Tag Archive for: Texas v. USA

Cyrus Mehta

Guilford College v. Wolf: Reflecting on the Nationwide Injunction in Immigration Cases

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In a stunning victory for F, J, and M nonimmigrant students battling unlawful presence policy, a federal district court in North Carolina has granted a permanent injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo. The Trump Administration’s August 2018 policy would have rendered students in F, J and M status unlawfully present for minor technical violations thus subjecting them to 3 and 10 year bars from reentering the United States.

The February 6, 2020  Guilford College et al v. Chad Wolf et al opinion, issued by the Honorable Loretta C. Biggs, is an extraordinary nationwide injunction holding the  August 2018 policy unlawful not just for the Plaintiffs “but for all those subject to its terms.” In addition to summarizing the Court’s well-reasoned justifications for granting Plaintiff’s summary motion in Guilford College, I also reflect on the Court’s justification for granting a nationwide injunction shortly following Justice Gorsuch’s disapproval of such nationwide injunctions in Department of Homeland Security v. New York on January 27, 2020.

As background, the August 2018 policy changed over 20 years of established practice by recalculating how ‘unlawful presence’ time is accrued for foreign students and exchange visitors. In doing so, USCIS blurred the line between established concepts of ‘unlawful presence’ and ‘unlawful status’, and instead made the two terms synonymous as it related to F, J, and M nonimmigrants.

Prior to the August 2018 policy, unlawful presence time would not begin to accrue until the day, or day after, a formal finding was found that the nonimmigrant was out of status. In contrast, under the new policy nonimmigrants would begin accruing unlawful presence time the moment any violation of status occurred. Further, nonimmigrants would not receive any formal notice of a status violation, and any past violation that had been discovered would have begun accrual of unlawful presence. This drastic recalculation of unlawful presence time put many who would be unaware of any status violations at risk of being subject to 3-year or 10-year bars of admission should they accrue more than 180 days of unlawful presence. See INA §212(a)(9)(B)(i)&(II). Mistakes due to technicalities, human error, miscommunication, or ambiguity of rules would cause a nonimmigrant to fall out of status and accrue unlawful presence without their knowledge and without opportunity to cure the violation.

This decision makes permanent a preliminary injunction that was granted on May 3, 2019 on grounds that 1) USCIS had issued the August 2018 policy in violation of the Administrative Procedure Act (APA) for failure to observe the APA’s notice and comment procedures, and 2) the August 2018 policy conflicted with statutory language of the Immigration and Nationality Act (INA).

The Court agreed with the Plaintiffs showing that the language, purpose, context, and effect of the August 2018 USCIS policy rendered it a legislative rule. For a legislative rule to be valid it must have been promulgated in compliance with the APA’s notice and comment procedures under U.S.C. § 553. Thus, in failing to publish notice of its proposed policy change in the Federal Register, USCIS violated the APA, thus invalidating the policy. While acknowledging that the distinction between legislative and interpretive rules is “enshrouded in considerable smog”, the Court found the August 2018 policy to be a legislative rule rather than an interpretive rule as it changed the policy for calculating unlawful presence. It established a binding norm for adjudicators to start calculating unlawful presence from the date of the status violation.

With respect to Plaintiff’s contention that the August 2018 policy violated the statute at INA §212(a)(9)(B)(ii), the provision is reproduced in its entirety to better explain the Court’s reasoning:

“Construction of unlawful presence – For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

The Court opined that it was clear that unlawful presence accrued “after the expiration of the period of stay authorized” in §212(a)(9)(B)(ii). Since F, M and J nonimmigrants were admitted under “duration of status” there is no express expiration date. Under the August 2019 policy, the nonimmigrant “starts accruing unlawful presence…the day after he or she engages in an unauthorized activity.”  The August 2019 policy, according to the Court,  “improperly dissolves the distinction between the ‘expiration of the period of stay authorized’ and the violation of lawful status.” The second ground for setting aside the August 2019 is significant. Even if the administration promulgated a rule under the APA, as it appears to be proposing to do so, it may still potentially be set aside as violating §212(a)(9)(B)(ii).

On top of the Court’s reasons for granting a permanent injunction, it also grants a nationwide injunction despite Justice Gorsuch’s scolding against this practice in DHS v. New York a week earlier. Justice Gorsuch complained that a single judge enjoined the government from applying the new definition of public charge to everyone without regarding to participation in this lawsuit, and that they are “patently unworkable” and sow chaos. Earlier, Justice Thomas too complained in his concurrence in Trump v. Hawaii that universal injunctions are a recent phenomenon and that federal courts’ equitable powers were constrained after the country’s founding. Hence, nationwide injunctions are constitutionally suspect. Mila Sohoni, a professor at the University of San Diego law school, argues in the Harvard Law Journal that nationwide injunctions are not a recent phenomenon and this practice goes all the way back to the 19th century. Because nationwide injunctions have a long pedigree, moves today by judges, lawyers in the Trump administration, members of Congress and legal scholars to do away with the universal injunction would be a sharp departure from precedent and practice.

The Court in Guilford College properly reasoned that the scope of an injunction is dictated by “the extent of the violation established, and not by the geographical extent of the plaintiff class.” The Court further held that “Plaintiffs seek a remedy that applies not just anywhere, but to anyone who would otherwise be subject to the policy implemented by the August 2018 PM.” Moreover, as Professor Sohoni has argued, if the policy is violative of the APA, then it must be set aside under 5 USC 706(2). The Fourth Circuit has also explained in IRAP v. Trump that nationwide injunctions are especially appropriate in the immigration context, as Congress has made clear that federal immigration laws must be enforced vigorously and uniformly. Moreover, the plaintiffs in Guilford College were dispersed throughout the US further justifying a nationwide injunction. And to counter Justice Gorsuch’s point that nationwide injunctions sow chaos, could it also not be argued that the lifting of a nationwide injunction would sow even greater chaos if a law that is potentially inconsistent with a statute or unconstitutional is implemented until it is found so by a court – thus causing needless hardship to hundreds of thousands, even millions, of would be immigrants? Another legal scholar Amanda Frost agrees that “nationwide injunctions are the only means to provide plaintiffs with complete relief, or to prevent harm to thousands of individuals similarly situated to the plaintiffs who cannot quickly bring their own cases before the courts.” As the executive has been steadily expanding its powers, a nationwide injunction can act as an important check against the executive branch especially when a polarized and ineffective Congress is unable to do so, according to yet another legal scholar Suzette Malveaux.

Finally, why are people in favor of restrictionist immigration policies within the Trump administration making a fuss about nationwide injunctions? It already happened the other way when Judge Hanen issued a nationwide injunction in Texas v. USA  against President Obama’s expansion of deferred action to parents of US citizen children. Judge Hanen justified the grant of a nationwide preliminary injunction on the ground that if millions began to benefit from a policy that was potentially in violation of the APA or the INA, there would be no effective way of “putting the toothpaste back in the tube should the plaintiffs prevail on the merits.”  When Judge Hanen issued a nationwide injunction, the very same people who are now in charge of implementing hurtful immigration policy cheered. Today, they are critical of the nationwide injunction when courts block their immigration policies.   They cannot have it both ways!

 

 

Cyrus Mehta

Cross Currents In Federal Preemption of State and Local Immigration Law Under Trump

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Preemption of federal immigration law over punitive state immigration laws was a hot topic until very recently, especially when Arizona enacted a tough enforcement law known as SB1070. The Obama administration fiercely challenged the law under the preemption doctrine, which ended up in the Supreme Court in Arizona v. USA. Although the majority opinion found most of the provisions of SB1070 preempted, the Supreme Court nevertheless upheld Section 2B, popularly referred to as the “show me your papers law.” The Court’s logic of upholding Section 2B was that it did not create a new state immigration law, but merely allowed state enforcement personnel to obtain a federal determination as to whether a person they had lawfully apprehended was lawfully present in the United States. Many other states introduced copycat “show me your papers laws.”

Texas just passed a law SB 4 that includes not only “show me your papers” provisions, but also imposes sanctions on sheriffs, local police and even campus police departments if they do not share information with federal immigration authorities, do not honor a detainer or prevent a state enforcement officer from seeking a determination of immigration status of a person under a lawful detention or arrest. The sanctions include civil penalties and criminal penalties, as well as removal of persons holding elective or appointed positions who violate the law.

Will the Trump administration challenge similar state encroachments on federal immigration law like President Obama did? Or do we need to be writing the obituary of the preemption doctrine when it relates to federal immigration law? Even if the Texas law goes unchallenged by the federal government which it likely will, will private plaintiffs be able to challenge the law under the preemption doctrine? Preemption stems from the Supremacy Clause of the United States Constitution (Article VI, Clause 2), which establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. While there are notable exceptions when a state immigration law is not preempted, a state law that conflicts with federal immigration law stands a good chance of being preempted under the Supremacy Clause.

A good test of how preemption will play out in the future is Arizona’s appeal of the Ninth Circuit decision in Arizona Dream Act Coalition v. Brewer. The Ninth Circuit held that Arizona was precluded from discriminating against an employment authorization document (EAD) issued to a recipient under President Obama’s Deferred Action for Childhood Arrival (DACA) program as valid proof of eligibility for an Arizona driver’s license. Under DACA, young people who came to the United States before the age of 16 and fell out status could apply for deferred action and an EAD.

On August 15, 2012, when DACA took effect, Arizona’s then Governor Janet Brewer tried everything in her book to de-legitimize DACA in Arizona. DACA would not confer lawful or authorized status, according to an Arizona executive order signed by Governor Brewer. Arizona’s Motor Vehicle Division announced that it would not accept an EAD issued to DACA recipients pursuant to 8 CFR 274a.12(c)(14) with code C33 as proof that their presence was authorized under federal law for purpose of granting a driver’s license.

In 2013, the Arizona Department of Transportation (ADOT) further tried to justify its animus toward DACA by revising its policy to only recognize EADs if 1) the applicant has formal immigration status; 2) the applicant is on a path to obtain formal immigration status; or 3) the relief sought or obtained is expressly pursuant to the INA. Under these new criteria, Arizona refused to grant driver’s licenses not only to DACA recipients but also to beneficiaries of traditional deferred action and deferred enforced departure. It continued to grant driver’s licenses only from applicants with EADs pursuant to 8 CFR 274a.12(c)(9), those who had filed adjustment of status applications, or 8 CFR 274a.12(c)(10), those who had applied for cancellation of removal. Under this revision, even one who received deferred action other than DACA under 8 CFR274a.12(c)(14) would now be deprived of a driver’s license.

On April 5, 2016, the Ninth Circuit in Arizona Dream Coalition found that these arbitrary classifications defining authorized status were preempted under federal law and put to rest Arizona’s “exercise in regulatory bricolage.” Although the Ninth Circuit also found that these distinctions between different EADs likely violated the Equal Protection Clause, in order to avoid unnecessary constitutional adjudications, the Court found that these arbitrary classifications under Arizona’s law were preempted as they encroached on the exclusive federal authority to create immigration classifications. While Arizona sought to exalt the status of an EAD that was obtained when one sought adjustment of status or cancellation of removal, the Ninth Circuit gave short shrift to such arbitrary classification. There is no difference if one receives an EAD though cancellation of removal or through deferred action as submitting a cancellation application does not signify that the applicant is on a clear path to formal legal status. Such an application could well be denied. In this regard, noncitizens holding an EAD under C9 or C10 are in no different a position than one who has received an EAD pursuant to DACA under C33. The following extract from the Ninth Circuit’s opinion is worth quoting:

Arizona thus distinguishes between noncitizens based on its own definition of “authorized presence,” one that neither mirrors nor borrows from the federal immigration classification scheme. And by arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design

Since the Ninth Circuit’s ruling in Arizona Dream Act Coalition, there has been a dramatic shift in the way unauthorized immigrants are viewed since Trump’s presidency. As part of his election campaign against unauthorized immigrants, Trump railed against DACA as a vivid example of President Obama’s unconstitutional usurpation of powers from Congress. But after his inauguration, Trump did a volte face stating that he would not immediately rescind DACA and would deal with these kids “with heart.” DACA’s fate tenuously hangs in balance, and completely subject to the whims of a tempestuous president. Still, unauthorized immigrants who crossed the border are conflated with criminals, and any crimes that may have been perpetrated by such a noncitizen is viewed as preventable if the individual was either deported before the crime occurred or was not let in at all. The Trump administration issued an Executive Order that beefs up enforcement, essentially reverses carefully calibrated enforcement priorities of the Obama administration and threatens to sanction sanctuary jurisdictions by cutting off federal funds.

Arizona, perhaps emboldened after Trump’s presidency, recently challenged the Ninth Circuit ruling in the Supreme Court. In its March 29, 2017 petition for a writ of certiorari, Arizona contended that the Ninth Circuit erred by assuming that President Obama’s DACA program that granted deferred action to young adults brought to the U.S. illegally as minors was a valid “federal law” that can trump state police power. The granting of licenses is a state concern and cannot be preempted by an unlawful exercise by Obama, Arizona further argued.  Fourteen states have joined Arizona’s bid to overturn the Ninth Circuit ruling by filing an amicus brief. Texas Attorney General Ken Paxton affirmed when unveiling the amicus brief, “We stand with Arizona against illegal federal overreach by the former president, who bypassed Congress to enact an immigration program he did not have the authority to create.” It is unlikely that the Trump administration will come in the way of these states in their challenge.

Still, despite the Trump’s administration’s reluctance to defend preemption and DACA, the rule of law ought to trump presidential caprice. Although Texas v. USA challenging President Obama’s Deferred Action for Parental Accountability (DAPA) ended up as a 4-4 draw in an 8-member Supreme Court after Justice Scalia’s death, there are other robust decisions that uphold preemption by virtue of the fact that the federal government has the ability to exercise discretion regarding immigration enforcement.  In Villas at Parkside Partners v. Farmers Branch, 726 F.3d 524 (5th Cir. 2013), the conservative Fifth Circuit struck down a Farmers Branch, TX, ordinance on preemption grounds because it conflicted with federal law regarding the ability of aliens not lawfully present in the United States to remain in the US. The Fifth Circuit also noted that the federal government’s ability to exercise discretion relating to removal of non-citizens is a key reason for a state or local regulation of immigration being preempted under the Supremacy Clause of the US Constitution:

Whereas the Supreme Court has made clear that there are “significant complexities involved in [making] . . . the determination whether a   person is removable,” and the decision is “entrusted to the discretion of the Federal Government,” Arizona, 132 S. Ct. at 2506; see also Plyler, 457 U.S. at 236 (Blackmun, J., concurring) (“[T]he structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.”), the Ordinance allows state courts to assess the legality of a non-citizen’s presence absent a “preclusive” federal determination, opening the door to conflicting state and federal rulings on the question.

However, the lower Fifth Circuit decision in Texas v. USA upholding the preliminary injunction still provides ammunition to those who wish to bolster state immigration laws. The states’ amicus brief in support of Arizona’s challenge in Arizona Dream Coalition draws heavily from the Fifth Circuit decision in asserting that DACA, like DAPA which conferred deferred action on undocumented parents of citizen or resident children, was viewed as unlawful. The states amicus argues that President Obama created a category that gave lawful presence to aliens who were otherwise not authorized to remain in the United States. Like DAPA, which was successfully challenged, DACA, according to the amicus brief, also cannot bestow lawful presence by the Executive, and thus DACA cannot preempt Arizona state law in not recognizing an EAD of a DACA recipient. If the Supreme Court decides to hear Arizona Dream Coalition, it will be pitted against Arizona v. United States.

Till then, notwithstanding the Trump administration disavowing prosecutorial discretion to broad classes of people, the federal government’s discretionary authority as a basis for preemption still stands, as poignantly articulated by the Supreme Court in Arizona v. United States:

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.

Given strong precedents in favor of preemption, there is hope that state immigration enforcement laws can still be successfully challenged. On the other hand, it is not clear whether the broad discretion in federal immigration enforcement as recognized in Arizona v. USA be applicable to a federal program like DAPA or even DACA, and if DAPA or DACA is viewed as overstepping executive authority, whether they could be used as a basis for preempting a state law that does not accord recognition to recipients of such programs for state benefits such as driver’s licenses. Now that Justice Gorsuch is the ninth nominee, it remains to be seen whether the Supreme Court’s majority will uphold the reasoning of the Fifth Circuit in Texas v. USA or continue to uphold the federal government’s broad discretion, as recognized in Arizona v. USA. Clearly, the current Trump administration would have no interest in again pursuing Texas v. USA on its merits even though it has not rescinded President Obama’s DAPA memorandum of November 20, 2014. The current decision in Texas v. USA is a preliminary injunction and not a decision on the merits.

There is yet another emerging trend that is worthy of observation. In the Trump era, immigration friendly states and localities, known as sanctuary jurisdictions, have decided not to cooperate with federal immigration authorities with respect to routinely sharing information of foreign nationals who may be arrested in the state penal system or honoring a federal immigration detainer. In San Francisco v. Trump, San Francisco and Santa Clara Country successfully challenged  Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which, in addition to outlining a number of immigration enforcement policies, purports to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law” and to establish a procedure whereby “sanctuary jurisdictions” shall be ineligible to receive federal grants.” In the preliminary injunction order, the court in San Francisco v. Trump, among other things, held (citing Printz v. United States, 521 U.S. 898 (1997)) that the federal government cannot compel the states to enact or administer a federal regulatory program under the Tenth Amendment. The new Texas law SB 4 was enacted by the state, and so it will be difficult to argue under Printz v. US that the federal government cannot compel a state to do its bidding. It is uncertain whether the show me your papers part of SB 4 can be preempted in light of Arizona v. USA upholding s similar show me your papers provision, Section 2B of SB 1070. A challenge will have to be brought by a private plaintiff that the Texas SB 4 law is preempted as it forces state entities to get into the business federal immigration enforcement, which is a purely federal matter. It also makes the state’s compliance with a detainer mandatory, when federal courts have held that such compliance is not mandatory. See e.g. Galazara v. Szalezyj. At the same time, because Section 2B was upheld in Arizona v. USA, it may be difficult to challenge the similar show me your paper provision in SB 4. Still, a way to challenge this is to demonstrate that it penalizes an entity for preventing an officer from making such a determination, and so challenging the penalty rather than the ability of a local enforcement authority to make the determination of the immigration status may be a way to thread the needle. Moreover, Arizona’s 2B was upheld as a preliminary injunction before the law took effect. If there are instances of egregious violations, 2B and other similar provisions can be challenged again.

There is some irony that those who disfavor Arizona style immigration enforcement laws, including yours truly, cheered when the federal district court ruled in favor of San Francisco and Santa Clara County. Upon careful reflection, this is not a case of double standards. From a policy perspective, state immigration enforcement laws ought to be preempted as they can lead to discrimination and uneven enforcement when untrained state police mistakenly detain people, including potentially US citizens, who may be here lawfully. Even state laws that “indirectly” enforce immigration law through landlord-tenant ordinances or by penalizing employers who hire unauthorized immigrants, state enforcers are more likely to make errors in determining who is authorized to remain in the United States and who is not. In Chamber of Commerce v. Whiting, the Supreme Court upheld Arizona’s employment sanction law as it fell under a savings clause of a federal statutory provision, 8 U.S.C. § 1324a(h)(2), that otherwise preempted state law. Even in Whiting, Chief Justice Roberts assumed that there would be no errors in verifying the status of employees as the state would check with a federal database pursuant to 8 USC 1373(c). If the federal determination revealed the person was a US citizen, that would make it obvious that the person was authorized to work. Conversely, if the federal determination revealed that the person has been removed, the Chief Justice erroneously assumed that this would reveal that the person is not authorized to work. However, even those with removal orders can obtain work authorization in many instances, a prime example being one who is under an order of supervision pursuant to 8 CFR 274a.12(c)(18).  David Isaacson astutely points out, “The fact that even the Chief Justice of the United States could make this mistake may shed some light on why the prospect of state officials attempting to implement immigration law strikes many attorneys who work in the immigration field as highly inadvisable.” On the other hand, the federal government should not be compelling states to share information as it would undermine trust in local the local policy who may need to work with local communities, including undocumented immigrants, in preventing crime. Even if there are a few cases of undocumented immigrants who have perpetrated crimes, using the immigration system as a pretext for preventing crimes is not the solution. Crimes are committed in every community, and even by Americans.  Immigrants do not have a propensity to commit more crimes. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans. There is a role for immigration enforcement under the INA by the federal government and states should not be in the same business.

There is a lot of turbulence in preemption doctrine, with some states passing immigrant unfriendly laws and others passing immigrant friendly laws. The prior Obama administration directed its ire at immigrant unfriendly states while the Trump administration is directing its ire at immigrant friendly states. Now is certainly not the time to close the book on the tumultuous story of preemption as a new chapter is being written.

Cyrus Mehta

Were the DOJ Lawyers Really Unethical in Texas v. USA?

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Judge Hanen’s order dated May 19, 2016 reprimanding thousands of Department of Justice lawyers for unethical conduct is astounding because it does not even appear that their conduct was unethical.

Much has already been written about Judge Hanen’s strange order. Professor Orin Kerr questions whether the judge can even impose ethics classes on hundreds of DOJ lawyers who are not remotely connected to the case. Professor Shobha Sivaprasad Wadhia is justifiably concerned that the order, in addition to reprimanding DOJ attorneys, also threatens to ‘out’ the names of more than hundred thousand  recipients of the Deferred Action for Childhood Arrival (DACA) program who were granted 3 year extensions instead of 2 year extensions. Professor Stephen Legomsky does not even think the DOJ lawyers did anything wrong.

I completely agree. Let’s look at Rule 3.3 of the American Bar Association Model rules of Professional Conduct and the corresponding Texas Disciplinary Rules of Professional conduct, which Judge Hanen used, along with a fair sprinkling of dialogs from popular films, for finding that the DOJ lawyers were not truthful to the court. One of the cardinal ethical cannons is that a lawyer has a duty of candor to a tribunal.  ABA Model Rule 3.3 provides in relevant part:

a)  A lawyer shall not knowingly:

1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

The relevant potions of the Texas version of Rule 3.3 are similar:

a)  A lawyer shall not knowingly:

1) Make a false statement of material fact or law to a tribunal

2) Fail to disclose a fact to as tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

  ………………..

    5)  offer or use evidence that the lawyer knows to be false.

In order for a lawyer to violate Rule 3.3, he or she must have knowingly made a false statement to the tribunal. Was there such a knowing violation of Rule 3.3 here?

On June 15, 2012, the Obama administration announced DACA that allowed young people who came to the United States prior to the age of 16 and had lived continuously since June 15, 2007, and were not in a lawful status, to be granted deferred action.  On November 20, 2014, DHS Secretary Jeh Johnson issued a memo expanding DACA by changing the eligibility criteria to cover those who had come to the United States prior to January 1, 2010 instead of June 15, 2007 and by removing the maximum age limit of 31 (“Johnson Memo”). The Johnson Memo also lengthened the deferred action time from two to three years. The Johnson Memo further granted deferred action to parents of US citizens or resident children, known as the Deferred Action for Parent Accountability (DAPA), if they had arrived into the United States on or before January 1, 2010.

A group of states challenged the Johnson Memo in Texas v. USA by filing in a court in Brownsville, TX,  where Judge Hanen sat who had already expressed strong views against the Obama administration on immigration.  Judge Hanen granted a preliminary injunction on February 16, 2015 blocking DAPA and expanded DACA. Much has already been written to rebut the conclusions in this flawed decision, and the further flaw in the Fifth Circuit’s affirmation of Judge Hanen’s preliminary injunction.  The preliminary injunction order did not expressly block the original DACA 2012 program. Qualified applicants thus continued to apply for DACA 2012 benefits. Under the terms of the Johnson Memo, qualified applicants under DACA 2012 started receiving grants of deferred action for 3 years instead of 2 years as of November 24, 2014.

Prior to the preliminary injunction of February 16, 2015, in conversations between Judge Hanen and DOJ attorneys, the DOJ attorneys indicated to the court that USCIS had not taken any actions pursuant to the Johnson Memo. Although actions had been taken since November 24, 2014 to grant three year deferred action periods rather than two years, those stemmed from the DACA 2012 program. They were also well publicized.  The expanded DACA, which brought forward the entry date from June 15, 2007 to January 1, 2010, was to take effect on February 18, 2015. Thus, when DOJ attorneys denied that the government had not taken any actions regarding expanded DACA, it was well conceivable that issuing three year deferred action periods instead of two years were actions stemming from the DACA 2012 program and had nothing to do with the expanded DACA program, which had not gone into effect.

After the preliminary injunction was issued, which applied to “expansions (including any and all changes)” to DACA 2012, the DOJ filed an Advisory indicating that out of an abundance of caution it was informing the court that it had granted three year periods of deferred action under the original DACA 2012 guidelines in the event of any misunderstanding.

Given this lack of clarity, as well as the fact that DACA 2012 was never the subject of the lawsuit, could the DOJ attorneys have knowingly made a false statement to be sanctioned under Rule 3.3? This Ethics Committee of the American Immigration Lawyers Association first questioned whether this was so in 2015, but it has become even more important to assert whether there was a Rule 3.3 violation Judge Hanen’s order.ABA Rule 1.0(f) defines the terms “knowingly,” “known” or “knows” as “actual knowledge of the fact in question.” Rule 1.0(f) goes on to state that a “person’s knowledge may be inferred from circumstances.” When the DOJ attorneys were giving an assurance to the court about no action being taken, it could have well been understood to be in relation to recipients who would have become eligible under the expanded DACA, which had not gone into effect., Even the expansion of the deferred action term from two years to three years, if referred to by Judge Hanen,  could have meant to relate to those recipients who would become eligible under the expanded DACA and not relating to the granting of a three year term to qualified recipients under the DACA 2012 program, which had nothing to do with the proposed preliminary injunction. It should be noted that since DACA 2012 was not part of the preliminary injunction, the administration could have fashioned any new benefits for them, and could have theoretically issued a separate guidance memorandum articulating three year renewals rather than two years, separate from the guidance in the Johnson Memo.

Rule 3.3 also allows a lawyer to correct false statements that may have previously been made to the tribunal, which the DOJ did through the Advisory seeking clarification. Unfortunately, Judge Hanen did not view this as clarification but as a further admission that the government lawyers had deceived the court. It is hard to imagine that DOJ lawyers would have knowingly and intentionally deceived the court when three year work permits were being publically announced and given out to those eligible under DACA 2012, and it was a well publicized fact.   There was nothing to hide, and it is inappropriate for a judge to use Rule 3.3 to club not one lawyer but thousands when it was not so clear that knowing false statements had been made to the court.

Although government lawyers oppose private immigration lawyers, and often take unreasonable positions against our clients we defend, Judge Hanen’s reprimand should not be cause for celebration as such a fate could well befall a private lawyer. When there are issues of differing interpretation, involving complex immigration law and policy in hotly contested litigation, it is extremely problematic to use Rule 3.3 to accuse a lawyer for knowingly making false statements to a court or tribunal. While it is one thing for a lawyer to lose a case, it is quite another for a judge to also sanction a lawyer for ethical violations when there was no clear dividing line between an immigration program such as DACA 2012 that was not being enjoined and an expanded version of it that was being enjoined. This is especially so and rather precipitous when the case is still pending at the Supreme Court in United States v. Texas and the issues are yet to be resolved.  And when a lawyer seeks to clarify the ambiguity, as required under Rule 3.3, a judge should not use that as a basis to accuse the lawyer for deliberate deception.  Handing out sanctions for ethical violations in such a ham handed manner not only unfairly undermine a lawyer’s reputation, but create a chilling effect, and in this case demonstrates Judge Hanen’s bias and hostility towards only one of the parties in Texas v. USA.

On June 3, 2016, the government filed a mandamus action against the lower district court for exceeding its scope, with an accompanying request for a stay, essentially asserting that its lawyers did not intentionally intend to deceive the court, and any perception by Judge Hanen that there was a Rule 3.3 violation was due to miscommunications regarding the scope of the preliminary injunction. The government further complains that there was no hearing prior to the issuance of these unusual sanctions. This is a new front in the government’s battle against a district court judge that has blocked President Obama’s deferred action program, and has also imposed an unusual reprimand for alleged ethical violations. In this instance, it is hoped that the government wins the day on both fronts. A dual victory will allow deserving undocumented immigrants to remain in the United States and it will also nullify the bizarre ethics sanctions of a hostile judge, thus sending a message that ethics rules should not be arbitrarily used to club well intentioned lawyers in hotly contested litigation.

(The views in this blog are the personal views of the author, and do not necessarily reflect the views of any organization that he is part of)

Cyrus Mehta

Sink or Swim Together: States Have No Legal Basis to Refuse Syrian Refugees

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Since the Paris attacks, 31 states have objected to Syrian refugees being resettled within their boundaries. This is so even after these refugees have been carefully selected after demonstrating a well founded fear of persecution, and have undergone a  security vetting procedure that takes almost two years.

The Supreme Court held just over a century ago in  Truax v. Raich that a state could not pass a law that deprived employers from hiring only a certain percentage of non-citizens in their work force. Truax v. Raich stands for the proposition that once a non-citizen has been admitted under federal law, this individual has a right to live anywhere in the United States, and to also enjoy equal protection under law. Thus, the Arizona law that would result in the criminal prosecution of an employer who hired foreign nationals over the percentage limit was found unconstitutional.  Truax v. Raich further upheld the doctrine of federal preemption of state laws that conflicted with the ability of the federal government to admit non-citizens,  and which also conflicted with the Fourteenth Amendment that guaranteed foreign nationals within the jurisdiction of the United States equal protection of the laws.

In Edwards v. California, a case not involving a foreign national, the Supreme Court held invalid a California statute making it a misdemeanor for anyone knowingly to bring or assist in bringing into the State a nonresident indigent person. This case involved a US citizen and resident of California who traveled to Texas with the intention of bringing back to California his wife’s brother, who was also a US citizen and an indigent person. This person was charged under the California statute that the Supreme Court found unconstitutional, and which cited  the famous words of Justice Cardozo from a prior case:

“The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together, and that, in the long run, prosperity and salvation are in union, and not division.”

Thus, under both Truax v. Raich and Edwards v. California, states cannot refuse refugees who have been lawfully admitted into the United States. Refugees, and the programs that assist them, can still defy a state’s refusal to welcome them, although, unfortunately, a state is not obligated to cooperate with the Office of Refugee Resettlement assistance programs and other private charities. They don’t have to help administer the refugee program if they’re determined not to, in the same way that states can refuse to have their employees enforce federal gun control laws ( as in Printz v. United States)  or federal marijuana laws (as in Colorado  at the moment) even though they cannot actually bar refugees from entering their states.

This makes it all the more important that the Supreme Court overturns the Fifth Circuit decision in  Texas v. United States, which upheld Texas’s standing to sue the federal government over its implementation of deferred action programs. Texas dubiously relied on Massachusetts v. EPA for claiming standing by analogizing greenhouse gas pollutants that Massachusetts would be harmed by due to EPA non-action with deferred action recipients who would request driver’s licenses and thus make it more financially burdensome for Texas. Just like Texas claimed that it would be injured due to additional expenses it would incur in granting licenses to non-citizens granted deferred action, a state may also sue the federal government for being harmed for resettling refugees within its boundaries due to security reasons. Whether the state can succeed is a different matter, especially since there are strong precedents against it by way of Truax v. Raich and Edwards v. California, but a state can still try. It may raise a novel theory that these two precedents involved economic issues, while a state’s ability to protect its citizens from terrorist attacks is distinguishable from economic issues.  The government in its recent petition for certiorari correctly states that if the Fifth Circuit majority decision prevailed  “Texas could claim standing to sue the government for making an individual decision to grant asylum and would clearly have standing to sue the government any time it adopted immigration policies providing relief to a substantial number of aliens in Texas in any of these categories.” States should not get standing in another law suit against the federal government on another manufactured theory of harm if refugees still settle within their boundaries in defiance.

In addition to the states refusing to accept refugees, the House on November 20, 2015 overwhelming passed HR 4038 289-137 (with 47 Democrats voting in favor) that would already make an already arduous vetting process even more difficult. It would require both the director of the FBI and of Homeland Security to personally certify each person being admitted has been fully vetted and they’re confident they’re not going to be terrorists. This would in effect negate the ability of the United States to admit any refugees from Syria. Both the refusal by more than half of the states and the House bill go against the long held notion of America being a nation of immigrants as well as the shining beacon, as represented by the Statue of Liberty,  for the world’s oppressed. Syrian refugees are some of the world’s most vulnerable people, and taking only 10,000 refugees who have been so carefully vetted, is already a small drop in the ocean in comparison to Germany admitting over 800,000 Syrian refugees, and France still accepting 30,000 refugees even after the horrific attacks. America should be doing more, and ought not be overcome by political hysteria after the attacks, which were carried out by people of French and Belgian nationality. We fortunately have strong Supreme Court precedents that render the refusal by states to take in Syrian refugees legally dubious, and a strong balances in our political system (the Senate still have to vote and the President has veto power), that may ultimately block the passage of the House bill. Let’s keep fingers crosses in favor of upholding long cherished American values.

Cyrus Mehta

Sophie Cruz and Pope Francis: Shattering Myths About Immigrants

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How are immigrants currently combating labels and stigmas and what can we do more to promote immigrant pride?

I am participating in #MoreThanALabel: Immigrant Stories, Simmons College’s online MSW Program’s campaign to promote transcending labels. By participating in this campaign, I will be sharing my thoughts and how I believe we can shatter the stigmas often attributed to immigrant communities.

 

As Pope Francis arrived in the United States on September 23, 2015 and was cheered by thousands in Washington DC, Sophie Cruz, a 5 year old US citizen whose parents are undocumented, came forward and handed him a t-shirt and a letter. The t-shirt  read, “Pope: rescue DAPA, so the legalization would be your blessing.”

Sophie then said this later in the day:

“I believe I have the right to live with my parents. I have the right to be happy. My dad works very hard in a factory galvanizing pieces of metal. All immigrants just like my dad feed this country. They deserve to live with dignity. They deserve to live with respect.”

President Obama’s executive action announced last November 2014 would have allowed Sophie’s parents to defer their deportations and apply for temporary authorization to remain in the United States so that they could contribute more meaningfully to America. While millions of immigrants and their supporters cheered after Obama’s announcement, not everyone was pleased. Texas, along with 24 more states and governors, sued to block the Deferred Action for Parent Accountability (DAPA) program. Judge Andrew Hanen in a Texas federal district court readily agreed with the plaintiffs that DAPA was not issued in accordance with law and blocked the program. Also blocked was the expansion of another program that was announced in 2012 to allow those who came before 16 and who fell out of status for no fault of their own to defer their deportation. The expansion would have granted work permits for 3 years instead of 2 years, and would have also lifted the age limit of 31. The Fifth Circuit Court of Appeals is about to decide whether to reverse the lower court or not. It is anticipated that the Fifth Circuit will affirm Judge Hanen’s decision, and the battle will move up to the Supreme Court.

Young Sophie’s actions and her interaction with Pope Francis today are powerful and poignant, and perhaps more effective than the current legal team defending the lawsuit. She has shown how mean spirited the efforts have been to block DAPA. Immigrants work very hard and like her dad they “feed this country.”  Pope Francis in turn wants to highlight the lack of access for migrants as one of the most pressing issues of our time.  Sophie and Pope Francis have further shown how wrong Donald Trump has been in falsely claiming that undocumented immigrants from Mexico are criminals and rapists.  While Trump and others wish to abolish birthright citizenship protected by the Fourteenth Amendment, Sophie and the Pope have demonstrated that repeal of birthright citizenship will result in absurd and disastrous results. Birthright citizenship renders all born in this country to be treated equally as Americans no matter who their parents are or where they came from, and it also prevents a permanent underclass from taking root that will continue for generations. The demonization of immigrants reached another nadir recently  when Trump did not dissuade anti-Muslim comments in his rally and Dr. Carson categorically stated that he would never support a Muslim to be President of the United States.

In their serendipitous encounter today, Sophie and Pope Francis courageously shattered the false labels and stigmas that are associated with immigrants. It is not that people want to remain undocumented. They are forced to remain undocumented because our immigration system is terribly broken and does not afford meaningful pathways to legally come to America to work like Sophie’s dad or to unite with families. Congressional inaction in not expanding these pathways has contributed to the buildup of 12 million plus undocumented people, who work hard and contribute to the well being of America, and who now according to Trump, should all be deported. We hope that Sophie and Pope Francis reverse this deplorable trend and shine the way towards repairing America’s broken immigration system. America will only be made great again when Sophie can live without fear and succeed!