritorious cases would be pending for 1,000 years.

So how would a Turn Self In for Deportation program work in place of DAPA?  The Obama Administration could allow the portion of DAPA eligible individuals who had the required 10 years in the country to be issued a Notice to Appear (NTA) in immigration court, allow them to file a Cancellation of Removal application, then Administratively Close their case so it gets out of the streamline of pending cases.  In the old days, the predecessor to the NTA, the Order to Show Cause (OSC) could be requested by walking an out-of-status client into investigations and having them written up.  This was done to seek relief before an immigration judge.  At some point the agency decided to limit the issuance of charging documents to cases they thought they could win.  But DHS could certainly allow the old process to operate again, and could certainly direct the Office of Chief Counsel to join in motions to Administratively Close all cases in which the person was eligible for Cancellation of Removal and who also requested such administrative closure.  This process would enable the individual to apply for a work permit, just the same result as if they had applied for DAPA.  By allowing the cases to be Administratively Closed, the system would not be crippled, and removal proceedings involving individuals with serious criminal convictions could proceed.  

So why don't more people just Turn Self In for Deportation?  That is because Immigration and Customs Enforcement (ICE) has no process to allow for this.  That's right - unless you are a priority for removal, ICE will not usually place a person in removal proceedings by issuing an NTA unless that person is a priority for removal, which at this time involves only people apprehended at the border or those arrested for crimes, and not all those otherwise law abiding individuals who may have Cancellation of Removal.  Some individuals have filed asylum applications in order to be placed in removal proceedings, because denial of asylum leads automatically to an NTA being issued and the individual being placed in removal.  The NTA filing, in turn, allows them to apply for Cancellation of Removal and a work permit, but the process is not without risk outside of an organized system as reported by the New York Daily News.  So, because of the risk of deportation, and the fact that no Turn Self In for Deportation program exists, few of the otherwise law abiding 4 million are in removal proceedings, and cannot therefore apply for Cancellation of Removal.  These are the truly "undocumented" because they are eligible for legalization but cannot apply for it unless they are in removal proceedings, and they aren't likely to get there because they are not committing crimes.

A Turn Self In (TSI) for Deportation program would also be even more shielded from judicial review than the DAPA program, because Congress has enacted laws (namely 8 U.S.C. 1252(g)) to completely insulate the decision to commence removal proceedings against someone from judicial review.  When this post was originally drafted in February, a few scholars commented that the TSI program would be subject to the same problems as the DAPA program in terms of jurisdiction to review in the courts.  Not so, in my opinion.  As the Fifth Circuit held today, "DAPA amounts to the Secretary's decision - at least temporarily - not to enforce the immigration laws as to a class of what he deems to be low priority aliens.  If that were all DAPA involved, we would have a different case."  Slip Op., p. 23-24.  The Court also held, "Unlike the claim in AAADC, the states' procedural claim does not involve a challenge to the Secretary's decision to 'decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation,' nor does deferred action pursuant to DAPA mean merely that 'no action will thereafter be taken to proceed against an apparently deportable alien.'"  Slip Op., p. 25-26.  The statute, 8 U.S.C. 1252(g), states that "...no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General [now DHS Secretary] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act."  Because issuing an NTA to someone is an act to commence proceedings, it is immune from judicial review, unlike DAPA.  The decision to join in a motion to administratively close a case is arguably not within the jurisdictional protections of 1252(g), but if the agency were to have issued and filed several million NTAs in immigration court, it would be hard to imagine a court which would not allow the officials in charge of managing their dockets the discretion to join in admin closure motions to enable the orderly prioritization of the removal process.  Also, the issuance of work permits is a separate process from the issuance of the NTA and the person's own application before the court for cancellation.  So DHS isn't really responsible for that, it is just part of how the system already works.  How could a court find any reason to stop a process that Congress itself enacted?

Now that the DAPA program has not been placed back online in quick fashion through the courts,  the Obama Administration could consider allowing people to turn themselves in and issuing NTAs to several million of the DAPA eligible group who have been here at least 10 years.  As stated above, the commencement of removal proceedings is entirely beyond the jurisdiction of the courts to interfere with.  Upon filing all those millions of NTAs with the Immigration Court, the Administration could then decide to implement an orderly policy to Administratively Close them (since keeping them in the system would crash it) and allow the system that Congress established to issue the group work permits.  

A far better solution, however, would be for lawmakers to recognize that deporting parents of American citizens who have lived here for many years is not a practical strategy, setting aside for a moment even the humanitarian concerns, and work together in bipartisan fashion to come up with a logical and workable immigration system that takes this group out of the cross hairs of the deportation system.  Until that time comes, however, the Administration must come up with strategies to enforce the immigration laws in a smart way, including separating out those who should not be taking up our limited removal system resources by allowing them to provide proof of their low priority status.  In order to encourage people to come out of the shadows and become pre-identified as low priority for removal, the Administration must give some benefit - work authorization - for such a program to work.  

Whether the Administration wins the battle to implement DAPA at the Supreme Court, or must turn to something such as a Turn Self In for Deportation program, the parents of Americans with lengthy U.S. residence should be allowed the decision to document themselves as low priority by requesting an NTA, and after filing a cancellation application, be issued work permits.  


DOJ Asks Court to Allow DAPA to Proceed outside Texas

The Dept. of Justice filed an emergency expedited motion to stop Texas federal judge Hanen's decision to block implementation of DAPA and expanded DACA today.  The DOJ filed an appeal with the Fifth Circuit Court of Appeals (the court above the Texas federal judge), and filed a motion with the Texas federal judge to put the block of the DAPA/expanded DACA programs on hold.  In other words, the federal government requested that USCIS be allowed to proceed with DAPA and expanded DACA nationwide while the lawsuit is pending, but also asked the court to consider limiting the order to the State of Texas if it wouldn't strike the order completely, since Texas federal judge Hanen only identified the State of Texas as possibly being injured, which is required to have standing to sue.  The Wall Street Journal reported on the motion and appeal.  

DAPA and Expanded DACA Blocked

UPDATE! The Supreme Court upheld the blocking of DAPA - read about the TSI ALTERNATIVE TO DAPA HERE.

On President's Day, February 16, 2015, federal judge Andrew S. Hanen issued a temporary Order in favor of the State of Texas, temporarily blocking the DAPA program and also blocking the expansion of DACA.  

What this means: For now, the judge's order blocks USCIS from "implementing any and all aspects or phases" of both the DAPA program, set to go into place by May 18, 2015, and also the expansion of the DACA program, which was set to go into effect February 18, 2015, and which would eliminate the age cap, move the residence date up to January 1, 2010, and extend work authorization from two up to three years.  That means, for now, the USCIS is prevented from putting any DAPA program in place, and also prevented from changing anything about the DACA program as it currently exists.  It does not affect the DACA program that has already been in place since 2012, so anyone who qualifies for the DACA program as currently in place is not affected by this court order.

Why this happened:  The Republican Texas Governor Greg Abbott filed a lawsuit against President Obama, seeking to stop DAPA and the expansion of DACA, claiming among other things that it would cost the State of Texas money to issue driver's licenses to DAPA and DACA recipients because the State charges less than the actual cost of the driver's licenses.  The Texas Governor was joined in the lawsuit by Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, Wisconsin, Michigan, Mississippi, Maine, and North Carolina.  The lawsuit was assigned to Andrew S. Hanen, a judge in the Southern District of Texas, where the lawsuit was filed.  Judge Hanen was appointed in 2002 by President George W. Bush.  

What will happen next: The order is preliminary and temporary, until the judge decides the case on the merits - in other words, until the judge has more time to hear all the arguments from each party and makes a final ruling.  The Obama administration has announced that it will appeal the temporary decision.  Many legal scholars hold the opinion that Judge Hanen's order will not be upheld (supported) by higher courts.  For now, however, the DACA program cannot expand - the age cap stays in place, the two year cards instead of three years stay in place, and the June 15, 2007 residence date stays in place instead of January 1, 2010.  Also, for now, the DAPA program is on hold.  The DACA program that was put in place in June 2012, however, is still in place and is not affected.  Individuals who are eligible for DACA and renewals of DACA under the 2012 program can continue to apply and receive benefits.  No benefits have been taken away.

Who supported the President's DAPA and DACA programs: The States of Washington, California, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Vermont and the District of Columbia filed amicus briefs in support of President Obama's programs.  The Mayors of New York City and Los Angeles, along with 31 other mayors also supported with a brief.

What could President Obama do: The President has already decided to appeal Judge Hanen's order.  The higher court, the Fifth Circuit Court of Appeal, and ultimately the Supreme Court, could decide the case differently.  

The President could also decide to use other methods to achieve the same purpose.  For example, the President could allow people who have been in the country for at least 10 years, and are the parent of an American citizen, to "turn themselves in" to be placed in deportation proceedings (now called removal proceedings), which would allow them to apply for "Cancellation of Removal" and get work permits while they await their hearing in front of an immigration judge.  Cancellation of removal is a form of relief an immigration judge can grant, if the person has been here 10 years, does not have certain criminal convictions and has been a person of good moral character, and establishes that deportation would result in exceptional and extremely unusual hardship to the person's spouse, parent or child who is a U.S. citizen or lawful permanent resident.  If the judge finds those factors, the judge can adjust the status of the person to lawful permanent resident - a green card.  There are only 4,000 slots available each year, and if a judge decides to grant relief but there are no numbers, the case is just held until numbers are available.  If several million people were suddenly placed in removal proceedings as a result of a turn self in program, it would take many years, perhaps decades, for cases to be heard.  In the mean time, applicants for Cancellation of Removal would be able to apply for work permits.  Of course, taking any action such as turning oneself in for removal proceedings carries risk of deportation or prosecution, and should be undertaken only after receiving the advice of competent immigration counsel.  But this one example does show how there are other ways in which the President can accomplish the goals of DAPA without using deferred action.