Category Archives: Immigration Law
Here at the Prince Law Blog, we have been committed to providing continued coverage of what is quickly proving to be among the most definitive cases of the SCOTUS’s current calendar year – United States v. Texas.
The last we blogged, the United States had promptly appealed the split decision of the 5th Circuit Court of Appeals, which itself had upheld a U.S. district court injunction against the President’s executive action known as DAPA (Deferred Action for Parents and Lawful Permanent Residents).
SCOTUS granted certiorari, and oral arguments were heard yesterday…and the world waits with baited breath.
One thing is certain, the current post-Scalia dynamic of the Court will have an exceptionally large bearing on the result. According to creditable accounts of yesterday’s arguments, there were many pointed exchanges between counsel and Justices all seeming to portend a stark split among the justices (the 4 liberal-moderates on one side; the 3 conservatives on the other). Therefore, most of the pundits are especially fascinated with the line of questioning from the potential swing voter(s), Roberts and Kennedy. Also, it should be noted that a 4-4 split decision would NOT result in a precedent, meaning the decision of the 5th Circuit would remain in place.
To briefly recap, the questions before the Court are as follows:
- Do the (26 plaintiff) States have standing to challenge the Administration’s exercise of deferred action/prosecutorial discretion? More specifically, does the state-borne cost associated with providing drivers’ licenses to beneficiaries of deferred action qualify as an injury or harm under normative jurisprudential standards?
- Does the DAPA program go beyond the powers conferred to the Executive by Congress? In other words, is DAPA merely an extension of the President’s right to enforce immigration law or is it indicative of the President purporting to create new law (therefore invading the Congressional province)? Relatedly, has the President violated the Take Care clause of the Constitution by abdicating his duty to “faithfully” carry out immigration law.
- Must DAPA be considered void for not technically following the Notice and Comment requirements of the APA?
As this blogger sees it, the most unfortunate aspect of this case, as I mentioned previously, is that the outcome might yet be influenced (if not hijacked outright) by sheer bloody-minded politics. Instead of a reasoned, purely legal and/or textual assessment of a) the powers of the Executive branch in the context of setting immigration policy; b) whether an administration’s immigration policy can even be challenged in court; c) the lengthy history of the Executive branch’s use of prosecutorial discretion and deferred action programs and other non-extraneous factors, the furor here seems more to be about conservative outrage that the current Administration has made a decision that they do not agree with in principle.
It is a pity that, when it’s all said and done, no points might be given to the Administration for taking initiative in tackling, as best it knows how, arguably the biggest socioeconomic and humanitarian issue in the United States today. Is it realistic or even decent governance to expect the more than 4 million persons present without legal status can be expected to continue to live in the shadows perpetually? Do we really imagine that we can simply deport all these people without enormous cost, both financial and social? In this bloggers humble opinion, this case is about politics making an issue out of pragmatism, and attempting to coopt the law in that effort. Where Congress has failed to act, the President apparently has. Now leadership is branded as lawlessness. Go figure.
The folks at Scotus Blog, typically thorough fashion, have done a wonderful job putting together a United States v. Texas “symposium” – a series of discussions having a diversity of learned viewpoints on the case.
Previously on this blog we have brought you coverage of Europe’s deepening refugee crisis. An unprecedented event, that Crisis will surely have lasting impact beyond Western and Southern Europe, where waves of humanity escaping the Syrian War and other destabilizing events of the Middle East and Northern Africa continue to seek entry. Indeed, despite our geographical separation from that event, the people of the United States have nevertheless been keenly aware and interested in what has credibly been described as the worst displacement of people since World War II. For good or bad, the European crisis has further been a hot-button topic this campaign year with fears abounding about the United States accepting a role in placing numbers of refugees from the affected regions.
Crucially though, there is an equally serious, be it relatively lower-level, humanitarian crisis which has been underway for the better part of the last decade. Unlike the Syrian refugee crisis, this other crisis hits much closer to home and has affected all our lives in far more immediate ways. What I refer to is the sharp influx of migrants, especially women and/or unaccompanied children from Central America, seeking asylum in the United States. More specifically, the United States has seen a five-fold increase in the number of asylum seekers arriving from a handful of especially troubled Latin American countries. These countries consist of what is known as the “Northern Triangle” region of Central America: El Salvador, Guatemala, and Honduras.
According to the Council for Foreign Relations, nearly 10% of the residents of the Northern Triangle countries have left for the United States. In 2013 alone, some 2.7 million people born in either El Salvador, Guatemala, or Honduras were living in the United States. A number up from the estimated 1.5 million in 2000. Far and away, these migrants have cited continuous and systemic violence in their countries as the primary reason for seeking entry into the United States by unlawful means. And apparently so compelling are these abuses that some 82% of women arriving from this region pass the Credible Fear assessment utilized by USCIS/DHS to determine qualification for asylum
The identifiable causes of the rampant violence in each country are diverse, but common themes include gang activity, drugs, vestiges of civil war, and cultures of political corruption. Arrivals from the Northern Triangle invariably relate harrowing tales of torture, extortion, rape, domestic abuse and other maladies of societies gone horribly wrong. Honduras has long been considered the murder capital of the world with a reported murder rate of 91.6 murders per 100,000 people. In 2015, the reported homicide rate in El Salvador more than doubled making it, currently, the most violent country in the world not at a state of war.
Why do they come?
A part of my previous blog was dedicated to pointedly rebutting the notion that refugees leave their places of turmoil due to anything other than a last resort. What we discover when looking at the growing Latin American refugee crisis is much the same – becoming a refugee is virtually never perceived by such person as an option. That is similar to the statistical evidence available on the Syrian refugees, data overwhelming point to several confounding facts: i) refuges risk the trip to a foreign country forewarned of the dangers inherent in such a journey; ii) make the trip forewarned of a possibility of immediate deportation and/or detention and iii) with the foreknowledge that they may never see family and loved ones again. In the case of Latin American refugees from the Northern Triangle countries seeking safety in the United States, the foregoing awareness is especially well-founded. Beginning in January of this year, the DHS has stepped up immigration enforcement specifically against newly arrived (i.e. post-2014) members of Northern Triangle nationals present in the United States, including expediting the removal process. Thus the message from U.S. Immigration has been loud and clear – venture to the U.S. at your own risk.
What is strange though is that the evidence suggests that the intended recipients of the message have gotten it yet continue to seek out our borders – why?
Statistics from U.S. asylum interviews of women from the Northern Triangle countries reveal that more than ¾ stated they knew that overland journey to the U.S. would be dangerous or involve risk of life or bodily harm. A DHS study conducted on this refugee phenomenon in 2014 concluded “Salvadoran and Honduran children…come from extremely violent regions where they probably perceive the risk of traveling alone to the United States preferable to remaining at home.” A 2014 Latin American Population Opinion Project (LAPOP) of Hondurans stating an intention to risk undocumented immigration to the United State indicated that 86% believed that the journey would be more difficult than in previous years. 80% of that same reporting group indicated that they believed the chances of deportation upon arrival in the United States had increased in comparison to previous years.
What all this demonstrates is that there is an inverse relationship between policies of deterrence and undocumented migrant travel from the Northern Triangle countries to the U.S.. Put another way, the exodus continues irrespective of the clear and present dangers posed to refugees.
Anyone who proposes to have the singular answer to the question of how to humanely yet effectively stem the tide of a major refugee crisis should, in my opinion, be handed the Nobel Peace Prize, head some internationally renowned think tank, or both. What I’m saying is, I don’t purport to hold any definite answers. However, in light of what is increasingly becoming obvious of the United States’ failing and misguided strategy of aggressive deterrence, I think it may be time to turn our efforts towards supporting elements of stability and prosperity within the countries spawning the crisis. Refugees simply don’t come from places with working democratic systems of government, effective branches of law and justice, or from places with respectable standards of living. To put this point in context, according to this instructive CNBC article, the cost of building just 1 mile of fencing at the U.S. Southern border averages between 2.8 and 3.9 million dollars. If the United States funneled that same money into, say, nonprofit organizations working within many of the Northern Triangle countries, committed to improving the lives of women, children or towards supporting progressive political reform, wouldn’t that be tax payer dollars better spent?
The popular program was launched by Congress in 1990, as part of the omnibus Immigration Act of that year. Essentially, the program’s purpose is intended to stimulate and strengthen the economy by giving foreign businesspeople a pathway to permanent residency and eventual citizenship in exchange for a significant investment, in the form of a business venture. The program has grown in the ensuing decades but not without controversy, including numerous allegations of fraud and other impropriety – leading to several overhauls in that time, in the 1990s and 2000s. The last set of official changes made to the program were in 2009 where processing of applications were centralized in the California Service. It should be underlined that the program is not permanent; however, it has consistently been reauthorized.
Nevertheless, a number of important players in the making of U.S. Immigration policy, including the Secretary of the Department of Homeland Security, and several members of the Senate Judiciary Committee, have refocused our collective attention on persistent problems with the program.
The Congressional hearings discussed changes intended by the “EB-5 Integrity Act of 2015”, which include scrutiny and modification of: Investment Amounts, Targeted Employment Area Definitions, Job Creation Requirements, Processing Changes, Documentation Requirements, Source of Fund Criteria, and Regional Center Oversight and Compliance. A possible counter-point though – in exchange for many of these prospective changes aimed at reigning-in ongoing problems with the program, the proposed Senate Bill would actually make the program permanent, eliminating the Congressional reauthorization.
The current iteration of the authorized EB-5 program has the following general requirements:
1) $500,000 for investments in a Targeted Employment Area (TEA) – either rural or high employment.
2) $1,000,000 for non-TEA investments.
3) Creation and maintenance of at least 10 full-time jobs for qualifying U.S. workers within 2 years.
As a practical matter, the vast majority (some 90%) of EB-5 investors utilize intermediaries designated as Regional Centers. To make a rough (and I hope not too crude) an analogy, these Regional Centers are like hedge fund managers or investment bankers, who work with the prospective investor to fine-tune and submit a proposed business plan or prospectus.
The proposed changes are widely considered to implicate significant and impactful changes to the program, including the number of interested and/or successful applicants. The application process is long, complex, and document-intensive. Persons considering the program are invariably advised to consult and utilize qualified attorneys. This would especially be the case if any of the proposed changes are legislated.
In the wake of the truly terrible acts of terrorism wrought upon the communities of Paris and San Bernadino, we the people of a free, open, and democratic world, find ourselves facing certain dangerous paradigms –
First, is the realization that smaller and smaller cells of the demented, hell bent on visiting death and carnage on innocent persons continue operating more or less independent of larger terrorist networks and with greater frequency. Thus,they have become exponentially more lethal; their twisted machinations become more and more difficult to track or predict. This is a problem.
However, we are also left with another dangerous paradigm – the rise of racial and political reactionaries here in the U.S. who now propagate xenophobia, isolationism and other byproducts of fear. This is not new, per se. Such “blowback” is perhaps to be expected as a proximate result of shocking geopolitical events (enter the internment of Japanese Americans during WWII here or even the ostracism of German Americans during the First World War). On the campaign stump, a number of aspiring future leaders of the free world, best situated to redress the popular neuroses of mob mentality, have actually doubled-down on the hateful rhetoric. Beyond espousing support for the building of some Great Wall of Mexico, or the wholesale deportation of women and children who have come to the United States to escape persecution, a number of presidential nominees have officially poured fuel on fire, taking an even darker turn in recent weeks in response to the terrorist attacks.
Specifically, a number of governors, post-attacks, have vowed to reject the federal government’s resettlement of Syrian refugees in their states. Never mind the fact that the matter of refugees (and immigration law and policy in general) is defined by the federal government, governors and other members of Congress have championed a series of discriminatory measures (including proposed legislation) aiming to bar refugee resettlement solely on the basis of nationality and/or religious identification (does that sound un-American to anyone else?).
Fact-checking the putative “reasoning” behind much of this recent anti-refugee rancor reveals numerous flaws, inconsistencies and outright untruths. The point of this blog entry is a simple riposte, setting the record straight as it regards Syrian refugees. What simple research of the solid numbers show is that Syrian refugees cannot, credibly, be classified as a class of people who are generally dangerous so as to pose risk to the national security of the United States if permitted to resettle here. What this blog entry is NOT interested in supporting are other polar extremes – the notion that resettlement or any other form of immigration should take a front seat to our government’s obligation to secure its citizenry, the notion that the threat of global terrorism is somehow not real, or the notion that persons arriving at our shores should not first be scrutinized and vetted in accordance with the U.S. government’s national security prerogatives.
FACT 1: They Syrian Refugee crisis can credibly be described as the worst humanitarian crisis since the Second World War.
FACT 2: Syrian refugees have NOT been resettling in the United States by the droves. Rather, to date, the United States has resettled only approximately 2,000 Syrians. Of course, this number is immensely smaller than the numbers resettled (or to be resettled) by any major Western country (e.g. Germany: approximately 99,000; Italy: approximately 1000,000; France: has pledged to take 24,000; Britain has pledge to take 20,000).
FACT 3: The U.S. vetting process is far more rigorous than any other country which has taken or has pledged to take significant numbers of refugees. Before approving any refugee for resettlement, the U.S. conducts a collaborative, multi-agency review including involvement by, among others, the U.S. State Department, the F.B.I.’s Terrorist Screening Center, the Department of Defense, and the Department of Homeland Security. The vetting process is so intensive that each review takes somewhere in the order of 18 to 24 months to complete before approval. Only 50% of the vetted refugees are accepted for resettlement in the U.S.
FACT 4: Syrian refugees are not seeking a “free ride”. Much of the distortion spewed recently by less than responsible politicians has to do with portraying refugees as “free riders”, more interested in obtaining the material benefits of U.S. residency or citizenry than escaping warfare or persecution. However, there is substantial proof that Syrians are not particularly excited about leaving Syria and only seek to do so as a legitimate last resort to preserve their lives and that of their families. Nor is there much substance behind the allegation that the United States’ accepting refugees will result in an excessive strain on the U.S. taxpayer base. A study released by the Center for Immigration Studies indicates i) refugee or asylee use of welfare and other public benefits are generally no higher than among other immigrant classes and ii) refugees or asylees make up only about 13% of the total number of immigrants admitted into the U.S. Further, the same study shows that among immigrants, there is a direct correlation between extended use of welfare and low education, a truism that can of course be applied to the U.S. population at large.
These are just a few of the facts to be considered amidst the many misguided rumors now circulating about Syrian refugees. As stated, the writer in no way endorses downplaying either the importance of reasonably maintaining U.S. security or the threat of terrorism, global or domestic. It is hoped, however, that the reader will gain a fuller, perhaps more nuanced appreciation of the Syrian refugee crisis and also remember that among the many values which make the U.S. a great nation is an ornery refusal to succumb to the baser instincts of fear and intolerance.
On Monday evening, 11/09/2015, the 5th Circuit Court of Appeals failed to surprise anyone, issuing a 2-1 decision that affirms the current injunction against the Executive expansion of DACA. >>See decision here<<
The reader may recall that this blog has attempted to provide some coverage of this increasingly fraught showdown. See explanation of DAPA and litigation here. As it is, the more than 4 million persons that the DACA expansion would temporarily and minimally “protect” are again left in the lurch, without relief from the specter of separation from their families, not even to mention their more than 6 million children who stand to lose their parents. >> See statistics under FAQs<< >>more statistics<<
Both the Opinion and Dissent are lengthy affairs and I’m not sure a detailed reading or analysis of either is necessary — both camps essentially rehashed the same arguments leading up to this week’s decision.
Justice Jerry Smith, writing the Court’s decision for the majority, underlined that in the view of court, the expansion of DACA exceeds the powers conferred to the Executive through the INA and defies the APA’s “notice-and-comment” requirement.
In a vigorous dissent, Justice Carolyn King states that “a mistake has been made” – she points out that when historically compared to other Executive Actions that have effected changes in U.S. Immigration Policy, neither DACA nor the DACA expansion are particularly exceptional – various “deferred action” schemes have previously been applied to U.S. Immigration Law and/or Policy since the 1980s (they were never challenged by lawsuit). Slip Op. at 86, 124, King also reasserts a core argument that the government has been making all along – an argument that King does not believe has been adequately rebutted by the 5th Circuit decision. Namely, King does not believe the claims brought by Texas and the cabal of 25 other states are justiciable considering that the Expansion has been enabled by a Memorandum that technically offers no more than guidance or a framework. Id at 76-77. Further, the dissent points out that the Memorandum does not impose any affirmative duties on officials or on the states, nor creates “positive law”; King also noted that since the Expansion calls for a case-by-case execution of the Memo’s principles, notice-and-comment is not necessary. Id at 73.
Going back to what she views as the essential non-justiciability of the claim, King does well to criticize the tenuousness of the Standing-theory proffered by Plaintiffs. Specifically, the majority sustained Plaintiffs’ theory that Standing is conferred solely on the basis of the potential costs to be incurred for providing DAPA recipients with drivers’ licenses. King found this to be a very weak (if not illusory) basis for Standing which effectively gives Texas et. al constitutionally impermissible “special solicitude”, especially considering that all the other “theories” of Standing heretofore broached by Plaintiffs have either been abandoned or not adopted by any of the prior decisions in the course of this litigation. Id at 79-80. Indeed, as to Standing, it appears that Plaintiffs have thrown a bunch of spaghetti on the wall and a morsel of sauce has stuck, barely. Id at 79-83.
This writer thinks it probable that if the appeal is filed before the end of the current SCOTUS term, certiorai is likely to be granted to hear this case. We shall see.