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The party over executive action seems to have fizzled out even before it started.
As expected, late Monday, February 16, Judge Andrew Hanen issued a temporary injunction against the implementation of two parts of President Obama Administration’s executive actions on prosecutorial discretion in immigration: an expansion of the current deferred action for childhood arrivals (DACA) program, and a program for the parents of U.S. citizens (DAPA).
The federal district court did not decide on the constitutionality or legality of the programs, but rather, took issue with the fact that the Obama Administration had not followed proper procedures under the Administrative Procedures Act (APA), in rolling out the programs. The Justice Department is expected to appeal this ruling and to request a stay of the injunction so that the initiatives aren’t stalled.
While much has been written about how Judge Hanen reached an erroneous decision when he determined that the federal government had to allow for a notice and comment period, no one is actually talking about the fact that the National Day Labor Organizing Network had filed a complaint requesting that the government engage in rule-making with regards to executive action, more than a year before the executive actions were announced. This was a request for formal rule making of the kind that Judge Hanen found lacking from the executive actions announced on November 20, 2014.
The government seems to have not responded to the NDLON complaint, and never bothered to publish a formal notice in the Federal Register when it did announce changes to its prosecutorial discretion programs. If they had, perhaps things would have turned out differently last week. Perhaps not. In any case, the Obama Administration has a major “foot in mouth” problem, and perhaps before embarking on future partisan events to drum up support for his programs, someone should ensure that the intern does send over a copy of the proposed rule change to the Federal Register.
What’s next? Now that the brakes are on, the legal teams on both sides seem to be up against months, if not years, of litigation. That may bode well for the politicos, but not for undocumented immigrants who would have benefited from these programs.
Most talking points sheets say that people should continue preparing for the programs. Sure, that is true. But more importantly, the new enforcement priorities announced on November 20, 2014, remain in place. So if you think the Administration is still detaining and deporting people that it has no business doing, continue raising hell, and continue asking for a more expansive definition of discretion.
I went to bed last night mentally doing a checklist of everyone I know who qualifies and does not qualify under the President’s immigration action. As a community advocate and formerly undocumented immigrant, the word that most aptly describes last night is “bitter-sweet.”
While the announcement is not enough, we do need to celebrate our victories, and what change this temporary reprieve will bring to so many members of the community. However, I am also frankly terrified for those that it would not help, and what would happen in the absence of permanent changes.
I am making a quick reference checklist here for myself, family members and friends, similar to the one I made for the Senate immigration bill two years ago as a community advocate. These are simply my initial mental impressions of the various memos released by the DHS yesterday and available here. They are in no particular order:
- Expansion of DACA – The DHS will remove the upper level age cap on DACA so people who were above the age of 31 as of June 15, 2012 will not miss out. The date of entry was moved to January 1, 2010 from June 15, 2007, which means thousands more people who are newer arrivals would benefit. DACA will also be made into a temporary reprieve of 3 years, and the changes rolled out in 3 months.
- The New DAPA program – The DHS is tasked with creating a separate deferred action program for parents of U.S. citizen sons/daughters or LPR sons/daughters born before November 21, 2014. Parents must have resided in the U.S. since at least January 1, 2010, physically present in the U.S. on the day of announcement and have no lawful status, passed background checks, and are otherwise not ineligible (i.e. not an enforcement priority according to the new Johnson memo).
- The provisional stateside waiver (I-601A) will be extended to all family members eligible, which will now include adult sons and daughters, and spouses of LPRs. The provisional waiver is for the 3/10 year bar for unlawful entry, and requires an individual to prove “extreme hardship” to their U.S. citizen family member if they are deported. Usually, individuals who are trying to adjust their status in the U.S. but entered the country unlawfully, need to travel abroad to their home country for approval of a waiver. In 2012, the Administration started accepting “extreme hardship” waivers without requiring immediate relatives of U.S. citizens to leave and wait outside. Now this benefit is also available to the children and spouses of lawful permanent residents. This provision will require rule-making, so it will take some time to roll this out. The DHS will also engage in rule-making to expand the “extreme hardship” definition.
- Naturalization – Lawful permanent residents who are naturalizing can now pay via credit card and may qualify for fee waivers.
- Expansion of parole-in-place to immediate relatives of those U.S. citizens and lawful permanent residents who “seek to enlist” in the US Armed Forces (Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or the Reserve of any of the five Armed Services). This benefit means that not only would the family members of those who seek to enlist not be subject deported–they may also be eligible to adjust their status in the future.
- Clarification of travel on advance parole by DHS so that people on DAP, DACA can travel abroad, and return to adjust their status in the U.S.
- Department of Labor (DOL) reforms: DOL will start issuing U visa certifications in three key areas: extortion, forced labor, and fraud in foreign labor contracting, and certify applications for trafficking victims seeking T visas. According to DOL, “These efforts will significantly help qualifying victims of these crimes receive immigration relief from the Department of Homeland Security (DHS) and access the range of victim services that they need to recover and rebuild their lives.”
- Reforms to the employment-based immigration system such as extension of OPT for STEM graduates, defining “specialized knowledge” for L-1B intracompany transferees, increasing H-1B portability by having USCIS define “same or similar” jobs, expanding the use of the “national interest waiver” and starting a new parole program to bring talented entrepreneurs to the U.S.
- Elimination of Secure Communities with a new program that targets immigrant communities: DHS is replacing the current “Secure Communities” program with a new “Priority Enforcement Program” to remove individuals convicted of criminal offenses. While it could be a marked improvement that moves us from a pre-conviction to post-conviction model and uses notification instead of detainers, unfortunately, this continues the entanglement of local law enforcement with immigration enforcement.
- Exclusions for parents of DACA recipients, undocumented workers and farm workers without families, and LGBT individuals less likely to have family members in the U.S. – While these exclusions are not categorical, and some parents of DACA recipients who also have U.S. citizen/LPR children would continue to benefit, the President’s immigration action does not specifically benefit those who do not have immediate family ties to the U.S. but are nonetheless, members of our community. It is also unclear at this point whether parents with final orders or re-entries after deportation would be eligible for the program. At this point it appears that they would be eligible since they are not priorities under the new memo.
- Visa backlogs – The announcement punts on the question of family visa backlogs that affect so many of us. However, there will be Presidential Memorandum to create an interagency group to look at “visa modernization” which has 120 days to prepare recommendations for further action.
- Limited expansion of DACA: It is great to see an expansion of DACA and elimination of the age-cap. It would have been nice to see public benefits such as ACA (healthcare) given to DACA recipients, as well as increasing the age of entry to 18 from 16 years.
- Employment-based immigration: DHS expects to finalize regulation on H4 visa holders soon but the rule will not be expanded to all H4 visa holders
- New enforcement priorities that continue to target immigrant communities: The President is rescinding past memos such as the Morton Memo, and issuing a new one, effective January 5, 2015. The new priorities are troubling and continue to criminalize immigrant and border communities, pitting good immigrants against bad immigrants, and separating families. I have listed the priorities below, and some initial thoughts on each:
Priority 1: Non-citizens convicted of aggravated felonies, suspected terrorists, convicted gang members, people apprehended at the border while unlawfully entering the U.S., will be a priority for removal unless they qualify for asylum or another immigration benefit.
Most troubling here is the use of language such as “suspected terrorists” without built in civil rights protections that discourage racial profiling. Additionally, people apprehended at the border will now be a top priority, even though many are coming to reunite with family. The prioritization of people with gang-related membership (without conviction) is very troubling, as law enforcement targets specific racial/ethnic groups as gang-affiliated.
Priority 2: Non-citizens convicted of three or more misdemeanor offenses, non-citizens convicted of significant misdemeanors (including DUI), non-citizens apprehended who entered after January 1, 2014; non-citizens who are perceived to abuse the visa waiver program should be a priority of removal unless they qualify for asylum or another immigration benefit.
Significant misdemeanors – a new legal fiction created by DACA – is here to stay, even though it has no legal foundation. The prioritization of people with a DUI, and their exclusion from DACA, is incredibly troubling, as is the prioritization of people who overstay their visas under the visa waiver program. Many of these people are immediate relatives of U.S. citizens and have much to contribute to the U.S.
Priority 3: Non-citizens issued final orders of removal after January 1, 2014 should generally be a priority for removal unless they qualify for asylum, or another immigration benefit.
Immigrants who dared to come to the U.S. in 2014 will now be subject to draconian enforcement.
- Increased border enforcement – DHS plans to fund an additional 20,000 CBP agents, and continue to trend towards further border militarization of the Southern border we share with Mexico.
- Ramped up interior enforcement through existing programs such as the Criminal Alien Removal (CARI) Program, which profiles Latinos for detention and deportation, and ICE raids, which will continue under these new announcements, despite right-wing talking points.
- Due process concerns: Expedited deportations and Operation Streamline will continue.
- No reforms to the existing detention system: Family detention will continue as the DHS opens a brand new center in Dilley, Texas, and arriving asylum seekers at the border will continue to be detained.
Finally, I just want to say that this is a deeply personal issue for me. I want to send some love and light to everyone who has worked hard for this announcement and emotionally drained from yesterday, and left out or have family members who are left out. I had a cab-driver yesterday, who unexpectedly started telling me about his son, and trying to figure out how to bring him here, just as I was getting out of the cab. I wish I had the time and opportunity to help him, and I hope he reunites with his son soon. We all deserve justice; we all deserve to be able to reunite with our families; and we most certainly deserve to be able to go home to safety–wherever that is.
If anyone has further thoughts, questions and concerns, feel free to comment or contact me.
The statute of limitations on being undocumented is over. As of August 1, 2014, I am a lawful permanent resident of the United States.
The actual process was easy, but that is probably because I’m an attorney. Last December, we had a 7 minute interview to prove that we had a bona-fide marriage. After that, I requested that DHS move to terminate proceedings, which they did quite gladly. I finally applied directly with the USCIS for a green card in mid-April. On August 1, 2014, we had the actual green-card interview, which lasted 10 minutes before the Immigration Officer changed my status in the system.
People have asked me how it feels. It actually doesn’t feel any different. I don’t have any sudden outpouring love for this place. Maybe once I’m out of this country, I’ll realize how good I have it, and feel like coming back.
The Obama Administration is reportedly calling on Congressional members to stop making calls on behalf of stopping the deportations of certain immigrants from the country. It’s a gag order as a response to increasing pressure from several immigrant advocacy groups calling on Obama to stop the deportations, be it for undocumented students, parents of U.S. citizens or same-sex bi-national couples.
Han Nichols reporting for Bloomberg News:
Several members of Congress who were scheduled to attend a March 31 news conference on the issue said administration officials contacted them to voice concern about their participation. Until U.S. immigration law is overhauled, the lawmakers say, Obama should use his executive power to protect families facing deportation or separation because at least one parent is an illegal immigrant.
“The staffers that are attached to us, the liaisons, they transmitted some concern,” said Representative Mike Honda of California, a former chairman of the Congressional Asian Pacific American Caucus, referring to the White House legislative affairs office. “They would have loved us not to have gone to the press conference.”
Representative Mike Honda has been a leader for immigration reform and an outspoken voice in Congress. Openly pointing out the hypocrisy of the Obama Administration on this matter is another step forward in the right direction.
The administration argues that it doesn’t have the legal authority to exempt certain immigrant categories from the law.
“With respect to the notion that I can just suspend deportations through executive order, that’s just not the case,” Obama said at a March 28 town hall sponsored by the Univision television network. “There are laws on the books that Congress has passed.”
Now, if only mainstream media did its research, they could report that President Obama is not being totally forthcoming about his executive powers.
The Department of Homeland Security granted deferred action to the surviving spouses of U.S. citizens in 2009.
There is no reason that USCIS cannot use approved I-797s to grant conditional residency to certain immigrants residing in the United States. It actually makes no sense to deport a family member of a U.S. citizen or legal resident who will soon be eligible for a green card through adjustment of status.
Change takes courage. And Obama doesn’t seem to have any on immigration. So much for the son of a Kenyan immigrant.
- Gag order – W.H. shuns deportations campaign (politico.com)
- You: Immigration Advocates Push Obama To Make Good On Campaign Promises (huffingtonpost.com)
- No Blanket Deferred Action for DREAM Act Students (prernalal.com)
- Obama says he can’t order halt to deportations – Fox News (news.google.com)
Update: USCIS is no longer going to deny green card applications (I-130s) filed by married same-sex binational couples. They will hold them in abeyance till a decision can be reached on the Defense of Marriage Act (DOMA). Not that holding in abeyance does not mean processing.
But it does create a case of defacto deferred action. Now what the hell do I mean by defacto deferred action? It’s not deferred action in law but deferred action in fact — usually, pending applicants for green cards are eligible for work authorization at absolutely no cost. Eligibility for work authorization confers social security numbers to applicants and hence, drivers’ licenses, and other necessary identity documents. If you are filing an I-130, you may as well file the application for work authorization at no additional cost, until USCIS tries to fill this loophole created by prosecutorial discretion.
However, here are some caveats. It is unclear whether this is a true shift in policy and whether it creates permission to stay. Visa overstayers may still risk a 10-year bar if they stay in this country without authorization. Yes, I know this creates a permission to work and not permission to live scenario — welcome to my life. Those who entered without proper documents may still be subject to removal proceedings and deportations. And most importantly, the policy only applies to married couples and not merely partners. And if you are an unmarried undocumented adult child of a U.S. citizen or legal permanent resident like me, it is unclear whether your same-sex marriage to a U.S. citizen or legal resident would benefit or doom you.
As always, my advice is to get a good immigration lawyer if you are part of a same-sex binational marriage.
- Gay Immigrants’ Same-Sex Marriage Lifeline (thedailybeast.com)
- United States Agency Will Not Deny Green Card Applications For Married Same-Sex Couple (pinkbananaworld.com)