Thursday, November 5, 2015

Dealing with the Reailty: No Chance for Comprehensive Immigration Reform Until 2017

by Anish Vashistha

I know it has been a while since my last post, but I was waiting for some big news regarding Comprehensive Immigration Reform ("CIR"), and finally that news has come.  The news is it's not happening, or at least while U.S. President Barack Obama remains in office.  Here is what the U.S. Congress's House of Representatives' new Speaker Paul Ryan had to say on the subject earlier this week:
NBC's Meet the Press November 1, 2015

So where does that leave us?  With the unlikelihood that the U.S. Court of Appeals for the Fifth Circuit ("Fifth Circuit"), which last heard oral argument in the matter about four months ago, will issue an order permitting the U.S. Government to institute the U.S. President's announced Executive Actions of November 20, 2014, i.e., DACA's Expansion and DAPA, many undocumented individuals in the U.S. feel that they are without hope to resolve their immigration-related problems.

However, the silver lining, if any, in Speaker Ryan's comments above is the room for negotiation on the issue of enforcement, despite the intransigence on the issue of benefits.  There may be room for compromise in an area concerning enforcement but that nonetheless still could lead to a benefit, particularly for foreign nationals with certain criminal history.  Less than a week ago many saw with their own eyes what had been announced less than a month prior with the release by the U.S. Sentencing Commission of 6,000 federal inmates sooner than their sentences permitted.  Unfortunately, a third of those federal inmates face the prospect of deportation from the U.S. despite such release because they are not U.S. citizens.  Their release from federal-prison custody likely was not met with the type of joy the other two thirds of the released federal prisoners presumably experienced just a few days ago.

So far the discussion about criminal-sentence reform has mainly focused on how the U.S. government can pursue it and whether mass incarceration is really a good policy.  This discussion is necessarily intertwined with the perceived failure of the "War on Drugs" pursued by the U.S. since the 1980s, expanded in the 1990s, and continued until today with the exponential increase of non-violent drug offenders within prisons and jails across the U.S. but with no discernible decline in the trafficking and usage of illegal narcotics.  This "illegality" policy, meaning the criminalization of what essentially is a disease, an addiction, or at the very least a recreation, has also plagued the U.S. Immigration and Nationality Act ("INA"), which for the most part renders any non-U.S. citizen other than maybe a person who has a Lawful-Permanent-Resident card ("Green Card") and who has resided continuously in the U.S. for at least seven years before committing his/her first drug-related offense, both removable from the U.S. and without hope for relief from such removal.

A dismantling or overhaul of the U.S. "War on Drugs" should include a commensurate reform of the INA relating to penalties for controlled-substances violations.  As a practitioner, it amazes me how many foreign-national adults face removal because of non-violent drug-related experimentation when they were younger, something in which many young U.S. citizens engage as well.  This reform need not be styled in a manner as a benefit to foreign nationals but rather be instituted as a smarter enforcement approach.  Thereafter, and only if such reform is successful in easing the burden on enforcement resources that pursuing non-violent drug offenders necessarily involves, maybe the overall "illegality" policy to the INA may be reformed as well.

Sunday, May 31, 2015

Politicization of the Federal Courts: Comprehensive Immigration Reform and the American Judiciary

by Anish Vashistha

What appeared only a few months ago to have so much promise now seems at least another year away, if it's possible at all. The expansion of Deferred Action for Childhood Arrivals ("DACA Expansion") and the new Deferred Action for Parental Accountability ("DAPA"), which back in February of this year were put on hold by a U.S. District Judge in Texas hit yet another obstacle this past week. The U.S., which is being sued by twenty-six States for its seeking to implement DACA Expansion and DAPA via Executive Action rather than through the normal statutory-bill-passage or regulatory-notice-and-comment procedure, had appealed the U.S. District Judge's decision dated February 16, 2015 to the U.S. Court of Appeals for the Fifth Circuit ("Fifth Circuit"), which thereafter on May 26, 2015 upheld the U.S. District Judge's preliminary injunction pending completion of the overall case.

A noteworthy part about the Fifth Circuit's decision is its statement within the first paragraph of its decision wherein it asserts that the U.S. has little likelihood of succeeding in the overall case, thereby justifying leaving the U.S. District Judge's preliminary injunction in place. The vote within the three-judge panel from the Fifth Circuit that heard the case was 2-1, with the majority being held by two judges appointed by Republican U.S. Presidents and with the dissenter having been appointed by current U.S. President Barack Obama, a Democrat. The U.S. still has some legal options left to try to have the U.S. District Judge's preliminary injunction lifted, but none of them will lead to such an outcome occurring quickly.

What will be more interesting than the Obama Administration's legal strategy from here is its political strategy, which necessarily includes its enforcement priorities. Although DACA Expansion and DAPA have hit significant hurdles to implementation, they are not the only cards in the Obama Administration's hand. Nevertheless, the Fifth Circuit's unwillingness to keep the U.S. Judiciary out of the political fray shows that whatever the Obama Administration's next move is, it is indeed likely to be the subject of federal-court litigation that will not be dismissed under the political-question doctrine.

Under the political-question doctrine, the Fifth Circuit could have held that the U.S. Judiciary is not the suitable forum for the immigration-related debate with which DACA Expansion and DAPA are intertwined. The political-question doctrine is applicable to the fray that the proposed Executive Actions did not create but to which it indeed added given that Comprehensive Immigration Reform ("CIR") has been in the news for years. For example, at the beginning of the year the U.S. Congress, both chambers of which have a majority of Republicans, pursued legislation not to fund the proposed DACA Expansion and DAPA and only to fund for a short period of time the U.S. Department of Homeland Security ("DHS"), which is the federal agency that would be responsible for implementing the proposed DACA Expansion and DAPA. Therefore, the U.S. Congress is not powerless if it does not agree with the Obama Administration's Executive Actions.

Nevertheless, instead of allowing the political debate on CIR to move forward between the U.S. President and the U.S. Congress, the Fifth Circuit chose to enter that political debate and consequently to embroil itself in the political fray. Moreover, the split along political lines among the judges involved in the case thus far portray the federal judiciary as little more than an extension of the political branches of the U.S. government as opposed to what the U.S. Judiciary is supposed to be, i.e., an independent co-equal branch that is not subject to politicization. Such apparent politicization has the potential of inflicting lasting and potentially irreversible damage to the U.S. Judiciary, which has always commanded its respect despite not being subjected to regular elections solely because of its perception among the public as not being politicized.

The political-question doctrine exists for that very reason: to maintain the respect the U.S. Judiciary has commanded for centuries. The decline in respect of the U.S. Judiciary based on its no longer refusing to enter the political fray will likely be the greatest casualty in the CIR war that is being waged, regardless of which side wins. The appearance of unfairness within the federal judiciary, this idea that the greatest factor in determining likelihood of success in litigation, more than the law itself, is which judge, and consequently that judge's political leanings, happens to have been assigned to the case, will be the natural result of the continued no-holds-barred political sparring, which was largely left to the U.S. President and the U.S. Congress but in which the U.S. Judiciary has shown it is more than willing to engage.

Monday, February 16, 2015

New Major Obama Immigration Reforms Begin Going Into Effect This Week

by Anish Vashistha

On November 20, 2014, United States President Barack Obama announced that his administration would be instituting various executive actions, or reforms, relating to the enforcement of the nation’s Immigration Laws. While some of those reforms have already taken effect such as the delineation of the three enforcement-priority categories, others are yet to be developed at all such as the expansion of the provisional unlawful-presence waiver. Nevertheless, probably the two most popular aspects of the President’s announcement are the expansion of Deferred Action for Childhood Arrivals (“DACA”), which first was available in 2012 but for a more restrictive pool of individuals, and Deferred Action for ParentalAccountability (“DAPA”), which is a completely new program. DACA’s expansion will actually be effective this week with United States Citizenship and Immigration Services (“USCIS”) stating recently that it will begin accepting applications on Wednesday February 18, 2015. DAPA on the other hand is yet to have a firm effective date with USCIS stating only that it will begin accepting applications in mid-late May 2015. With those dates quickly approaching, it is important for potential applicants to know exactly what they will be receiving if approved, as well as what they are not receiving, and whether they indeed qualify.

For both the expanded DACA and the new DAPA, approved applicants will receive a three-year reprieve from deportation. They will also receive a three-year employment-authorization document (“work permit”), which they can use to obtain a Social Security Number and consequently in most states a valid driver’s license. What they will not receive is a pathway to United States citizenship or lawful permanent residence ("Green Card") because the President alone cannot grant such benefits without the United States Congress acting.The President created the programs to provide at least some sort of immigration-related stability and employment authorization, both of which would still be tremendously better than what several million people unlawfully in the United States currently have: nothing.

Shifting from benefits to requirements, the expansion of DACA would largely maintain the same requirements as DACA in its initial form except for two major differences that greatly increase the number of potential applicants. First, the requirement that one must have lived in the United States continuously “since June 15, 2007” has been changed to since “January 1, 2010,” allowing for more recent entrants to be eligible. Second, the requirement that one must have been under the age of thirty-one on June 15, 2012 has been eliminated altogether, so even much older individuals could be eligible if they otherwise qualify. “Otherwise qualifying” includes the requirements (A) that the person must have entered the United States before the age of sixteen; (B) that s/he is in school, has graduated from high school, has obtained a general education development (or “GED”), or has been honorably discharged from the United States military; and of course (C) that s/he does not have prohibitive criminal or immigration history. The determination of whether one’s criminal or immigration history is “prohibitive” is something for which a potential applicant will definitely want to consult an immigration attorney before deciding whether to apply.

Turning to DAPA, the requirements include the same need to prove that one has lived in the United States continuously “since January 1, 2010.” Also, instead of having to prove that one has been living in the United States continuously since a certain age, an applicant needs to have had by November 20, 2014 a child who is a United States citizen or lawful permanent resident ("Green Card").  Finally, and yet another major difference from DACA’s expansion because it is much clearer, DAPA applicants must prove that they do not fall within one of the three above-referenced recently delineated enforcement-priority categories, an explanation of which may be given by an immigration attorney.

It is important to note that for both programs simply having some negative criminal or immigration history does not automatically disqualify an applicant, so it is imperative for potential applicants to seek the advice of someone who not only is a licensed attorney specializing in Immigration Law but also has specific knowledge about the programs themselves.

Monday, January 26, 2015

Out with the Old, In with the Old: Settling for Less on Comprehensive Immigration Reform

by Anish Vashistha

As we usher in a New Year, and I wish a happy one to all of you, we look to see whether more will be done on Comprehensive Immigration Reform ("CIR") while also worry whether President Barack Obama's announcement on November 20, 2014 will be reversed by a Republican-party-controlled U.S. Congress.  Here is what the President had to say about Immigration during his State of the Union Address last Tuesday:
U.S. President Barack Obama, January 20, 2015

I would assume nothing more and nothing less than that announcement will remain the status quo this year, so again it is simply best to turn toward what has been issued by the federal courts, particularly the decisions from November 2014, the same month the President made his announcement, of the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from decisions by U.S. District Courts within the Western States as well as hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States.

In Almanza-Arenas v. Holder, the Ninth Circuit held in spectacular fashion not only that a Mexican man's California conviction for vehicle theft cannot be deemed to be for a Crime Involving Moral Turpitude ("CIMT") because under the Immigration Laws it is overly broad and regardless of whether the taking of the vehicle was intended to be permanent or temporary but also that a foreign national remains eligible for relief from removal if the record of conviction is unclear as to whether such taking was indeed intended to be permanent or temporary, in contrast to a prior decision by the Ninth Circuit, and because of an intervening decision by the U.S. Supreme Court.

A few days later in Tarlock Singh v. Holder, the Ninth Circuit denounced the BIA for refusing to consider reopening, despite having received a timely motion, an Indian man's exclusion proceedings so that he could apply for adjustment of status before U.S. Citizenship and Immigration Services ("USCIS"). Similarly, in Vargas Cervantes v. Holder, the Ninth Circuit reversed the BIA by determining that it had improperly looked beyond the record of conviction when it concluded that a Mexican man's conviction for domestic violence was against his wife, thereby rendering unclear as to whether that conviction was indeed for a CIMT.

In Lai v. Holder, the Ninth Circuit amended its prior decision by determining that even a foreign national who is deemed not to be a credible, as opposed to one deemed credible, by an immigration judge must still be given notice of an opportunity to corroborate his/her asylum-related claim(s).  Similarly, in Owino v. Holder, the Ninth Circuit lambasted both the BIA and the U.S. Department of Homeland Security ("DHS") for refusing to provide a continuance to a Kenyan man so that he could submit arrest-related documents in support of his asylum-related claim(s) and for submitting for authentication purposes those arrest-related documents to the very same authorities from whom the Kenyan man claimed to fear persecution, respectively. 

Not all of the Ninth Circuit's immigration-related decisions from November 2014 pertained simply to determinations by the BIA because one such decision, U.S. v. Raya-Vaca, reversed a determination by a U.S. District Court not to dismiss against a Mexican man an illegal-reentry federal criminal charge because his due-process rights were violated during his prior expedited removal wherein he was not given by the inspecting DHS officer both notice of the expedited-removal-related charge(s) against him and an opportunity to respond.

Also, not all of the November 2014 immigration-related Ninth-Circuit decisions were positive for foreign nationals.  For instance, in Ibarra-Hernandez v. Holder, the Ninth Circuit sustained a BIA determination that a Mexican woman's Arizona conviction for identity theft was for a CIMT because although the underlying criminal-code statute does not require fraud the actual circumstances of the Mexican woman's conviction as shown in the record of conviction did involve such fraud.  Finally, the Ninth Circuit in Leal v. Holder agreed that a Mexican man's Arizona conviction for felony endangerment was indeed for a CIMT that barred him from the type of relief he was seeking.

Whether DHS will follow these various interpretations when evaluating applications brought under the President's announcement is unlikely because of how confusing their application is.  Such confusion is all the more reason for the U.S. Congress to address the issue itself, but in the absence of such U.S. Congressional action, millions of foreign nationals unlawfully present in the U.S. will have to settle for less.