Tag Archive for: Undocumented Immigrant

Cyrus Mehta

The False Distinction Between Legal and Undocumented Immigrants in the Debate on Birthright Citizenship

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By Cyrus D. Mehta and Kaitlyn Box*

Donald Trump’s executive order restricting birthright citizenship, which we analyzed in a previous blog, has now been temporarily enjoined and is the subject of multiple lawsuits. The executive order has also brought to light the false dichotomy between “legal” and “undocumented” immigrants, obscuring the nuance of U.S. immigration laws. [Although the Trump administration has replaced references to undocumented individuals with the term “illegal”, we use “undocumented” here to refer to individuals who currently have no legal immigration status in the U.S.]

“Legal” and “undocumented” immigrants alike are subject to the jurisdiction of the United States pursuant to the 14th Amendment. The concept of jus soli, enshrined in the 14th Amendment, has long guaranteed children born in the U.S. the right to U.S. citizenship, regardless of the immigration status of their parents. The Trump administration is incorrectly asserting in its executive order that the 14th Amendment was never intended to confer birthright citizenship to parents who are not lawfully in the US or to parents who may be lawfully in the US but on temporary visas. Many people participating  in the debate on social media feel that birthright citizenship should only be conferred by parents who are legally in the US, and if a tweak has to be made in Trump’s executive order, it should only remove the restrictions on parents who are legally in the US but on temporary visas. The executive order is unconstitutional in its entirety and should be struck down.

This distinction between “legal” and “undocumented” immigrants is an overly simplistic, and often false, one.  A noncitizen who entered the U.S. with a valid visa can easily fall out of status, while a path to U.S. citizenship may eventually become available to an individual who was previously undocumented. Indeed,   legal and “undocumented” immigration are points on a continuum rather than discrete concepts. An entirely undocumented individual who is placed in removal proceedings can seek cancellation of removal and become a permanent resident. Similarly, an individual who entered the U.S. on a nonimmigrant visa and overstayed it for many years could meet and marry a U.S. citizen spouse, thus becoming eligible to apply for permanent residence. At times, Congress bestows such permanent residency to previously-undocumented individuals through section 245(i) or the LIFE Act.

Moreover, one thinks of an undocumented immigrant as a person who entered the United States without inspection or who came to the US legally on a visa and overstayed. However, the term is broader to encompass persons who were previously unauthorized and who have been authorized to stay such as recipients of the Deferred Action of Childhood Arrivals (DACA) program, applicants for Temporary Protected Status (TPS),  those who have pending asylum applications and applications for other relief such as under the Violence Against Women Act (VAWA) or crime victim U visas. There are also those who are on supervised release or who have obtained stays of removal and eligible for employment authorization year after year.

In 1982 in Plyler v. Doe, 457 US 202 (1982), a landmark Supreme Court case which held children could not be deprived of a public education on the basis of their immigration status, the Court eloquently explained that an individual’s undocumented status is often temporary, stating:

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

The Court affirmed that an undocumented individual living in the United States “is surely ‘a person’ in any ordinary sense of that term,” “[w]hatever his status under the immigration laws.” Plyler v. Doe, 457 U.S. 202, 210 (1982).

Moreover, some individuals who do currently have a lawful status may nonetheless be authorized to remain in the U.S., as we highlighted in another prior blog. An asylum applicant is authorized to remain in the U.S. and apply for employment authorization 150 days after filing the asylum application even though he has not yet been granted asylum and would not qualify as an asylee under 8 CFR 245.1(d)(1)(iii). Similarly, an individual who has filed an I-485 application to adjust status is authorized to remain in the U.S. even if she does not have a valid, underlying nonimmigrant status. An individual in removal proceedings is authorized to remain in the U.S. and seek relief until the conclusion of the proceedings. Even a noncitizen who has been ordered removed but filed petition for review in circuit court can apply for work authorization and continue to reside in the U.S. during the pendency of the appeal.

In Arizona v. United States, 567 U.S. 387 (2012), the Supreme Court emphasized the importance of discretion in removal proceedings, explaining that it is not always appropriate to place even an entirely undocumented individual in removal proceedings:

Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See §1227…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 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.

Drawing a distinction between those on temporary visas and those who are lawful permanent residents also ignores the practical reality that many nonimmigrants are “Americans in waiting”. A nonimmigrant in H-1B status has a clear path to becoming a permanent resident, and eventually a U.S. citizen, through sponsorship by an employer but has to wait for many decades due to backlogs in their green card category. DACA recipients who have lived almost their entire lives in the U.S. may have few ties to any other country and could become lawful permanent residents through marriage to a U.S. citizen or LPR spouse, or through an employment-based category.

On the other hand, a noncitizen who comes to the United States with a valid visa may not could later overstay their visa, thus becoming “undocumented”. Violations of a nonimmigrant visa also render a noncitizen’s immigration status ambiguous. An H-1B worker who works from home and moves across the country before an amended H-1B petition is filed, for example, could technically be in violation of his status.

According to Professor Gerald Neuman, “[T]he framers of the Fourteenth Amendment had strong reason from desiring a constitutional settlement of the issue of birthright citizenship. They had just overthrown a system founded on denial of political membership in the country to a hereditary category of inhabitants. The Citizenship Clause was designed to prevent the situation from happening again…[T]he supporters of the Citizenship Clause expressly confirmed their intent to protect the children of Chinese parents by recognizing them as citizens.” See Statement of Prof. Gerald E. Neuman, Societal and Legal Issues Surrounding Children Born in the United States to Illegal Alien Parents: Joint Hearing Before the Subcomm. on Immigration & Claims and the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1995).

The only exceptions were children born to diplomats of foreign nations who were not subject to the jurisdiction of the United States as well as children born to parents accompanying an invading army that temporarily ousted the operation of local law. The framers also excluded children born within Native American tribes  because they owed allegiance to their tribal nations rather than the United States, but this preclusion was  eventually eliminated by the Indian Citizenship Act of 1924.

On the other hand, undocumented parents are clearly subject to prosecution in the United States as well as temporary noncitizens. They can also hardly be considered to be part of an invading army that has ousted the local operation of law. Even the argument that undocumented parents and nonimmigrants owe their allegiance to a foreign government rather than to the U.S. government is spurious. Temporary residents in nonimmigrant status can remain in the U.S. for many years as they wait for permanent residence. They could owe allegiance to the U.S. government and so could an undocumented immigrant just as a U.S. citizen would. Lawful permanent residents, who are not U.S. citizens,  could owe their allegiance to the U.S. government but also to a foreign government without risking losing that status.   U.S. citizens may also be citizens of other countries and may owe their allegiance to a foreign government, the U.S. government, or both, but both U.S. citizens and lawful permanent residents  qualify under Trump’s executive order to confer birthright citizenship to their children born in the U.S.

In  United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court extended the Fourteenth Amendment to an individual who was born to parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws. The principle established in Wong Kim Ark applies with equal vigor today. Excluding an allegedly undocumented parent who has been a DACA recipient since 2012  from conferring birthright citizenship to their child would make no sense. It would also make no sense to deem a parent who was in technical violation of their H-1B status as undocumented at the time of the birth to her child. It would also be unfair to deprive a parent in lawful H-1B status who has been waiting for their green card for over a decade from conferring birthright citizenship to their child. The Supreme Court’s hallowed ruling on birthright citizenship established well over 125 years back  a fundamental American value that all people born in the United States are equal at birth, regardless of their race, religion, or the immigration or financial status of their parents.

 

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

 

 

Cyrus Mehta

Who Are the Undocumented Immigrants That Would Become Targets of Trump’s Deportation Army If He Got Reelected

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By Cyrus D. Mehta

If Trump gets reelected, he has hinted that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s  newsletter on substack,  Trump’s Deportation Army,  provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy and the standing of the United States.

“The Trump immigration plan would be the second largest forced displacement of human beings in human history, on par with Britain’s disastrous partition of India, and second only to total forced displacement during World War II, ” Balko states.

According to New York Times’s columnist Jamelle Bouie in  Trump’s Taste for Tyranny Finds a Target immigrants would be the most easy target for Trump to play out his autocratic fantasies. Trump has already said that undocumented immigrants are “poisoning the blood of this country.” The Supreme Court in Trump v. Hawaii allowed Trump to enforce his Muslim ban.

Stephen Miller, the architect of Trump’s anti-immigrant policies,  has stated on Charlie Kirk’s show how this deportation force would fulfill Trump’s fantasy. The  deportation force would comprise agents from Immigration and Customs Enforcement, the Drug Enforcement Administration, the Border Patrol and other federal agencies, as well as the National Guard and local law enforcement officials. They would look all over the  country for unauthorized and undocumented immigrants moving from state to state, city to city, neighborhood to neighborhood and, finally, house to house. These are people who in the view of Trump and Miller do not belong, not that because are not authorized but because they are also nonwhite and who are from what Trump once called “shithole” countries. By raiding workplaces and staging public roundups, this deportation force would create a climate of fear and intimidation.

Mistakes are bound to happen as legal immigrants and even US citizens may get caught up in the roundups. There could not be any notion of selective enforcement in these roundups, and those caught up in them would be because they appeared to be immigrants. There would be mass racial and ethnic profiling. And by the time this gets sorted out it may be too late if the person already got deported.

Moreover, one thinks of an undocumented immigrants as a person who entered the United States without inspection or who came to the US legally on a visa and overstayed. However, the term is broader to encompass persons who were previously unauthorized and who have been authorized to stay such as recipients of the Deferred Action of Childhood Arrivals (DACA) program, applicants for Temporary Protected Status (TPS),  those who have pending asylum applications and applications for other relief such as under the Violence Against Women Act (VAWA) or crime victim U visas. There are also those who are on supervised release or who have obtained stays of removal and eligible for employment authorization year after year. All these noncitizens would be lumped together as undocumented immigrants that would be red meat for Trump’s deportation force.

Since it would be beyond the capacity to quickly deport the people caught up in these roundups, especially since countries may not even be willing to accept them easily, there would be holding facilities that would serve as staging centers on land near the Texas border. This would not be too dissimilar from internment camps, which were set up in the United States to detain Japanese Americans after the attack by the Japanese military on Pearl Harbor in 1941.

In addition to the round ups, the second Trump administration would sign an executive order to withhold passports, social security numbers and other government benefits from  children born of undocumented immigrants in the United States never mind that the Fourteenth Amendment says the exact opposite. Under Trump’s deportation plan, there would be no distinction between undocumented immigrants and children born to an undocumented immigrant in the United States. If there are going to be protests and resistance from people against agents storming homes, schools and religious places, Trump will invoke the Insurrection Act to mobilize the miliary and crush the resisters as well as his political opponents.

According to Bouie, “what we are seeing here from Trump isn’t simply a distaste for liberal values; it is a taste for genuine tyranny and bona fide despotism, one that complements his endless praise for dictators and strongmen.” Trump has already likened immigrants to invaders, and he can invoke an emergency, and thus a constitutional crisis,  to go ahead with deportations without waiting for the courts to rule, and  when they do rule, Trump’s hope is that the courts will rule in his favor, especially the Supreme Court, which have historically given deference to the executive branch on matters involving national security. This has happened time and time again with respect to court challenges to the internment of Japanese Americans, against the unlawful detention and abuses of noncitizens after the September 11 attacks and most recently in allowing Trump’s travel ban to pass, which was a major part of his election campaign in 2016 to ban Muslims from coming to the US, and in this reelection campaign for 2024, Trump promises to create a tyrannical force to deport millions of immigrants.

On this Memorial Day, as we reflect upon the sacrifices our military personnel have made to free America and the world from fascism and tyranny, think about how Trump can so easily unravel all of this through a deportation force that rips families apart, tears lives and fractures America.

 

Cyrus Mehta

The Impossible Feat of Determining Who is an “Illegal Alien” Under Trump’s Unconstitutional Census Executive Order

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In line with other xenophobic actions too numerous to keep tabs on, President Trump issued a Presidential Memorandum dated July 21, 2020 entitled “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” From the title itself, it is readily obvious that the Trump administration does not intend to count undocumented or unauthorized immigrations in the 2020 census, which it pejoratively refers to as illegal aliens. Who is legal or illegal defies an easy definition. US immigration law is so paradoxical that even if one has been ordered removed, this individual may still be authorized to remain in the US and obtain work authorization.

Not only is this executive order unlawful and completely unconstitutional, but it boggles the mind regarding how the administration will ever be able to determine who is authorized or not in the US in order to be counted in the 2020 census.

It is vitally important to count population numbers to divide up seats in Congress among the states. Excluding undocumented immigrants will result in less seats in Congress for Democratic states. If unauthorized immigrants are left out of the apportionment count, according to the Pew Research Center, California, Florida and Texas are each likely to end up with one less House seat, while Alabama, Minnesota and Ohio are each likely to hold onto a seat they would have otherwise lost after the 2020 Census. Since the first Census of the United States in 1790, counts that include both citizens and noncitizens have been used to apportion seats in the House of Representatives, with states gaining or losing based on population change over the previous decade.

Lawsuits have been filed – here, here and here,  justifiably challenging the exclusion of unauthorized immigrants from the census counts on constitutional and other grounds. The Presidential Memorandum follows the Supreme Court’s decision in New York v. Department of Commerce , 588 U.S. ___ (2019) that held that the Trump’s administration’s prior reasoning to include the citizenship question in the Census was “contrived” and thus arbitrary and capricious under the Administrative Procedure Act (see Can the Arbitrary and Capricious Standard under the Administrative Procedure Act Save DACA). Hopefully, the courts will also smack down this Presidential Memorandum for its blatant disregard of the Constitution’s mandate under the Fourteenth Amendment to count all residents in a state.

Section 2 of the Presidential Memorandum excludes “aliens who are not in a lawful immigration status under the Immigration and Nationality Act.” But this too is broad and vague. One who is in the US in temporary B-2 visitor status for three months is in a lawful immigration status. On the other hand, a person who has resided in the US for a decade and whose  status  expired a long time ago could  be authorized to remain in the US upon filing an I-485 application to adjust status to permanent residence by virtue of a recent marriage to a US citizen. The Presidential Memorandum provides the following false rationale for excluding undocumented immigrants:

Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.  Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.  Many of these aliens entered the country illegally in the first place.  Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law.  States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.  Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population.  Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.

However, the rationale still does not explain whether one who entered without inspection, but is now authorized to remain in the US through the filing of an I-360 petition under the Violence against Women Act and a concurrent I-485 application will be included or not in the census. It does not appear that whoever drafted this document really had any idea about how “legal” or “illegal” is considered under the INA.

“Lawful immigration status” is specifically defined in the implementing regulations at 8 CFR 245.1(d)(1) rather than in  the Immigration and Nationality Act (INA) itself,  for purposes of determining who is eligible to adjust status under  INA 245(c)(2). It provides for the following categories of persons who are in “lawful immigration status”:

(i) In lawful permanent resident status;

(ii) An alien admitted to the United States in nonimmigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of this chapter;

(iii) In refugee status under section 207 of the Act, such status not having been revoked;

(iv) In asylee status under section 208 of the Act, such status not having been revoked;

(v) In parole status which has not expired, been revoked or terminated; or

(vi) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991.

It is unlikely, however, that this is what the drafters of the Presidential Memorandum within the Trump administration had in mind in deciding who is in lawful status and who isn’t. As already explained, there is a large universe of persons who are authorized to remain in the United States but who do not fall into any of the above categories pursuant to 8 CFR 245.1(d)(1). Perhaps, one is giving the Trump administration too much credit about thinking through this definition and the drafters just assumed, albeit erroneously, that there are discrete classes of those in lawful status and those who are not.  Immigration law is far more nuanced. One may not have been granted asylum, and thus qualify as an asylee under 8 CFR 245.1(d)(1)(iii), but an applicant for asylum is nevertheless authorized to remain in the US and can also obtain employment authorization after 365 days of filing the application. Similarly, one who files an I-485 application to adjust status is authorized to remain in the US even if the underlying nonimmigrant status has expired.

Any attempt to define who is unauthorized in order to exclude them in something as crucially vital as the decennial census count will get it wrong. Even Chief Justice Roberts got it wrong in Chamber of Commerce v. Whiting, 563 U.S. 582 (2011),  when he wrote for the majority that  an individual  who “had been ordered removed” would establish that individual’s lack of authorization to work. In that case, the Supreme Court upheld an Arizona state law suspending business licenses if businesses hired people without work authorization.  David Isaacson in his blog,  If Even the Chief Justice Can Misunderstand Immigration Law, How Can We Expect States to Enforce It Properly?   Removal Orders and Work Authorization,  cites many other instances when a person with a removal order is still entitled to work authorization. For example,  an asylum applicant who has been ordered removed but has filed a petition for review in circuit court can nevertheless apply for work authorization and is authorized to reside in the US during the pendency of the appeal.  8 C.F.R. § 274a.12(c)(18) also contemplates the issuance of work authorization to one who has been ordered removed if the person cannot be removed or where it is impractical to remove him or her.  A DACA recipient who may have been the subject of a removal order at some point is now authorized to reside in the US without fear of removal.

The sheer inability to define who is a so called “illegal alien” further opens up the Presidential Memorandum to challenge in the courts. Persons whom the government may arbitrarily decide are unauthorized may be left out of the count even if they have been in the US for years, paid taxes and been authorized to reside and work under the law. These persons have also been denied their basic humanity by not being treated as persons. This executive action will also deter noncitizens from completing the census as most – unless they are lawful permanent residents -will not know whether they are documented or not.  Four decades ago,  the Supreme Court reaffirmed that an undocumented individual living in the United States “is surely ‘a person’ in any ordinary sense of that term,” “[w]hatever his status under the immigration laws.” Plyler v. Doe, 457 U.S. 202, 210 (1982). It is axiomatic that undocumented individuals are human beings and President Trump cannot change this. Given the sheer impossibility of determining who is and who is not legal, President Trump must be compelled by a court to count all persons for the census regardless of their immigration status. This is also mandated by the Constitution.