Priorities for Removal

November 14, 2016

The Uncertain Future of DACA Discussed

There is no denying that the election of Donald Trump as next President of the United States has dealt a huge blow to the immigration reform effort and diminished any hope for the passage of broader legal immigration reform. We had hoped that with the election of Hillary Clinton we would see an increase in immigration levels for highly skilled workers, as well as increased visa opportunities for entrepreneurs and investors. While the news of Donald Trump’s election was a big setback for immigration in general, polling continues to suggest that people across the United States are willing to support fairness in dealing with the undocumented immigrant population in a sensible and human way. By contrast, most Americans disapprove of passing broad legal immigration reform that would benefit foreign workers.

Donald Trump was able to win the favor of a great number of Americans because of his critical view of programs like NAFTA that he believes has allowed American jobs to go overseas. Trump has blamed the U.S. government for allowing programs like the H-1B worker program to exist, saying that foreign workers are taking American jobs. We can expect to see Donald Trump take a restrictive view on legal immigration, keeping immigration levels within historic norms. Donald Trump has until recently softened his tone on illegal immigration, claiming that his priority is to deport only dangerous criminals residing in the United States unlawfully, although his 10-point plan contradicts his recent stance.

It is likely that the Republican House and the Senate will introduce legislation designed to benefit American workers and the economy, and focus less on creating immigration opportunities for foreign workers. Similarly, the Trump administration will likely focus on job creation, and less on passing any meaningful legal immigration reform.

The program that may come under fire by the Trump administration is the Deferred Action for Childhood Arrivals (DACA) initiative which began on June 15, 2012 as part of an executive order introduced by President Barack Obama. Donald Trump has repeatedly said that he wants to end the Deferred Action for Childhood Arrivals (DACA) program incorrectly calling it an “amnesty.” In actuality, DACA is not amnesty and does not provide a pathway to permanent residency or even citizenship. DACA merely shields the individual from deportation and allows them to legally obtain employment in the United States for a temporary period of time.

October 18, 2016

What’s New in Immigration? DHS Report on Border Security, Update on the Proposed Entrepreneur Rule, and More!

by Jacob Sapochnick

In this segment, we bring you the latest immigration news. This month, the U.S. Department of Homeland Security released a status report on border security in the Southwestern border region. In other news we provide you with an update on the Proposed International Entrepreneur Rule, and finally we would like to remind our readers to tune into the final Presidential Debate on October 18^th.

Department of Homeland Security Releases Report on Border Security for the Southwestern Border Region

On October 17, 2016 the Secretary of the U.S. Department of Homeland Security, Jeh Johnson, released a report on the state of border security in the Southwestern region of the United States for fiscal year 2016. The Secretary reported that the total apprehensions by border patrol on the southwestern border have increased, relative to the previous fiscal year. During fiscal year 2016 there were a total of 408,870 unlawful attempts to enter the United States border without inspection by a border patrol officer. Although the number of apprehensions during this fiscal year were higher than the previous year, the number of apprehensions in fiscal years 2013 and 2014 were much higher than fiscal year 2016. Johnson also reported that illegal migration in this region has changed demographically. Today, there are fewer Mexican foreign nationals and adults attempting to cross the Southwestern border illegally. The problem now is that more families and unaccompanied children from Central America are making the dangerous trek from Central America to the United States, fleeing gang related violence, organized crime, and poverty. In 2014 for the first time in history, the number of Central Americans apprehended on the Southern border outnumbered Mexican nationals. The same phenomenon occurred during fiscal year 2016.

How is DHS dealing with the influx of undocumented immigrants from Central America?

DHS is struggling to deal with this humanitarian crisis. Thus far the United States has implemented an in-country referral program for foreign nationals of Honduras, El Salvador, and Guatemala. The program gives certain immigrants the opportunity to apply for refugee protection in the United States. DHS has also expanded the categories of individuals that may be eligible for the Central American Minors program, although adults may only qualify for this program if they are accompanied by a qualified child. The Government of Costa Rica and the United Nations High Commissioner for Refugees and the International Organization for Migration have developed a protection transfer agreement to relocate unaccompanied children and their families to safer regions. DHS was given $750 million in Congressional funds this fiscal year to provide support and assistance to this vulnerable population of migrants. Johnson recognized that there is much work to be done to secure and border, while at the same time addressing the need for comprehensive immigration reform.

August 30, 2016

Department of Homeland Security Considers Ending Privatization of Immigration Detention Facilities

by Jacob Sapochnick

The U.S. Department of Homeland Security is expected to run a study to determine whether privately run detention facilities are unsafe for migrants. The Secretary of the Department of Homeland Security, Jeh Johnson, has stated that the administration will evaluate whether or not the agency will end the practice of privatizing immigration detention facilities, issuing a recommendation by November 30^th of this year.

The announcement comes following reports that private immigration detention facilities have unlawfully withheld proper mental health and medical care from persons being detained in their immigration facilities. Presently, the two major private companies running ICE immigration detention facilities across the United States are the Corrections Corporation of America and the GEO Group. Together these private companies hold lucrative state and federal government contracts. It is estimated that the Corrections Corporation of America has earned $689 million alone from its contracts with ICE dating back to 2008, while the GEO Group has earned an estimated $1.18 billion from these contracts during that same period.

August 18, 2016

Reflections on Deferred Action for Childhood Arrivals (DACA)

by Jacob Sapochnick

On June 15, 2012 President Barack Obama first unveiled the Deferred Action for Childhood Arrivals (DACA) initiative to the world. In his 2012 announcement the President divulged that the DACA initiative would allow certain undocumented individuals who came to the United States as children the opportunity to be shielded from deportation and the right to a temporary work permit. To be eligible individuals were required to meet several guidelines to receive ‘deferred action’ for a period of two years, subject to renewal. USCIS began to accept applications for the DACA initiative on August 15, 2012.

At its core, ‘deferred action’ is the use of prosecutorial discretion to defer removal from the United States for a certain period of time. Although deferred action grants such deferment, it does not provide the individual lawful status and it is not a path to permanent residency.

On November 20, 2014 the President unveiled two initiatives that would expand the population eligible to obtain Deferred Action. Additionally, the President announced a new initiative called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). To be eligible for the expanded DACA program applicants were required to a) have entered the United States before the age of 16; b) demonstrate continuous residence in the United States since January 1, 2010; and pass required background checks. The initiative would also extend the period of ‘deferred action’ and work authorization to three years rather than two years.

Similarly, parents of U.S. Citizens and LPRs would be also be eligible for deferred action and employment authorization for a three-year period if a) they could demonstrate continuous residence in the United States since January 1, 2010 and b) pass required backgrounds checks. On February 16, 2015 just two days before applications would begin to be accepted for the expanded DACA and DAPA programs, a temporary injunction halted these programs from going into effect. The controversy that followed regarding these programs led to a federal lawsuit known as United States v. Texas which made its way to the Supreme Court of the United States. There the Supreme Court deadlocked in a 4-4 vote preventing these programs from going into effect.

August 1, 2016

I-601A Provisional Waiver to be Extended to Family Members of LPRs

by Jacob Sapochnick

The United States Citizenship and Immigration Services (USCIS) has published a new final rule that will expand the class of individuals who are eligible to apply for a ‘provisional’ waiver of certain grounds of inadmissibility (Form I-601A) based on their accrual of unlawful presence in the United States.

The provisional unlawful presence waiver allows certain individuals, unlawfully present in the United States, to request a provisional waiver before departing the United States for consular processing of their immigrant visas.

Previously, only immediate relatives of U.S. Citizens were eligible for this waiver. The provisional waiver is beneficial because it does not require the applicant to wait until the consular interview, to apply for a waiver, as in the case of the I-601 waiver. Provisional waivers also substantially reduce the time of separation between the applicant and his or her U.S. Citizen or legal permanent resident (LPR) relatives.

The rule was published in order to improve efficiency and reduce the amount of time that a U.S. Citizen/LPR spouse or parent is separated from his or her relatives while the relative completes the immigrant visa process. According to the 2013 rule, parents, spouses and children of U.S. Citizens were eligible to apply for provisional waivers of the 3- and 10-year unlawful presence bars before departing the United States for their immigrant visa interviews. The new rule expands upon the 2013 rule extending that benefit to family members of LPRs.

Who benefits?

The rule will expand the provisional waiver process to certain individuals who are family members of U.S. Citizens and lawful permanent residents (LPRs) who meet the statutory requirements to be eligible for an immigrant visa. The rule will expand eligibility to all individuals statutorily eligible for the waiver. In order to qualify, applicants must be able to establish that their U.S. Citizen or LPR spouse or parent would experience an “extreme hardship” if the applicant was not allowed to remain in the United States. The final rule will take effect on August 29, 2016.

June 23, 2016

Supreme Court Deadlocks on DACA and DAPA

by Jacob Sapochnick

Today the Supreme Court of the United States dealt a strong blow to President Barack Obama’s executive actions on immigration issuing a single one-line decision on the ruling “the judgment of the lower court is affirmed by an equally divided court.” Nearly two years ago, President Obama announced a series of executive actions on immigration after the Republican controlled House of Representatives refused to tackle the issue of comprehensive immigration reform. As part of his executive actions on immigration, President Obama announced the expansion of the Deferred Action for Childhood Arrivals (DACA) program, and introduced a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, (DAPA) designed to shield nearly five million undocumented immigrants from deportation. Following these initiatives, USCIS announced that applications for expanded DACA and the new DAPA program would begin to be accepted on February 18, 2015.

The DACA program would have expanded the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010, and extending the period of DACA and work authorization from two years to three years. The new DAPA program would have granted parents of U.S. Citizens and lawful permanent residents the opportunity to request deferred action and employment authorization for a three year period, on the condition that they have lived in the United States continuously since January 1, 2010 and pass required background checks.

On February 16, 2015 just two days before the programs were scheduled to go into effect, Texas along with 25 other states, filed a temporary court injunction ultimately suspending both programs from going into effect. This action prompted the Obama administration to intervene. For months, the federal government and the State of Texas battled one another in federal court. The court ultimately determined that Texas and at least 25 other status had sufficient ‘standing’ to challenge these programs. In response, the federal government filed an emergency motion to stay, however the motion was eventually denied by the court. This led the government to file a writ of certiorari before the Supreme Court. The fate of Obama’s executive actions grew all the more uncertain with the sudden death of conservative Supreme Court Justice Antonin Scalia on February 13^th. President Obama made desperate attempts to fill the vacated seat by nominating Merrick Garland to the Supreme Court, the Chief Judge of the United States Court of Appeals for the District of Columbia. Efforts to fill the seat were unsuccessful as Republicans vowed to keep Garland from sitting on the bench. Thus, Scalia’s death left behind an eight-person bench, and with no one to fill his seat, the growing possibility of a deadlock within the Supreme Court.

April 18, 2016

NEWS: SCOTUS Begins Hearing Arguments in Lawsuit Challenging Expanded DACA/DAPA

by Jacob Sapochnick

Today the Supreme Court of the United States will begin hearing arguments in the case United States v. Texas, a lawsuit challenging Obama’s executive actions on immigration. As you have heard, a federal court order temporarily froze the expanded DACA and new DAPA programs from going into effect as expected. The Supreme Court will decide the fate of these programs by June of this year.

It is truly an exciting time of the year for immigration law. United States v. Texas is the biggest immigration case of our generation. The Supreme Court’s ruling will set an important precedent for the future of immigration policy. The court will also determine whether the President had authority to enforce the executive actions on immigration. As a member of the American Immigration Lawyer’s Association (AILA), we invite you to join a live webcast with AILA experts Greg Chen, Legal Director Melissa Crow, and UCLA School of Law Professor Hiroshi Motomura on Tuesday, April 19, 2016, at 1:00 pm (ET), as they recap and offer expert analysis of Monday’s Supreme Court oral arguments in the United States v. Texas case.

Click here to watch the live stream.

April 11, 2016

House Republicans to Battle the Obama Administration on Immigration before the Supreme Court

by Jacob Sapochnick

The Supreme Court is expected to hear oral arguments for United States v. Texas, a lawsuit challenging the President’s executive actions on immigration, on Monday April 18^th. We have learned that attorneys representing the Republican led House of Representatives will be given 15 minutes to argue against Obama’s executive actions on immigration, included the expanded Deferred Action of Childhood Arrivals (DACA) program, and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. This move comes after the House of Representatives voted in favor of filing a brief before the Supreme Court challenging the executive actions on immigration. The court has also authorized a group of undocumented mothers of U.S. Citizen children to speak before the Supreme Court for 10 minutes. The Obama administration is currently at a disadvantage, given that only eight Supreme Court justices will ultimately be handing down one of the most important decisions of our generation come June. Obama had hoped that the House of Representatives would hold hearings in consideration of his Supreme Court pick, Chief Judge of the District of Columbia Court of Appeals, Merrick Garland, by the time oral arguments would begin. Unfortunately, this has not been the case. Republicans have refused to hold hearings in consideration of Judge Garland. It is likely that they will continue to delay hearings until the next President of the United States takes office next year.

Oral arguments on April 18^th will be no more than 90 minutes long. The majority of the time will be divided by the Obama administration and attorneys representing Texas and 25 other states challenging the constitutionality of Obama’s executive actions on immigration. United States v. Texas is unique because it will finally put to rest the issue of whether or not the executive action on immigration is within the President’s constitutional powers. This case is also unique because it will be one of the few times that the Supreme Court has addressed the issue of illegal immigration and the rights of unlawful immigrants under the constitution.

March 29, 2016

Where your Presidential candidates stand on immigration

by Jacob Sapochnick

Every year USCIS receives and adjudicates approximately 6 million applications from foreign nationals seeking to immigrate to the United States, and U.S. companies seeking to employ foreign workers temporarily. According to the Department of Homeland Security’s Office of Immigration Statistics, “an estimated 13.1 million lawful permanent residents (LPRs) were living in the United States on January 1, 2013.” Of these permanent residents, more than half–8.8 million–were eligible to apply for naturalization. Additionally, the United States issues approximately 700,000 temporary non-immigrant work visas for a variety of temporary workers including: highly skilled foreign workers employed in specialty occupations in the STEM fields, fashion models, internationally acclaimed athletes and entertainers, aliens of extraordinary ability, religious workers, intra-company transferees, treaty traders/investors, foreign media workers, and agricultural and seasonal workers.

The reason the issuance of temporary worker visas is so low, when compared to the issuance of permanent resident cards, is because most of the temporary foreign worker visa programs are subject to a congressional cap, that limits the amount of non-immigrants that can be admitted per fiscal year. Additionally, certain temporary nonimmigrant worker visa classifications are granted for a specified period of time, although in most cases at least one extension may be granted. The cap applies primarily to the H nonimmigrant worker classifications, and non-minister religious workers. The H visa category accounts for approximately 54% of all visas issued for temporary workers. That is why the H visas are the most talked about visas among politicians when discussing immigration reform. The cap does not apply to treaty traders/investors, aliens of extraordinary ability, intra-company transferees, NAFTA professionals (Canada and Mexico), and foreign media workers. In comparison to developed countries, the United States admits a relatively low number of temporary foreign workers. Foreign workers are typically admitted either to fill labor shortages in the American job market, or because of their exceptional, or highly technical skills, as is the case for the H-1B visa classification. Only highly skilled foreign nationals, aliens of extraordinary ability, aliens holding advanced degrees, high capital investors, nurses and physical therapists, doctors in undeserved area, and recipients of national interest waivers, have the unique opportunity to obtain permanent residence based on employment.

The mammoth task of meaningful immigration reform will not be easy and it will not happen overnight. The presidential nominees have failed to outline a clear strategy to overhaul our immigration system. None of the presidential candidates have addressed the most contentious areas of immigration policy that must be revised, in order to repair our broken immigration system.

March 16, 2016

UPDATE: Obama Announces Merrick B. Garland as SCOTUS Nominee

by Jacob Sapochnick

This morning, President Obama announced his nominee to fill the vacant seat of Antonin Scalia on the Supreme Court. Contrary to what was believed, President Obama chose the most experienced and respected nominee among his top contenders, as opposed to the most progressive choice. The final decision came down to Chief Judge of the United States Court of Appeals for the District of Columbia, Merrick B. Garland. The President’s choice reflects political concerns to seat a Justice in time for oral arguments to begin in the case, United States v. Texas, a case that challenges the President’s modified Deferred Action for Childhood Arrivals (DACA) program and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. In the coming weeks, Judge Garland will need to face the Republicans in the Senate, who have vowed to block him from sitting on the Supreme Court. In order to be confirmed, he must receive votes from Republicans in the Senate. It is expected that Republicans will vote in Garland’s favor since he is not inclined to take leading positions on ideological questions such as DACA/DAPA. If appointed, Garland is unlikely to take a progressive approach on the bench. Throughout his career, Garland has taken a centrist or neutral view of the law. The Supreme Court is expected to hear oral arguments for United States v. Texas in April. For more on DACA/DAPA please click here.

Profile:

Chief Judge Garland was appointed to the United States Court of Appeals in April 1997 and became Chief Judge on February 12, 2013. He graduated summa cum laude from Harvard College in 1974 and magna cum laude from Harvard Law School in 1977. Following graduation, he served as law clerk to Judge Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit and to U.S. Supreme Court Justice William J. Brennan, Jr. From 1979 to 1981, he was Special Assistant to the Attorney General of the United States. He then joined the law firm of Arnold & Porter, where he was a partner from 1985 to 1989 and from 1992 to 1993. He served as an Assistant U.S. Attorney for the District of Columbia from 1989 to 1992, and as Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice from 1993 to 1994. From 1994 until his appointment as U.S. Circuit Judge, he served as Principal Associate Deputy Attorney General, where his responsibilities included supervising the Oklahoma City bombing and UNABOM prosecutions.