I have posted this before, but this is a good reminder on our Independence Day of who we are as a nation.

“All of us are like cards in deck. But without even 1 of them, the deck of cards doesn’t work and that’s what Mr. Matthews says is America.”

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One of the requirements to become a naturalized citizen of the United States is to pass a civics test. The knowledge contained within the civics test is supposed to be basic historical, social, and political information about the United States. There are many requirements to become a citizen – good moral character, physical presence, continuous residence – but the citizenship test is one that is symbolic of the process.

Ipsos Public Affairs gave the examination to 2,000 Americans. You can see how they performed here.

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The Supreme Court turned down an appeal yesterday, meaning that the justices will not review an appeals court ruling that only Congress, not courts, can change the law that birth in the American Samoa does not confer US citizenship. A law passed in 1900 declared that individuals born in the American Samoa are US nationals but not US citizens. The 1900 law reflected the ethos of its time: Supreme Court ruled that people in the newly acquired U.S. territories were not entitled to all the constitutional rights of American citizens. Justice Henry Brown said the “development of the American empire” could be set back by the “annexation of distant possessions,” which are “inhabited by alien races.”

Five American Samoans pointed to the 14^th Amendment in bringing their case, which confers birthright citizenship to individuals born in the United States. Other territories of the US received birthright citizenship in the 20^th century, but American Samoans remain without it.

Birthright citizenship was enshrined in the 14^th Amendment, which is one of the three post-Civil War amendments. The purpose of birthright citizenship is to ensure all individuals born in the United States are citizens, rather than creating classes of citizenship, such as that which existed antebellum.

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Today, September 17, the United States celebrates Constitution Day. It commemorates the fact that the US Constitution was signed on September 17, 1787 (ratified in 1788). Schools across the country celebrate the day by holding civic-minded events. James Madison is known as the author of the charter. He would later become the Secretary of State and our fourth president. He has both a university and many states have a ‘Madison County’ in honor of him. The original Constitution resides in the National Archives Building.

The Constitution was not the first law of the land. Once the colonies defeated the British in the Revolutionary War, the government they created was a loose federation of semi-autonomous nation states. The thirteen colonies became thirteen states, but the adopted Articles of Confederation were inappropriate to forming a cohesive nation. Each state had its own currency and laws that made commerce, travel, and coexistence difficult. The amount and types of power that the federal government should exercise versus individual state autonomy is an issue that remains contentious and inherent to American political thought in the present.

The Constitution initially contained ten Amendments, known as the Bill of Rights. As the Constitution was being drafted, Federalists and anti-Federalists argued over the nature of the new political system. Federalists, such as Madison, John Jay, and Alexander Hamilton demanded a stronger central government that could control finances. Anti-federalists, such as Thomas Jefferson and Patrick Henry, were weary of a strong federal government, feeling that the Revolutionary War’s purpose was to overthrow faraway central power in favor of local governance. The Bill of Rights can be viewed as a limitation of the government’s power, in homage to the wishes of the anti-Federalists.

While the Bill of Rights were signed on September 17, 1787, the Fourteen Amendment was not ratified until July 9, 1868. Along with the Thirteenth and Fifteenth Amendments, they are known as the Civil War amendments. The Fourteenth Amendment contains many powers – due process, equal protection, privileges or immunities. It also contains the Citizenship Clause, granting birthright citizenship. By merely being born in the United States, a person is a United States citizen. There is no lineage issue of worrying about parental heritage or citizenship. Two foreign nationals can give birth to an American. That by itself does not lead to any immigration benefits to the parents. Birthright citizenship has been a cornerstone of American law for nearly 150 years. It has become a hotrod issue in American politics, as some candidates have harangued the concept as detrimental and as something to abolish. Candidates whose platforms include immigration restriction often target it as an unnecessary benefit that rewards unauthorized migrants for giving birth in the US.

Take a Constitution Quiz

Citizenship Quizzes

Constitution Facts

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The lawsuit involved 26 states that argued the Obama Administration had exercised substantive and legislative powers that only belong to the legislative branch. Executive actions pertaining to immigration have been issued by every president since Eisenhower. The government noted that deferral actions have been taken since the 1960s in their brief. The judge agreed with the 26 states, finding unconstitutionality in his order. DHS vows that it will appeal the decision. The Office of Legal Counsel, which serves an advisory role for the executive branch, issued an opinion on November 19, 2014 (the day before the executive actions were announced by President Obama). The opinion advised that DAPA and an expanded DACA program would be legal and within the constitutional powers of the president.

The older version of DACA remains in effect and the recipients of DACA are not affected by this decision.

That first version of DACA was not at issue in the lawsuit, though it was tangentially mentioned and criticized. Seeing as over half of the states participated in bringing this lawsuit and the Obama Administration and DHS are planning to appeal, more court battles are expected over the separation of powers, adherence to the Administrative Procedure Act, and DAPA and DACA. The president issued his series of executive orders in November 2014 as a result of congressional inability to pass comprehensive or incremental immigration reform that has been clamored for years. The Senate passed immigration reform in 2013, providing a pathway to citizenship, but that bill did not become law because the House voted against it.

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The DACA Process

USCIS Will Start Accepting Expanded DACA Applications on February 18

DACA (Deferred Action for Childhood Arrivals) was established as a temporary relief measure for individuals who were brought to the United States as children and grew up in the US. President Barack Obama created the program through an executive order for the purpose because legislative efforts to create a DREAM Act had been stifled in Congress. A DREAM Act would allow for a path to citizenship for “dreamers,” individuals who had come to the United States as children and had continuous residence in America. Essentially, they were raised in the United States and had their entire lives in the country. DACA is only limited relief, as it provides for two years of deferred action against deportation and work authorization upon proving the seven criteria and prosecutorial discretion. This blog has covered DACA and the president’s executive actions with great interest, while hoping that meaningful immigration reform will be enacted.

Neither the DREAM Act nor comprehensive immigration reform have become bills and the president has responded with a series of executive orders that can offer temporary relief until congressional action is taken. The executive orders range from minor improvements in employment immigration to relief for millions of parents of US citizens and lawful permanent residents with the DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) program. Part of the executive order is the expansion of DACA, making it available for more individuals. The requirements have changed, so that the age restriction is removed and the date for continuous residence is January 1, 2010. Instead of two years of deferred action, like DAPA, it will grant three years for successful applicants.

Expanded DACA goes into effect on February 18. It requires a filing fee for the application and biometrics (fingerprints) and extensive proof to document continuous residence. USCIS and immigration groups have been warning potential applicants not to be fooled by impostors or fraudulent individuals who pose as legitimate attorneys. Notarios, as they are deemed, can harm immigrant applications immediately and also saddle applicants with negative future consequences.

DACA nor DAPA grants a Green Card, US citizenship, or even a pathway to either. The programs merely allow for individuals who are low-enforcement priorities (according to recent memos pursuant to the executive orders) to obtain temporary relief while permanent legislation is enacted for actual relief. Until the political process generates a meaningful result, the executive orders will have to make do.

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The US Supreme Court on Wednesday heard arguments on whether the government is required to prove a connection between a drug possession conviction and a congressionally defined controlled substance for removal of a permanent resident under the Immigration and Nationality Act (INA). The INA is the immigration law of the land and it allows for removal of non-US citizens for violations pertaining to controlled substances. The case is Mellouli v. Holder. Mellouli is a lawful permanent resident of the US from Tuisia. He was convicted for possession of drug paraphernalia in Kansas, but it is not clear what that substance it is and whether it is controlled or not. Mr. Mellouli argued that the government cannot remove him without proving the connection between the conviction and substance. He was appealing because the US Court of Appeals for the Eighth Circuit ruled that the conviction was covered under the INA.

Lawful permanent residents can be removed for any number of reasons. One of the benefits of US citizenship is a safeguard against removal. Permanent residents can be removed for drug convictions, aggravated felonies, among other crimes, even though they have legal status beyond just holding a visa. There are avenues for relief that can be argued for during removal proceedings. Famously, three permanent residents were removed for illicit group membership, despite having families of American citizens and being permanent residents for thirty years.

It is unknown when the Supreme Court will release its opinion of Mellouli v. Holder. We will be keeping an eye on this case, as it speaks on the important burden the government has in removing a non-citizen.

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Thanksgiving is a quintessential American holiday, combining copious amounts of food, football, and family members into a one day celebration of gratitude and togetherness. Cutting across religious, racial, and cultural divisions, the holiday has been celebrated since the famed 1621 Plymouth feast between Native Americans and passengers of the Mayflower who had arrived in an unknown land. The feast celebrated a successful harvest and collaboration between the Natives and immigrant Europeans. The day was celebrated on all different days until President Franklin Roosevelt decreed that the fourth Thursday of November was Thanksgiving in 1939.

The Macy’s Parade and bottomless buffets of football and food boost the holiday’s fun qualities, but there is a deeper significance buttressing the holiday’s purpose and meaning. The story of Thanksgiving, even if slightly apocryphal, has multiple dimensions of resonance for us today, even a full four centuries later. Colonial America was rife with conflicts between the newly arriving Europeans and established Native Americans, who had created civilizations of their own for hundreds of years. Thanksgiving symbolizes harmonious interchange between the Native Americans and immigrant Europeans. As elementary schoolchildren are taught every year, the immigrant Europeans

had come from England via Holland, escaping religious persecution and an oppressive government. Their story resembles a modern day asylum, as they were fleeing extreme stress and strife to a country where they would be safe (and religion is a protected ground for asylum). The overall history of European immigration, settling, and expansion throughout the continent boded poorly for Native Americans, who were overwhelmed by settlement, wars, and diseases. However, the day of feasting that we now celebrate as Thanksgiving represents the promise of a bright, harmonious future between the various groups that make up the United States of America – whether they are generations of Americans whose grandparents entered through Ellis Island or newly minted Americans who are recent immigrants, lawful permanent residents, and citizens.

The Law Offices of Andrew Wood wishes you a Happy Thanksgiving.

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Barack Obama Announces Immigration Reform: Relief for Immigrants

Speaking (full speech) from the White House Thursday night, President Obama announced to the nation his plan to issue an executive order, taking a multi-faceted approach to the bevy of immigration issues facing the nation.

• Additional resources for law enforcement personnel at border to apprehend better and return quicker.
• Easier and faster for high skilled graduates to stay and contribute to businesses.
• Responsibly deal with the millions of undocumented immigrants here already. Deportations of criminals up are 80%, so he will keep focus on criminals and gang members, not children and families. Prioritization is key.

As reported last week, Obama’s order will protect up to 4.5 million people from deportation. This is a minimal measure compared to the proposals and nearly passed laws (DREAM Act) that Congress has considered over the past eight years. Every president since Eisenhower in 1956 has granted relief to immigrants through executive action. The executive order does not change actual laws, but it re-directs executive agencies to shift their priorities. Here are some of the highlights:

• Deferred Action for Parents (DAP): Following Deferred Action for Children (DACA), DAP will allow for parents of lawful permanent residents and US citizens continuously present since January 1, 2010 to apply for three years of deportation protection, following the successful completion of a background check and payment of back taxes.
• Enforcement priorities: Suspected terrorists, convicted felons, convicted gang members, people apprehended at the border, people who have convicted of multiple or serious misdemeanors, and those who have failed to leave after a removal order from 1/1/2014 onward.
• DACA is expanded to eliminate the age cap and include continuous residence since January 1, 2010. It will also be three years of protection.
• The provisional waiver will be expanded to include children and spouses of lawful permanent residents.
• Optional Practical Training (OPT) will be elongated for STEM graduates (Science Technology Engineering Mathematics). H4 visa holders will be able to receive work authorization. Entrepreneurs, investors, and researchers will be eligible for national interest waivers.

Congress has debated and postured over immigration reform intensely during the past two years. President Obama challenged the legislative body to pass comprehensive immigration reform. In the interim, these tweaks to the immigration system should repair some broken components and provide relief for millions of deserving immigrants.

The Law Offices of Andrew Wood is pleasantly encouraged by the president’s plan and his focus on immigration reform. Immigration attorneys, advocates, and DREAMers in Pittsburgh and the around the country have been pushing for action for years. Perhaps this is the opportunity for real improvement.

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