Tag Archives: deportation

Fifth Circuit – DAPA, DACA

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Fifth Circuit Blocks Request to Stay DAPA and Expanded DACA

 

This was expected, but that does not mean it does not hurt for millions of hopeful immigrants.

The Fifth Circuit for the US Court of Appeals issued a decision yesterday, blocking the emergency request for a stay that the Department of Justice requested. The Department of Justice requested that the court allow the DAPA and expanded DACA programs to go into effect. A federal judge in Texas blocked from going into effect. These were heavily publicized executive action orders from November that had years of anticipation. After Congress did not pass comprehensive immigration reform, President Obama took it within his executive authority to pass limited relief for certain individuals without status. The court’s decision was 2-1, with the one dissenting judge finding this case to be outside the judicial purview. The Fifth Circuit heard oral arguments on April 17 and this decision was expected.

This was only the decision on whether the stay of the federal judge’s preliminary injunction should be granted. This means that the programs will continue to be unavailable. The Fifth Circuit will hear the appeal of the preliminary injunction in July.

Expanded DACA is intended to be an improvement of the existing DACA program, which is still in effect. DAPA is supposed to provide protections to parents of US citizens and permanent residents, much in line with the US’s underlining goal of immigration policy – family togetherness. Somewhere between 4 -5 million individuals would benefit from these programs, which would allow for work authorization and authorized stay. The eligible individuals need to be low removal priorities, meaning they have a clean criminal record or close to clean record. These people continue to wait in limbo, as we wait for oral arguments in July and a subsequent decision.

Immigration Court Backlog

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Immigration Court Backlog Worsens

 

One of the major news stories of last summer was the unforeseen increase in the number of unaccompanied children who crossed the American border. It was a humanitarian crisis (President Obama’s phrase) by itself, but it also had practical ramifications for immigration court. It swelled the number of individuals facing trial in immigration court and increased the already present backlog.

Immigration Court is facing its highest caseload in its history. At the conclusion of April 2015, there are 445,607 cases pending before the Immigration Courts. That represents a 9.2% increase from the beginning of the 2015 Fiscal Year and an astounding 29.5% increase from the beginning of the 2014 Fiscal Year. The Executive Office of Immigration Review is part of the Department of Justice and an Article I Court (executive branch of government). The unaccompanied children are a small part, however, of the overall immigration court backlog.

Please note that EOIR, Immigration and Customs Enforcement, and Department of Homeland Security are separate from USCIS, which grants immigration and nonimmigration benefits for individuals not in removal proceedings.

The four most represented nationalities in Immigration Court at the moment are Mexico, El Salvador, Honduras, and Guatemala. This is probably explained by their proximity and the current country conditions. China is the fifth most represented nationality. The states with the most individuals in removal proceedings are California, Texas, New York, Florida, and New Jersey. These are among the most populous states in the Union and also the states that have the most immigrants and visitors overall.

 

Thank you to the Transactional Records Access Clearinghouse at Syracuse University for the statistics. It provides comprehensive, independent, and nonpartisan information about US federal immigration enforcement.

Mass Deportation Bill?

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Mass Deportation Measures?

While the DAPA and Expanded DACA programs are undergoing litigation between the Justice Department and federal court system, the House of Representatives is working on removal legislation. The Michael Davis, Jr., and Danny Oliver in Honor of State and Local Law Enforcement Act would be the most severe form of immigration enforcement Congress has passed recently (if it did pass). The proposed legislation contains four parts:

  • Being in the United States without authorization is a civil offense. The bill seeks to make unauthorized presence a crime.
  • It would grant state and local law enforcement the power to enforce immigration law. Immigration law is firmly settled as federal law and non federal law enforcement would be enabled to detain anyone with probable cause of being present in the country without authorization.
  • Any immigrant apprehended by local law enforcement would be taken to federal custody for deportation. The federal government currently has discretion in that choice.
  • The bill would alter the priority system created by the November 20, 2014 executive action memos and announcement and make deportation nearly mandatory.

The point is to reduce chances of prosecutorial discretion and deferred action, means for unauthorized immigrants to remain in the country. HR 1148 would overturn the Supreme Court’s decision in Arizona v. U.S., which affirmed that states and localities should not be enacting and enforcing their own immigration laws. The House attempted to criminalize unlawful presence in 2005, but that measure did not succeed after massive nonviolent protests throughout the country.

The American Immigrant Lawyers Association has strongly condemned the bill, which is a second attempt of the previously failed “SAFE Act” from 2005. Aside from harmful to American families, businesses, and the economy, it is “fundamentally inconsistent with the principles of due process and fairness grounded in the Constitution.”

 

Judge Stops DAPA and New DACA

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A federal judge in Texas temporarily stopped the expanded DACA and DAPA programs. Today, February 18, 2015, USCIS was supposed to begin accepting applications for expanded DACA (Deferred Action for Childhood Arrivals). DHS Secretary Jeh Johnson issued a press release acknowledging the decision to shut down the two programs temporarily before they even began accepting applications.

 

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.

Immigration Reform!

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President Barack Obama Announces Executive Action on Immigration Reform

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.