Texas Immigration Lawyer Blog

Immigrants' Loss--America's Loss

I've received many calls and emails this week. Immigrants and their supporters are anxious about what Donald Trump's presidency will mean for them. Here are a few thoughts (but no answers):

DACA

Individuals with Deferred Action for Childhood Arrivals (DACA) are worried that their lives are going to be torn apart. DACA has been an inspiration to me as I have seen young people use their education and talents to work in their chosen professions and to improve their lives and communities. It will be a great loss for these U.S. educated individuals with strong ties here to once again be unable to work or drive legally. 

President-Elect Trump has said that he intends to immediately cancel "unconstitutional executive action[s]" including DACA. It is unknown whether he will allow those with DACA to continue working until their authorizations expire or will immediately cancel all employment authorizations and deferred action. 

The loss of DACA will hurt us all. 

Removals

Individuals who are in the U.S. unlawfully are subject to removal (deportation). The Obama administration has already removed or deported more people than any other president. They have concentrated efforts on those with significant criminal convictions. Mr. Trump says he will "begin removing the more than 2 million criminal illegal immigrants from the country." The Obama administration already has the Immigration Courts backlogged for years with removal cases. The Trump administration will need to pour considerable money into the Immigration Courts to move faster than his predecessor. 

I am concerned that he will expand the definition of "criminal alien" to include minor traffic offenses, including driving without a license. This will lead to racial profiling and fear of police in our communities. 

Anti-Immigrant Advisors 

Kris Kobach, Kansas Secretary of State and author of numerous egregious and unconstitutional immigration laws (think racial profiling in Arizona), has announced that he will be on Mr. Trump's transition team to advise him on immigration issues. It is deeply troubling (but not surprising) that Mr. Kobach will be influencing immigration policy in the Trump administration. 

As I said, no answers ...

 

Medical Clinic seeks to deport immigrant woman seeking care

The Memorial Hermann Medical Group Northeast Women’s Healthcare clinic near Houston is now enforcing immigration law and seeking to have patients deported.

They reported an immigrant woman seeking medical care to the sheriff's office earlier this month because she allegedly presented a fake Texas driver's license as identifcation. Blanca Borrego was seeing her doctor  for a cyst that was causing abdominal pain, and paying for the medical care with private insurance provided through her husband's job. The deputies arrested her in front of her 8-year old U.S. citizen daughter. She has been charged with tampering with a government record, a felony.

Denise Gilman, director of the immigration clinic at the University of Texas School of Law in Austin, said that although Borrego’s arrest probably did not violate medical privacy laws, “it certainly is a violation of the doctor-patient relationship, of the trust.”

* * *

“Medical settings should be free from immigration enforcement,” said Ana Rodriguez DeFrates, state policy and advocacy director in Texas for the National Latina Institute for Reproductive Health, who was among those organizing protests.

She said Borrego’s arrest “will no doubt reverberate in Latina communities across Texas,” noting that many Texas Latinas die from cervical and breast cancer due to lack of preventive care “in large part because they can’t access medical providers, and when they do, they fear precisely what happened to this woman.”

Rodriguez DeFrates said law enforcement officials should ask themselves, “With the limited resources for immigration enforcement we have, is this really where the threat exists: where women come in to get their healthcare needs met, with their children?”

Texas Governor Greg Abbott thinks that this incident is one to be proud of:

Los Angeles Times by Molly Hennessy-Fiske

This is shameful. Immigrants should be free to seek healthcare without fear of facing deportation. What does Texas First Lady Cecila Abbott, granddaughter of immigrants from Mexico, think of this?

 

5th Circuit keeps DAPA and expanded DACA on hold

Today the 5th Circuit refused to lift the injunction on Deferred Action for Parents (DAPA) and expanded Deferred Action for Children (DACA+). In a split decision (2-1), the court ruled that the government has not made a case for going forward while the legality of the program is under review in the courts. The Administration may appeal to a full panel of the 5th Circuit or to the U.S. Supreme Court for a stay of the injunction. 

The court ruled that the State of Texas had standing to sue because it would be required to issue driver's licenses to those granted deferred action. 

This decision dealt only with whether to lift the injunction and did not address the legality of DAPA/DACA+. The 5th Circuit will consider the question of legality in July. 

Original DACA is not involved in this suit and will continue. 

 

BREAKING: Administration Confirms DACA Recipients Are “Lawfully Present”

Immigration Impact

In updated guidance released this afternoon by U.S. Citizenship and Immigration Services, the Obama Administration confirmed that recipients of deferred action are authorized to be in the United States and therefore considered to be “lawfully present” under federal immigration laws. The guidance should clarify the debate over whether beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program are eligible for driver’s licenses. Acting under the belief that DACA recipients are not “lawfully present” under federal law, four states—Arizona, Iowa, Michigan, and Nebraska—have refused to issue driver’s licenses to DACA recipients.

Separately, the administration also released updated statistics on the DACA program. Through Thursday, USCIS had received 407,899 requests for deferred action (an average of 80,000 per month since the program began), of which 394,533 had been accepted and 154,404 approved. USCIS received an average of less than 1,500 requests per day in January, down from a high of more than 5,700 per day in October soon after the program began accepting applications. The majority of DACA recipients continue to hail from Mexico and reside in California.

 

Texas DPS implements new verification process for Driver's Licenses

From Helene N. Dang at Foster-Quan:

Texas DPS implemented a new verification process for all DPS offices effective October 8, 2012 and has also issued a new document guide.

 

DPS conducts verification of the applicant’s period of lawful presence through the DHS’s SAVE (Systematic Alien Verification for Entitlements) system.  So even if an applicant presents a document listed in the document guide, DPS still needs to seek verification through SAVE and DHS.

 

When applicants apply for their DL, the DPS customer service representative is supposed to explain the verification process to them.  DPS has 3 levels of verifications: First, they will check the SAVE system to see if the person’s “admitted to” date is still valid and will get a real-time response.  If they are not able to immediately verify in SAVE (say for example, someone whose H-1B status has expired but s/he has an extension pending), then DPS will do a 2^ndlevel check which could take 3-5 business days to receive a response back from USCIS.  Lastly, the 3^rd level check is for issues that cannot be resolved and would require a “manual” check where DPS must mail the documents to USCIS for verification and we do not know how long that will take.  Once verification is complete, DPS sends a letter to the applicant notifying them that verification is complete and for the applicant to return to the DPS office to complete the application process.  DPS must run a verification check for every DL application.  (In the meantime, if the applicant’s DL has expired, then s/he cannot drive.)

 

Those individuals who have already tried applying for their DL renewals were given the attached USCIS Fact Sheet (which is not entirely useful but at least you can see what DPS is giving to applicants). 

Texas DPS Guidance on Driver's Licenses for Deferred Action Status

From Texas DPS:

The U. S. Department of Homeland Security recently announced it 

is granting deferred action status to certain individuals who came 

to the United States as children. DPS has reviewed this federal 

measure, state statute and our current policies to determine how it 

relates to obtaining a Texas driver license, and we have concluded 

the following:

The “deferred action” status alone will not entitle anyone to a Texas 

driver license.

All applicants must continue to meet the criteria that the State of 

Texas requires in order to be eligible to receive a driver license.

All first time applicants for a Texas driver license must:

• Apply in person at a Texas driver license office.
• Present documents that verify your identity.
• Present documents that verify you are a U.S. citizen or have lawful presence. All information on each document must match. Additional documentation may be required to verify conflicting information, incomplete names, and date of birth.
• Present proof of Social Security Number. If you do not have a Social Security Number, you must complete a Social Security Affidavit form available at the driver license office.
• Present proof of your Texas residency.
• Present proof of Texas vehicle registration and liability insurance on all vehicles you own.
• Complete the application for driver license or identification card (PDF). You may type your information on the form, print it, and bring it with you to the office. If you don’t have a printer, the form is also available at the office.
• Consent to be photographed, fingerprinted, and provide your signature at the time of application.
• Pass the written, driving, and vision examinations. (Read more about foreign language examinations.)
• Pay the required fee with a credit card, cash, money order, or a non-temporary check.
• Provide a vehicle for the driving exam and present current liability insurance, Texas vehicle registration, and inspection for the vehicle.

Federal immigration documentation indicating approved “deferred 

action” status meets only one of the Department’s current criteria 

(lawful presence policy) to receive a driver license. However, they 

would then have to meet the various other requirements (i.e. identity, 

residency, SSN, and other requirements*) in order to be issued a driver 

license.

The expiration date of that driver license will be based on the length 

of lawful presence indicated in the federal immigration documents, and 

each license issued will indicate that it is a “limited-term license.”  

DPS is providing this information to the media and all others seeking 

information on this issue.

Driver's licenses still obtainable by "deferred action" participants in Texas

KVUE by MARK WIGGINS / KVUE News and photojournalist ERIN COKER

AUSTIN -- Governor Rick Perry says President Barack Obama's new immigration policy will not change anything in Texas. Deferred Action for Childhood Arrivals (DACA) allows some undocumented immigrants between the ages of 16 and 30 who came to the U.S. as children to live and work legally without fear of deportation.

In letter sent Monday and addressed to Texas Attorney General Greg Abbott, Perry expressed strong disagreement with the Obama Administration's policy. In it, Perry informed state agencies the program "does not undermine or change our state laws," calling it "a slap in the face to the rule of law."

Last week, Arizona Governor Jan Brewer pushed back against the policy, announcing the state will not offer driver's licenses to those who qualify. Perry's letter Monday led initially to confusion and speculation over whether Texas had similar intentions of actively resisting the federal initiative.

"We are aware that there's not much that we can do with deferred action in Texas," said University of Texas student and DREAM activist Adrian Reyna, who was brought to the U.S. at the age of 12 and has been waiting the results of citizenship petitions for more than 16 years. "We don't need the governor to remind us of that. We're reminded of that every day."

While strong in its denouncement of DACA, the governor's memo doesn't actively block any provisions. For example, those accepted under the program will be able to apply for a Texas driver's license using their new federal work permit.

"In Texas, we do allow persons with the authorization to work from the federal government to obtain a temporary driver's license," said Austin immigration attorney Paul Parsons. "When young people are given permission to work in our country, they ought to be allowed to drive to and from work and to get driver's licenses and car insurance."

The Texas Department of Public Safety released the following information Tuesday:

•  
  • Applicants who present federal immigration documentation indicating approved “deferred action” (I-797) meet the Department’s current lawful presence policy. If they are otherwise eligible (i.e. have met identity, residency, Social Security Number (SSN), and other requirements), they can be issued a driver license with an expiration date based on the length of lawful presence indicated in the federal immigration documents.
  • Someone who has been granted “deferred action” and presents an Employment Authorization Document (EAD or I-766) meets the Department’s current lawful presence and identification policy. If they are otherwise eligible (i.e. have met residency, SSN, and other requirements), they can be issued a driver license set to expire when the EAD expires.
  • Applicants must either provide their Social Security number or fill out an affidavit saying they don't have one prior to the issuance of a driver license.
  • http://www.txdps.state.tx.us/DriverLicense/LawfulStatusDLID.htm
  • http://www.txdps.state.tx.us/DriverLicense/ApplyforLicense.htm

According to the governor's office, if a state agency currently accepts federal work permits for benefit or service applications, they will continue to do so.

 

Perry: "Deferred Action" Doesn't Change Texas State Policies

Texas Tribune by Julian Aguilar

Gov. Rick Perry advised state agencies on Monday that despite the Obama administration’s “deferred action” policy allowing illegal immigrants a two-year reprieve from deportation and a renewable work permit, Texas' policies on persons in the country illegally remain unchanged.

Perry's rebuke of the president's plan, which he called a "slap in the face to the rule of law," comes a week after it took effect.

“To avoid any confusion on the impact of the Obama administration's actions, I am writing to ensure that all Texas agencies understand that Secretary Napolitano's guidelines confer absolutely no legal status whatsoever to any alien who qualifies for the federal "deferred action" designation,” Perry wrote Attorney General Greg Abbott in a letter dated August 16 and sent to state agencies Monday. “In fact, the secretary specifically closed her directive by explaining that [t]his memorandum confers no substantive right, immigration status or pathway to citizenship."

Last week, Arizona Gov. Jan Brewer issued an executive order denying benefits and driver’s licenses to illegal immigrants who apply for deferred action. In Texas, applicants for new driver’s licenses or state IDs must prove legal residency, and some applicants for renewals are also required to show legal status or citizenship. That won’t change under the new federal policy, Perry spokeswoman Catherine Frazier said.

In his letter, Perry wrote, “These guidelines do not change our obligations under federal and Texas law to determine a person’s eligibility for state and local public benefit. Federal law prohibits conferring such benefits to most unlawfully present aliens, absent a state law to the contrary.”

NOTE: Currently Texas issues driver's licenses to individuals on Deferred Action status who have Employment Authorization cards. 

Sore Loser, Jan Brewer, Continues Anti-Immigrant Crusade

Immigration Policy Center

Despite losing both the legal and public relations battles in the fight over SB 1070, Arizona’s Governor Jan Brewer was anxious to put Arizona back in the spotlight this week. Although she can’t prevent people from from requesting or receiving deferred action, she issued an executive order that attempts to prevent Arizona recipients of Deferred Action for Childhood Arrivals (DACA) from obtaining driver’s licenses in her state. The order, which also banned access to public benefits (something DACA recipients are ineligible for, anyway) has been characterized as mean-spirited and belligerent, but it is also just wrong on the facts.

Brewer claimed to have Arizona’s best interests at heart when she announced her decision to block beneficiaries of deferred action from getting a driver’s license or receiving public benefits. Otherwise, she claimed, the onslaught of new applicants for benefits and licenses would have “significant and lasting impacts on the Arizona budget, its health care system and additional public benefits that Arizona taxpayers fund.”

As with her defense of SB 1070, this hyperbole fuels a political position unsupported by facts. The burden Brewer fears doesn’t add up: Putting aside the fact that people with deferred action are not eligible for public benefits (like welfare or food stamps); Gov. Brewer is targeting 80,000 potential deferred action beneficiaries in a state with 6.5 million people. That’s 1.2% of the population. More importantly, these are 80,000 young people. They are not going to suddenly overwhelm the school system because many of them are already in it. And those who are out of high school might be persuaded by the Obama initiative to attend college, meaning that colleges would collect tuition they wouldn’t otherwise receive. Moreover, the deferred action beneficiaries belong to an age group (30 and under) that places few demands on the healthcare system, meaning that emergency rooms are not going to suddenly be overwhelmed by a flood of sick people clutching Employment Authorization Documents given to them by the Obama administration.

With respect to driver’s licenses, the ACLU of Arizona quickly noted that Brewer’s executive order may actually violate existing law and policy in the state. According to the legal provision cited in her executive order, applicants for drivers licenses need only establish that their “presence” in the United States is authorized. While recipients of deferred action may lack valid immigration status, the Arizona ACLU notes that these young people will have authorized presence under the immigration laws. What’s more, the list of acceptable documents on the website of Arizona’s Motor Vehicle Department includes Employment Authorization Documents and Social Security cards—both of which are available to recipients of deferred action. Thus, in the name of protesting federal immigration policy, Gov. Brewer may have contradicted the law of her own state.

While it has been widely acknowledged that issues like access to drivers licenses and instate tuition are likely to be different on a state by state basis, there is something both petulant and short-sighted in Brewer’s effort to make life even more difficult for young people eligible for deferred action. At a time when many in Arizona may have felt that they could start to put the worst of SB 1070 behind them, the governor has once again shown how relying on misguided facts lead not only to bad policy but bad publicity.

 

AZ Gov. Jan Brewer bars public benefits and driver's licenses for young people granted deferred action

Associated Press 

PHOENIX - Arizona Gov. Jan Brewer on Wednesday ordered state agencies to deny driver's licenses and other public benefits to young [undocumented] immigrants who obtain work authorizations under a new Obama administration policy.

In an executive order, Brewer said she was reaffirming the intent of current Arizona law denying taxpayer-funded public benefits and state identification to [undocumented] immigrants.

Young [undocumented] immigrants around the nation on Wednesday began the process of applying for federal work permits under the Obama administration's Deferred Action for Childhood Arrivals.

The federal policy defers deportations for that group if they meet certain criteria, including arrival in the United States before they turned 16 and no convictions for certain crimes.

* * *

Brewer's order said the policy's federal paperwork doesn't confer lawful status on [undocumented] immigrants and won't entitle them to Arizona public benefits.

However, it said the policy change ``could result in some unlawfully present aliens inappropriately gaining access to public benefits contrary to the intent of Arizona voters and lawmakers who enacted laws expressly restricting access to taxpayer funded benefits and state identification.''

Brewer directed state agencies to start any necessary emergency rulemaking processes to implement her order.