DAPA Case Update

As I stated in a previous post, on November 20, the Obama Administration’s Department of Justice asked the Supreme Court to review the 5th Circuit’s decision to allow the injunction against DAPA to stay in place.

On November 23, the attorney representing the opponents of DAPA asked for a 30-day extension to reply to the Obama Administration’s request.  If the Supreme Court grants the extension, then the opponents’ reply would be due on January 20, 2016.  That might be too late for the Supreme Court to decide the case by June 2016.

On November 24, the Obama Administration presented an opposition to the request for a 30-day extension, suggesting an 8-day extension instead.  If the Supreme Court granted an extension of 8 days, it would make more likely the possibility that the Supreme Court would address the case and issue a decision by June 2016.

The Obama Administration also stated that if the Supreme Court grants the 30-day extension, then the Obama Administration will seek to have the case handled on an expedited basis, which would mean requesting a rare May oral argument, so that the Supreme Court could still issue a decision by June 2016.  Usually the Supreme Court completes oral arguments in April, and then prepares and issues all remaining decisions in May and June.

Stay tuned for the Supreme Court’s response to these requests.

Obama asks Supreme Court to review DAPA decision

On November 20, 2015, exactly one year after President Obama announced the DAPA program, the U.S. Department of Justice filed a request to the U.S. Supreme Court, asking the court to review the 5th Circuit’s decision to allow the continued blockage of the program.

In the request to the Supreme Court, the Administration makes 3 challenges to the lawsuit. First, the Administration asks whether the states that brought the lawsuit against DAPA even have a legal right to file such a claim, referred to as “standing.” Second, they ask if the DAPA program violates any law. Third, the Administration asks whether DAPA must first go through a long and cumbersome procedure of comments from the public before the program can begin. The Administration argues that the answer to all 3 of these questions is “No.”

With hopes that the Supreme Court will agree to hear this case during the current term, which ends in June 2016, the Administration states that this case deserves immediate review, in light of the great importance of DAPA to “millions of families with longstanding and close connections to this country.”

Regarding the issue of standing, states and individuals generally lack standing to challenge the choices that a presidential administration makes about how to enforce the laws of the United States. One of the requirements for a state to obtain standing is to show that the state will suffer if DAPA is implemented. The 5th Circuit, in blocking DAPA, concluded that the state of Texas had standing to sue because Texas has made the decision to subsidize the costs of issuing driver licenses to persons who would obtain DAPA. The 5th Circuit conceded that Texas could simply charge a higher fee for the driver licenses so that Texas would not need to subsidize the driver licenses at all. Yet the 5th Circuit concluded that DAPA imposed “pressure” on Texas to change its laws.

We will be watching this case closely. It will be interesting to see if the Supreme Court takes this case for the current term, or if the Court defers the case to the following term.

A plea for sanity and compassion

These are some of the words engraved on the pedestal of the Statue of Liberty:

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!

From American poet Emma Lazarus (1849–1887), written in 1883.

France presented the Statue of Liberty as a gift to the United States in 1886.  It has been regarded as a symbol of this country’s welcoming approach towards immigrants and refugees.

In the wake of the horrific acts of terrorism in Paris earlier this month, and the possibility that some of the perpetrators were Syrian or spent time in Syria, some politicians are calling for a reduction or an end to the resettlement of Syrian refugees in the United States.

I believe that such a response would be a mistake.

In our history, we have had periods of hostility towards immigrants and refugees.  Many different groups have felt the sting of anti-immigrant sentiment in the United States, including Chinese, Irish, Mexicans, Africans, African-Americans, Germans, Italians, and many other groups.  During the Second World War, our government put law-abiding persons of Japanese ancestry (including about 80,000 American-born U.S. citizens) into internment camps.  Although it seems that xenophobia – fear of foreigners – is a part of being human, it is an irrational fear.

By rejecting refugees, we are caving in to the terrorists’ desires.  We become afraid of everyone and everything.  But we can do better than to revert to our xenophobic instincts.

With the exception of Native Americans, we are all immigrants or the descendants of immigrants.  We are part of a wonderful diversity of persons from around the world who are proud to live and work in the United States, and to call America “home.”

The United States conducts an extensive and thorough security screening of all potential refugees.  In fact, refugees are subject to more intense scrutiny than any other persons who enter the United States.  By continuing our proud tradition of welcoming refugees, including Syrian refugees fleeing war and persecution, we build upon our strong foundation as a nation of immigrants, and as a place where persons have an opportunity to live in peace and to contribute to our great diversity.

DAPA – The Race to the Supreme Court

After the 5th Circuit’s delayed decision, issued November 9, 2015, continuing to block DAPA (Deferred Action for Parents of Americans and Permanent Residents), the Obama Administration announced that it will seek Supreme Court review of the decision.  There are at least two important questions at this point:  (1) Will the Supreme Court agree to hear the case?  and (2) If the Supreme Court takes the case, will the Court issue a decision in 2016, or in 2017?

First, in order for the Supreme Court to hear the case, at least 4 out of the 9 justices need to vote in favor of taking the case.  Because of the importance of this case, and because of the legal questions involved, I believe that at least 4 of the 9 justices will agree to hear the case.  I think that the justices most likely to vote in favor of hearing the case are Justices Ginsburg, Breyer, Sotomayor, and Kagan.  I also think there is a good possibility that Justice Kennedy will vote in favor of hearing.

Second, the timing of the process is critical, especially in light of the fact that President Obama will be leaving office on January 20, 2017.  

The Supreme Court’s term begins in October and runs through June.

Once the Obama Administration files the petition asking the Supreme Court to hear the case, then the attorney representing the opponents of DAPA will have 30 days to respond.  They may ask for a 30-day extension of time for their response, and the Supreme Court generally grants such extensions.  After the Supreme Court receives the response, then the justices decide whether to take the case.

Generally, if the Supreme Court makes the decision to hear a case before January 15, then they usually set the case for the current term.  But if they make their decision to hear the case after January 15, then they usually set the case for the following term.

If the Obama Administration submits their petition to the Supreme Court by today, November 13, 2015, then the attorneys representing the opponents would need to respond by December 13.  Assuming that they would seek the 30-day extension, then their response would be due January 13, 2016.  If the Obama Administration submits their petition after today, then it appears that the DAPA opponents would likely be submitting their response after January 15, 2016.  That might result in the case being scheduled for the term that begins October 2016 and goes through June 2017, after President Obama will have already left office.

Obama appeals DAPA ruling to the Supreme Court

Yesterday, the U.S. Court of Appeals for the Fifth Circuit issued a ruling that continues to block President Obama’s Deferred Action for Parents of Americans (DAPA).  Today, the Obama Administration announced that it will appeal the ruling to the U.S. Supreme Court, which could issue a decision by June 2016.

President Obama announced the DAPA program on November 20, 2014, almost one year ago.  The program has been tied up in litigation and has never been implemented.  The program is meant to provide temporary help to undocumented persons who have lived in the United States since January 1, 2010, and who, on November 20, 2014, had a son or daughter who is a U.S. citizen or lawful permanent resident, and who meets certain other eligibility criteria.  For those who are granted DAPA, they would receive an Employment Authorization Document valid for two years, and relief from the prospect of deportation unless they are convicted of crimes.

Yesterday’s decision by the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, was decided by a three-judge panel.  Two judges – Jerry E. Smith and Jennifer Walker Elrod – voted to continue to block DAPA, issuing a 70-page decision, while Judge Carolyn Dineen King disagreed, writing a dissent of 54 pages.  Judge King concluded her dissent by writing, “I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal. There is no justification for that delay.”

I will be closely monitoring the case, and will provide updates as they are available.

What is “extreme hardship”? Part 2

A couple of days ago, I wrote the first of two posts about “extreme hardship” in immigration law.  Today, in the second post, I write about the question of exactly what “extreme hardship” is, and how we can show it.

In many immigration cases, we must show extreme hardship to the spouse or parent of the person applying for the immigration benefit.  In some cases, we may show extreme hardship to the child of the applicant.  The applicant’s qualifying relatives – spouses, parents, and (in some cases) children – must be either U.S. citizens or lawful permanent residents.

As we stated in the first post, we need to show harships of both separation and relocation.

“Extreme hardship” is open to interpretation.  U.S. government officials may consider many different types of hardships.  Many of the most common hardships involve financial concerns, medical conditions, educational goals, psychological or emotional issues, family ties, and conditions in the location where the applicant would be living if the waiver is not granted.  In order to explain the hardship to the qualifying relatives, we must imagine that the applicant for the waiver is living in his or her home country.

Financial concerns:  An assessment of the loss of income to the household as a result of the applicant’s residence outside the United States, and the ripple effects that this loss can have on the well-being of the qualifying relatives.

Medical conditions:  The effects on the qualifying relatives of the potential lack of access to medical care in the country of relocation, and the potential loss of access to medical care in the United States due to loss of income or loss of insurance coverage.

Educational goals: The effects of the applicant’s absence on the education of qualifying relatives, including the loss of educational opportunities in the country of relocation, or the loss of opportunities in the United States due to financial or time constraints.

Psychological or emotional issues: The stress and anxiety that result from separation of qualifying relatives from the applicant, and the stresses and pressures that would accompany the qualifying relative’s relocation to another country.

Family ties: The qualifying relative’s connections to relatives in the United States, vs. connections to relatives in the country of relocation.

Country conditions:  Aspects of life in the country of relocation, including housing conditions, sanitation, educational opportunities, safety, social or political unrest, violence, environmental risks.

An application for a waiver based on a showing of extreme hardship requires significant careful preparation, planning, and documentation.  I have extensive experience in preparing these applications, and a strong record of success.

What is “extreme hardship”? Part 1

In many immigration cases, in order to help a client to obtain permanent resident, or “green card” status, we need to establish something called “extreme hardship” to a qualifying relative, such as the applicant’s spouse or parent who is a U.S. citizen or permanent resident.

For example, if you entered the United States without permission, without a visa, and without presenting yourself to U.S. immigration officials when you entered, then you might not be eligible to obtain your green card while you are in the United States.  You would need to go to a U.S. Consulate in your country of origin and apply for an immigrant visa.  If you are approved, then you receive the immigrant visa and enter the United States as a permanent resident.

The problem, however, is that if you are living in the United States without permission for 1 year or more, and then you leave the United States, you will be subject to the “10-year bar,” which means that you will not be permitted to enter the United States until you have spent 10 years outside, unless you obtain a waiver.  If you are granted the waiver, then you are permitted to enter the United States without the need to spend 10 years outside.

In order to obtain the waiver, we must convince the U.S. immigration officials that the denial of the waiver will result in “extreme hardship” to your spouse or parent who is a U.S. citizen or a permanent resident.  In order to obtain the waiver, we must imagine that we don’t have the waiver, and that you, the applicant, must spend 10 years outside the United States, living in your home country.

Then, we must imagine two different scenarios:

(1) Your spouse or parent who is a U.S. citizen or permanent resident remains in the United States and is separated from you for 10 years.

(2) Your spouse or parent who is a U.S. citizen or permanent resident lives with you, outside the United States, in your home country for 10 years.

We must show that BOTH of these scenarios will result in “extreme hardship” to your spouse or parent.  If we convince U.S. immigration officials that BOTH of these scenarios will result in extreme hardship, then you will be granted the waiver, and you will not be required to spend 10 years outside the United States.

In Part 2, we will explore the question of exactly what is “extreme hardship” and how we can show it.

Esquivel-Quintana v. Lynch, Part 2

On October 14, 2015, I argued a case at the U.S. Court of Appeals for the Sixth Circuit.  The case is titled Esquivel-Quintana v. Lynch.  You may click here to listen to an audio recording of the argument, which runs for 37 minutes.

I recently posted an introduction to this case, which you can read by clicking here.

I also recently posted Part 1 of a report on the argument, which you can read here.

In Part 2 here, I am discussing why the decision of the Board of Immigration Appeals (BIA) in our case is not entitled to deference.

In general, decisions of agencies such as the BIA are entitled to deference from federal appeals courts, if the term being interpreted is “ambiguous.”  The deference is referred to as Chevron deference, from a Supreme Court case called Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

We argued that the BIA is not entitled to Chevron deference for the following reasons:

First, we argued that the definition of “sexual abuse of a minor,” and in fact all of the terms regarding “aggravated felonies” at 8 USC 1101(a)(43), are used both by the BIA and by federal courts.  For example, the term “sexual abuse of a minor” is used by the BIA in cases such as ours, but it is also used by federal courts in cases involving sentencing of persons for illegal re-entry to the United States.  In the illegal re-entry cases, the federal courts do not owe the BIA any deference at all, because the BIA is not involved in any way in the criminal sentencing of a person for having illegally re-entered the United States.  The U.S. Supreme Court, in a case called Leocal v. Ashcroft, 543 U.S. 1 (2004), has stated that a statute with both criminal and noncriminal applications must be interpreted “consistently, whether we encounter its application in a criminal or noncriminal context.”

The problem with granting deference to the BIA’s decision is that the BIA’s decision would then bind federal judges in criminal applications of aggravated felony terms such as “sexual abuse of a minor” to apply the BIA’s definition, when in fact the BIA is due no deference in criminal sentencing cases.

Second, we argued that the BIA, in fact, has never provided a definition of “sexual abuse of a minor,” and because it has not provided a definition, the BIA’s decision is not due any deference.

Third, we argued that the term “sexual abuse of a minor” is not ambiguous.  The term is defined by a federal statute at 18 USC 2243.

When we receive a decision from the U.S. Court of Appeals for the Sixth Circuit, we will provide an analysis of the decision.

 

Esquivel-Quintana v. Lynch, Part 1

On October 14, 2015, I argued a case at the U.S. Court of Appeals for the Sixth Circuit.  The case is titled Esquivel-Quintana v. Lynch.  You may click here to listen to an audio recording of the argument, which runs for 37 minutes.

I recently posted an introduction to this case, which you can read by clicking here.

My client was convicted under California Penal Code 261.5(c), which states that it is unlawful for a person to have consensual sex with a person under age 18, if there is an age difference of at least 3 years and 1 day.  This conduct – consensual sex with a person under age 18, with an age difference of 3 years and 1 day – is perfectly legal in 43 states and the District of Columbia.

The Board of Immigration Appeals (BIA) concluded that a conviction under 261.5(c) is “sexual abuse of a minor” under 8 USC 1101(a)(43)(A) of the Immigration and Nationality Act, which is an “aggravated felony.”  My client’s permanent resident (green card) status was removed and he was deported from the United States.  You may read the BIA’s decision here:  Matter of Esquivel-Quintana,  26 I&N Dec. 469 (BIA 2015).

At the Sixth Circuit, I made two main arguments:  (1) The BIA’s decision does not comply with the requirements of the Supreme Court’s decision in Taylor v. United States, 495 U.S. 575 (1990), and (2) the BIA’s decision is not entitled to deference.

I will address (2) in a later posting.  For now, I will address (1).  In Taylor v. United States, the Supreme Court stated that courts and administrative bodies such as the BIA must provide a generic, contemporary definition of terms such as “sexual abuse of a minor.”  The Supreme Court also stated that the definition must mean what it means in the criminal codes of most States.  We argue that the BIA failed to provide a definition of “sexual abuse of a minor.”  We argue that a conviction under California Penal Code 261.5(c) is not “sexual abuse of a minor” because a conviction under that term can involve conduct that is perfectly legal in 43 states and the District of Columbia, and Taylor v. United States requires a definition for each term that fits with the criminal codes of most states.

You may hear the argument (37 minutes) by clicking this link.

 

3 Different Ways to Permanent Residence Based on Marriage

Many of my clients are persons who are either engaged to be married, or are already married.  Usually, one of the persons is a U.S. citizen or lawful permanent resident of the United States, and the other person is a citizen of another country and would like to obtain lawful permanent resident status in the United States.

For many persons, there are generally 3 different ways to move forward in the process of obtaining permanent resident status.

Fiance/Fiancee Visa:  For persons who are not yet married, one option is an application for a fiance/fiancee visa.  Please note that only U.S. citizens may file a fiance/fiancee visa petition.  The fiance will attend a visa interview at the U.S. Consulate in the home country or in a country where the fiance has permission to reside.  Upon approval, the fiance travels to the United States, and then must marry the U.S. citizen petitioner within 90 days of entering the United States.  If they do not marry, then the fiance must depart the United States.  As soon as they marry, then the fiance may apply for permanent resident (green card) status.

Immigrant Visa:  Another option is for the persons to legally marry, either in the United States or in any country in which the marriage may be legally performed.  After the legal marriage, the U.S. citizen or lawful permanent resident spouse files a petition for his/her spouse.  The spouse will attend a visa nterview at the U.S. Consulate in the home country or in a country where the fiance has permission to reside.  Upon approval, the spouse travels to the United States and enters with the immigrant visa.  The date that the spouse enters the United States is the date that the person becomes a lawful permanent resident (green card status).

Adjustment of Status:  A third option, for certain persons who are present in the United States, is for a married couple to apply for adjustment of status in the United States.  “Adjustment of status” is a term that means that the applicant is applying to become a lawful permanent resident of the United States while the person is in the United States.  This procedure, if successful, means that the applicant does not need to attend an interview at a U.S. Consulate outside the United States.

Each of these three options has certain advantages and disadvantages.  Moreover, each of these options is only available to certain persons who meet the requirements and for whom the option is beneficial to them.

I have considerable experience with each of these 3 pathways to lawful permanent resident status.  I would be glad to communicate with you about these options.