Articles Posted in Immigration Reform

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Federal Courthouse BrooklynThe White House’s 2014 executive actions on immigration have been cause for controversy from the moment President Obama announced them almost two years ago. The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program prompted a lawsuit by 26 state governments. A U.S. district judge in Texas issued an injunction against the program, and the Department of Homeland Security (DHS) halted the implementation of DAPA nationwide in response. A new lawsuit filed in New York, however, challenges this action by DHS. Batalla Vidal v. Baran et al., No. 1:16-cv-04756, am. complaint (E.D.N.Y., Sep. 29, 2016). The plaintiff claims that the Texas court that granted the injunction lacked the authority to bind the DHS in New York.

The White House announced DAPA on November 20, 2014. The program would be similar to the existing Deferred Action for Childhood Arrivals (DACA) program, and it would cover qualifying undocumented parents of U.S. citizens and lawful permanent residents. The program represents an agreement by the federal government not to pursue (to “defer”) immigration enforcement action against a person for a defined period of time. To be eligible, an individual must show that they are a parent of a citizen or permanent resident, that they have been continuously present in the U.S. since 2010, and that they are not an “enforcement priority” under the administration’s immigration enforcement criteria. DAPA recipients may also be eligible for work authorization.

The Texas court granted the temporary injunction in February 2015. Texas, et al., v. United States, 86 F.Supp.3d 591 (S.D. Tex. 2015). The injunction covered DAPA and expansions to DACA included in the 2014 executive actions, but it did not affect the existing DACA program. The Fifth Circuit denied a request to stay the injunction in May 2015, 787 F.3d 733 (5th Cir. 2015), and affirmed it that November, 809 F.3d 134 (5th Cir. 2015). When the case went to the Supreme Court, the death of Justice Antonin Scalia meant that only eight justices were available to hear the case, and they split 4-4. 579 U.S. ___ (2016). The Fifth Circuit’s ruling was therefore allowed to stand, but with no adjudication on a national level.

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The Obama administration announced a program in late 2014 that would allow many undocumented immigrants to remain in the country if they are parents of U.S. citizens or lawful permanent residents (LPRs). The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program has never taken effect, due to a lawsuit by multiple state governors challenging the White House’s authority to establish such a program. In late June 2016, DAPA suffered a major setback in the Supreme Court, from which it might not recover. The court’s eight justices split evenly on the case, meaning that the lower court decisions blocking the program are affirmed by default. United States v. Texas, 579 U.S. ___ (2016).immigrants

The Deferred Action for Childhood Arrivals (DACA) program, first implemented by the White House in 2012, allows undocumented immigrants who entered the U.S. as children, and who meet certain other criteria, to remain in the U.S. and obtain work authorization for two years, subject to renewals by the administration. Contrary to much of the opposing rhetoric, DACA does not confer lawful immigrant status on its beneficiaries. Instead, it is an agreement by the Department of Homeland Security (DHS) to defer the enforcement of immigration laws for a specified period of time. Work authorization is certainly a benefit, but it is one that is within the Executive Branch’s authority to grant. DACA is not comparable to the status conferred by a visa or green card.

DAPA would have extended similar deferrals to undocumented parents of citizens and LPRs who meet the program criteria. About 3.6 million people, out of an estimated 11 million total undocumented immigrants living in the U.S., might have been eligible for DAPA. The majority of people believed to be DAPA-eligible have lived in the U.S. for at least 10 years.

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Cuauhtemoc-Hidalgo Villa-Zapata [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)], via FlickrThe White House’s 2012 executive action on immigration, known as Deferred Action for Childhood Arrivals (DACA), has helped hundreds of thousands of people who arrived in the U.S. as children, many of whom know no other home but here. In November 2014, President Obama announced a new executive action intended to help parents of U.S. citizens and lawful permanent residents (LPRs) who are in this country without valid immigration status. This program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), prompted a lawsuit by 26 state governments challenging it on constitutional and statutory grounds. A court granted an injunction halting the program, which a federal appellate court upheld in November 2015. A petition for certiorari by the federal government is now pending before the U.S. Supreme Court.

DACA allows people who are in the U.S. without lawful immigration status to remain here if they meet various criteria. They must have been under the age of 31 on June 15, 2012, arrived in the U.S. as a minor, and remained here continuously since 2009 or earlier. They also must be enrolled in school, have a high school diploma or equivalent, or have an honorable discharge from the U.S. Armed Forces or Coast Guard. Finally, they must not have any felony or significant misdemeanor convictions. DACA status is effective for two years, with possible renewals, and it includes work authorization. It does not confer any other specific immigration benefit or status. It is merely an agreement by the federal government to defer immigration enforcement, including deportation, while the person maintains DACA status.

At the time it was announced by the White House and the Department of Homeland Security (DHS), DAPA would allow certain parents of citizens and LPRs to remain in the country for two-year periods, again without conferring any specific immigrant status. To be eligible, an individual must have been present in the U.S. on January 1, 2010 and resided here continuously since then. As of November 20, 2014, they must have had a son or daughter who is a citizen or LPR. Finally, they cannot be categorized as an “enforcement priority” by DHS.

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By Dabit100 / David Torres Costales  Pictures of Ecuador (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsThe Deferred Action for Childhood Arrivals (DACA) program, first announced by President Obama in 2012, allows undocumented immigrants who arrived in the U.S. as children, and who have graduated high school or served in the military, to remain in the U.S. and obtain work authorization. The program represents an agreement by immigration officials to defer any enforcement action. One question that seems to have received little public attention is whether a DACA recipient may leave the U.S. temporarily without jeopardizing their deferral. Any DACA recipient wanting to leave the U.S. must first obtain advance parole from U.S. Citizenship and Immigration Services (USCIS), a process that can unfortunately be both cumbersome and uncertain.

An article published by Vox in April 2015 describes the difficulties faced by a DACA recipient, who came to the U.S. from Ecuador at the age of eight, obtaining approval to travel to Ecuador for professional purposes. The woman works as an advocate for undocumented immigrant students, helps administer a $25 million scholarship fund, and frequently receives invitations to give speeches all over the country. When she was asked to speak at two events in Ecuador, she applied to USCIS for advance parole.

Advance parole is essentially an acknowledgment from the federal government that the recipient may leave the country without giving up their “continuous presence” in the U.S. Since DACA recipients are, by definition, potentially subject to deportation, voluntarily leaving the country could mean that they will not be allowed back in. Two immediate problems present themselves for people in the DACA program: USCIS can be very slow to process advance parole requests, and the applicability of advance parole to DACA is not at all settled.

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linux-154544_640.pngU.S. Citizenship and Immigration Services (USCIS) issued a final rule in February 2015 extending employment authorization to dependent spouses of certain people who are in the U.S. on H-1B work visas. These dependent spouses are able to come to the U.S. with an H-4 nonimmigrant visa, but are excluded from employment. Completing this rule is part of President Obama’s immigration executive actions, which he announced in November 2014, with the goal of reducing financial burdens on guest workers and their families who are on a track to legal U.S. residence.

Federal immigration law provides H-1B nonimmigrant visas for workers in “speciality occupations” and fashion models. 8 U.S.C. § 1101(a)(15)(H)(i)(B). Spouses and dependent children of H-1B visa holders are permitted to come to the U.S. with an H-4 visa, which has the same duration as the H-1B visa. 8 C.F.R. § 214.2(h)(9)(iv). Prior to the new final rule from USCIS, they were not permitted to work unless they obtained their own nonimmigrant visa that included work authorization. This resulted in H-1B workers who brought their spouses and children to the U.S. being limited to one income.

The immigration executive action announced by the White House in November includes directives to USCIS and other agencies to “modernize, improve and clarify immigrant and nonimmigrant programs,” with the goal of “grow[ing] our economy and creat[ing] jobs.” One of the directives, according to a summary provided by USCIS, is to issue a final rule extending work authorization to H-4 visa holders whose H-1B visa holder spouses “are on the path to lawful permanent resident status.”
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0328Jersey_City_Statue_of_Liberty.JPGSeveral recent events and news stories in New Jersey could have a significant effect on immigrants in this area and their families, employers, and advocates. This includes news about increased immigration into New Jersey and its impact on the state’s economy. A recent New Jersey Supreme Court decision affirmed the state government’s decision to limit the availability of Medicaid to certain lawful immigrants. Finally, New Jersey’s governor recently joined a brief supporting a lawsuit by several states against the federal government over President Obama’s executive actions on immigration.

Immigrants Are Balancing New Jersey’s Population

According to data from the U.S. Census Bureau, the number of immigrants who have moved into New Jersey in the past few years is almost the same as the number of residents who have left. In 2013 and 2014, approximately 55,000 people moved out of New Jersey. This is reportedly a trend that has continued for decades, with some people leaving to retire and others leaving in search of jobs or lower living costs.

In that same two-year span of time, over 51,000 people moved to New Jersey from abroad, which is apparently a rate of immigration not seen in this state since the early 20th century. Most of the state’s population growth is in urban counties. Middlesex and Hudson Counties, for example, have seen net population growth, reportedly in large part due to immigration.
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White_House_DC.JPGPresident Obama’s executive actions (EAs) on immigration, announced on November 20, 2014, offer relief to millions of undocumented immigrants who have lived here for years and have contributed to American society. Since the President took these actions without Congress, they have been highly controversial in some circles. Several federal agencies have offered support of the White House’s legal authority to take these actions, while numerous states have filed suit seeking an injunction against them.

We described the EAs in detail in an earlier post. The EAs, in part, expand the Deferred Action for Childhood Arrivals (DACA) program and offer deferred action or waivers of unlawful presence for certain relatives of U.S. citizens and lawful permanent residents. They are essentially a form of prosecutorial discretion, much like DACA. The Executive Branch of the federal government has authority to prioritize certain types of immigration cases for prosecution, typically meaning deportation. A November 19, 2014 memorandum by Principal Deputy Assistant Attorney General Karl R. Thompson (the “DOJ memo”) reviewed the President’s, and by extension, his Cabinet’s legal authority to take executive action on immigration without Congress.

While an estimated 11.3 million undocumented immigrants live in the U.S., Thompson states that the federal government can handle no more than 400,000 removal cases per year. The U.S. Supreme Court has held that the President is not required to pursue every “technical violation of [a] statute” to meet his Constitutional duties. DOJ memo at 4, citing Heckler v. Chaney, 470 U.S. 821, 831 (1985). Thompson concluded that deferred action is a permissible form of prosecutorial discretion for relatives of U.S. citizens and lawful permanent residents, but not for family members of DACA recipients, who are not themselves lawfully present in the U.S. except through deferred action.
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WhiteHouseSouthFacade.JPGPresident Obama announced a wide range of executive actions (EAs) on immigration in late November, including an expansion of the Deferred Action for Childhood Arrivals (DACA) program, deferrals for family members of citizens and lawful permanent residents (LPRs), and potential eligibility for certain public benefits. The EAs do not substantively alter federal immigration law by, for example, creating new immigrant categories or giving undocumented immigrants a new means of obtaining lawful status, but they do grant millions of people a reprieve from the threat of deportation and the opportunity to work.

The President announced the EAs on November 20, 2014, after a long period of inaction by Congress. The U.S. Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, in a bipartisan vote on June 27, 2013. The bill would create new opportunities for lawful immigration status while enhancing immigration and border enforcement. It would crack down on abuses in the H-1B visa system and provide additional visas for students in science, technology, engineering, and mathematics (STEM) fields at U.S. colleges and universities. The bill never has even been introduced in the House of Representatives.

The EAs will expand eligibility for DACA, the program that allows undocumented immigrants who entered the U.S. as children and meet other criteria, about 90 days after the announcement date. The upper age limit, currently set at people born on or after June 15, 1981, will be removed, and the continuous presence requirement will be moved up from June 15, 2007 to January 1, 2010. The program still will not be available to anyone who entered the U.S. after that date.
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USGS_Rikers_Island.pngWhile programs like Deferred Action for Childhood Arrivals (DACA) offer hope and opportunity for many otherwise undocumented immigrants, the federal government continues to pursue an aggressive deportation program. The Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) deported 438,421 people in fiscal year 2013. That number reportedly represents an increase of over 20,000 from fiscal year 2012, which showed an increase of over 51,000 over fiscal year 2011. Since taking office in 2009, the Obama administration has deported more than two million people. DHS often relies on the cooperation of local governments, which it expects to abide by “detainers” issued for individuals held in custody by state and local law enforcement. Many local governments, however, are refusing to honor immigration detainers and are enacting legislation to this effect. The New York City Council passed two laws in October 2014 that place further restrictions on the city’s already limited cooperation with federal immigration officials.

DHS officials, which include ICE and CBP, are authorized by federal regulations to issue detainers to other law enforcement agencies. 8 C.F.R. § 287.7. A detainer notifies the other law enforcement agency that the federal government intends to take custody of an individual in that agency’s custody for the purpose of deportation. This frequently takes place before any adjudication of the person’s deportability or inadmissibility has occurred. Officially, a detainer asks the local agency to notify DHS before releasing the individual. In practice, it often means that the local agency is expected to continue to hold the person, even beyond the time he or she is otherwise entitled to release, until DHS can take the individual into custody. The federal government expressly disclaims any financial responsibility for the cost to local agencies of holding a person solely for a detainer. Id. at § 287.7(e).

New York City has passed several laws in recent years limiting the city’s cooperation with immigration detainers. In 2011, it enacted a law preventing police from holding a person in custody beyond the point when, in the absence of a detainer, he or she should be released. Police should only notify DHS of the person’s release in certain limited circumstances. Another law passed in 2013 bars the NYPD from turning certain individuals who are subject to a detainer over to DHS, such as those who are only charged with low-level offenses.
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Ambulance_NYC.jpgThe question of public benefits for immigrants is both complicated and controversial. State laws may be considerably different from federal law, even with regard to federal programs like Medicaid. A recent decision by the Ninth Circuit Court of Appeals, Korab v. Fink, No. 11-15132, slip op. (9th Cir., Apr. 1, 2014), addressed a Hawaii statute and affirmed that states have rather wide latitude under federal law to limit certain immigrants’ access to Medicaid coverage, or to exclude them entirely. New Jersey generally follows the federal system, while the state of New York offers wider Medicaid access to many immigrants.

The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, often known as the Welfare Reform Act, made substantial changes to non-citizens’ ability to apply for and receive public assistance. See 8 U.S.C. § 1601 et seq. “Qualified aliens,” defined to include permanent residents, asylees, certain parolees, and others, could still receive benefits, id. at § 1641(b), but others were barred. Exceptions are allowed for emergency medical care and services directly related to pregnancy. States could provide benefits at their own expense to non-qualified aliens, provided their legislatures passed new laws specifically authorizing such benefits. Id. at § 1621(d).

Some states passed legislation allowing non-qualified aliens access to benefits like Medicaid, even though those programs would not be eligible for federal reimbursement. Hawaii included many non-qualified aliens in its state health insurance plan until 2010. The state revised its plan to no longer include “COFA residents,” people who are nationals of the Republic of the Marshall Islands, the Federated States of Micronesia, or the Republic of Palau who reside in the U.S. under a Compact of Free Association (COFA). The COFA, codified at 48 U.S.C. § 1901, allows COFA residents to visit the U.S. without a visa and establish residence here, but they are not “qualified aliens” under PRWORA.
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