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CAN AN UNDOCUMENTED LAWYER PRACTICE IMMIGRATION LAW?

All eyes are focused on whether the California Supreme Court will grant an undocumented lawyer a law license in the case of Sergio Garcia. If an undocumented lawyer like Garcia is granted a license, what would happen if he chooses to practice immigration law? In the past, undocumented lawyers who practiced immigration law have been disciplined by bar counsel within the immigration agencies.  The same fate should not befall future undocumented lawyers if they choose to practice immigration law after the state has granted them a license to practice law.

The first question is whether an undocumented lawyer can be granted a law license by the relevant state.  The Department of Justice has arguedthat 8 USC §1621 prohibits a state from granting a public benefit to an undocumented alien, which also includes a professional license. At the oral argument last Wednesday, September 4, the judges seemed to agree with the DOJ’s position. However, 8 USC §1621 also allows a state to bypass §1621 by enacting specific legislation that could grant a benefit to an undocumented alien. Thus, even if the California Supreme Court rules against Garcia,  the California legislature has passed specific legislation, AB 1024, that would authorize the granting of law licenses to undocumented aliens. This legislation, if signed by the governor,  will moot the case in the California Supreme Court, but the DOJ is likely to make the same argument in other states.

The DOJ’s hypertechnicalargument clearly goes against the spirit of the Obama Administration’s deferred action for childhood arrivals (DACA) policy, although Garcia was too old to take advantage of it. The DOJ has also argued in a similar case in Florida that §1621 precludes a state from granting a law licenses to a person who has since received work authorization under DACA.  It boggles the mind as to why the DOJ would read §1621 so broadly so as to oppose the granting of a license to a lawyer who has been authorized to remain in the US and work under DACA.

There are compelling arguments why an undocumented lawyer should be granted a law license. A law license should be separated from the ability to work in the US. There are many foreign lawyers who get law licenses in this country even though they may not be eligible to work in the US. They have entered the US on student or tourist visas, and take the state bar exam. While they may not be able to remain in the US longer than their visa and plan to return to their countries, they are nevertheless granted a license based on their competence and fitness to be lawyers. Such lawyers can practice US law in their own countries, and even apply their knowledge of such law, when they legitimately visit the US for business purposes.

With respect to an undocumented lawyer who may remain in the US, he or she need not be employed by an employer in violation of federal immigration law. Such a lawyer could potentially work as an independent contractor or perform pro bono work as a volunteer without potentially violating the employer sanction laws. The DOJ in its brief cites Matter of Tong, 16 I&N Dec. 593 (BIA 1978) to argue that self-employment qualifies as working without authorization. But Matter of Tong was decided long before the Immigration Reform and Control Act of 1986, which made it unlawful for an employer to hire a person who is not authorized to work in the US. Matter of Tong only held that an alien who engages in self-employment, when otherwise not authorized to work, cannot adjust status under INA §245. It does not prohibit self-employment, and in any event, an undocumented person is ineligible to adjust status.

So, what would happen if an undocumented lawyer is granted a license, which is about to happen in California,  and then decides to practice immigration law? The DOJ’s brief in the Sergio Garcia case cites instances of disciplinary action taken against licensed attorneys who were not authorized to work in the United States by disciplinary counsel within the USCIS and the EOIR . See Matter of Ravindra Singh Kanwal, D2009-053 (OCIJ July 8, 2009) and Matter of Noel Peter Mpaka Canute, D2020_124 (OCIJ March 16, 2001). In both the cases, the attorneys had work authorization and then fell out of status, but never contested the charges and consented to the order of discipline. They were indefinitely suspended, but could apply for reinstatement if they could demonstrate that they had lawful immigration status or were granted employment authorization. Both of these attorneys were then reciprocally disciplined by their state bars in New Yorkand Coloradoand other states where they were admitted as attorneys.

Despite the groundswell of support for granting licenses to undocumented attorneys, bar counsel within the immigration agencies could potentially start disciplinary actions against them if they practice immigration law based on the prior precedents.  When a state has granted a law license to an undocumented lawyer, knowing fully well that the lawyer is undocumented, one is hard pressed to think about the ethical basis to discipline a lawyer who decides to practice immigration law. Under 8 CFR 1.1 and 1001.1, both the DHS and EOIR must recognize an attorney “who is eligible to practice law in and is a member in good standing of the bar of the highest court of any State, possession, territory, or Commonwealth of the United States, or the District of Columbia, and is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him in the practice of law.” An undocumented attorney who falls under this definition is recognized under federal law to engage in the practice of immigration law.

Although the two published decisions are devoid of details as the immigration attorneys conceded to the disciplinary charges, it is hard to find a disciplinary ground under the federal immigration rules in 8 CFR 1003.102 that would sanction an undocumented attorney who chooses to practice immigration law, especially if such an attorney is not employed in violation of the employer sanction provisions, practices as an independent contractor and otherwise engages in ethical conduct. Moreover, in the unfortunate event that such an attorney does get disciplined by the immigration agencies for merely being undocumented, it would be equally hard for a state disciplinary authority to find a reciprocal disciplinary ground under the various state rules of professional responsibility, which have largely adopted the ABA Model rules.  Even ABA Model Rule 8.4(c), which can sanction attorneys who “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or Rule 8.4(d), which sanctions attorneys who “engage in conduct that is prejudicial to the administration of justice” can hardly apply to an undocumented lawyer who has been granted a license by his or her state bar, and who otherwise does not engage in unethical conduct.

Even from a public policy standpoint, a foreign national lawyer, who is otherwise in H-1B visa status, can fall out of status unbeknownst to him or her if the employer forgets to timely file an extension of the H-1B status. This lawyer may have also mistakenly received an I-94 authorizing him or her to remain in the US up to a date earlier than the date on the H-1B approval notice, and the lawyer only finds out after it is too late.  A lawyer may have also applied for adjustment of status based on marriage to a US citizen, and timely applies for a renewal of the employment authorization document, but may not receive such a document from the USCIS in a timely manner. Lawyers who find themselves in such situations, and while waiting for the government to extricate themselves from this mess, may still wish to engage in a pro bono case for a foreign national client. Should such a lawyer be disciplined for unethical conduct?

The disciplining of an undocumented lawyer also goes against the grain of prevailing policies and attitudes towards undocumented immigrants. There are millions of undocumented people who are waiting for immigration reform, and the Senate has already passed S. 744, which will give them Registered Provisional Status, and then put them along the pathway to permanent residency and eventually citizenship. Indeed, being documented or undocumented is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria pursuant to INA §240A(b), such as by being physically present in the U.S. on a continuous basis for not less than 10 years, by demonstrating good moral character during this period, by not being convicted of certain offenses and by demonstrating “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child,” who is a citizen or a permanent resident. Such a person whose visa has long since expired could also possibly get wrapped up in a romantic encounter with a U.S. citizen, marry, and dramatically convert from undocumented to permanent resident within a few months. Until the recent fall of DOMA, a lawyer in a same sex marriage with a US citizen could not even apply for an immigration benefit through that marriage.  At times, Congress bestows such permanent residency, as we have already seen, through section 245(i) or the LIFE Act, or a person can obtain Temporary Protected Status (TPS), if a calamity were to befall his or her country such as the recent TPS program and its extension for Haitians after the devastating earthquake on January 12, 2010. Conversely, a documented person, such as one in H-1B status can according to the government also technically be considered not in status, during the pendency of an extension request, although this position has been successfully challenged.

The following extract from the U.S. Supreme Court’s decision in Plyer v. Doe, 457 U.S. 202 (1982), which held that undocumented children could not be deprived of a public education, is worth noting:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

As undocumented immigrants become attorneys, many may want to get involved in some way in the practice of immigration law. Many of them were brought to the US as children and are without status for no fault of their own.  They may engage in advocating for the rights of immigrants, for immigration reform and may also perform pro bono work in the immigration field.  They can hardly be accused of engaging in unethical conduct by bar counsel within the immigration agencies, especially when their states have granted them licenses after being fully aware of their undocumented status.

(The view’s expressed in this blog are the author’s personal views and do not necessarily represent the views of any organization that he is a part of)

YES HE CAN: A REPLY TO PROFESSORS DELAHUNTY AND YOO

By Gary Endelman and Cyrus Mehta

 Article II, Sec. 3 of the Constitution provides that the President “shall take Care that the laws be faithfully executed.”   That being so, can President Obama grant deferred action for childhood arrivals (DACA) whose presence here represents a violation of US law? Professors Robert Delahunty and John Yoo offer a scholarly and resounding “ No” to this question in their paper, The Obama Administration, the DREAM Act and the Take Care Clause(hereinafter cited as Delahanty & Yoo).  They argue that the President must enforce the removal provisions of the Immigration and Nationality Act. Absent either express or implied authority to the contrary, the Obama Administration has violated its constitutional duty.  No presidential prerogative exists that would sustain such non-enforcement nor has the President put forward a cogent excuse that would make his DACA decision constitutionally permissible.  Professors Delahunty and Yoo offer up George Washington’s famous reminder in his Proclamation of September 15, 1702 that “it is the particular duty of the Executive ‘to take care that the laws be faithfully executed.” Such a serious charge requires an answer. That is why we write.

We agree with Professors Delahunty and Yoo that President Obama must enforce all provisions of the INA, including the removal sections contained in Section 235.  We do not agree, however, that DHS Secretary Napolitano’s June 15, 2012 memorandum, or ICE Director John Morton’s June 17, 2011 directive on prosecutorial discretion, instructed or encouraged ICE officers to violate federal law.  At current levels of funding, it is manifestly impossible for ICE to deport most undocumented persons in the United States.  Even at the historically high levels of removal under President Obama, some 400,000 per year, this amounts to only 3-4% of the total illegal population. Delahanty & Yoo n.21.   That is precisely why the Obama Administration has focused its removal efforts on “identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law offenders and other individuals prioritized for removal.” Delahanty & Yoo n. 22,  citingLetter from Janet Napolitano, Secretary, Department of Homeland Security, to Senator Richard Dubin (D-Ill.)(Aug. 18, 2011). Far from refusing to enforce the law, President Obama is actually seeking to honor his constitutional obligation by creating a scheme that removes some while deferring the removal of others without granting anyone legal status, something only Congress can do.

Professors Delahanty and Yoo’s characterization of DACA relief as detached, even radical, suffers from a lack of an informed appreciation of the extent to which it has deep roots in existing immigration law. The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. The extension of DACA relief is less a leap into the unknown arising out of a wild, lawless ideology divorced from a proper respect for the Take Care Clause than a sober reaffirmation of an existing tool for remediation in prior emergencies. Professor Delahanty and Yoo conveniently omits any mention of INA Section 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien. They also fail to consider INA Section 274A(h)(3)(B) which excludes from the definition of “unauthorized alien” any alien “authorized to be so employed …by the Attorney General.” After all, 8 CFR 274a.12(c)(14), which grants employment authorization to one who has received deferred action, has been around for several decades. The only new thing about DACA is that the Secretary Napolitano’s guidance memorandum articulates limiting criteria without endowing deferred action grantees with any legal status, something reserved solely for the Congress. In fact, the Congress has also recognized “deferred action” in Section 202(c)(2) (B)(viii) of the REAL ID Act as a status sufficiently durable to allow the extension of driving license privileges.

Courts are loath to review any non-enforcement decisions taken by federal authorities. See,e.g., Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993); Massachusetts v. EPA, 127 S. Ct. 138, 1459 (2007).  It is up to DHS, rather than to any individual, to decide when, or whether, to initiate any enforcement campaign. Heckler v. Chaney,  470 US 821, 835 (1985). During the last Supreme Court term, Arizona v. United States, 132 S.Ct. 2492, 2499 (2012)  articulated the true reason why: “(a) principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…”

Professors Delahanty and Yoo do not feel constrained by the wide deference that has traditionally characterized judicial responses to executive interpretation of the INA. Under the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984), federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly,  the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 ( 2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute.  Surely the “body of experience” and the “informed judgment” that DHS brings to INA § 103 provide its interpretations with “ the power to persuade.”  Skidmore v. Swift& Co., 323 US 134,140(1944). As Justice Elena Kagan famously noted when she served as the Dean of the Harvard Law School, the increasingly vigorous resort to federal regulation as a tool for policy transformation  by all Presidents since Ronald Reagan has made “ the regulatory activities of the executive branch agencies more and more an extension of the President’s own policy and political agenda.” Elena Kagan, Presidential Administration, 114 Harv.L.Rev. 2245, 2246  (2001).Indeed, the very notion of Chevron-deference is “premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gap.” FDA v Brown & Williamson Tobacco Corp., 529 US 120, 159 ( 2000).  That is precisely what the President and DHS have done with respect to their power to enforce the immigration laws.

This is precisely why 100 law professors argued that the President had the discretionary authority to extend such relief, which Professors Delahunty and Yoo have acknowledged in their paper:

Through no statutes or regulations delineate deferred action in specific terms, the U.S. Supreme Court has made clear that decisions to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive. In the immigration context, the Executive Branch has exercised its general enforcement authority to grant deferred action since at least 1971

            Delahanty & Yoo n. 38.

It is also worth mentioning that while there is no express Congressional authorization for the Obama Administration to implement such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Administration under through the Morton Memo and DACA is well acting within Congressional authorization. We agree with Professors Delahunty and Yoo when they cite Youngstown Sheet, Delahunty & Yoo n 185. as a rejection of the idea that the President has “prerogative” power, but the President has not used any “prerogative power” with respect to DACA relief; he has indeed acted pursuant to Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635.  Professors Delahanty and Yoo look in vain for explicit authority in the INA that supports DACA relief, and delve into instances when Presidents have been able to use “prerogative” power, which they argue cannot be applied in the context of DACA. They can stop searching:

Congress …may not have expressly delegated authority to…fill a particular gap. Yet,it can still be apparent from the agency’s generally conferred authority that Congress will expect the agency to speak with the force of law when it addresses ambiguity in the statute…even one about which Congress did not actually have an intent as to a particular result.   United States v. Mead, 533 U.S. 218, 229 (2001)

Even if arguendo discretion is too weak a foundation for DACA relief, the equitable merits of such remedial action should be strong enough to withstand constitutional scrutiny.  Indeed, as the Supreme Court’s  Arizona opinion recognized,  it is frequently the case that “ Discretion in the enforcement of immigration law embraces immediate human concerns.” Delahanty & Yoo, n. 222.  That is why Section 240A of the INA endows the Attorney General with discretion to cancel removal.  Contrary to what Professors Delahanty and Yoo argue, the exercise of executive compassion in the Dream Act context is not a constitutionally prohibited expression of misplaced sentiment floating without anchor in a sea of ambiguity but a natural out-growrth of prior initiatives when dealing with deferred action. Such initiative is entirely consistent with the Take Care Clause while scrupulously respectful of Congressional prerogatives to make new law. While Professors Delahanty and Yoo argue that equity in individual cases may be justified as an exception to the President’s duty under the Take Care Clause, they claim that the  DACA program is not a judgment in equity but more as a statement of law. We disagree. The President has made clear under DACA that each case merits an exercise of individual discretion. Each application has to be supported by voluminous evidence of not just an applicant’s eligibility, but also evidence as to why the applicant merits an exercise of favorable discretion.  Professors Delahanty and Yoo claim that equity divorced from reliance on another statute or treaty must be opposed as a breach of the President’s sworn oath. No such worry here need trouble them for the Administration not only acts in reliance on its well-settled authority under the INA but precisely and primarily to infuse such authority with relevance made ever more insistent by the lack of Congressional action.

Notwithstanding our rebuttal, the deep scholarship and sincere reservations voiced by Professors Delahanty and Yoo must not be cavalierly ignored nor summarily dismissed. Indeed, they are a powerful justification of the need for comprehensive immigration reform. Only Congress can solve this problem, even though we have shown that the President did have authority to roll out DACA.  The nation waits.

THEY STILL HAVE THEIR DREAM: LAWSUIT AGAINST DREAMERS WILL GO NOWHERE

By Gary Endelman and Cyrus D. Mehta

“The arc of the moral universe is long but it bends towards justice.” Dr. Martin Luther King
As if the non-recognition by the governors of Arizona, Nebraska, Texas and Mississippi of Obama’s Consideration of Deferred Action for Childhood Arrivals (DACA) program was not enough, a lawsuit filed by disgruntled ICE agents further reveals the misguided hate against a most vulnerable and sympathetic immigrant population in the US – young  people who entered the US before they turned 16, and who are not in a lawful status through no fault of their own.

The lawsuit, Crane v. Napolitano, has been filed by 10 ICE agents in a federal court in Texas who are being represented by Kris Kobach – the architect of the anti-immigrant state laws of Arizona and Alabama. It is being bank rolled by NumbersUSA, an anti-immigrant organization, which has been called a hate group. Even the head of the AFL-CIO has slammed the plaintiffs as not representing legitimate union grievances (as 9 out of the 10 plaintiffs belong to the ICE Union) but as “working with some of the most anti-immigrant forces in the country, forces that have long sowed division and destruction.”

The lawsuit alleges that the recent prosecutorial discretion policies enunciated in the Memo by ICE Director John Morton  and DACA command ICE officers to violate federal law. In essence, ICE officers, according to plaintiffs,  are required to remove non-citizens who are not here legally while DACA prohibits an officer from doing just that, which among other things, requires the individual to have entered the US under the age of 16;  been continuously residing in the US from June 15, 2007 until June 15, 2012, and was present on June 15, 2012;  is currently in school, has graduated from high school or obtained a GED or has been honorably discharged from the Armed Forces or the Coast Guard;  and is not above the age of 30. Also, the qualified individual should not have been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and does not otherwise pose a threat to national security or public safety.

The lawsuit invokes provisions from the 1996 Immigration Act. The complaint alleges as follows:  “8 U.S.C. § 1225(a)(1) [INA § 235(a)(1)] requires that “an alien present in the United States who has not been admitted…shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers 8 U.S.C. § 1225(a)(3) [INA § 235(a)(3)] which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers 8 U.S.C. § 1225(b)(2)(A)  [INA § 235(b)(2)(A)] which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” The proceedings under 8 U.S.C. § 1229a [INA § 240] are removal proceedings in the United States immigration courts.”

Deferred action is neither recent nor radical. Widows of US citizens have been granted this benefit. Battered immigrants  have also known its sheltering arms.  Never has the size of a vulnerable population been a valid reason to say no. Knowing this, the extension of such relief to DACA applicants is less a leap into the unknown justified by some wild, lawless ideology than a sober reaffirmation of an existing tool for remediation in prior emergencies. Moreover, many EWIs are also eligible for adjustment of status under special provisions of the law, but they are not routinely detained under INA § 235(b)(2)(A).  While they may be entitled to admission beyond a clear doubt, such a determination is not been made upon the mere filing of the adjustment application. Moreover, this argument is clearly not applicable to individuals who enter the US on a valid visa and overstay, which is the case with many DACA applicants.

Also, Kobach’s lawsuit conveniently omits to mention INA § 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the Act, which in turn implies that the DHS can decide when to and when not to remove an alien. He also fails to mention INA 274A(h)(3)(B), which excludes from the definition of “unauthorized alien” any alien “authorized to be so employed . . . by the Attorney General.” After all, 8 CFR 274a.12(c)(14),  which authorizes the grant of employment authorization to one who has been granted deferred action, has been around for several decades. The only new thing about DACA is that the guidance memorandum set forth criteria for the grant of deferred action, and work authorization under 8 CFR 274a.12(c)(14).Congress too has recognized “deferred action” in § 202(c)(2)(B)(viii) of the REAL ID Act as a status,  which can allow an alien to receive a driver’s license.  This stands in marked contrast to the stated refusal of the Republican gubernatorial quartet noted supra to allow issuance of state driver’s licenses. Texas Governor Perry apparently does not realize that current Texas law already allows deferred action beneficiaries who have an employment authorization document to get a one-year Texas license.

There is a direct conflict between these Governors and the provisions of the Real ID act that, as of January 1, 2013, will sanction issuance of state driver’s license to deferred action grantees, This has been brought out vividly in Nightmare in Arizona: Governor Brewer’s Nonsensical And Mean-Spirited Executive Order Against Dreamers, and is a classic example of conflict pre-emption that is constitutionally impermissible under Arizona v. United States, 132 S. Ct. 2492, 183  L.Ed.2d  351 (2012). Whatever state executives may think, when confronted with the expressed intent of Congress in the Real ID Act, their opposition to deferred action having state driver’s licenses must give way. State law cannot “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz,  312 U.S. 52, 67 (1941). We suggest that the enemies of Dream Act relief tread softly and with great care. Gary Endelman & Cynthia Lange, The Perils of Preemption: Immigration and the Federalist Paradox, 13 Bender’s Immigr. Bull. 1217 (Oct. 1, 2008).

We refer our readers to the excellent Immigration Impact blog on why Kobach and the plaintiffs will likely lose. One compelling argument that the blog makes is that the court will dismiss for lack of jurisdiction since a federal case cannot be made out of a difference of opinion between government employees and their superiors. The blog’s author Ben Winograd draws this apt analogy: “ICE agents hauling the head of the Department of Homeland Security (DHS) into court is like a law clerk suing a judge for writing a decision with which she disagrees—or Kobach’s own subordinates in Kansas seeking an injunction requiring him to perform his actual job as Kansas Secretary of State. It’s just not how the legal system works.”

We propose further suggestions why the law suit may have no merit. We now revive the argument that we made in The Tyranny of Priority Dates that the courts will most likely give deference to the administration’s interpretation of INA provisions in the event that it grants benefits, such as work authorization, through executive action. Indeed, in the recent past, another restrictionist group filed a similar law suit against an administrative measure, which failed. In Programmers Guild v. Chertoff,  08-cv-2666 (D.N.J. 2008), the Programmers Guild sued DHS challenging the regulation extending Optional Practical Training from 12 months to 29 months for STEM (Science, Technology, Engineering and Math) students. The plaintiffs in seeking a preliminary injunction argued that DHS had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron,  the agency’s interpretation will also trump a judicial decision interpreting the same statute. The court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff,  338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevron or Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

In the ICE agents’ case against DACA, the same arguments can be forcefully made. In the event that the court finds jurisdiction, a similar argument can be made that the DHS be given deference in interpreting INA § 103(a)(1), which would allow the DHS Secretary to set forth policies regarding the exercise of prosecutorial discretion as in the Morton Memo and under DACA. Surely, the “body of experience” and the “informed judgment” that DHS brings to the Dream Act provide its interpretations with  “ the power to persuade.” Skidmore  v. Swift  & Co., 323 U.S. 134, 140 (1944). As Justice Elena Kagan famously noted when she served as the Dean of the Harvard Law School, the increasingly vigorous resort to federal regulation as a tool for policy transformation by all Presidents since Ronald Reagan has made “the regulatory activities of the executive branch agencies more and more an extension of the President’s own policy and political agenda.” Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246 (2001).  Kobach and his clients might profitably peruse Randolph J. May, Defining Deference Down: Independent Agencies and Chevron Deference, 58 Admin. L. Rev. 429 (2006) if they really want to know why they are wrong.  Writing for the Brand X majority, Justice Thomas noted that, in Chevron itself, the Supreme Court deferred to the reversal by the Reagan EPA in 1981 as to the meaning of “statutory source” in the 1977 Clean Air Act amendments. Id. at 440, n. 66.   If  Kobach does not know if the DHS has the power to act, or what the constitutional wellsprings of the DACA memoranda are, we suggest that the Supreme Court does. The very notion of Chevron-deference is “premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gap.” FDA v. Brown & Williamson Tobacco Corp., 529 US 120, 159 (2000).  That is precisely what the DHS has done. Moreover, INA § 274A(h)(3)(B) provides authority to the Executive Branch to grant employment authorization  to whomever it wants. Deferred action has also been around for decades, and Congress has been aware of this administrative benefit, which it recognized when enacting the Real ID Act. Until now, Chevron, and Brand X in particular, have been feared by the immigration bar and immigration advocates for its negative potential as a legitimization of government repression. Yet, it has a positive potential by enabling the Executive to expand individual rights and grant benefits sua sponte. We do not need to live in fear of Brand X. We can make it our own – at least in this law suit challenging DACA.

It is also worth mentioning that while the lawsuit may argue that there is no express Congressional authorization for the Obama Administration to implement such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Administration under through the Morton Memo and DACA is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Nativist lawyers look in vain for explicit authority in the INA that supports DACA relief. They can stop searching:

Congress …may not have expressly delegated authority to…fill a particular gap. Yet,it can still be apparent from the agency’s generally conferred authority that Congress will expect the agency to speak with the force of law when it addresses ambiguity in the statute…even one about which Congress did not actually have an intent as to a particular result.   United States v. Mead, 533 U.S. 218, 229(2001)

Finally, one cannot separate the vitriol against DREAMers in states like Arizona and the law suit challenging DACA. They emanate from the same xenophobia against immigrants without being able to see that the deserving beneficiaries of DACA are out of status for no fault of their own, and even if one pinpoints the blame on their parents, the reason for such a huge undocumented population is because of a broken immigration system that does not provide sufficient avenues to legalize oneself. This law suit challenging DACA, along with the opposition to DACA by the Arizona and other states, essentially challenges the federal government’s authority to exercise prosecutorial discretion. We think this is a losing proposition. In the Arizona v. USA decision, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion, where Justice Kennedy writing for the majority in that decision noted, “A principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials as an initial matter, must decide whether it makes sense to pursue removal at all.”  Kobach wants the Dreamers kicked out; neither he nor his ICE agents get to make that call; it is up to DHS to decide when, or whether, to initiate such an enforcement campaign.  Heckler v. Chaney, 470 U.S. 821, 835 (1985).  The reason is not hard to figure out;   inherent in the exercise of discretion is the bedrock truth that there is simply “no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410(1971). The good sense and fundamental decency of the American people, guided by the continuing truth of the Constitution, will have to make due. It has served us pretty well so far.

NIGHTMARE IN ARIZONA: GOVERNOR BREWER’S NONSENSICAL AND MEAN-SPIRITED EXECUTIVE ORDER AGAINST DREAMERS

On August 15, 2012, the day that the Consideration of Deferred Action For Childhood Arrivals programs (DACA) took effect, thousands of young undocumented people lined up at legal assistance clinics with hope and joy. They got to know whether they were eligible to file an application under DACA, and by filing an application, their deportation would be deferred and they would also obtain employment authorization.

It was extremely gratifying to be an immigration attorney that day volunteering at a DACA legal assistance clinic organized by the New York Immigration Coalition, among others. I could see in the twinkle in the eyes of each potential youth applicant when told that he or she could file under DACA. That twinkle revealed a whole new world of opportunity opening up. The sky seemed to be the limit, which before the June 15, 2012 announcement was simply unimaginable.

I could not help broadcast this tweet, @cyrusmehta.com:

To see hope and joy in the faces of 100s lining up at pro bono #DACA clinic of #NYIC+ #AILA NY makes being an #immigration attorney gratifying

As I was basking in the glow of that day and returning home on the New York subway, I saw on my Twitter feed that Governor Brewer of Arizona passed a mean spirited and hateful executive order that evening. According to the executive order, since deferred action does not confer lawful status or lawful presence, the alien granted employment authorization under DACA continues to be unlawfully present, and thus cannot avail of benefits in Arizona, including a driver’s license. I love Twitter because I can instantly express my thoughts, and hopefully there is an audience. These were my new tweets, quite different from the prior exuberant one, in reaction to the horror of Brewer’s executive order:

Brewer’s executive order is unlawful & wicked – there are many who are allowed to remain without lawful status. When is she being sued? #DACA

Brewer’s mean spirited exec order against granting #DACA applicants AZ driver’s licenses will help Obama in elections, http://bit.ly/N4LE8E

I write this blog to expand on my impetuous tweets of last evening.

First, deferred action has existed for several decades. Many have been granted deferred action, including John Lennon. Prior the announcement of DACA, non-citizens who have demonstrated extenuating circumstances, such as medical emergencies or who have lost parents, have been granted deferred action. In recent times, battered spouses, crime victims and widows/ers of US citizens have also been granted deferred action. There are other non-ctiizens who may not have lawful status but are allowed to remain in the US. These include people who are presently in removal proceedings. Even those who have been ordered removed, such as through the grant of withholding of removal (based on persecution in their home countries), can remain in the US and obtain work authorization. Moreover, due to a quirky split in jurisdiction involving arriving aliens between Immigration Court and USCIS, arriving aliens cannot file defensive adjustment applications in Immigration Court, but have to file them with the USCIS while an Immigration Judge can still order them removed. If the adjustment application is approved, they can become lawful permanent residents despite the removal order. How will Brewer’s executive order be able to differentiate between each of these categories of people who have been allowed to remain in the US?

Second, the grant of deferred action stops the accrual of unlawful presence. However, unlawful presence is different from unlawful status. Governor Brewer’s executive order does not seem to understand the difference. Unlawful presence is relevant, according to the USCIS DACA guidance, only with respect to determining whether one is inadmissible under the 3 and 10 year bars. Unlawful presence has nothing to do with status or the ability to remain in the US. There are situations when one may not be in lawful status and yet not be accruing unlawful presence since they are in a “period of stay authorized by the Attorney General.” A classic example is someone who entered lawfully as a tourist, fell in love with a US citizen and married him. She filed an adjustment of status application based on the US citizen spouse’s green card sponsorship. She is allowed to remain in the US while waiting for the green card, although her underlying tourist visa has expired. Such a person may not be in lawful status but is in a “period of stay authorized by the Attorney General” and is also not accruing unlawful presence. Governor Brewer’s executive order does not seem to have grasped any of these distinctions.

Third, in Arizona v. USA, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion. As noted in a prior blog I wrote with Gary Endelman, Justice Kennedy writing for the majority in that decision noted:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Arizona v. USA, supra, Slip Op. at pages 4-5.

Although the Supreme Court struck down all of the other provisions of Arizona’s SB 1070, it narrowly upheld 2(B), the “show me your papers” law, which requires state officers to make “a reasonable attempt….to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Section 2(B) further provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” The Supreme Court upheld the provision, for now, since it had not taken effect, but cautioned that a person’s detention under an Arizona provision cannot be prolonged because the state cannot readily determine this person’s immigration status.

Governor Brewer, through her executive order, has perhaps unwittingly opened up another challenge to 2(B). By not recognizing that a grant of deferred action to remain lawfully and work in the US, it will be disregarded by Arizona’s law enforcement personnel, such as by the notorious Sheriff Joe, and his troopers, when he stops a non-citizen for jay walking and suspects that a person is unlawfully present in the US. Even if this DREAMer shows Sherrif Joe an employment authorization that was issued through a DACA filing, it could be disregarded and the person’s detention could be needlessly prolonged even though the federal government has allowed this person to lawfully remain in the US and no longer considers him unlawfully present for purposes of the 3 or 10 year bar.

Finally, it remains to be seen whether Brewer’s executive order will be politically viable. The GOP may see more Latino voters flee by the November elections, and the future of the party without support from Hispanics and minorities looks grim. Moreover, the granting of status to undocumented youth under the proposed DREAM Act, with promise to do well and contribute to the US, has broad support among the American people. Governor Brewer will likely find herself on the wrong side of history, only to be relegated forever in its garbage heap.

THROUGH THE LOOKING GLASS: ADVENTURES WITH ARRABALLY AND YERRABELLY IN IMMIGRATION LAND

By Gary Endelman and Cyrus D. Mehta

“Why, sometimes I’ve believed as many as six impossible things before breakfast.”

― Lewis Carroll, Alice in Wonderland

Arrabally and Yerrabelly are not characters in a children’s fantasy story book. They were the respondents in a decision of the Board of Immigration Appeals styled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which to immigration attorneys is like a fairy tale story come true. The decision is magical, and truly benefits foreign nationals who are subject to the 3 and 10 year bars even if they travel abroad.

Indeed, Arrabally and Yerrabelly, husband and wife respectively, were unlawfully present for more than 1 year. A departure after being unlawfully present from the US for one year renders the individual inadmissible for a period of 10 years. Specifically, § 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (INA) provides:

Any alien (other than an alien lawfully admitted for permanent residence) who –

(II) has been unlawfully present in the United States for one year or more , and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible

A companion provision, INA § 212(a)(9)(B)(i)(I) triggers a 3 year bar if the non-citizen is unlawfully present for more than 180 days and less than one year, and leaves the US prior to the commencement of removal proceedings.

The 3 and 10 year bars create a federal Catch-22. An individual who is unlawfully present cannot generally apply for lawful permanent residence in the US through adjustment of status unless he or she falls under limited exceptions. Such an individual who is ineligible to apply for a green card in the US must leave the US to process for an immigrant visa at an overseas consular post. But here’s the catch: If this person leaves the US he or she will trigger the bar and cannot return for 10 years. Thus, this person, even though approved for a green card, remains in immigration limbo.

Arrabally and Yerrabelly were unlawfully present too for more than 1 year, and would have triggered the 10 year bar had they “departed” the US. Fortunately, they were able to file Form I-485 applications for adjustment of status under an exception, INA § 245(i), after the employer’s I-140 petition got approved. § 245(i), which expired on April 30, 2001 but which could still grandfather someone if an immigrant petition or labor certification was filed on or before that date,  allows those who are out of status to  be able adjust status to permanent residence in the US. Due to a family emergency in India, they left the US under advance parole, which is a special travel dispensation one can obtain when one is a pending applicant for adjustment of status. At issue is their case was whether they effectuated a “departure” under advance parole and thus triggered the 10 year bar.

The DHS has always taken the position that leaving the United States under advance parole effectuates a departure and thus triggers the 10 year bar under § 212(a)(9)(B)(i)(II) if the individual is unlawfully present for one year.

The adjustment of status applications of Arrabally and Yerrabelly were denied on the basis that they were inadmissible for 10 years, and were subsequently placed in removal proceedings. The Immigration Judge affirmed the DHS’s finding, but the BIA like magic reversed on the ground that their leaving the US under advance parole did not result in a departure pursuant to § 212(a)(9)(B)(i)(II) thus rendering them inadmissible under the 10 year bar. The BIA reasoned that travel under a  grant of advance parole is different from a regular departure from the US, since the individual is given the assurance that he or she will be paroled back in the US to continue to seek the benefit of adjustment of status. Thus, traveling outside the US under advance parole does not trigger the 10 year bar. Although Matter of Arrabally and Yerrabelly interpreted the 10 year bar provision under § 212(a)(9)(B)(i)(I), its logic can apply equally to the 3 year bar under § 212(a)(9)(B)(i)(I).

The decision now allows foreign nationals like Arrabally and Yerabelly, who may have been unlawfully present to travel outside the US on advance parole while their adjustment of status applications are pending without fearing the 10 year bar. But the decision opens up other amazing possibilities too. If a person is unable to adjust status by virtue of being out of status, and cannot do so under the § 245(i) exception, another exception is by adjusting status as an immediate relative of a US citizen. The spouse, minor child or parent of a US citizen can adjust status in the US even if they have violated their status. However, this individual must still be able to demonstrate that he or she was “inspected and admitted or paroled” in the United States under INA § 245(a) as a pre-condition to file an adjustment of status application in the US.  Thus, a person who enters the US surreptitiously without inspection is ineligible to adjust status to permanent residence in the US despite being married to a US citizen. Such a person may still have to proceed overseas at a US consulate for immigrant visa processing, and will need to overcome the 10 year bar through a waiver.  This would not be necessary if such immediate relative could be granted “parole-in-place” which at this point of time is only granted to spouses of military personnel in active duty. In the leaked July 2010 memorandum to USCIS Director Mayorkas, the suggestion is made that the USCIS “reexamine past interpretations of terms such as ‘departure’ and ‘seeking admission again’ within the context of unlawful presence and adjustment of status.”

Notwithstanding the lack of “parole in place” for all applicants,  in yet another ground breaking case, Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), the BIA held that someone who presents herself at the border, but is waived through, is still inspected for purposes of adjustment eligibility. For example, a person who is a passenger in a car, and is waived through a border post at the Mexico-US border can still establish a lawful entry into the US. Matter of Quilantan can be further extended to someone who enters the US with a photo-switched fraudulent non-US passport. Such a person has also been inspected, albeit through a fraudulent identity. Foreign nationals in such situations, if they can prove that they were inspected, can qualify to apply for their green cards in the US through adjustment of status if they marry a US citizen or are the minor children or parents of US citizens.  They may however be subject to other grounds of inadmissibility, such as fraud or misrepresentation, but they can at least file those waivers with an I-485 application in the US. While it is true that in another feat of administrative innovation, the DHS has proposed that some can apply for the waiver of the 3 and 10 year bars in the US prior to their departure, this rule may not extend to applicants who are applying for an additional waiver, such as to overcome the fraud ground of inadmissibility.

Despite Matter of Quilantan, USCIS examiners during an adjustment of status interview require corroborating evidence of this admission, and may not accept only the sworn statement of the applicant regarding the manner of his or her entry into the US. They may want to actually see the photo-switched passport, which may no longer in the possession of the applicant.  Such a person may still be found ineligible to adjust status despite being inspected and admitted in the above manner under Matter of Quilantan. But if this person, after filing an adjustment of status application, left the US under advance  parole and returned to the US, he or she would be considered  “paroled” into the US and qualify for a new adjustment of status application as an immediate relative of a US citizen. If the first I-485 application is denied, he or she could file this second application where the “parole” would be a clearer basis for adjustment eligibility than the initial “waived through” or fraudulent admission.  Moreover, under Matter of Arrabally and Yerabelly, this individual would not have triggered the 10 year bar during travel under advance parole during the pendency of the first adjustment application. Travelling abroad under advance parole during the first adjustment application without triggering the 10 year bar could give an applicant a second bite at the apple in filing another adjustment application if the first one gets denied for lack of evidence of an admission. There is one caveat though. This is still an untested theory but the authors do not see why it could not be argued in the event of a denial of the first adjustment application, assuming it was filed in good faith and denied only because of lack of corroboration of the admission. Using Matter of Arrabally and Yerrabelly in the manner we propose seeks to do just that. Once again, as with the concept of parole, we seek to build on past innovation to achieve future gain.

Matter of Arrabally and Yerrabelly can come to the rescue of DREAMers too. In our recent blog, DEFERRED ACTION: THE NEXT GENERATION, June 19, 2012, we proposed extending the holding of Matter of Arrabally and Yerrabelly to beneficiaries of deferred action. There are bound to be many who will be granted deferred action who will also be on the pathway to permanent residence by being beneficiaries of approved I-130 or I-140 petitions.  As already explained, unless one is being sponsored as an immediate relative, i.e. as a spouse, child or parent of a US citizen, and has also been admitted and inspected, filing an application for adjustment of status to permanent residence will generally not be possible for an individual who has failed to maintain a lawful status under INA § 245(a). Such individuals will have to depart the US to process their immigrant visas at a US consulate in their home countries. Although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence. Thus, one who has accrued over one year of unlawful presence and departs the US in order to process for an immigrant visa will most likely face the 10 year bar under INA § 212(a)(9)(B)(i)(II). While some may be able to take advantage of the proposed provisional waiver rule, where one can apply in the US for a waiver before leaving the US, not all will be eligible under this new rule.  A case in point is someone who is sponsored by an employer under the employment-based second preference, and who may not even have a qualifying relative to apply for the waiver of the 10 year bar.

Since the publication of our blog, the USCIS has issued extensive guidelines for consideration of Deferred Action for Childhood Arrival (DACA) in the form of Frequently Asked Questions (FAQ), which will take effect on August 15, 2012.  We were pleasantly surprised to find in the FAQ that those granted deferred action beneficiaries can apply for advance parole.  It is yet unclear whether one who has been granted deferred action and who has accrued unlawful presence and travels under advance parole can take advantage of Arrabally and Yerrabelly and the current FAQ does not suggest it.  At this point, a DACA applicant should assume that Arrabally and Yerrabelly will not apply, and an individual who has accrued over one-year of unlawful presence and leaves even under advance parole could face the 10-year bar.    Still, there is no reason for Arrabally and Yerabelly’s magic to not apply in this case too. Here too, the individual will be leaving the US under advance parole, which under Matter of Arrabally and Yerabelly, did not effectuate the departure under INA § 212(a)(9)(B)(i)(II). This is something worth advocating for with the USCIS as the DACA program unfolds. Obviously, USCIS will tread carefully as it is already facing criticism from opponents of the program, including members of Congress. Yet, applying Matter of Arrabally and Yerrabelly to young people who have been granted a fresh lease of life would be a logical extension.  The FAQ also indicates that the USCIS will only grant advance parole if one is travelling for humanitarian purposes, education purposes or employment purposes. Again, the FAQ does not expand on what humanitarian, education or employment purposes mean.  A deferred action beneficiary with an approved I-130 or I-140, which has become current for green card processing, can conceivably apply for advance parole based on humanitarian purposes to apply for immigrant visa at the consular post overseas.   His or her departure under advance parole, if Matter of Arrabally and Yerrabelly applies, will not trigger the 10 year bar. If this person successfully comes back on an  immigrant visa to be granted permanent residence upon admission, query whether the holding will still apply.  After all, the BIA in Arrabally and Yerrabelly contemplated a return as a parolee and not as a permanent resident.  Yet, again, just as the BIA performed magic when interpreting “departure” to not apply to those leaving the US under advadnce parole, there is no reason for the USCIS to not stretch it to a scenario where the deferred action beneficiary will leave on advance parole, thus not triggering the 10 year bar, in order to return to the US as an immigrant.  This is clearly not the current position of the USCIS as articulated in its FAQ.  The purpose of our blog is to advance interpretations that would be favorable for DREAMers down the road.

On the other hand, Matter of Arrabally and Yerrabelly can be more readily applied to those who otherwise would not be able to adjust status if they made an entry without inspection but were immediate relatives of US citizens. Such people would not need to process an immigrant visa at a US consulate overseas if they could adjust status.  Unlike an adjustment of status applicant, a DACA applicant can file an application for deferred action even if he or she entered without inspection. If later, this applicant, now granted deferred action, married a US citizen, he or she could leave under advance parole and not trigger the 10 year bar. At the same time, he or she would have also been paroled back into the US, making him or her eligible to adjust status, which prior to the parole would not have been possible. This fact pattern clearly falls under the four corners of Matter of Arrabally and Yerrabelly as opposed to someone proceeding overseas under advance parole and returning as a permanent resident. Yet, we reiterate, at this point, it is not at all clear whether Matter of Arrabally and Yerrabelly will apply to deferred action beneficiaries who travel abroad, and they should seek the advice of competent legal counsel before they wish to apply for advance parole in order to travel.

While DACA is clearly not designed to create a pathway to permanent residence, Matter of Arrabally and Yerrabelly can facilitate this indirectly through independent I-130 or I-140 petitions that were filed on behalf of the deferred action beneficiary. Although only Congress can change the law, the President can find new ways to expand the relief available under current law. Our proposal would relieve the Administration from the burdens of extending deferred action every two years (assuming the program lasts for that long) once the beneficiary is granted permanent residence. After all, until Congress acts to reform our broken immigration system, it behooves us to be wildly creative, even to the extent of imagining that fairy tales might become reality, like what the BIA achieved in Matter of Arrabelly and Yerrabelly. Indeed, precisely because DACA is a remedial initiative, it deserves and should be granted the most generous administration infused with the central goal of remaining true to the reasons that inspired its creation. For this to happen, we turn to the wisdom of Albert Einstein:

When I examine myself and my methods of thought, I come to the conclusion that the gift of fantasy has meant more to me than any talent for abstract, positive thinking
All we have to do is dream!

Dreaming in Arizona: Can Prosecutorial Discretion Co-Exist With Show Me Your Papers?

By Gary Endelman and Cyrus D. Mehta

In our blog, From Madison to Morton: Can Prosecutorial Discretion Trump State Action In USA v. Arizona?, we speculated whether the federal government’s ability to decide not to remove certain non-citizens from the US would be its trump card in Arizona v. USA, 567 U.S ___ (2012). A few days prior to Arizona v. USA, the Obama administration announced deferred action for young persons via a June 15, 2012 memorandum, which will prevent the deportation of over a million people who fell out of status of no fault of their own while Arizona’s SB 1070 aims at driving away these very people through an attrition policy. These young people who will benefit under administrative deferred action would have otherwise been eligible under the DREAM Act, which narrowly failed to pass Congress in December 2010.

We were almost correct. In a 5-3 ruling (with Justice Kagan recusing), the Supreme Court invalidated most of the provisions of SB 1070 on the grounds that they were preempted by federal law such as criminalizing the failure to carry registration documents (section 3), criminalizing an alien’s ability to apply for or perform work (section 5(c)), and authorizing state officers to arrest a person based on probable cause that he or she has committed a removable offense (section 6). On the other hand, the Supreme Court, 8-0, narrowly upheld section 2(B), the “show me your papers” law,  which requires state officers to make “a reasonable attempt….to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Section 2(B) further provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.”

Before we analyze the Court’s narrow upholding of section 2(B) and how it would impact the federal government’s prosecutorial discretion policies, the following extract from Justice Kennedy’s majority opinion acknowledging the federal government’s ability to exercise prosecutorial discretion is worth noting:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

 Arizona v. USA, supra, Slip Op. at pages 4-5.

It is indeed unfortunate that despite noting the role of the federal government in formulating immigration policy, the Court did not, at least for the moment, invalidate 2(B), which essentially legalizes racial profiling. See US v. Brignoni-Ponce, 422 US 873 (1975) (Mexican ancestry on its own cannot be an articulable fact to stop a person). The Court was obviously mindful of concerns relating to racial profiling, but the case that the United States brought against Arizona is more about whether federal immigration law preempts 2(B) and the other provisions of SB 1070. Both conservative and liberal justices did not think so since 2(B) was not creating a new state immigration law as the other invalidated provisions did. All that 2(B) does is to allow Arizona police officers to determine if someone was unlawfully present in the context of a lawful stop by inquiring about that person’s status with the federal Department of Homeland Security, and such communication and exchange of information has not been foreclosed by Congress.

The question is whether 2(B) will interfere with the federal government’s dramatic new prosecutorial initiative to not deport over a million young undocumented people if they met certain criteria. The June 15 memorandum on deferred action directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

Even though the new deferred action policy has not been implemented, the memorandum instructs ICE and CBP to refrain from placing qualified persons in removal proceedings or from removing them from the US. How does this very explicit instruction to ICE and CBP officials square with Arizona’s section 2(B)?  While Justice Scalia, who fiercely dissented and blasted the Obama administration from the bench, saw no need for preemption of any of Arizona’s provisions based on the federal government’s ability to exercise prosecutorial discretion, the majority, fortunately, were more mindful of this factor. Suppose a young DREAMer who prima facie qualifies under the deferred action program was stopped for jaywalking in Tuscon, and the Arizona police officer had a reasonable suspicion that her presence was unlawful, would it be reasonable for the police officer to detain this person even though she would not ordinarily be detained for the offense of jay walking? Even if the Arizona officer could query ICE about her status, how long would it take for ICE to respond? Moreover, even though she may qualify for the deferred action program, how would ICE be able to tell if there is no record of her application at all? DHS has yet to even create an application process, but it has instructed its officers from immediately refraining placing such persons in removal proceedings or removing them from the US. Even once an application is lodged, it may take weeks or months before the DHS is able to grant deferred action. While this person should not be apprehended by the federal government under its deferred action policy, Arizona could potentially hold her.

But not for long.The majority explicitly held that 2(B) should be read to avoid the hold of a person solely to verify his or her immigration status. The Court noted in connection with the jaywalker hypothetical, “The state courts may conclude that unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.” Slip Op. at 22 (citation omitted). Even in a case where a person is held in state custody for a non-immigration offense, the Court cautioned that the delay in obtaining verification from the federal government should not be a reason to prolong that person’s detention. The Court also suggested that 2(B) ought to be “read as an instruction to initiate a status check every time someone is arrested…rather than a command to hold the person until the check is complete no matter the circumstances. Slip Op. at 23. This temporal limitation harkens back to the Court’s rationale for justifying warrantless stops by roving patrols in the border regions with Mexico in Brignoni-Ponce:

The intrusion is modest. The Government tells us that a stop by a roving patrol “usually consumes no more than a minute.” Brief for United States 25. There is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside…(citation omitted) . According to the Government ;”[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.  422 US at 880.

Finally the Court noted that its opinion did not foreclose other preemption and constitutional challenges as the law as interpreted and applied after it goes into effect. This is particularly the case if delay in the release of a detainee flowed from the requirement to check their immigration status. Indeed, it is only if such status verification took place during a routine stop or arrest and could be accomplished quickly and efficiently could a conflict with federal immigration law be avoided.

As for Justice Scalia, who concurred with the majority on 2(B), but also dissented as he would have upheld all of the other provisions, it is ironic that he is willing to have Arizona add to penalties imposed by Congress but not willing to let the President, a co-equal branch whose role in federal immigration policy is certainly less subject to challenge than that of the states, relieve the harsh impact of such penalties for a discretely delineated protected class. It is also ironic that theAdministration is actively moving ahead to find an administrative solution to our broken immigration system by granting DREAM act relief while Arizona seeks to uphold its right to put in place an enforcement mechanism it may not seek to enforce, if only to avoid further constitutional challenge.

It does not require a crystal ball to imagine that 2(B), if enforced,  will cause mayhem for young DREAMers and their ability to remain in the US through further administrative remedies, despite the Court’s narrow upholding of the provision. It will be difficult, if not impossible, for ICE to communicate with certainty to overzealous Arizona officials like Sheriff Joe that a young person who qualifies for the deferred action program is not unlawfully present. In fact, such a person continues to be unlawfully present even though he or she may qualify for deferred action presently, prior to the filing of the application. Moreover, even after an application is filed, it is not clear how long DHS will actually take to grant deferred action and such a person will still remain unlawfully present during the pendency of the application. Although the grant of deferred action stops unlawful presence for purposes of the federal 3-10 year bars to reentry, it is not clear whether the Arizona definition of lawful presence would recognize someone who has an outstanding removal order but who has also been granted deferred action.  This situation, and many others, such as a potential US citizen being detained for being suspected of being unlawfully present, will result in further challenges to 2(B), which hopefully, the next time around, will be successful.

The Court upheld 2(B) because there was no evidence that Arizona was yet enforcing it. Indeed, for all practical purposes, it had yet to go into effect. Given the natural judicial reluctance to fray the bonds of federalist comity, the Supreme Court stayed its hand for now so that state courts could determine whether SB 1070 could be consistently administered within the straitjacket of the Supreme Court’s ruling. So, in this sense, the issue was not ripe for a determination on pre-emption.  When will this change? How many will have to suffer the consequences before the Supreme Court will act? For this reason, knowing what the future will bring, the nation and its liberties would have been better served if 2(B) had been invalidated.   It is hard to imagine how Section 2(B) can survive if and when Arizona tries to make it come alive. Let us not forget that, despite Arizona Governor Brewer’s protestation to the contrary, the real guts of this law, the warrantless arbitrary arrest powers granted by Section 6, did not survive today. The rule of law did. The status check authorized by Section 2(B) can only happen after there is probable cause to believe that a non-immigration law violation has taken place, and they happen very quickly so as not to prolong any stop or detention. For all our concerns, and despite our fondest hopes for a more sweeping victory, the Supreme Court has reaffirmed our oldest national tradition, that here in America, there is still much room to dream- in Arizona and beyond.

Deferred Action: The Next Generation

By Gary Endelman and Cyrus D. Mehta

President Obama at last came through with a bold memorandum on June 15, 2012, executed by DHS Secretary Janet Napolitano, granting deferred action to undocumented people. The Administration has always had authority to grant deferred action, which is a discretionary act not to prosecute or to deport a particular alien. While critics decry that Obama has circumvented Congress, the Administration has always had executive branch authority to exercise prosecutorial discretion, including deferred action, which is an expression of limited enforcement resources in the administration of the immigration law. It makes no sense to deport undocumented children who lacked the intention to violate their status and who have been educated in the US, and who have the potential to enhance the US through their hard work, creativity and determination to succeed.

We have always advocated that the Administration has inherent authority within the INA to ameliorate the hardships caused to non-citizens as a result of an imperfect and broken immigration system. In Tyranny of Priority Dates, we argued that the Administration has the authority to  allow non-citizens who are beneficiaries of approved family (I-130) or employment-based (I-140) petitions affected by the crushing backlogs in the priority date system to remain in the US through the grant of parole under INA 212(d)(5) based on “urgent humanitarian reasons or significant public benefits.” When the DREAM Act passed the House in 2010, but narrowly failed to garner the magic super majority of 60 in the Senate, we proposed that the President could also grant similar parole to DREAM children as well as deferred action in our blog, Keeping Hope Alive: President Obama Can Use His Executive Power Until Congress Passes The Dream Act.

The new memorandum directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

While this memorandum is indeed a giant step in providing relief to a class of immigrants who have been out of status for no fault of their own, we propose other incremental administrative steps so that such individuals, even after they have been granted deferred action and work authorization, can obtain permanent residence. We are mindful, as the accompanying FAQ to the memorandum acknowledges, that the grant of deferred action does not provide the individual with a pathway to permanent residence and “[o]nly the Congress, acting through its legislative authority, can confer the right to permanent lawful status.”  But just as people were skeptical about our ideas for administrative action when we first proposed them, some of which has come to fruition, we continue to propose further administrative steps that the President can take, which would not be violative of the separation of powers doctrine.

There are bound to be many who have been granted deferred action to also be on the pathway to permanent residence by being beneficiaries of approved I-130 or I-140 petitions. Unless one is being sponsored as an immediate relative, i.e. as a spouse, child or parent of a US citizen, and has also been admitted an inspected, filing an application for adjustment of status to permanent residence will not be possible for an individual who has failed to maintain a lawful status under INA § 245(a). Such individuals will have to depart the US to process their immigrant visas at a US consulate in their home countries. Although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence. Thus, one who has accrued over one year of unlawful presence and departs the US in order to process for an immigrant visa will most likely face the 10 year bar under INA § 212(a)(9)(B)(i)(II). While some may be able to take advantage of the proposed provisional waiver rule, where one can apply in the US for a waiver before leaving the US, not all will be eligible under this new rule.  A case in point is someone who is sponsored by an employer under the employment-based second preference, and who may not even have a qualifying relative to apply for the waiver of the 10 year bar.

We propose that the USCIS extend the holding of the Board of Immigration Appeals in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) to beneficiaries of deferred action. In Arrabelly and Yerrabelly, the BIA held that an applicant for adjustment of status, who leaves the US pursuant to a grant of advance parole, has not effected a departure from the US in order to trigger the 10 year bar under INA § 212(a)(9)(B)(i)(II). If a beneficiary of deferred action is granted advance parole, this person’s trip outside the US under this advance parole ought not to be considered a departure. Such facts would square with Matter of Arrabelly and Yerrabelly if the individual returned back to the US under advance parole. However, here, the individual may likely return back on an immigrant visa and be admitted as a permanent resident. That might be hard to sell to the government – how can you apply for a visa at a consulate in a foreign country and still not leave USA? Still, this idea has merit as it is the initial “departure” under advance parole that would not be a trigger for the bar to reentry, not the subsequent admission as an immigrant. In the leaked July 2010 memorandum to USCIS Director Mayorkas, the suggestion is made that the USCIS “reexamine past interpretations of terms such as ‘departure’ and ‘seeking admission again’ within the context of unlawful presence and adjustment of status.” Using  Matter of Arrabally and Yerrabelly in the manner we propose seeks to do just that. Once again, as with the concept of parole, we seek to build on past innovation to achieve future gain.

As an alternative we propose, as we did in The Tyranny of Priority Dates, that the government, in addition to the grant of deferred action, also grants parole in place on a nunc pro tunc or retroactive basis under INA 212(d)(5).  For instance, the USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” The concept of parole in place was also proposed in the leaked memo. Interestingly, in this memo, a prime objective of granting parole in place was to avoid the need for consular processing of an immigrant visa application: “By granting PIP, USCIS can eliminate the need for qualified recipients to return to their home country for consular processing, particularly when doing so might trigger the bar to returning.”  This would only be the case, however, where the adjustment applicant is  married to a US citizen, or is the minor child or parent of a US citizen,  and need not be barred due to lack of an inspection or admission. Because we advocate a much wider extension of parole in place, the need for retroactivity, both for the parole and companion employment authorization becomes readily apparent. The use of parole in place, while not common, is certainly not without precedent and, as the leaked memo recites, has been expansively utilized to promote family unity among military dependents. For our purposes, “applicants for admission who entered the US as minors without inspection” were singled out as a class for whom parole in place was singularly suitable.

Upon such a grant of parole in place retroactively, non-immediate relatives who have not maintained status may also be able to adjust status.   Such a retroactive grant of parole, whether in the I-130 or I-140 context, would need to be accompanied by a retroactive grant of employment authorization in order to erase any prior unauthorized employment.  We acknowledge that it may be more problematic for the individual to be eligible for adjustment of status through an I-140 employment-based petition rather than an I-130 petition, since INA § 245(c)(7), requires an additional showing of a lawful nonimmigrant status, in the case of an employment-based petition under INA § 203(b).  Still,  the grant of nunc pro tunc parole will wipe out unlawful presence, and thus this individual can leave the US and apply for the immigrant visa in the US Consulate in his or her home country without the risk of  triggering the 3 or 10 year bar.

One conceptual difficulty is whether parole can be granted to an individual who is already admitted on a nonimmigrant visa but has overstayed. Since parole is not considered admission, it can be granted more readily to one who entered without inspection.  But this impediment can be overcome: It may be possible for the government to rescind the grant of admission, and instead, replace it with the grant parole under INA § 212(d)(5). As an example, an individual who was admitted in B-2 status and is the beneficiary of an I-130 petition but whose B-2 status has expired can be required to report to DHS, who can retroactively rescind the grant of admission in B-2 status and be retroactively granted parole.

There may be other obstacles for individuals in removal proceedings or with removal orders, but those too can be easily overcome. If the individual is in removal proceedings, if he or she is also eligible for deferred action, such removal proceedings can be terminated and he or she can also receive a grant of nunc pro tunc parole, thus rendering him eligible for adjustment of status in the event that there is an approved I-130 or I-140 petition. Even a person who already has a removal order can seek to reopen the removal order through a joint or consent motion with the government for the purposes of reopening and terminating proceedings, and this person too could potentially file an adjustment application, if he or she is the beneficiary of an I-130 upon being granted  nunc pro tunc parole, and the beneficiary likewise could travel overseas for consular processing without risking the 10 year bar.

We of course would welcome Congress to act and pass the DREAM Act, as well as Comprehensive Immigration Reform, so that this memorandum does not get reversed or discontinued in the event that a new Administration takes over from January 2013. However, until Congress does not act, the June 15, 2012 memo does provide welcome relief for young people, but it still leaves them in a limbo with only deferred action. The elephant in the room may be whether the USCIS has the capacity to deal with hundreds of thousands of requests for deferred action. In the absence of congressional action, the agency lacks the capacity to charge special fees for this purpose. Consequently,  all relevant federal agencies, including ICE and CBP, must willingly but swiftly reassign existing personnel now devoted to less urgent tasks so that the President’s initiative of last Friday does not become a dead letter. Our proposal for an additional grant of nunc pro tunc parole in place to individuals who have already been conferred deferred action will at least allow them to enter the regular immigration system and hope to adjust status to permanent residence, or consular process, and thus on the path to citizenship, should they become the beneficiaries of approved family or employment-based petitions. Again, as we noted earlier, and as we noted in Tyranny of Priority Dates, we are not asking for the executive branch to create new forms of status. We are only asking for the Executive to remove barriers to the ability of otherwise deserving applicants for permanent residents to take advantage of the existing system. We want to emphasize there is nothing in the INA that prevents the immediate adoption of our recommendations just as there was nothing in the INA that prevented last Friday’s memorandum. We also want to emphasize that I-130’s and I-140s will still be necessary. We do not want to create a new system, only to allow the old one to work more effectively. The future is ours to shape. For those who lack faith, we remind them of Tennyson’s injunction in Ulysses: “Come my friends, ‘tis not too late to seek a newer world.”

FEWER PEOPLE TO GET DEPORTED UNDER NEW POLICY: HAS THE ADMINISTRATION FINALLY COME TO ITS SENSES?

By Cyrus Mehta

The Department of Homeland Security in a letter addressed to Senator Durbin and 21 other senators announced on August 18, 2011 a new policy that would identify low priority removal cases for the exercise of prosecutorial discretion. According to a New York Times story, the beneficiaries of such discretion would also be able to obtain work permits.

This is a refreshingly positive development, and shows that the Obama administration may have hopefully finally come to its senses. At a time when Congress is in a stalemate, and it has been acknowledged that 12+ million people cannot be deported, the administration has used its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. In providing some legal basis for them to remain in the US, they are more likely to add to tax revenues, spur consumer confidence, buy homes and ultimately build businesses that may result in jobs for Americans. On first impression, the new policy appears to be a mere promotion of the Morton Memo of June 17, 2011 on prosecutorial discretion. It does not grant relief on a broad scale, and it appears, if put into effect as promised, that it will probably only assist people on a case by case basis who are already in removal proceedings or will be placed in such proceedings. According to Senator Durbin’s website, this is how the new process will work:

Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on “positive factors” from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria.

On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis.

On the other hand, the new policy involves an inter-agency effort to identify the low priority cases. Under the Morton Memo, only ICE was charged with the responsibility of exercising prosecutorial discretion, and it seemed unlikely that all ICE officials in the field would follow the new mandate. Indeed, there was already a rebellion within the rank and file of ICE against the Morton Memo. The latest inter-agency initiative refreshingly also involves Immigration Judges at the Executive Office for Immigration Review, who could probably coax the ICE prosecuting attorney to terminate a deserving low priority case and take it off their tremendously clogged court calendar. The new initiative ought to also deeply involve the USCIS. Although the USCIS’s mandate is to grant immigration benefits rather than enforce the law, the USCIS is also authorized to issue Notice to Appears upon a denial of a benefits application. If the USCIS applies discretion earlier on, fewer low priority individuals will be placed in removal proceedings in the first place.

Most problematic at this stage with the new policy, as noted by DREAM activist and law student Prerna Lal, who is herself in deportation is that it may not assist those who are in a legal limbo. These are undocumented individuals who have not yet come on the radar of DHS to even be considered being placed in removal proceedings. We surely do not want to encourage the perverse effect of such people coming forward and attempting to be placed in removal proceedings (by say filing a frivolous asylum application) solely to be considered for prosecutorial discretion. This would also defeat the purpose of the new policy as it will create more work than necessary to process people for removal and then consider them under the new policy for prosecutorial discretion. Indeed, the next logical step for the Obama administration and DHS is to affirmatively grant deferred action, parole and work permits to people in legal limbo who can come forward if they meet the same low priority criteria as those who are in removal proceedings or about to be put into these proceedings. The government does have the power to exercise such discretion under the existing provisions of the Immigration and Nationality Act. Gary Endelman and Cyrus Mehta in a prior blog have outlined a blueprint for undocumented individuals to be affirmatively granted administrative relief, See Keeping Hope Alive, President Obama Can Use His Executive Power Until Congress Passes The Dream Act, http://cyrusmehta.blogspot.com/2010/12/keeping-hope-alive-president-obama-can.html.

Critics of the use of prosecutorial discretion such as House Judiciary Chairman Lamar Smith will argue that the President is not faithfully implementing the law. This would be a valid position if our immigration laws were rational and not broken. The reason why we have such a huge undocumented population is because our outdated laws are broken, and have not been able to provide sufficient pathways for people who need to unite with family members in the US . The existing legal framework also deprives employers from being able to effectively sponsor them for work permits or green cards. Moreover, the President is not bypassing Congress by creating a new class of permanent residence. In exercising prosecutorial discretion, the President is merely refraining from deporting low priority individuals, and using his power within the INA to grant administrative relief such as a work permits, parole or deferred action. If Mr. Smith were to have his way through the passage of the HALT Act, which would remove all discretion from the administration, our immigration law would be even more broken, and the undocumented population would continue to build without being able to benefit the US.

KEEPING HOPE ALIVE: PRESIDENT OBAMA CAN USE HIS EXECUTIVE POWER UNTIL CONGRESS PASSES THE DREAM ACT

By Gary Endelman and Cyrus D. Mehta

We are all extremely disappointed that the Senate blocked the DREAM Act on December 18. Even though a majority of the Senate voted for cloture, it was not enough. We need 60 votes for legislation to move forward, even when we have a majority of 55 out of 100. But do we need to wait endlessly for Congress to act? The answer is NO! Faced with unrelenting opposition from a radicalized Republican party that has declared war on immigrants, the Obama Administration is not powerless if it has the vision and the will to act.

We demonstrated in our article Tyranny of Priority Dates, http://scr.bi/i0Lqkz, that it is possible for the Executive to legalize the status of non-citizens without Congressional intervention to achieve something close to CIR. Our proposal for administrative solutions has become all the more relevant now that Congress has not passed the DREAM Act. DREAMERS must still lobby the administration for relief, which is has the ability to grant without going to Congress. Yes, the President does indeed have power to grant benefits administratively, such as parole and employment authorization. The Executive, under INA § 212(d)(5), has the authority to grant parole for urgent humanitarian reasons or significant public benefits. http://cyrusmehta.blogspot.com/2010/04/comprehensive-immigration-reform.html. Talented and dedicated DREAMERS who go to college, serve in the military or perform work of national importance under civilian direction are ideal candidates for invoking § 212(d)(5) under “urgent humanitarian reasons or significant public benefits.” Similarly, the Executive has the authority to grant employment authorization under INA §274A(h)(3), which defines the term “unauthorized alien” as one who is not “(A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.” Under sub paragraph (B), the USCIS may grant an EAD to DREAM kids who inadvertently fell out of status for no fault of their own and who only know America as their country.

The Executive’s use of parole, sua sponte, in such an expansive and aggressive fashion is hardly unique in post-World War II American history. The rescue of Hungarian refugees after the abortive 1956 uprising or the Vietnamese refugees at various points of that conflict comes readily to mind. While these were dramatic examples of international crises, the immigration situation in America today, though more mundane, is no less of a humanitarian emergency with human costs that are every bit as high and damage to the national interest no less long lasting. DREAM kids need not wait an eternity for Congress to come to the rescue.

The government has always had the ability to institute Deferred Action, which is a discretionary act not to prosecute or to deport a particular alien. Deferred Action is purely discretionary. They are both informal ways to allow continued presence in the United States. The INA never mentions deferred action. Neither does deferred action depends upon regulation. Deferred action is not mentioned in Title 8 of the Code of Federal Regulations but only in the old, and now inapplicable, Operations Instructions. The exercise of prosecutorial discretion to grant deferred action status is an expression of limited enforcement resources in the administration of the immigration law. It makes no sense to deport DREAM kids who have been educated in the US, and who have the potential to enhance the US through their hard work, creativity and determination to succeed. Giving these kids a chance will also help the economy by generating more taxable earnings and will also reduce the budged deficit by over $2.2 billion over a 10 year period, http://immigrationpolicy.org/just-facts/dream-act-supporting-us-economy-creating-opportunities-immigrant-students.

Deferred Action has also been applied to battered spouse and children self-petitioners who had approved I-360 petitions under the Violence Against Women Act, so that they could remain in the United States and obtain work authorization. In 2006, Congress, in recognition of this informal practice, codified at INA § 204(a)(1)(k) the grant of employment authorization to VAWA self-petitioners. Deferred Action has also been granted to U visa applicants. More recently, and prior to the passage of INA § 204(l), the DHS provided interim relief to surviving spouses of deceased American citizens and their children who were married for less than two years at the time of the citizen’s death. Mr. Neufeld’s memo, issued on June 15, 2009, provides extraordinary relief to spouses whose citizen spouses died regardless of whether the I-130 petitions were approved, pending or even not filed. Such beneficiaries may request deferred action and obtain an EAD. Then, on October 28, 2009, Congress amended the statute, and created § 204(l) to allow, inter alia, a widow who was married less than two years at the time of the citizen’s death to apply for permanent residence.

How about parole in place? Unaccompanied minors brought as young children to the United States without inspection deserve such relief. Take a look at Section 235(a)(1) of the INA. Know what it says? It reminds us that these DREAMERS who are physically in this country without formal inspection or legal admission can be deemed to be applicants for admission. That is how “parole in place” works. By indulging in the legal fiction that these DREAMERS are actually knocking at the golden door and asking to be let in, the Obama Administration can make them eligible for adjustment of status to legal permanent residen (if they qualify as immediate relatives, such as a spouse of a US citizen) through expansion of the parole mechanism. The USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” This administrative solution, where a non-citizen is fictitiously paroled, and thus rendered eligible for adjustment as an immediate relative of a US citizen under § 245, allows our troops to concentrate in the battlefield without being distracted about whether their spouses can or cannot remain in the US.

Moreover, as suggested in The Tyranny of Priority Dates, there is nothing to prevent the administration from granting similar parole benefits to undocumented non-citizens in the United States, along with employment authorization, who are waiting for their priority dates to become current or who meet certain sympathetic criteria such as DREAM children. The President can achieve something close to the DREAM Act and even Comprehensive Immigration Reform without going through Congress and without violating the Separation of Powers doctrine. While some may argue that there is no express Congressional authorization for the Executive to enact such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

There is no bar in law or logic to a decision by the Department of Homeland Security that it will not seek to deport or remove anyone here without color of law who would qualify for DREAM Act benefits. Only in those instances where relief was available would ICE issue a Notice To Appear. Refraining from seeking removal of DREAMERS in the public interest would be entirely consistent with the reasons why the Administration lobbied the Congress so hard in the first place and hopefully will continue to do so. Be prepared for Steve King, Lamar Smith and their nativist allies in the Senate to react. They can threaten to use the power of the purse to curb these regulatory initiatives. Be strong and of good courage! Mr. President, keep your veto pen close at hand. Until we get a new law, justice will have to be squeezed out of the one we have now. The fact that Congress will not act does not mean that the DREAM is dead; it simply is deferred, while we go about its realization by other means.

DREAM ACT AND THE POLLS

Although the House voted in favor of the DREAM Act on December 8, 2010, with eight Republicans also joining with a yea, the prospects of passage of the bill in the Senate look less hopeful but still possible. This hesitancy is bolstered by the fact that the Republican minority in the Senate on Thursday filibustered a crucial defense bill because it also included a ban on discrimination against gays. The hypocritical “don’t ask don’t tell policy” if you are gay in the military still stands because of the obstructionism of the Republican minority in the Senate where you need 60 votes to survive a filibuster. http://www.nytimes.com/2010/12/10/opinion/10fri1.html?_r=1&hp. This move by the Republicans is even more surprising since a very recent Gallup poll indicates that 67% of Americans support repealing the “don’t ask don’t tell policy,” http://politicalticker.blogs.cnn.com/2010/12/09/poll-two-out-of-three-say-repeal-dont-ask-dont-tell/

The DREAM (Development, Relief and Education for Alien Minors) Act allows children who were brought into the US illegally or who became illegal (as a result of their parents actions) to legalize their status. They should have entered the country before the age of 16 and lived here for five years. DREAM also requires that they must graduate from high school or obtain a GED and demonstrate good moral character. Qualifying children would be given a six year conditional status. During that time, the applicant must have been attending college or serving in the military for at least two years, and must have also passed criminal background checks.

In a clever political move on Thursday, Senator Reid tabled the vote in the Senate until next week so that the Senate could vote on the House bill, which unexpectedly passed on Wednesday. The last time the House passed a major immigration bill was HR 4437, which would have made all undocumented immigrants into felons, including those who assisted them such as pastors and medical personnel. Clearly, the passage of DREAM in the House is a sea change from the passage of HR 4437, which fortunately never went onto become law. http://www.huffingtonpost.com/frank-sharry/dream-act-makes-history-i_b_795118.html. But we do hope DREAM does. A new Gallup poll released Friday reveals that 54% of Americans support the DREAM Act. http://politicalticker.blogs.cnn.com/2010/12/10/poll-54-percent-support-dream-act/ It remains to be seen whether this would change the minds of Republican Senators who had supported prior versions of the DREAM Act, and even a few Democratic Senators (especially from states such as Montana that have no immigrants). Given that DADT was opposed even though more Americans (67%) were in support of its repeal, it remains to be seen whether the Gallup poll on the DREAM Act (with 54% in favor) will have a sway upon the recalcitrant Senators. Within that poll, two-thirds of Democrats say they would vote for the measure, but only 57 percent of independent voters are in favor and even a fewer 34 percent of Republicans say that they will vote for DREAM. In any event, the tabling of the Senate vote was a positive one, and will strenthen the prospects of DREAM’s passage, as it will give more time to mobilize support, and the new Gallup poll should help advocates in gaining more votes in the Senate in favor of DREAM.

One cannot go wrong with DREAM. It is clearly the right thing to do. These kids are in the US in an undocumented capacity for no fault of their own. They are as American as any other kids, and share the same dreams and aspirations, only to have their hopes dashed when they realize that they are in a second class undocumented status. Giving these kids a chance will also help the economy by generating more taxable earnings and will also reduce the budged deficit by over $2.2 billion over a 10 year period, http://immigrationpolicy.org/just-facts/dream-act-supporting-us-economy-creating-opportunities-immigrant-students. And won’t America ultimately benefit if you give more DREAMers a chance to aspire and succeed through innovation, creativity and industry?

According to Michael Mandel, Chair of the AILA-NY Advocacy Committee, the chances of success in the Senate are”uphill but very possible, ” which is what he had heard, and it is critical that we continue to flood Congress with your calls. He urges that you take a few minutes to ask the recalcitrant senators listed below (but who are not yet lost causes such as John McCain) to vote YES on the DREAM Act. Also, keep checking http://www.dreamactivist.org/, http://www.nysylc.org/ and www.thenyic.org/dreamact for updates. Ultimately, in the end, the polls do matter, and the recent Gallup poll should sway these Senators to do the right thing by voting in favor of DREAM. And those Republicans who are afraid to come out in favor of this legislation because of the current anti-immigrant mood in the party caused by the Tea Party movement, they should pay heed to people like Newt Gingrich and Jeb Bush, who realize that the Republican party will be doomed if they alienate themselves from the growing number of Latino voters, http://bit.ly/gL38LJ.

Senate Democrats: 866-967-6018 or 202-224-3121
Conrad (ND)
Dorgan (ND)
McCaskill (MO)
Webb (VA)
Warner (VA)
Landrieu (LA)
Pryor (AR)
Tester (MT)
Hagan (NC)
Senate Republicans: 866-967-6018 or 202-224-3121
Hutchison (TX)
Brownback (KS)
Murkowski (AK)
Brown (MA)
Kirk (IL)
Bennett (UT)
Voinovich (OH)
Snowe (ME)
Collins (ME)
Lemieux (FL)
Lugar (IN)
Bunning (KY)