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.

DAPA: Supreme Court Will Hear the Case

The Supreme Court has agreed to hear the DAPA case.  Oral arguments will be scheduled for April 2016.  The Court will most likely issue a decision in the case by the end of June 2016.

The Court will be resolving whether the states had a legal right to sue the Obama Administration, or whether the states lacked standing to do so.  The Court will also be deciding whether DAPA, and the expansion of DACA, is beyond the President’s powers, and whether the program is unlawful because the President did not include a cumbersome “notice-and-comment” procedure before implementing the program.

Finally, the Court added an additional question that it will answer:  whether DAPA and the expansion of DACA violates the Constitutional clause that states that the President must “take care” to faithfully execute the laws passed by Congress.

Esquivel-Quintana v. Lynch: 6th Circuit Decision

On January 15, 2016, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued a decision in a case I am handling, Esquivel-Quintana v. Lynch.

For previous postings about this case, please take a look at these:

Introduction.   Part 1.   Part 2.

Judge Danny Boggs wrote the majority opinion, joined by Judge Deborah L. Cook.  Judge Jeffrey Sutton wrote a separate opinion, concurring in part and dissenting in part.

The majority decision held that the Board of Immigration Appeals (BIA) was entitled to Chevron deference, and that their interpretation of the term “sexual abuse of a minor,” that included a conviction under California Penal Code 261.5(c), is permissible.

The majority considered our arguments regarding Taylor v. United States, but concluded that Taylor does not apply to our case.  The majority concluded that Taylor involved an application of the Armed Career Criminal Act, while our case involved the Immigration and Nationality Act.  The majority did not explain in much detail why that distinction makes a difference.

The majority also considered our argument about the Rule of Lenity, which states that an ambiguous criminal statute should be resolved in the defendant’s favor.  Interestingly, the majority stated that “there are compelling reasons to apply the rule of lenity,” but ultimately concluded that “the Supreme Court has not made it the law.”  The majority stated that, while the Supreme Court has begun to distance itself from an earlier case indicating that Chevron trumps lenity, the majority did not believe that the Supreme Court indicated clearly that lower courts should apply the rule of lenity.  The majority concluded that “[a]s an ‘inferior’ court, our job is to adhere faithfully to the Supreme Court’s precedents.”

In his separate opinion, Judge Sutton stated that he disagreed with the majority about the application of the Rule of Lenity.  According to Judge Sutton, the majority should have applied the Rule of Lenity in this case, which would have led to a conclusion that, because the term “sexual abuse of a minor” is ambiguous, the ambiguity must be resolved in favor of the defendant, and thus Mr. Esquivel-Quintana’s conviction under California Penal Code 261.5(c) would not be “sexual abuse of a minor,” which would mean that he would not be an aggravated felon for purposes of immigration law, and would have the right to return to the United States again as a lawful permanent resident.

According to Judge Sutton, because the term “sexual abuse of a minor” has both civil and criminal applications in federal law, Chevron deference to the BIA should not apply:  “Chevron has no role to play in construing hybrid statutes.”  Judge Sutton stated that there may be some cases in which which neither Chevron nor the Rule of Lenity apply.  But in Judge Sutton’s view, in this case, Chevron does not apply, and the Rule of Lenity does apply.

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Humanitarian Parole Granted

I have a client for whom I was recently able to obtain humanitarian parole.  My client was living outside the United States.  Her parents obtained immigrant visas, which enabled them to enter the United States as permanent residents.  But she would need to wait many years before she would be eligible to obtain an immigrant visa.  She is a person with special needs, including a cognitive impairment, and she is not able to live by herself.  If we were not able to obtain a solution for her to enter the United States, then her parents would have remained with her, and they would not have been able to immigrate and become permanent residents.

We presented the application to USCIS, which granted Humanitarian Parole to my client.  She was able to enter the United States along with her parents.  Eventually, after a number of years, she will be able to apply for permanent resident (green card) status.

USCIS indicates that they grant about 25 percent of the applications they receive for Humanitarian Parole, and they deny the rest.  For this reason, if you believe that you or a family member might qualify for Humanitarian Parole, then it is advised that you work with an immigration attorney to have the best chance of success.

I would be happy to work with you to explore the possibilities for Humanitarian Parole.

DAPA: Supreme Court schedules conference

The U.S. Supreme Court has scheduled a conference of the Justices on January 15, 2016, to consider whether to grant the Obama Administration’s request to review the 5th Circuit’s decision to block the implementation of DAPA.  The fact that the Court scheduled the conference for January 15 is good news, because it means that if the Court decides to hear the case, then the Court will most likely issue a decision on the case by June 2016.

As expected, the opponents of DAPA filed an opposition to the Obama Administration’s request.  In their brief, the opponents stated that they have standing to file the lawsuit against DAPA, mainly because, they argue, it will cost states additional funds to issue driver licenses to DAPA recipients.  The opponents brush aside the response that states have the authority to charge fees to cover the costs of issuing driver licenses.

The opponents go on to state that DAPA is reviewable in the courts, and that the Obama Administration did not go through the cumbersome notice-and-comment procedure before moving forward with DAPA.  Finally, the opponents stated their arguments that DAPA violates the U.S. Constitution.  They argue that the Obama Administration acted without the consent of Congress, and therefore violated the Separation of Powers – that the President took on the role of Congress without Congress’s authorization.

I expect that the Supreme Court will decide to hear the case.  The Court will hear the case if at least 4 of the 9 Justices vote to hear it.