Tag Archive for: Prosecutorial discretion

Cyrus Mehta

How Prosecutorial Discretion Saved Our Client

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By Cyrus Mehta and Jessica Paszko*

This is the story of our client Nadia Habib who was in immigration proceedings from 18 months till 31 years until an Immigration Judge granted her adjustment of status on November 21, 2023!

Nadia Habib came to the US in 1993 from Bangladesh when she was less than 2 years old with her mother Nazmin Habib. They were paroled into the US at JFK airport.  Some years later in June 1997 they were placed in removal proceedings in New York, and ordered deported in absentia on April 26, 2000 by an Immigration Judge. They did not show up in court on the day of their hearing due to an unfortunate misunderstanding as a result of Nazmin being seriously ill the day before.  Several efforts were made to reopen the in absenstia deportation order but to no avail. However, they continued to live their lives normally as a tightly knit family. Nazmin and her husband Jawad, who had a green card, had three more children in the US who were automatically citizens. Jawad supported the entire family as a yellow taxi driver in New York. Nadia continued to be vulnerable to deportation unlike her citizen siblings, although she showed great promise by doing well in school and getting admitted into the elite Bronx High School of Science in New York.

On September 10, 2011, Nazmin and Nadia, then 19 years old, received a bag and baggage letter from Immigration and Customs Enforcement (ICE) ordering that they surrender for deportation on September 29, 2011. This letter brought their lives and the lives of their family and loved ones to a shocking halt. Nadia’s friends and other immigrant students quickly sprung to action, launching campaigns on Facebook and Twitter, in the hope that Nadia and her mother would be allowed to remain in the US with her father and her three US citizen siblings. On the fateful day she had to appear for deportation on September 29, members of the Youth Leadership Council gathered thousands of petition signatures and turned out over 100 people to rally in support of Nadia and Nazmin and to try to halt the deportation scheduled for that day at 11 am.  The community’s fervent efforts to keep Nadia and Nazmin from returning to Bangladesh that was entirely foreign to Nadia paid off. ICE halted the deportation order and decided to review their case. Though September 29, 2011 was marked with victory for Nadia and her mom, their immigration woes were far from over.

At that time when Nadia was about to get deported, President Obama began to be known as the Deporter-in-Chief. Although Obama was sympathetic towards immigrants, he wanted to also show that he was strict on enforcing the law as a way to get his Republican opponents in Congress to pass a comprehensive immigration reform bill.  As the deportations under Obama spiked in 2011 and 2012, until they reached a record high by 2013, the then ICE Director John Morton issued a landmark memo in 2011 providing detailed guidelines on how ICE officers should exercise prosecutorial discretion.

On September 30, 2011, which also happened to be Nadia’s 20th birthday, ICE issued a Stay of Removal Order for Nadia and Nazmin. This was the first exercise of prosecutorial discretion that would benefit Nadia and Nazmin and a birthday present that Nadia would never forget. Nadia and Nazmin approached our firm to seek representation. The case was so sympathetic and meritorious that we decided to take on the case pro bono. The goal was to find a pathway for Nazmin and Nadia to reopen their deportation orders and adjust status while keeping them in the US in the interim in an authorized capacity as long as possible.

On February 23, 2012, ICE also issued an order of supervision to both Nadia and Nazmin which required them to report in person to ICE on specified dates, usually once or twice a year. On June 15, 2012, the Secretary of Department of Homeland Security (DHS) Janet Napolitano issued a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”, officially establishing what would later be known as the Deferred Action for Childhood Arrivals (DACA) program. DACA came to be the second form of prosecutorial discretion that benefitted Nadia who clearly qualified as she came to the US well before the age of 16. After graduating from the Bronx High School of Science, Nadia pursued undergraduate studies at Stony Brook University and later obtained her master’s degree in architecture from The City College of New York. On the basis of DACA, Nadia was able to apply for an Employment Authorization Document (EAD) in September 2012. Since then, our firm helped Nazmin and Nadia comply with their annual appointments with ICE and apply for DACA extensions along with the EAD. Nadia had to report each year for her appointment with ICE even though she was authorized to remain in the US under DACA. Every time Nadia wanted to travel outside New York for a trip to another state, even over a long weekend, she had to ask for and receive permission from ICE.

In the meantime, Nadia’s US citizen brother filed Form I-130 on behalf of his mother Nazmin which was approved in early 2016. Jawad had not yet naturalized as his application had been erroneously denied and our appeal challenging the denial was pending. This I-130 served as the basis of our request to DHS to join our motion to reopen Nazmin’s removal so that Nazmin could apply for adjustment of status based on the approved I-130 petition filed by her US citizen child. A removal order can be reopened at any time if the government joins in a motion to reopen even though prior efforts to reopen the removal were unsuccessful. The ability of the government joining in a motion to reopen depends on the policies of the administration at any given time. We requested the government to join in the motion in September 2016, during the final year of the Obama administration based on Morton’s prosecutorial discretion policy. Donald Trump became president in 2017 and our request was pending, but the ICE attorney who got our request to join in the motion fortunately agreed to join in the motion to reopen Nazmin’s removal proceedings to the Board of Immigration Appeals (BIA) even though by then prosecutorial discretion became non-existent under Trump’s new enforcement oriented immigration focus. In July 2017, the BIA granted our motion based on the government’s consent and remanded for further proceedings. After a nearly five year wait (since the I-485 application could not be tracked in the USICS bureaucracy until there was Congressional intervention), Nazmin was scheduled for an adjustment interview in March 2022 at a USCIS field office in Long Island where her adjustment of status application was finally granted.

Nadia was still not eligible to adjust status, so we could not request the government to join in the motion to reopen. Although Nadia’s father eventually naturalized, she was unable to adjust status through him as she was over 21 years old. Despite this, Nadia continued to be able to remain in the US thanks to DACA. When Nadia married her US citizen husband in 2020, he filed Form
I-130 on her behalf which was approved the following year. Following a similar path as her mother case, in January 2022, our firm submitted a request to DHS to join our motion to reopen Nadia’s removal order so that Nadia could apply for adjustment of status based on the approved I-130 petition filed by her husband. By then Joe Biden was President and he once again instructed ICE to exercise prosecutorial discretion. In November 2022, DHS consented to joining in the motion to reopen for the sole purpose of dismissal of removal proceedings. The following month, in December 2022, we submitted our joint motion to reopen Nadia’s removal proceedings to the BIA. In February 2023, the BIA granted our motion and reopened and remanded to the Immigration Court for further proceedings. In September 2023, we learned that Nadia had been scheduled for a merits hearing on November 1, 2023 by happenstance as neither Nadia nor our firm received the notice – imagine if the Immigration Judge would have again deported Nadia in absentia at the hearing. Our request to adjust Nadia’s status on the basis of her I-130 was unopposed by DHS, though the Immigration Judge could not grant the adjustment as the sealed medical report that we had delivered to the Immigration Court in advance of the November 1st hearing had not made its way to him. The Immigration Judge continued the hearing to November 17, 2023 where finally, after many trials and tribulations, Nadia was adjusted to lawful permanent resident status. Nadia’s order of supervision dissolved on that day too relieving her from reporting to ICE each year.

Nadia was 32 years old on the day she was granted adjustment of status, and before then she had been in some form of immigration proceeding since she was 17 months old. Today Nadia is a successful architect and her siblings are also equally successful. Through this period, Nadia benefited from prosecutorial discretion, but the path was never smooth. DACA was declared unlawful by a federal judge and its fate hangs in the balance till this day. Even after Biden became president, courts enjoined his prosecutorial discretion policies that were set forth in the memo of DHS Secretary Mayorkas, but we advocated, when requesting the government to join in the motion to reopen, that the government could still exercise discretion outside the priorities set forth in the Mayorkas memo. Despite the court block of the Mayorkas memo, the DHS retained the ability to exercise discretion and join in a motion to reopen. Imagine if Nadia did not receive the stay of removal in 2011 and was deported to Bangladesh after she had spent her whole life in the US. But for the prosecutorial discretion policies in place, Nadia would have been deported because of an in absentia deportation order that she received, over which she had no control and for no fault of her own. Nadia and Nazmin were also fortunate that ICE attorneys agreed to join in the motions to reopen despite the zigzagging prosecutorial discretion policies over three presidential administrations.

We are proud to have represented Nadia and Nazmin tenaciously and doggedly for well over 10 years in a pro bono capacity!

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

While Supreme Court Holds That States Have No Standing to Challenge Federal Immigration Enforcement Priorities in United States v. Texas, How Does This Bode for  DACA and Other Immigration Policies?

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By Cyrus D. Mehta

In United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Writing for the majority, Justice Kavanaugh said, “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus its efforts on the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. The attorneys general of Texas and Louisiana swiftly challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained.. The question turned on  whether the Biden administration’s enforcement priorities in the Mayorkas Memo contradicted two statutory provisions – 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). 8 U.S.C. § 1231(a) pertains to the detention and removal of those who have been ordered removed. § 1226(c) lays out a list of noncitizens who “shall” be taken into custody by the Attorney General, including those who have committed certain criminal offenses. Trump appointed Judge Tipton readily agreed by vacating the Mayorkas Memo.

Justice Kavanaugh held that in order to get standing the plaintiff states must show that the alleged injury must be legally and judicially cognizable and that the dispute must also be redressable in federal court. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest of or prosecution policies so that the Executive Branch makes more arrests of initiates more prosecutions.” In Linda R.S. v. Richard D., 410 U.S. 614 (1973), cited in the majority opinion, “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Similarly, a state government like the private citizen in this case cannot bring such a lawsuit. In another case Heckler v. Chaney, 470 US 821 (1983), the Court recognized that the government has to balance several factors such as resource constraints and changing public safety and public welfare needs, and that such a complicated balancing process leaves the courts without meaningful standards for assessing those policies.

The Court recognized that the Executive Branch exercises absolute discretion to prosecute a case, and this discretion extends to the immigration context. The Court previously in Arizona v. United States, 567 U.S. 387 (2012) declared that the Executive Branch retains discretion over whether to remove a noncitizen from the United States. Indeed, prosecutorial discretion is so inevitable in immigration enforcement that even after the Mayorkas Memo was set aside, ICE has continued to exercise discretion by moving to dismiss thousands of removal cases in immigration courts  but without referring to the priorities in the Mayorkas Memo.

This decision bodes well for the other cases where Texas and other states have challenged federal immigration policy, although with respect to the Deferred Action for Childhood Arrivals (DACA) program, Kavanaugh’s opinion states that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” One wonders whether this would give Judge Hanen some leeway in distinguishing this case from United States v. Texas. Still, DACA is also part of enforcement priorities as the administration has decided to defer the removal of youths who fell out of status for no fault of their own. The final rule’s definition of “lawful presence” is also a significant provision. The final rule points to 8 CFR § 1.3(a)(4)(vi), which defines “an alien who is lawfully present in the United States” as “an alien who belongs to one of the following classes of aliens permitted to remain in the United States because DHS has decided for humanitarian or other public policy reasons not to initiate removal proceedings or enforce departure” including “aliens currently in deferred action status”. As this provision makes clear, all recipients of deferred action, not DACA recipients alone, are considered lawfully present for certain purposes. Lawful presence does not confer any immigration status in the United States, a distinction that has long been misunderstood. In a 2017 decision that upheld a challenge to DAPA by the state of Texas, the Fifth Circuit viewed a grant of deferred action as something akin to an immigration status. Judge Hanen in 2021, too, seemed to conflate lawful presence with a legal immigration status. Rather, lawful presence renders individuals who have been granted deferred action eligible for certain federal benefits and ensures that they do not accrue unlawful presence for inadmissibility purposes, which could render them subject to the 3- and 10- year bars. Moreover, since they are considered lawfully present, DACA recipients will be eligible for Social Security benefits, including a Social Security number itself when they apply for employment authorization, which assists individuals in filing taxes, obtaining identification cards, and obtaining employment. Most important, a clarification of lawful presence not being legal status should put DACA in the same category of cases where the DHS has exercised  prosecutorial discretion, and should in turn preclude Texas and other states from getting standing to challenge the program.

There is also this fear whether this ruling would preclude an immigrant friendly state like New York, Hawaii, Washington or California to challenge an anti-immigrant policy of a future president. Would Hawaii be able to challenge a future travel ban based on discriminatory grounds like it did in Trump v. Hawaii? Or would a state like New York be able get standing to sue a future administration if it again restricted the public charge parameters?  Assuming that United States v. Texas precludes standing for these states in the future, there will also be plaintiffs who have been actually injured such as noncitizens whose travel has been blocked to the US or who have been denied permanent residence as they could not meet the new restrictive public charge grounds. United States v. Texas serves as a shield against plaintiffs who wants to play offense but does not come in the way of an injured plaintiff who needs to play defense. It also remains to be seen whether the standing analysis in the ruling is limited to challenging the government regarding non-prosecutions or exercising prosecutorial discretion or whether it would apply to other matters.

If the standing analysis applies to other matters, then the Biden administration should consider boldly providing relief to backlogged skilled immigrants by radically advancing the dates for filing in the State Department Visa Bulletin so that thousands of beneficiaries of approved I-140 employment petitions may file for adjustment of status in the US and obtain benefits such as interim work authorization, travel permission and the ability to exercise job portability. The administration can also consider  providing parole to beneficiaries of approved I-130 family,  I-140 employment  and I-526 investor petitions who are waiting overseas to immigrated until their priority dates becomes current. These are just a few examples where the Biden administration can tread more boldly without fear of being sued by Texas, Louisiana or Missouri.

In the immediate aftermath of the decision where Justice Alito was the only dissenter, DHS Secretary Alejandro Mayorkas said that the DHS would reinstate the guidelines, which were paused last summer by the Supreme Court. He said this would “enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress.” Texas Gov. Greg Abbott said that Texas would “continue to deploy the National Guard to repel [and] turn back illegal immigrants trying to enter Texas illegally.”

 

Cyrus Mehta & Kaitlyn Box

Ethical Considerations When the Removal Case is Dismissed

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By Cyrus Mehta and Kaitlyn Box*

In recent times, immigration courts are dismissing the cases of noncitizens with great zeal. Even government attorneys are moving to dismiss these cases and Immigration Judges (IJ) are going along. This bodes well for the noncitizen who is no longer facing the specter of a removal order. On the other hand, the dismissal of the case often leaves the noncitizen in limbo. The noncitizen may have filed a viable cancellation of removal case and has been obtaining interim work authorization for many years due to the case being stuck in an IJ’s overcrowded court docket. After the dismissal, the noncitizen can no longer renew work authorization and can lose their job.

These dismissals have their genesis in an  April 3, 2022 memorandum from  the U.S. Immigration and Custom Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) Kerry E. Doyle (“Doyle Memo”),  which empowered ICE attorneys to exercise prosecutorial discretion in handling the cases of noncitizens who are not considered enforcement priorities under the criteria laid out in the earlier Mayorkas memo. The goal of the ICE prosecuting attorney under the Doyle memo was to achieve justice rather than removing the noncitizen. Indeed, under the Doyle memo, the ICE attorney’s role as the government’s representative in removal proceedings was to proactively alert the immigration judge to potentially dispositive legal issues and viable relief options they have identified.

On June 10, 2022, the U.S. District Court for the Southern District of Texas vacated the Mayorkas memo in Texas v. United States, No. 6:21-cv-0016 (June 10, 2022), holding that the guidance laid out in the memo violates the two mandatory detention provisions at INA § 236(c) and INA § 241(a)(2), as well as the Administrative Procedure Act (APA). As such, OPLA attorneys are no longer relying on the Mayorkas memo, or the sections of the Doyle memo that rely on the criteria provided in the Mayorkas memo. However, recent OPLA guidance on prosecutorial discretion states as follows: “OPLA attorneys, however, may—consistent with longstanding practice—exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases.”

Although the Doyle memo is no longer applicable, the government continues to dispense with many cases in the way it recommends, relying now on traditional principles of prosecutorial discretion rather than a guiding memorandum.  As an alternative to dismissing the case, EOIR has recently begun removing some cases from the active calendar. The case thus remains technically open, but without any scheduled hearing date. 8 CFR § 1003.0(b)(1)(ii) provides the authority for this practice, stating:

“(b) Powers of the Director—(1) In general. The Director shall manage EOIR and its employees and shall be responsible for the direction and supervision of each EOIR component in the execution of its respective duties pursuant to the Act and the provisions of this chapter. Unless otherwise provided by the Attorney General, the Director shall report to the Deputy Attorney General and the Attorney General. The Director shall have the authority to:

. . . .

(ii) Direct the conduct of all EOIR employees to ensure the efficient disposition of all pending cases, including the power, in his discretion, to set priorities or time frames for the resolution of cases; to direct that the adjudication of certain cases be deferred; to regulate the assignment of adjudicators to cases; and otherwise to manage the docket of matters to be decided by the Board, the immigration judges, the Chief Administrative Hearing Officer, or the administrative law judges…”

This provision thus empowers EOIR to “ensure the efficient disposition of all pending cases”, “set priorities” for the resolution of cases, “direct that the adjudication of certain cases be deferred”, and “otherwise to manage the docket of matters to be decided”, which can include removing cases from the active calendar. For the noncitizen who has a cancellation of removal case and has been renewing work authorization, taking the case off the calendar is preferable than outright dismissal as they can continue to renew work authorization.

Dismissal of the proceeding can raise ethical conundrums for immigration practitioner representing the noncitizen. As already noted, if an individual in removal proceedings has an application for relief pending before EOIR such as an application for cancellation of removal and the case is outright dismissed, the noncitizen might lose work authorization or another benefit associated with the pending application. This individual will also be deprived of the ability to pursue the application and win cancellation of removal. Dismissal will put the noncitizen back to square one as an undocumented person. It is possible that a noncitizen who has been granted cancellation of removal but is waiting in the queue for a number can also be subject to a unilateral motion to dismiss by an ICE prosecutor.  Thus, it is crucial for attorneys to promptly notify clients of an outright dismissal and any associated consequences.

Before accepting the dismissal, the client should consent to the dismissal. Winning a request for cancellation of removal is never guaranteed as the respondent has to demonstrate, among other things, that “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” See INA § 240A(b)(1)(D). Hence, even if dismissal would deprive the client of work authorization, in the long term, the client would not want to risk a removal order. On the other hand, a client who may not have any alternative relief on the horizon may want to take the chance and pursue cancellation of removal in the hope of winning even though there is a risk that an IJ may deny the claim.

It is important to communicate the risks and benefits to the client who is facing a dismissal of the proceeding. ABA Model Rule 1.4 requires the attorney to inform the client of any decision or circumstance with respect to which the client’s informed consent is required. Under ABA Model Rule 1.0(e) “‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” The attorney must also check the state analogue to the ABA model ethical rules where they may be admitted. Moreover, there are independent grounds promulgated by the EOIR that can result in sanctions for an immigration conduct such as failing to  maintain communication with the client throughout the duration of the client-practitioner relationship,  8 CFR 1003.102(r), and failing to abide by a client’s decisions concerning the objectives of representation and failing to consult with the client as to the means by which they are to be pursued. 8 CFR § 1003.102(p).

Board of Immigration appeals case law also provides a basis for attorneys to be able to challenge outright dismissals that are deleterious to their clients. In Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998), the BIA held that once the NTA is filed  an Immigration Judge must not simply cancel a charging document upon USCIS’ invocation of prosecutorial discretion, but should adjudicate the motion to dismiss on the merits, considering arguments from both sides. Certain noncitizens have a right to be placed in removal proceedings. One whose affirmative asylum application is not granted must be referred for removal proceedings pursuant to 8 CFR § 208.14(c)(1). Similarly, under 8 CFR § 216.4(d)(2) and 8 CFR § 216.5(f), the denial of a joint I-751 or waiver I-751 petition requires the issuance of an NTA. A dismissal of such an application would clearly be in violation of not the applicable regulations. Still, the IJ can dismiss a proceeding where a meritless asylum application was filed with the USCIS for the sole purpose of seeking cancellation of removal in immigration court. See Matter of Andrade, 27 I&N Dec. 557 (BIA 2019). Thus, attorneys must be vigilant to contest a motion to dismiss if the facts of the case can be distinguished from Matter of Andrade. For instance, even if the asylum application may have been filed with the intention for seeking cancellation of removal, but the asylum application had merit, this would not be a basis for an IJ dismiss the proceeding.

ICE attorneys move swiftly to dismiss cases.  There is often a short time frame to respond to these motions, so advocates must be vigilant in ensuring that they inform clients and submit a timely response. Advocates should ensure that clients have an avenue for relief before joining a motion to dismiss, and should inform clients about what a dismissal would mean for their case and any negative consequences.

Further, although the current practice is to outright dismiss the case, ICE attorneys may agree to administrative closure when the noncitizen does not oppose and the specific facts of the case warrant administrative closure over other means of clearing the case from the docket. In some instances, though, OPLA can unilaterally seek administrative closure regardless of the wishes of the noncitizen. As explained above, the case can also be removed from the active calendar.  Immigration attorneys should inform their clients of the impact that such actions would have on their case, and vigorously oppose if the clients’ interests would be harmed. It is also important to recognize that administrative closure or removing the case from the active calendar is not a permanent termination of removal proceedings, so attorneys must continue to monitor administratively closed cases and seek more lasting forms of relief for their clients.

Despite its beneficial aspect, the various methods for exercising prosecutorial discretion can place noncitizens in uncertain situations and raise ethical dilemmas for their immigration lawyers. The attorney must be competent, diligent and must communicate with the client to ensure that the client is not worse off than in pending removal proceedings. Most important, the attorney must obtain the client’s informed consent before responding to any discretionary initiative by the ICE prosecutor or reaching an agreement with the government. The pros and cons of seeking relief under prosecutorial discretion over seeking relief under the INA must be carefully considered and discussed with the client.  Because OPLA does not include language in motions that would preserve a noncitizen’s ability to work, dismissal of the case often means that a noncitizen will lose work authorization with little warning. Dismissal of a case may also leave individuals with essentially no authorization to remain in the US, giving them little choice but to work without authorization, not pay taxes, and potentially violate the law in other ways. Immigration attorneys must carefully analyze these issues and advocate for their clients when a dismissal or administrative closure may do more harm than good.

 

This is an update of Ethical Considerations When ICE Moves to Dismiss Removal Proceedings Under the Doyle Prosecutorial Memo, published on May 9, 2022, available at https://blog.cyrusmehta.com/2022/05/ethical-considerations-when-ice-moves-to-dismiss-removal-proceedings-under-the-doyle-prosecutorial-discretion-memo.html

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Immigration Enforcement and Prosecutorial Discretion Go Hand in Hand: Will the Supreme Court Upset this Balance?  

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By Cyrus D. Mehta and Kaitlyn Box*

On Tuesday, November 29th, the Supreme Court heard oral arguments in US v. Texas, which involves a challenge to the Biden administration’s Immigration and Customs Enforcement (ICE) enforcement priorities. Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus its efforts on the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. The attorneys general of Texas and Louisiana swiftly challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained. In previous blogs, we have discussed the procedural history of the case.

The Court first addressed the issue of whether the states have standing to challenge the enforcement priorities. General Elizabeth Prelogar, Solicitor General of the United States asserted that states should not have standing to challenge any federal policy that “imposes even one dollar of indirect harms on their own taxing or spending”.  The conservate majority was unmoved by this argument, with Justice Alito even suggesting that the government’s reasoning demonstrates a “special hostility” to the states’ standing.

The arguments then turned to the crux of the case – whether the Biden administration’s enforcement priorities contradict two statutory provisions – 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). 8 U.S.C. § 1231(a) pertains to the detention and removal of those who have been ordered removed. § 1226(c) lays out a list of noncitizens who “shall” be taken into custody by the Attorney General, including those who have committed certain criminal offenses.

The “shall” language of § 1226(c) was a point of particular contention for the Court. Justice Kavanaugh, in particular, argued that this language is mandatory, requiring the Court to take into custody noncitizens who fall within one of the categories enumerated in the statutory provision. Chief Justice Roberts, too, seemed to agree that “shall means shall”, leaving little room for the executive to exercise discretion in immigration enforcement. This interpretation, however, is entirely out of step with the usual interpretation of the statute and could have disastrous consequences if implemented.

A first problem with Justice Kavanaugh’s interpretation of the language of § 1226(c) is that it fails to read the statutory language in the context of the earlier provision at § 1226(a). § 1226(a) states that the noncitizens “may” be arrested and detained pending a decision on whether to put them in removal proceedings. This language is plainly permissive and affords the agency the discretion to decline to detain a noncitizen who is in removal proceedings. Indeed, the agency can elect not to place a noncitizen in removal proceedings at all, or to terminate removal proceedings that have already commenced. If the government must arrest and detain all noncitizens, and especially those who fall within § 1226(c)’s scope, the earlier provision affording it discretion to detain those same noncitizens pending the commencement of removal proceedings makes little sense. Statutes should be construed so that, on the whole, no clause, sentence, or word is rendered “superfluous, void, or insignificant” (TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)), and no provision “entirely redundant.” (Kungys v. United States, 485 U.S. 759, 778 (1988)). The same should be true for regulatory provisions. See Baude v. United States, 955 F.3d 1290, 1305 (Fed. Cir. 2020) (applying this canon of interpretation to a regulation); U.S. v. CITGO Petroleum Corp., 801 F.3d 477, 485 (5th Cir. 2015) (same).

Moreover, Justice Kavanaugh’s interpretation of 8 U.S.C. § 1226(c) contradicts established case law, namely Reno v. ADC, which held that discretion applies at every stage of removal proceedings. Justice Sotomayor pointed out this conflict, noting that the Court’s holding in Reno affords the executive the discretion to choose when and if to initiate removal proceedings, and when to terminate them. If discretion applies throughout the process, it follows that the executive can choose which noncitizens to target for enforcement in the first place.

If the government cannot choose which noncitizens to target for removal, perverse practical consequences will result, as well. General Prelogar argued that the government simply lacks the resources to target every removable noncitizen. Justice Kavanaugh appeared to give credence to this argument, stating: “So the government says we don’t have the money to comply. Then — then what do you do?”  If the Supreme Court rules in favor of Texas, the government will never be able to detain all noncitizens subject to 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). The Supreme Court will lose credibility if it issues a ruling that it and the government knows will never be followed. Prosecutorial discretion and enforcement go hand in hand. In order for  enforcement to be rendered effective, the government focuses its efforts and resources on those who it believes should be prosecuted. Even on a highway with a speed limit of 55 miles per hour, state troopers enforce the speed limit on those who blatantly and dangerously violate the limit as opposed to every car on the highway that may be going slightly over the 55 miles per hour speed limit. Moreover, in criminal law enforcement, the police cannot apprehend every violator of the law and no court has forced them to. Why should immigration enforcement be viewed any differently? Indeed, since a violation of immigration law is a civil rather than a criminal violation, more prosecutorial discretion ought to be accorded and other factors considered, such as the noncitizen’s family members who may become destitute if the noncitizen who provides for them is detained.

As immigration law is civil, its violators have not committed crimes. Those who have already been convicted of crimes have served their sentence under the penal system and can be further  detained under 8 U.S.C. § 1226(c) only because they are noncitizens.  The purpose of this detention is to deport them rather than to further punish them.  They are deserving of prosecutorial discretion, which permeates immigration policy in every aspect. The administration can parole noncitizens into the US for humanitarian grounds or defer the deportation of noncitizens on similar humanitarian grounds. It has recently allowed Ukrainians fleeing the Russian invasion of their country to come to the US on humanitarian parole. It has terminated removal cases on behalf of those who may be eligible for immigration benefits in the future.  The Deferred Action for Childhood Arrivals (DACA) program that has allowed young people who came to the US before the age of 16 with no status or fell out of status to remain in the US is also grounded in prosecutorial discretion. The newly promulgated provision at 8 CFR §236.21(c)(1)  aptly describes the basis for DACA:

Deferred action is an exercise of the Secretary’s broad authority to establish national immigration and enforcement priorities under 6 U.S.C. 205(5) and section 103 of the Act. It is a form of enforcement discretion not to pursue the removal of certain aliens for a limited period in the interest of ordering enforcement priorities in light of limitations on available resources, taking into account humanitarian considerations and administrative convenience. It furthers the administrability of the complex immigration system by permitting the Secretary to focus enforcement on high priority targets. This temporary forbearance from removal does not confer any right or entitlement to remain in or reenter the United States. A grant of deferred action under this section does not preclude DHS from commencing removal proceedings at any time or prohibit DHS or any other Federal agency from initiating any criminal or other enforcement action at any time.

If the Supreme Court allows Texas and Louisiana to prevail,  DACA, which is already in legal jeopardy, will be the next major immigration policy involving prosecutorial discretion to fall. If a state hostile to immigrants does not like noncitizens who have been paroled into the US because they have been victims of war, then this state too can sue in federal court to dismantle a worthwhile humanitarian policy that may have foreign policy implications that are broader than a state’s narrow agenda. The Supreme Court should  not allow one state to derail a national immigration policy. The trend that we are seeing goes well beyond preemption of state law that may conflict with federal law. This is a case of a state blatantly challenging a federal immigration policy rather than the federal government seeking to preempt a conflicting state law. Even so, it is hoped that the Supreme Court will be guided by its own affirmation of prosecutorial discretion in the leading preemption case of  Arizona v. USA:

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 may be 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.

 

As esteemed colleague Shoba Sivaprasad Wadhia noted in her article for the American Constitution Society, “prosecutorial discretion is inevitable, so it does not stop functioning with litigation”. Earlier in the case’s history, Judge Drew Tipton of the Southern District of Texas had issued a decision precluding the enforcement priorities in the Mayorkas Memo from going into effect. The Supreme Court refused to stay Tipton’s injunction, but the ICE OPLA nonetheless provided guidance on prosecutorial discretion indicating that the doctrine will remain in place even though Mayorkas’ priorities will not explicitly be applied. This guidance states that “OPLA attorneys… may – consistent with longstanding practice – exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases.” Nonetheless, the majority’s reading of § 1226(c) carries worrying implications for how discretion in removal proceedings will be interpreted, and applied, going forward.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Justice Barrett and the Fate of the Mayorkas Prosecutorial Discretion Memo

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By Cyrus D. Mehta and Kaitlyn Box*

On July 21, 2022, the Supreme Court granted certiorari in United States v. Texas, which involves a challenge to the U.S. Immigration and Customs Enforcement (ICE) enforcement priorities as originally laid out in the 2022 Mayorkas Memo. Pursuant to these priorities, ICE would have prioritize the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. In previous blogs, we have discussed some of the implications of the priorities. The attorneys general of Texas and Louisiana soon challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained. Judge Drew Tipton of the Southern District of Texas issued a decision precluding the enforcement priorities in the Mayorkas Memo from going into effect, and the Fifth Circuit affirmed Tipton’s order. The Department of Justice asked for a stay of Tipton’s order halting the implementation of the enforcement priorities, but the Court denied the request in its order granting certiorari, offering no explanation.

It appears that federal judges are running US immigration policy these days. Our esteemed colleague Steve Yale-Loehr was quoted by Time in “Why Judges Are Basically in Charge of U.S. Immigration Policy Now.” He said, “This is a manifestation of our broken immigration system. Today, almost every executive action on immigration is being challenged in the courts.” He also noted that judges having so much power to determine immigration policy puts the U.S. judicial system in a delicate spot, since federal judges are often wary of being drawn into issues of national sovereignty or of impinging on the executive branch’s authority to conduct foreign policy. But these days, they often have no choice. “Courts are loath to weigh in,” he said. Another reason for the recent explosion of court challenges was the pace at which the Trump administration moved on immigration issues, the article notes. That “unprecedented pace” led to an unprecedented wave of new lawsuits. “That really accelerated the legal challenges,” Steve said. And now, he said, “Conservative states are suing every chance they get to challenge everything that the Biden administration is doing on immigration.”

Given the current composition of the Court, it may come as no surprise that the DOJ’s requested stay in United States v. Texas was denied. What is, surprising, though, is that Justice Amy Coney-Barrett voted in favor of granting the stay, along with the Court’s liberal justices, Sotomayor, Kagan, and Brown Jackson. Prior to Justice Barrett’s ascension to the Supreme Court, she had a history of voting to uphold President Trump’s oppressive immigration policies, including the public charge rule. A notable exception to her record, however, is the Seventh Circuit’s opinion in Meza-Morales v. Barr, which Justice Barrett authored. Meza-Morales challenged Attorney General Jeff Sessions’ ruling in Matter of Castro-Tum, which held that immigration judges cannot “administratively close” cases under most circumstances. Administrative closure allows immigration judges to avoid wasting resources on low priority cases or those awaiting action by another agency by indefinitely suspending removal proceedings. We have extensively covered administrative closure and the trajectory of Castro-Tum in previous blogs, see here, here, and here. Barrett, writing for the majority, rejected Sessions’ arguments in Castro-Tum and held that administrative closure is “plainly within an immigration judge’s authority to take “any action” that is “appropriate and necessary for the disposition of … cases” pursuant to 8 C.F.R. § 1003.10(b). The opinion emphasizes that immigration judges are afforded discretion to dispose of cases as they see fit. Given that Justice Barrett championed discretion in one context, it may not be such a stretch to think that she also recognizes the importance of allowing ICE prosecutors the discretion to decide which removal cases to pursue, a key tenet of the Mayorkas enforcement priorities.

Last year, Matthew Kacsmaryk, a Trump appointed judge, like Tipton, issued a similar order that required the Biden administration to reinstate Trump’s “Remain in Mexico” policy. The Supreme Court eventually ruled against Kacsmaryk, but it allowed his order to remain in effect for 10 months, leaving Remain in Mexico in place for that entire time. Six justices — the three liberal justices plus Chief Justice John Roberts, and Justices Brett Kavanaugh and Barrett — all agreed that Kacsmaryk misread federal immigration law when he held that the federal government is required to maintain the Trump-era program.  Barrett actually dissented from the Court’s holding, stating in her opinion that she agrees “with the Court’s analysis of the merits,” but she would have sent the case back to lower courts to consider a jurisdictional issue.

It is hoped that Tipton’s order will suffer the same fate. Even if Justice Barrett does not prove to be an unexpected supporter of prosecutorial discretion, it will not be so easy for the courts to kill the longstanding doctrine. ICE Office of the Principal Legal Advisor (OPLA) attorneys have the inherent authority to exercise prosecutorial discretion, whether or not the Mayorkas Memo ultimately remains in place. Because ICE has finite resources, OPLA attorneys will need to continue choosing which cases to aggressively prosecute. Even after the Supreme Court refused to stay Tipton’s injunction, the ICE OPLA provided guidance on prosecutorial discretion indicating that the doctrine will remain in place even though Mayorkas’ priorities will not explicitly be applied. This guidance states that “OPLA attorneys… may – consistent with longstanding practice – exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases.”

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

Ethical Considerations  when ICE Moves to Dismiss Removal Proceedings under the Doyle Prosecutorial Discretion Memo

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By Cyrus Mehta and Kaitlyn Box*

On April 3, 2022 the U.S. Immigration and Custom Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) Kerry E. Doyle issued a memorandum (“the Doyle memo”) which empowers ICE attorneys to exercise prosecutorial discretion in handling the cases of noncitizens who are not considered enforcement priorities under the criteria laid out in the earlier Mayorkas memo. The goal of the ICE prosecuting attorney under the new policy is to achieve justice rather than removing the noncitizen. Indeed, under the Doyle memo, the ICE attorney’s role as the government’s representative in removal proceedings is to proactively alert the immigration judge to potentially dispositive legal issues and viable relief options they have identified.

For cases where removal proceedings have not yet been initiated, the Doyle memo encourages ICE attorneys to consider not filing a Notice to Appear (NTA). If an NTA has already been issued, the Doyle memo prescribes filing a motion to dismiss the case, whether or not the noncitizen consents to the dismissal. The memo also outlines some of the other tools ICE prosecutors can employ as an exercise of discretion, including stipulations to issues or relief, continuances, not pursuing appeals, joining in motions to reopen, and administrative closure, which temporarily halts removal proceedings by taking a case off a court’s docket for the time being. However, the Doyle memo states that OPLA’s strong preference is to remove nonpriority cases from the docket permanently through dismissal or similar means, so that resources can instead be devoted to priority matters.

Some of the guidance provided in the Doyle memo will provide helpful relief to individuals in removal proceedings, or individuals who have not yet been placed in proceedings, the memo also raising some ethical conundrums for practitioners of immigration law. As mentioned above, the Doyle memo authorizes ICE prosecutors to file motions to dismiss nonpriority cases, even if the noncitizen does not agree with the dismissal. If an individual in a  removal proceeding has an application for relief pending before EOIR such as an application for cancellation of removal and the case is outright dismissed, the noncitizen might lose work authorization or another benefit associated with the pending application. This individual will also be deprived of the ability to pursue the application and win cancellation of removal. Dismissal will put the noncitizen back to square one as an undocumented person. It is possible that a noncitizen who has been granted cancellation of removal but is waiting in the queue for a number can also be subject to a unilateral motion to dismiss by an ICE prosecutor.  Thus, it is crucial for attorneys to promptly notify clients of an outright dismissal and any associated consequences. Board of Immigration appeals case law also provides a basis for attorneys to be able to challenge outright dismissals that are deleterious to their clients. In Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998), the BIA held that once the NTA is filed  an Immigration Judge must not simply cancel a charging document upon USCIS’ invocation of prosecutorial discretion, but should adjudicate the motion to dismiss on the merits, considering arguments from both sides.

Certain noncitizens have a right to be placed in removal proceedings. One whose affirmative asylum application is not granted must be referred for removal proceedings pursuant to 8 CFR 208.14(c)(1). Similarly, under 8 CFR 216.4(d)(2) and 8 CFR 216.5(f), the denial of a joint I-751 or waiver I-751 petition requires the issuance of an NTA. A dismissal of such an application would clearly be in violation of not just the applicable regulations but also the Doyle memo. Still, the IJ can dismiss a proceeding where a meritless asylum application was filed with the USCIS for the sole purpose of seeking cancellation of removal in immigration court. See Matter of Andrade, 27 I&N Dec. 557 (BIA 2019. Thus, attorneys must be vigilant to contest a motion to dismiss if the facts of the case can be distinguished from Matter of Andrade. For instance, even if the asylum application may have been filed with the intention for seeking cancellation of removal, but the asylum application had merit, this would not be a basis for an IJ dismiss the proceeding.

The Doyle memo also encourages ICE attorneys to employ other tools in exercising prosecutorial discretion, such as filing joint motions to dismiss. There is often a short time frame to respond to these motions, so advocates must be vigilant in ensuring that they inform clients and submit a timely response. Advocates should ensure that clients have an avenue for relief before joining a motion to dismiss, and should inform clients about what a dismissal would mean for their case and any negative consequences.

The Doyle memo states that OPLA attorneys may agree to administrative closure when the noncitizen does not oppose and the specific facts of the case warrant administrative closure over other means of clearing the case from the docket. In some instances, though, OPLA can unilaterally seek administrative closure regardless of the wishes of the noncitizen. Immigration attorneys should inform their clients of the impact that an administrative closure would have on their case, and vigorously oppose if the clients’ interests would be harmed. It is also important to recognize that administrative closure is not a permanent termination of removal proceedings, so attorneys must continue to monitor administratively closed cases and seek more lasting forms of relief for their clients.

Despite its beneficial aspect, the methods for exercising prosecutorial discretion suggested in the Doyle memo could place noncitizens in uncertain situations and raise ethical dilemmas for their immigration lawyers. The attorney must be competent, diligent and must communicate with the client to ensure that the client is not worse off than in pending removal proceedings. Most important, the attorney must obtain the client’s informed consent before responding to any initiative by the ICE prosecutor under the Doyle memo or reaching an agreement with the government. The pros and cons of seeking relief under prosecutorial discretion over seeking relief under the INA must be carefully considered and discussed with the client.  Because OPLA does not include language in motions that would preserve a noncitizen’s ability to work, dismissal of the case often means that a noncitizen will lose work authorization with little warning. Dismissal of a case may also leave individuals with essentially no authorization to remain in the US, giving them little choice but to work without authorization, not pay taxes, and potentially violate the law in other ways. Immigration attorneys must carefully analyze these issues and advocate for their clients when a dismissal or administrative closure may do more harm than good.

 

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

The Role Of The Immigration Lawyer In The Age Of Trump

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Our role as immigration lawyers has never become more important since the morning of November 9, 2016. Notwithstanding his conciliatory speech after his upset win, President elect Donald Trump will have to deliver on some of his campaign promises that got him votes such as building a wall, extreme vetting and cancelling Obama’s executive actions such as the Deferred Action For Childhood Arrivals (DACA) program.

We are already getting a glimpse of the people who are being selected to be part of the immigration transition team. Kris Kobach has joined the team. He is avowedly anti-immigrant and was the architect of state enforcement laws, including Arizona’s notorious SB 1070, which includes the notorious “show me your papers” provision. SB 1070 authorizes local law enforcement to ask people for proof of their immigration status when there is “reasonable suspicion” that they might not be in the country legally. Kobach also coined the idea of “self-deportation” through attrition, which assumes that undocumented immigrants will leave on their own if the laws are applied harshly against them.

Another person who has joined the transition team is Danielle Cutrona who is Senator Jeff Sessions’ counsel on the Judiciary Committee. Senator Sessions is opposed to both legal and illegal immigration. He believes that even legal immigrants are bad for the United States.  When you have these sorts of people inducted into the immigration transition team, one can only imagine that they will want to implement as much as Trump’s vision on immigration, which he articulated in a fiery anti-immigration speech in Phoenix, Arizona:

  1. Begin working on an impenetrable physical wall on the southern border, on day one. Mexico will pay for the wall.
  2. End catch-and-release. Under a Trump administration, anyone who illegally crosses the border will be detained until they are removed out of our country.
  3. Move criminal aliens out day one, in joint operations with local, state, and federal law enforcement. We will terminate the Obama administration’s deadly, non-enforcement policies that allow thousands of criminal aliens to freely roam our streets.
  4. End sanctuary cities.
  5. Immediately terminate President Obama’s two illegal executive amnesties. All immigration laws will be enforced – we will triple the number of ICE agents. Anyone who enters the U.S. illegally is subject to deportation. That is what it means to have laws and to have a country.
  6. Suspend the issuance of visas to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.
  7. Ensure that other countries take their people back when we order them deported.
  8. Ensure that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports.
  9. Turn off the jobs and benefits magnet. Many immigrants come to the U.S. illegally in search of jobs, even though federal law prohibits the employment of illegal immigrants.
  10. Reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms.

It may not be possible for Trump to implement his entire vision, as he would also need the cooperation of both houses of Congress. For example, Congress would have to agree to provide funding for Trump’s wall. However, when Kobach was asked about the wall, Kobach answered that there is “no question” that it would be built. “The only question is how quickly will get done and who helps pay for it.” Still, one is hearing that there is hedging on the election promises and the wall may no longer get immediate priority. While it would be nice to hope that all that Trump said was election blather, he has also been advised by the Center for Immigration Studies (CIS) whose goal and mission is to severely curtail immigration. If you take a look at their talking points to the next President on how to severely restrict immigration through administration actions, you will know what I mean. It is a scary 79-point list that if implemented will totally gut the system the way we know it.   Therefore, it would be a mistake to wait and see rather than taking action right away.

The low hanging fruit  is to cancel DACA (although I would prefer if they rather built the wall but left DACA untouched). There are hundreds of thousands of young people who have received benefits under DACA and have done extremely well in their careers. It would be a tragedy if DACA was rescinded, which is easy to do, since the policy was based on a memo of the Obama administration. Still, it will look bad on the Trump administration and the Republican party if this happens since jeopardizing the lives and careers of DACA recipients will generate much sympathy. Also, DACA recipients are active and know how to mobilize to protect themselves. Indeed, it is because of their effective activism that they were able to convince the Obama administration to implement DACA in the first place. Needless to say, DACA recipients should consider alternatives as soon as possible. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen.  Alternatively, they can take advantage of the provisional waiver rule (and since it is a regulation in the federal register, it cannot be cancelled as easily as DACA), which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate.  And even if DACA is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

Vulnerable immigrants need advocates more than ever before to defend and protect them. We have a new and renewed mission, and this should propel us forward and give us a new purpose. Trump’s immigration advisors will likely appoint hostile judges, officers and leaders in charge of immigration policy. He will be harsh in the enforcement of the immigration laws, and is likely to restrict business immigration in favor of an America first policy. There is a possibility that the Obama administration’s prosecutorial discretion policies may also get cancelled and people will be more susceptible to deportation. The proposed extreme vetting can become a nightmare, and for some, it could be a proxy for not being allowed to come into the United States at all. Immigration lawyers need to be strategic regarding advising clients to apply for citizenship and travel out of the US.  We will use our legal acumen and every skill to protect our clients and our client’s businesses. We will be the shield for them against all the hateful anti-immigration rhetoric that is bound to manifest itself even more from his supporters. We will do what we do best with a renewed sense of purpose.

Finally, we sincerely hope that Donald Trump as a President with respect to his immigration policies will be different from Donald Trump as a candidate. A new President elect should herald optimism in everyone rather than cause fear to hundreds of thousands of vulnerable immigrants. There has been no statement from Trump to allay their fear. Why should we think that Trump has changed after all the hateful rhetoric he spewed against immigrants and refugees? Just like a leopard does not change its spots, a bigot will always remain a bigot. The fact that Kobach and Cutrona have joined the team only heightens such fears. After 9/11, although we feared the worst, there were no drastic limits or moratoriums due to the resilience and strength of the immigration movement. 11/9 poses yet another grave challenge, but we are ready to brace for the fight to defend immigrants in the age of Trump and xenophobia. And prevail we must as the cause is righteous and just.

(This blog is for informational purposes, and should not be considered as a substitute for legal advice)

Cyrus Mehta

Perspectives On Immigration In 2016 Through My Crystal Ball

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2016 portends to be an action packed year on immigration. While we continue to watch Donald Trump touting his absurd proposal to  temporarily ban Muslims, we can feel assured that it will likely not go anywhere. This is not the first time that America has witnessed such extreme anti-immigrant sentiments. It happened before in the mid-1800s when the Know Nothing party directed its ire against Irish Catholics, and later on in that century when the Know Nothings faded,  other anti-immigrant demagogues railed against the inferiority of  Jews and Southern European immigrants.

These earlier demagogues preceding Trump included Samuel Morse,  well known as the inventor of the telegraph and Morse code, who like Trump does with Muslim immigrants warned against Catholic immigrants whom he thought would be more loyal to the Pope:

How is it possible that foreign turbulence imported by shiploads, that riot and ignorance in hundreds of thousands of human priest-controlled machines should suddenly be thrown into our society and not produce turbulence and excess? Can one throw mud into pure water and not disturb its clearness?

A leading sociologist of his time in the late 19th century Edward Ross stated that Jews were “the polar opposite of our pioneer breed. Undersized and weak muscled, they shun bodily activity and are exceedingly sensitive to pain.” Regarding Italians, Ross noted that they “possess a distressing frequency of low foreheads, open mouths, weak chins, poor features, skewed faces, small or knobby crania and backless heads.”

The good news is that all of these anti-immigrant movements soon became irrelevant, and one does not need a crystal ball to predict that Trump, regardless of his current rise in the polls,  will also be relegated to the trash bin of history.

This week, the Supreme Court agreed to hear the challenge to the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) programs. The key issue is whether the President overstepped his powers provided to him in the INA by deferring the removal of a class of people who are in the United States in an undocumented capacity or not. My crystal ball reveals that the majority of justices in the Supreme Court will agree with the President. It is well acknowledged that the Executive Branch does have authority to prioritize on who should be removed from the country, given the limited funding that Congress gives it every year. Even if the Supreme Court required briefing on another question – whether the President is required to “take Care that the laws be faithfully executed” under Article II, Sec. 3 of the Constitution – it is hard to imaging a Supreme Court ruling that would require the President to enforce the law against each and every of the 11 million or more who are not authorized to remain in the United States.  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 who has been termed by many as the Deporter in Chief, some 400,000 per year were removed, which amounts to only 3-4% of the total undocumented population.   The government also exercises prosecutorial discretion in criminal matters, and no one bats an eyelid,  and has also developed guidelines regarding prioritizing enforcement with respect to states that have legalized marijuana. Accordingly, it is difficult to see how the President can be forced to take a different position with respect to immigration enforcement.

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. During the presidencies of Ronald Reagan and George H. Bush, significant number of family members of recipients of the 1986 legalization program were allowed to remain in the United States through executive actions.  Even if the law suit alleges that the President does not have authority, now is a good time to remind critics about Justice Jackson’s famous concurrent opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952), which held that the President may act within a “twilight zone” in which he may have concurrent authority with Congress. Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that President Truman could not seize a steel mill to resolve a labor dispute without Congressional authorization, the executive branch under the recent immigration actions 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. Although President Truman did not have authorization to seize the mill to prosecute the Korean War, Justice Jackson laid a three-pronged test to determine whether the President violated the Separation of Powers clause. First, where the President has express or implied authorization by Congress, his authority would be at its maximum. Second, where the President acts in the absence of congressional authority or a denial of authority, the President may still act constitutionally within a “twilight zone” in which he may have concurrent authority with Congress, or in which its distribution is uncertain. Under the second prong, Congressional inertia may enable, if not invite, measures of independent presidential authority. Finally, under the third prong, where the President acts in a way that is incompatible with an express or implied will of Congress, the President’s power is at its lowest and is vulnerable to being unconstitutional.

Through the Immigration Accountability Executive Actions, the President is likely acting under either prong one or two of Justice Jackson’s tripartite test. INA 103(a)(1) 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..”  INA  212(d)(5), which Congress also enacted, authorizes the Executive to grant interim benefits for “urgent humanitarian reasons” or “significant public benefits.”  Incidentally, parole can also be used to allow promising entrepreneurs to come to the United States and establish startups, although this and many other executive actions to help businesses have not been attacked in the law suit. Moreover, INA 274A(h)(3) provides authority to the Executive to grant employment authorization. Even if such authority is implied and not express, Congress has not overtly prohibited its exertion but displayed a passive acquiescence that reinforces its constitutional legitimacy. It should be noted though that the Fifth Circuit Court of Appeals in upholding the preliminary injunction noted that this provision did not provide authority for the President to issue work authorization under DAPA.   In terms of employment authorization issuance, Congress has rarely spoken on this except via INA § 274A(h)(3), so that many instances of employment authorization issuance are purely an act of executive discretion justified by that one statutory provision. If the Supreme Court limits the President’s authority under INA 274A(h)(3), it could jeopardize many other immigration programs under which work authorization is issued through this provision. Furthermore, INA 103(3) confers powers on the Secretary of Homeland Security to “establish such regulations, prescribe such forms or bonds, reports, entries and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this Act.”

Another more recent case that cuts in favor of President Obama is  Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), which  articulated:

“[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…

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.”

Another key issue is whether states should be even permitted to sue the federal government on immigration enforcement policy. If President Obama loses, it would then be an open invitation for any cantankerous state politician to bring a law suit against the federal government over an immigration policy that he or she dislikes. The ability of a state to harass the federal government could be endless. For instance,  a state could sue the federal government for granting deferred action to other groups of non-citizens, such as victims of domestic violence or crime victims or widows and widowers of US citizens, like the federal government has done in the past. These sorts of challenges from states would undermine the long established doctrine that immigration policy is within the purview of the federal government and Congress, and that the federal government has that discretion with respect to enforcement, as upheld in Arizona v. United States. Another concern for upholding preemption of federal immigration law from interference by states is the concern about the relationship between immigration and foreign affairs. See Toll v. Moreno, 458 U.S. 1 (1982); Hines v. Davidowitz, 312 U.S. 52 (1941).  If a state were allowed to sue each time the federal government issued a policy and blocked it, this would upset the long acknowledged preemption doctrine relating to immigration. If there is a disagreement in how the Executive Branch implements immigration policy, it is for Congress to intervene by changing the law rather than for states like Texas to file a law suit.

Ultimately, Justice Kennedy will most likely cast the deciding vote in upholding DAPA, but my crystal ball hints that other justices from the conservative wing such as Justice Roberts may concur, due to their abhorrence on broadening the standing doctrine under Massachusetts v. EPA, which was essentially a liberal decision that gave Massachusetts standing to force the EPA to issue a rule to regulate greenhouse gases. On a personal note, it is highly abhorrent to equate the harm caused by pollutants with the supposed harm caused by immigrants, who will more likely benefit than harm the state through their tax dollars and many other contributions.

On the business immigration front, things do not look so bright unfortunately. The H-1B cap filing season will again take place this April 2016, and the cap will surely be hit within the first five days of April, and Congress will not lift a finger to increase the cap. Indeed, it will be fortunate if it does not lift that finger since the current mood in Congress is to restrict the H-1B, along with the L-1 visa programs, even further. It is better to have the H-1B program in place as is, as further restrictions could also affect those who are already in H-1B status, and it would be harder for them to seek H-1B extensions through their employers under a new law.

Regarding forward movement in the employment-based dates, although the filing dates for the EB-2 and EB-3 for India and China have remained the same when they were abruptly pulled back on September 25, 2015, the December 2015 Visa Bulletin  predicted the following:

China: Forward movement of this date during FY-2015 has resulted in a dramatic increase in demand. Little, if any movement is likely during the coming months.

India: Up to eight months.

EB-2 China actually did creep forward in February from 01FEB12 to 01MAR12, when the above-quoted predictions said there would be “Little, if any movement”, and EB-2 India has already advanced more than a year from 01JUN07 in December to 01AUG08 in February despite being predicted to move only “Up to eight months”, so the predictions may have been a bit overly pessimistic.  My crystal ball predicts some forward movement over the remainder of the year,  but alas, with regards to the movement in the filing dates, my crystal ball has become cloudy as it fails to understand the logic of the government in not moving the filing dates correspondingly forward. Perhaps, the Mehta v. DOL lawsuit will force the government to provide some clarity, or the government will some day realize that it can move the filing dates substantially forward based on its historic broad interpretation of visa availability under INA 245(a)(3). But for now my crystal ball fails me, which is most unfortunate, as skilled immigrants who are legally in the United States deserve more clarity than anyone else.

 

Cyrus Mehta

Impact of Texas v. USA on Other Executive Actions Involving Employment Authorization

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Although the Fifth Circuit in Texas v. USA ruled against the Administration on November 9, 2015 by upholding the preliminary injunction against implementation of President Obama’s program to grant deferred action to certain groups of undocumented persons, the ruling may impact other executive actions that President Obama had announced on November 20, 2014, especially relating to skilled immigrants. It is thus important for the the Supreme Court to reverse this erroneous decision to not only allow the Administration to implement Deferred Action for Parental Accountability program  and the expanded Deferred Action for Childhood Arrival program (collectively referred to as DAPA in the decision), but to also allow the Administration to grant other kinds of administrative relief such as interim employment authorization to immigrants who face great hardship and are deprived of the benefits accorded to them under the Immigration and Nationality Act.

The majority’s ruling in the Fifth Circuit went even further than Judge Hanen’s decision in the lower district court by holding that DAPA was not authorized under any INA provision. Judge Hanen’s ruling suggested that if the Administration had followed the notice and comment procedure under section 553 of the Administrative Procedures Act, DAPA could have survived judicial scrutiny. The Fifth Circuit, on the other hand, held that since DAPA implicated “questions of deep economic and political significance,” Congress would have expressly authorized DHS, which it did not do. Hence, DAPA was a substantive APA violation under section 706(2) as it was not authorized under the INA. Thus, promulgating a rule at this juncture will not help to save DAPA.

One of the INA provisions relied on by the government to implement DAPA is INA section 274(h)(3), which provides:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.

While the ability to of INA 274A(h)(3) to provide authority to the Administration was  completely overlooked in Judge Hanen’s decision (and his flawed decision is discussed in David Isaacson’s excellent blog entitled IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA), the Fifth Circuit took notice of INA 274(h)(3), but gave it short shrift by observing that this provision, which is listed as a miscellaneous definitional provision is an unlikely place to find authorization for DAPA.

Contrary to the Fifth Circuit’s gloss, INA 274A(h)(3)  gives the Attorney General, and now the Secretary of Homeland Security, broad  flexibility to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  Indeed, INA 274(h)(3) was invoked by the DHS in promulgating a rule providing employment authorization for H-4 dependent spouses of H-1B visa holders in the US who are caught in the employment based second and third preference backlogs. INA 274A(h)(3) will also most likely be invoked when the DHS promulgates a rule to grant work authorization to beneficiaries of approved employment-based I-140 petitions who are waiting for their green cards in the backlogged employment preferences.

Indeed, if INA 274A(h)(3) is discredited, as suggested by the Fifth Circuit,  many other justifications for providing an employment authorization document (EAD) would collapse.  The reason the EAD regulations are principally located in 8 CFR 274a, after all, is that the authority for most of them has always been thought to stem from INA 274A. While many of the 8 CFR 274a.12(a) EADs have some specific statutory authorization outside of INA 274A(h)(3), which is why they exist incident to status, many 8 CFR 274a.12(c) EAD categories are based on INA 274A(h)(3) in just the same way that  8 CFR 274a.12(c)(14) EADs for deferred action are.  People with pending adjustment applications under 8 CFR 274a.12(c)(9), including the “class of 2007” adjustment applicants, pending cancellation applications under 8 CFR 274a.12(c)(10), pending registry applications under 8 CFR 274a.12(c)(16), all get EADs based on that same statutory authority.  Even the B-1 domestic workers and airline employees at 8 CFR 274a.12(c)(17) have no separate statutory authorization besides 274A(h)(3). Some (c) EADs have their own separate statutory authorization, such as pending-asylum 8 CFR 274a.12(c)(8) EADs with their roots in INA 208(d)(2), and 8 CFR 274a.12(c)(18) final-order EADs with arguable roots in INA 241(a)(7), but they are in the minority.  And even some of the subsection (a) EADs have no clear statutory basis outside 274A(h)(3), such as 8 CFR 274a.12(a)(11) for deferred enforced departure.  If the Fifth Circuit’s theory is taken to its logical conclusion, it would destroy vast swathes of the current employment-authorization framework.

It is thus important for the Supreme Court to uphold the Administration’s authority to implement DAPA as part of its broad authority to exercise prosecutorial discretion, without the need to undermine INA 274A(h)(3). As I have advocated in FIFTH CIRCUIT PRECEDENT ON PREEMPTION CAN PROVIDE OBAMA WITH PATH TO VICTORY IN TEXAS v. UNITED STATES, the government’s authority to exercise prosecutorial discretion, which includes deferred action, is non-justiciable and notwithstanding the Fifth Circuit decision, never required rule making. The dissenting opinion in the Fifth Circuit decision thankfully held that deferred action, which is a quintessential exercise of prosecutorial discretion, is non-justiciable.  Indeed, one of the principal reasons why state regulations have been held to  conflict with federal immigration law is because they interfere with the Administration’s ability to exercise prosecutorial discretion. While on first brush Texas v. USA is not a preemption case, it would still provide a basis for any cantankerous state politician to sue the federal government, under the broad and dubious standing theory  that the Fifth Circuit provided to Texas, whenever the federal government chooses to exercise prosecutorial discretion. While the DACA program of 2012 will be the most vulnerable, if the Supreme Court were to uphold the Fifth Circuit’s majority decision, another court would hopefully reach another conclusion with respect to INA 274A(h)(3) as providing the authority to the Administration to grant work authorization in many other contexts.

The Supreme Court in Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), articulated the federal government’s authority  to exercise prosecutorial discretion rather elaborately:

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.

The majority of the Supreme Court  justices ought to  latch onto the dissenting opinion, which is the correct opinion, and should reverse the preliminary injunction on the ground that the President’s executive actions regarding DAPA are non-justiciable, and thus leave alone INA 274A(h)(3). The Administration ought to be provided flexibility to provide ameliorative relief, especially EAD under INA 274A(h)(3) to a number of non-citizens needing relief. The prime example are those who have to wait for decades in the India EB-2 and EB-3 backlogs for their green card, even though they have otherwise fulfilled all the conditions. Due to the lack of a current priority date, beneficiaries who are otherwise approved for permanent residence ought to be able to obtain EADs, and the same also should apply to H-4 spouses of H-1B visa holders who are caught in the employment based backlogs. Also, researchers, inventors and founders of startup enterprises ought to be paroled into the US and issued EADs under the broad authority provided in INA 274A(h)(3), and this too is one of the initiatives contemplated in the President’s  November 20, 2014 executive actions.  There are many good reasons why the Administration should be allowed to issue work authorization to noncitizens, and INA 274A(h)(3) ought not be reinterpreted to curtail this flexibility.

Cyrus Mehta

Obama’s Paradoxical Deportation Policies

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President Obama has been called the Deporter in Chief as he has presided over nearly 2 million deportations during his presidency – higher than that of any other President. On the other hand, President Obama has also rolled out some of the most innovative prosecutorial discretion policies, which include granting deferred action to hundreds of thousand immigrants who came to the United States when they were young.

A revealing article in the Los Angeles Times shows that the high number of deportations is largely misleading. The likelihood of an undocumented individual already in the United States who has developed ties being deported has lessened considerably under President Obama. Even people with removal orders can seek a stay of removal if they establish that they are deserving of prosecutorial discretion under the Morton June 17, 2011 Memo.  Young immigrants who arrived in the United States prior to the age of 16 and who meet other conditions can apply for deferred action, along with work authorization, under the Deferred Action for Childhood Arrivals (DACA) program.

The people who are being deported, and are part of the increased statistics, are those who recently crossed the border without inspection and are apprehended within 100 miles from the border. Under previous administrations, such people were informally bused back outside the United States in what was known as “voluntary returns.” Under the Obama administration, these people are fingerprinted and issued formal deportation orders. INA section 235(b)(1), which was enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, granted authority to expeditiously remove persons at the border who are deemed inadmissible under INA sections 212(a)(6)(C) for making a material misrepresentation or 212(a)(7) for not possessing valid visa documents. On August 11, 2004, DHS promulgated a rule to expand expedited removal to persons who are present in the United States without having been admitted or paroled and who are apprehended within 100 miles from the southern border and who also cannot prove that they were physically present in the country continuously for the preceding 14 days. This rule was expanded to all borders on January 30, 2006.

This is not to suggest that the increased use of expedited removal to recent border crossers does not have devastating effects and should not be remedied through immigration reform measures, since many of these crossers are entering the United States to join family members. Still, it is the expanded use of expedited removal that has resulted in an increase of deportations, when under prior administrations, such persons were informally returned from the United States without terming them as deportations. Once a recent border crosser is expeditiously removed, a reentry into the United States also carries severe criminal penalties unlike a ‘voluntary return.” On the other hand, a person who has been in the United States for a longer period is less likely be placed in the removal proceedings, and even if this person is issued a Notice to Appear before an Immigration Judge, he or she can have a shot at requesting prosecutorial discretion under President Obama’s administration than before, which will result in either administrative closure or termination of the case. Unfortunately, the majority of people who came to the attention of the immigration enforcement authorities within the interior, resulting in deportation proceedings,  are those who got arrested for minor offenses.

As an aside and consistent with the topic of this article, there are instances when it can be more beneficial for a person to be placed in removal proceedings than not. Pursuant to INA section 240A(b), an individual who meets 10 years of physical presence, good moral character for this entire period and can demonstrate exceptional and extremely unusual hardship to qualifying relatives who are either citizens or permanent residents can obtain cancellation of removal, leading to lawful permanent resident status. The hardship standard is extremely high and needs to be substantially beyond the hardship that would ordinarily be expected to result from the alien’s deportation, as demonstrated in cases such as Matter of Monreal, 23 I&N Dec. 53 (BIA 2001); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) where cancellation was denied; and Matter of Recinas, 23 I&N  Dec. 467 (BIA 2002) where it was granted. Another advantage of being in removal proceedings is to escape the 3 year bar based on unlawful presence of more than 180 days but less than 1 year pursuant to INA section 212(a)(9)(B)(i)(I). Departing the United States under a grant of voluntary departure, which is issued prior to the alien accruing 1 year of unlawful presence, and after the commencement of proceedings, may allow this alien to reenter the United States without being subject to the 3-year bar. Finally, another tactical advantage to being placed in removal proceedings is when an application for adjustment of status is denied, and the best way to get a second chance is to have an Immigration Judge review the adjustment application de novo in proceedings. The irony is that ICE is often  reluctant to put a person under these circumstances in removal proceedings because it is does not have the resources, and is also of the view that as an enforcement agency,  it is contrary to the agency’s mission to place someone in removal so that he or she can ultimately secure an immigration benefit.  One note of caution is that those who came into the United States on a visa waiver should not consider requesting a removal proceeding as they have waived their right to a removal hearing under INA section 217(b).

President Obama used the increased deportation statistics to show that he was enforcing the law, but this has backfired among his critics. Those who favor stricter enforcement are not satisfied with the record increase in deportations by pointing to the Administration’s expanded prosecutorial discretion policies that has resulted in the deferring of thousands of deportations. Enforcement advocates in Congress use the President’s expanded prosecutorial discretion policies, while conveniently ignoring the spike in deportations, as an excuse to delay immigration reform and cooperating with the President.  At the same time, immigration advocates and allies have criticized President Obama for increasing deportations without truly bringing about genuine immigration reform. After the passage of the S. 744, the Senate’s immigration reform bill last year, there is now a stalemate where the prospects of immigration reform in the House have almost evaporated despite unanimous agreement that the immigration system is broken.

If President Obama desires to cement his legacy with respect to immigration reform, he may not be able to achieve it through this Congress. In the past, President Obama has indicated that he does not have the authority to further expand prosecutorial discretion, but this may have to change. The only way for the President to fulfill the promise he has made to so many who voted for him is to go about it on his own through administrative policy changes. The Executive branch can expand deferred action to a broader group of people, which could include family members of DACA recipients and those who have US citizen children. The prosecutorial discretion guidelines under the Morton Memo ought to be further strengthened to ensure that they are not ignored by ICE officials, as many are wont to do. The parole in place policy for relatives of military personnel can be expanded to benefit those who are on the pathway to permanent residency if they are beneficiaries of employment and family immigrant visa petitions. In an eloquent New York Times editorial entitled Yes He Can, On Immigration, the following is worth extracting:

Mr. Obama may argue that he can’t be too aggressive in halting deportations because that will make the Republicans go crazy, and there’s always hope for a legislative solution. He has often seemed like a bystander to the immigration stalemate, watching the wheels spin, giving speeches and hoping for the best.

It’s hard to know when he will finally stir himself to do something big and consequential.

The President must no longer fear doing something big and consequential on the immigration front. Some may justifiably fear that if the President ameliorates the plight of undocumented people through administrative reform measures, another President can quickly undo them; and therefore it is best for Congress to enact immigration reform. Administrative remedies are clearly no substitute for comprehensive immigration reform passed through Congress, but it would be hard for a future President to undo wise administrative reform measures that provide a fix to a broken immigration system. For example, DACA benefits have already been granted to hundreds of thousands of young immigrants who have been able to graduate from college and find jobs. It would be politically imprudent for a future President to undo DACA. Indeed, S. 744, the bipartisan reform bill that was passed by the Senate, incorporates DACA and places DACA recipients on a faster track to permanent residency. If President Obama implements bold administrative measures, it would be difficult for a future administration to undo them, and it is likely that a future Congress will have no choice but to readily adopt them into law.