DAPA: The Aftermath

After the U.S. Supreme Court issued its non-decision in the DAPA case, essentially stating that the lower court’s ruling remains in effect, the DAPA case continues as if the Supreme Court had never accepted the case in the first place.

The case is in the early stages.  It will now return to the U.S. District Court in south Texas, presumably to continue the process of determining whether President Obama’s plan to provide temporary relief from removal to parents of U.S. citizens, and to expand DACA (“DACA 2.0”), is valid or not.

One thing is clear.  The original DACA program remains valid.  You might be eligible to apply for Deferred Action for Childhood Arrivals (DACA) if:

  • You were born after June 15, 1981;
  • You came to the United States before reaching your 16th birthday;
  • You have continuously resided in the United States since June 15, 2007, up to the present time;
  • You were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  • You entered the United States without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  • You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • You have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

But the future of DAPA and DACA 2.0 is uncertain.  Because the Supreme Court did not decide the issue, the case is now back at the federal district court in south Texas.  The case will probably remain pending for many months, and will likely not be decided before the inauguration of the next President of the United States.  The next President could decide to continue to try to move forward with DAPA and DACA 2.0, or to terminate the program.

For now, one thing is clear, at least until the inauguration of the next President:  The original DACA program is still in effect.

Esquivel-Quintana v. Lynch: Cert Petition

I have been representing Mr. Esquivel-Quintana in his immigration case since 2013.  In previous posts, I have described details about the case.  You may find them here:   Introduction.   Part 1.   Part 2.   Sixth Circuit Decision.

In a nutshell, the Board of Immigration Appeals concluded that Mr. Esquivel-Quintana, who came to the United States as a lawful permanent resident at age 12, is an “aggravated felon” because he was convicted in California of engaging in consensual sex with his girlfriend when he was 21 and she was under 18.  The U.S. government deported Mr. Esquivel-Quintana after the BIA’s decision.  The U.S. Court of Appeals, in a divided 2-1 decision, upheld the Board’s decision.

Today, July 11, 2016, in collaboration with Jeffrey Fisher, Professor of Law at Stanford Law School and Co-Director of Stanford’s Supreme Court Litigation Clinic, and other professors at Stanford, we are submitting a petition to the U.S. Supreme Court.  In our petition, which you may view here, we are asking the Supreme Court to review Sixth Circuit’s decision.

With very few exceptions, the U.S. Supreme Court has the discretion to grant or deny any petition for review.  The Supreme Court declines to review of the vast majority of petitions presented.  Despite these odds, we hope that the Supreme Court will decide to hear our case.

In asking the Supreme Court to review the Sixth Circuit’s decision, we are focusing on the fact that the Board of Immigration Appeals in this case has concluded that conduct that is legal under federal law, in 43 states and in the District of Columbia is an aggravated felony for purposes of immigration law.  Moreover, six of the seven states that criminalize this conduct treat it simply as technically unlawful sex; those states have separate crimes on the books that they label as “sexual abuse” of a minor, for conduct that is more serious than simply consensual sex between a person age 21 and a person under age 18.

We have several reasons for requesting review by the Supreme Court.  First, the U.S. Courts of Appeals have deep disagreements regarding the question of whether the conviction at issue in this case – consensual sex between a 21-year-old and a person just under age 18 – is an “aggravated felony” under U.S. immigration law.  Four appeals courts agree with the BIA that such conduct is an aggravated felony:  the Second, Third, Sixth, and Seventh Circuits.  Three appeals courts have determined that such conduct is not an aggravated felony:  the Fourth, Ninth, and Tenth Circuits.

Second, this case presents an issue that is extremely important for many noncitizens, as well as criminal prosecutors and criminal defense attorneys throughout the nation.  Immigrants, prosecutors, and defense attorneys all need to know what the law is, in order to act accordingly.  Mr. Esquivel-Quintana was convicted in California, which is in the Ninth Circuit, which had decided already in previous cases that the conviction is not an aggravated felony.  Mr. Esquivel-Quintana then moved to Michigan, where he was arrested and detained by U.S. immigration officials and eventually deported as an “aggravated felon” because Michigan is in the Sixth Circuit, which decided (in Mr. Esquivel-Quintana’s case) that his California conduct is an “aggravated felony.”  The Sixth Circuit reached this conclusion despite the fact that in Michigan, consensual sex between a person age 21 and a person just under 18 is perfectly legal.  So, persons convicted of this crime in a jurisdiction that has ruled that it is not an aggravated felony are safe, but by crossing state lines into a jurisdiction in which a court of appeals has determined that such conduct is an aggravated felony, are subject to being labeled as “aggravated felons” and deported, as Mr. Esquivel-Quintana was.  This situation makes it extremely difficult for prosecutors and attorneys to inform noncitizens of how to plead to criminal charges, and even where to travel within the United States.

Third, we assert that the Sixth Circuit’s decision in this case was incorrect.  In our view, the BIA and the Sixth Circuit ignored the Supreme Court’s requirements for clearly defining what the meaning of “sexual abuse of a minor” is.  The fact that federal law, 43 states, and the District of Columbia all deem consensual sex between a 21-year-old and a person just under age 18 to be perfectly legal should have led the BIA and the Sixth Circuit to conclude that such conduct is not “sexual abuse of a minor” under federal immigration law.

As noted above, the Supreme Court declines the review the vast majority of cases presented.  We hope that the Supreme Court will decide that our case is one of those few cases that the Supreme Court decides to review.

We will keep you updated on the progress of our petition.  We expect that the Supreme Court will decide whether or not to review our case either by the end of 2016 or by early 2017.

Waivers for Unlawful Presence

If you entered the United States without permission, you might be eligible to apply for a waiver of unlawful presence.  Depending on the circumstances of your situation, you might be able to obtain the waiver, and then obtain permanent resident (green card) status.  Best of all, you might be able to remain in the United States while your application is pending.  If you are approved for the waiver, you would travel to a U.S. consulate outside the United States for an immigrant visa, and then you would return to the United States with the visa and become a permanent resident.  Your time outside the United States, in most cases, is approximately 2 weeks.

In order to be eligible to apply for this type of waiver, you must have either a spouse or parent who is a U.S. citizen.  You must also meet certain other requirements in order to be eligible.  For example, certain criminal convictions might make you ineligible to apply for this type of waiver.

In order to be granted the waiver, you would need to convince U.S. immigration officials that the denial of the waiver would result in an “extreme hardship” to your U.S. citizen spouse or parent.  The question of what qualifies as “extreme hardship” is complicated.  For more information about extreme hardship, please see my previous postings on the subject:

What is “extreme hardship”?  Part 1

What is “extreme hardship”?  Part 2

The process of obtaining a waiver of unlawful presence is complex.  In order to avoid problems and to have the best chance of success, you should work with an experienced immigration attorney.  I have handled many immigration waiver cases and I have a strong record of success.  I would be glad to speak with you about your case.  Please contact my office for details.  Thank you.

 

Please Consider Naturalization

If you are a permanent resident, you may be eligible to apply for naturalization – the process of becoming a U.S. citizen.  There are many compelling reasons to consider applying for naturalization.

Here are a few things that only U.S. citizens are eligible to do:

  • file petitions for permanent resident (green card) status for your mother, father, brother, sister, or married son or daughter.
  • help your spouse, parents, or unmarried children under age 21 to become permanent residents more quickly than permanent residents are able to.
  • vote in national, state, and local elections.
  • be a candidate for elected positions.
  • obtain certain jobs that require applicants to be U.S. citizens.

Another important benefit of U.S. citizenship is something that many of us don’t consider very much, but that could end up causing a very big problem:

  • U.S. citizens cannot be deported from the United States.

Suppose that you are involved in an incident that results in a criminal conviction.  As we all know, sometimes persons are accused of crimes that they did not commit.  At other times, we might suddenly be placed in a stressful situation, and we make a poor choice.  We might also happen to commit a crime without being aware that what we have done is illegal.  The truth is, even though we might never consider doing anything illegal, any of us could end up with a criminal conviction.  A permanent resident who has been accused of a crime or who has a criminal conviction must immediately consult with an experienced immigration attorney to determine if there are any possible deportation consequences of a criminal conviction.  On the other hand, a person who is already a U.S. citizen at the time the incident occurs will not face any deportation consequences.

Some of the eligibility requirements of naturalization are:

  • be a permanent resident for at least 4 years and 9 months (or 2 years and 9 months if you have been married to, and living with, a U.S. citizen for the entire 2 years and 9 months).
  • submit federal tax returns every year, if you are required to do so under U.S. tax laws.
  • have been physically present in the United States for at least half of the most recent 5 years (3 years if married to, and living with, a U.S. citizen for the entire 3 years).

These are only a few of the eligibility requirements.  If you are considering naturalization, please contact our office.  We would be glad to work with you.

 

Supreme Court Will Hear DAPA Arguments on April 18

Today the Supreme Court announced that it will hear oral arguments in United States v. Texas on Monday, April 18, 2016.  The vacant seat left by the death of Justice Scalia will not be filled by that date.  As a result, the remaining 8 justices will consider the case.

The DAPA case is the only case scheduled for oral argument on April 18.  The Court might decide to extend the length of arguments for each side, beyond the typical 30 minutes.

It is expected that the Court will issue a decision in the case by the end of June 2016.

Notably, the Court postponed several other cases until the Court’s next term that begins October 2016.  So, it appears that the Court cosiders DAPA important enough to consider during this term, even with the vacancy on the Court.

What will happen with DAPA?

After the unexpected death of Justice Scalia, leaving the Supreme Court with 8 justices, at least for now, there are many things left up in the air.  The Supreme Court is in the middle of a term, President Obama will nominate a new justice, and the Senate will either hold nomination hearings and take a vote on the nominee, or will simply refuse to hold a vote.  Although many GOP Senators have been stating they will not hold a vote, at least one, Senator Charles Grassley, chair of the Senate Judiciary Committee, indicated he hasn’t made up his mind yet about whether to hold hearings on the nominee.

If the Senate confirms Mr. Obama’s nomination before the Supreme Court takes up the DAPA case – United States v. Texas, then it appears that DAPA would have a good chance of being able to move forward, because it would be likely that a majority of justices would conclude that DAPA is in accord with the Constitution and laws.

Realistically, it is not likely at all that the new justice would be on the Court to hear the DAPA case this term, which ends in June.

The justices could decide to postpone hearing the case until the next term, which begins in October 2016, and which might end up being too late for implementation of the program before President Obama leaves office on January 20, 2017.

If the 8 sitting justices decide to hear the case this term, then we could guess that there is a good possibility that Justices Ginsburg, Breyer, Sotomayor, and Kagan would likely rule in favor of the legality of the DAPA program.  And, there is probably a good possibility that Justices Thomas and Alito would likely rule against DAPA.  That leaves us with Chief Justice Roberts and Justice Kennedy.  Either or both of those justices could joint the other justices in favor of DAPA, perhaps on the legal argument that the states lack standing to bring the DAPA lawsuit in the first place.  If either Chief Justice Roberts or Justice Kennedy join the other 4, a majority would be in place to potentially allow the DAPA program to move forward.

Justice Scalia’s Death and the DAPA Case

The death of Supreme Court Justice Antonin Scalia adds uncertainty to the pending case before the Court regarding the legality of President Obama’s DAPA program.

The case, United States v. Texas, is scheduled on the Supreme Court’s current docket.  Of course, it’s uncertain how each individual justice will vote in the case, but it’s fair to guess that Justice Scalia might have concluded that the DAPA program is unconstitutional or otherwise in violation of the law.

President Obama has indicated that he plans to nominate a person to fill the vacancy on the Supreme Court.  So far, Republican Senate leaders have indicated that they plan to block or otherwise thwart President Obama’s efforts to fill the vacancy before he leaves office on January 20, 2017.

If the DAPA case is heard by the current 8 justices on the Supreme Court, there is the possibility that the justices could split 4-4 on the legality of the program.  A 4-4 split would leave the lower court’s ruling intact.  In that scenario, DAPA would not be able to be implemented.

It’s possible, although unlikely, that the Senate would confirm President Obama’s nominee to the Court by the time the DAPA case is argued.

Another possibility is that the Court would decide to postpone the hearing of the DAPA case until the next term, which begins in October 2016.  In that scenario, it is likely that a decision would not be issued in the case in time for President Obama to begin implementation of the DAPA program before he leaves office.

A few thoughts about affirmative asylum, Part 2

This is the second posting about the “affirmative asylum” process.

Please click here to read Part 1.

As with all applications for asylum, the task for the applicant is to show that he or she has a well-founded fear of being persecuted in his or her country of origin by the government or by individuals or groups that the government cannot or will not control.  In addition, the applicant must show that the persecution (or fear of persecution) is because of at least one of the following five reasons:  the applicant’s (1) race, (2) religion, (3) nationality, (4) political opinion, or (5) membership in a particular social group.

Another important requirement is that the applicant submit the asylum application within one year of the applicant’s most recent entry to the United States.  If the applicant submits the application more than one year after the most recent entry, then the applicant will need to show that there were either exceptional circumstances or changed circumstances that led to the delay in filing.

Back to the five reasons for persecution, let’s discuss “membership in a particular social group” (referred to as “PSG”).  This doesn’t mean that an applicant needed to be a member of an official club, or society, or organization.  It means that the applicant may state that he or she is persecuted because of some particular characteristics that he or she has.  For example, a woman who is fleeing domestic violence in her home, and who is from a country in which women have no real protections from the government against domestic violence, might be in a PSG of “women from Country X who are viewed as property due to their role in a domestic relationship.”

After the very long wait for an interview at at USCIS Asylum Office, and then at some point after the interview, USCIS will issue a decision on the application.  If USCIS approves the application, then the applicant is an “asylee,” and one year after the USCIS decision, the asylee may apply for permanent resident (green card) status.

If, at the time of the USCIS decision, the applicant is in lawful immigration status, then if USCIS does not approve the application, they will simply issue a denial.  The applicant will continue in their lawful immigration status.  On the other hand, if the applicant is not in lawful immigration status, then the applicant will need to appear later in Immigration Court, where an Immigration Judge will take a fresh look at the asylum application.

Asylum law is extremely complex.  If you are considering applying for asylum, you should work with an experienced immigration attorney.

A few thoughts about affirmative asylum, Part 1

I would like to share a few thoughts about the affirmative asylum process.  When I say “affirmative asylum,” I am referring to a person who decides to file for asylum while he or she is not in removal proceedings in Immigration Court.  So, the person “affirmatively” applies for asylum, rather than filing “defensively” in Immigration Court.

When a person files an affirmative asylum application, the application goes to USCIS, which stands for U.S. Citizenship and Immigration Services.  USCIS will receive the application, and, if the application meets certain requirements, such as being filled out correctly, containing the applicant’s signature, etc., then USCIS will send a receipt notice to the applicant, and to the attorney, if the applicant is filing with the help of an attorney.  The receipt will arrive in a small thin envelope, and it will be difficult to read the text on the receipt.

Next, the applicant will receive a biometrics notice.  This notice will be on regular letter-sized paper, and it will be easier to read.  The applicant will be directed to go to a USCIS office to get his or her fingerprints and photograph taken by USCIS.

After that, there is the very long wait for an asylum interview.  USCIS has 8 offices in the United States that are dedicated only for asylum interviews and decisions.  The 8 offices are, roughly from east to west:  New York, New York; Newark, New Jersey; Arlington, Virginia; Miami, Florida; Chicago, Illinois; Houston, Texas; San Francisco, California; and Los Angeles, California.

The applicant will be interviewed at the Asylum Office that has jurisdiction over the location where the applicant is living.  The waiting time for an interview varies by the office, but at this time, the waiting time for an interview varies from about 1 1/2 years (New York office) to more than 5 years (Los Angeles office).  At the Chicago office, the current wait for an interview is nearly 3 years.

Five months after the applicant submits the original asylum application to USCIS, the applicant may submit an application for an Employment Authorization Document (EAD).  By federal regulation, USCIS is supposed to issue the EAD within about 30 days of the application, but in reality, USCIS often takes about 90 days to issue the EAD.

Once the applicant receives an EAD, the applicant may file for a Social Security Number at the nearest Social Security Office.  The applicant may also apply for a driver license or state-issued ID, depending on the regulations in the applicant’s state.  The EAD will be valid for 1 year.  The applicant may renew the EAD each year, while the asylum application remains pending.

After the applicant has the asylum interview, then begins the wait to receive the decision from the Asylum Office.  The wait time for the decision after the interview varies quite a lot, but some wait times of 2 years or more are common.  Again, while the case is pending, the applicant may continue to renew the EAD.

In a later post, I will discuss more about the details of the asylum application process.

 

Victory at the Appeals Office

I just received good news from the USCIS Administrative Appeals Office (AAO).  The AAO agreed with me, and reversed a denial issued by the USCIS Detroit Field Office.

My client has been in the United States for many years.  He entered the United States legally, under a public interest parole.  That parole authorized my client to reside in the United States for an indefinite period of time.  So, he has never been in the United States without authorization.

As we had noted to the Detroit Field Office, and as the AAO stated, my client has a low level of literacy, suffers from post-traumatic stress disorder (PTSD), suffers from depression, and has suffered a traumatic brain injury.

My client has been convicted of two theft crimes.  Because of those convictions, my client was deemed to be inadmissible to the United States.  My client’s mother, a permanent resident of the United States, had begun the process many years ago to help my client to become a permanent resident.

We submitted an application for permanent residence, along with an application for a waiver of inadmissibility, to state the reasons why USCIS should waive his inadmissibility, because a denial of the waiver would result in an extreme hardship to my client’s mother.

The USCIS Detroit Field Office agreed that we had shown that the denial of the waiver would, indeed, result in extreme hardship to my client’s mother, who is the sole caretaker of a household of 8 persons.  Nevertheless, the Detroit Field Office denied the waiver application, stating that my client didn’t deserve to become a permanent resident.

We submitted an appeal to the AAO, stating that the Detroit Field Office made a mistake by denying the waiver on discretionary grounds.  The AAO agreed with us, stating that, “[w]hen considering the totality of the circumstances, we find that the positive factors in this case, including the Applicant’s family ties, length of residence in the United States, and hardship to himself and his family members if he is removed, outweigh the negative factors, and he merits a favorable exercise of discretion.”

We are very thankful to the AAO for their reasoned decision.  I am hopeful that my client will soon become a permanent resident.