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 ...

 

POTUS has Legal Authority to Protect Central Americans Fleeing Violence

Over 100 Law Professors: President has Legal Authority to Protect Central Americans Fleeing Violence

Temporary Protected Status for El Salvador, Honduras, and Guatemala Immune to Most Legal Challenges

WASHINGTON, DC — Today, 102 immigration and administrative law professors delivered a letter to President Barack Obama stating that his Administration—through the U.S. Department of Homeland Security—has the legal authority to and should designate El Salvador, Honduras, and Guatemala (the Northern Triangle countries) for Temporary Protected Status (TPS), potentially benefiting 1.2 million undocumented immigrants. TPS is a form of humanitarian protection that provides protection from deportation and employment authorization for undocumented immigrants who cannot be safely returned to their country.  

The legal experts in the letter argue that such designation would likely be immune to the type of legal challenges that have stalled the President’s expansion of Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents. The letter was written by Professor Erin Corcoran, former Director of the Warren B Rudman Center for Justice, Leadership & Public Service at the University of New Hampshire Law; Professor Andrew Schoenholtz, Director of the Human Rights Institute at Georgetown Law; and Professor Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and Director of the Center for Immigrants’ Rights at Penn State Law-University Park.

 

“The legal foundation for the administration to designate TPS to Guatemala, El Salvador and Honduras is clear,” states Professor Shoba Sivaprasad Wadhia.“Congress established TPS as a tool for responding to humanitarian emergencies like those in the Northern Triangle countries.”

The Immigrant Legal Resource Center (ILRC) and the National Immigrant Justice Center delivered the letter to President, Secretary of Homeland Security Jeh Johnson, and Attorney General Loretta Lynch on behalf of the professors. Recently, the ILRC released a report detailing the legal grounds for designation of TPS to Northern Triangle countries.

This is the second letter in support of TPS for the Northern Triangle countries sent by law professors. The first, sent earlier this year, outlined the deteriorating country conditions that warrant TPS designations. The law professor’s letter joins a chorus of growing voices in support of TPS for the Northern Triangle countries, including more than 270 immigrant and refugee organizations; 200 faith groups; 146 members of the House of Representatives; and 23 members of the U.S. Senate.

Read the full letter here: https://goo.gl/7D1Wpf

 

About the Immigrant Legal Resource Center

The Immigrant Legal Resource Center (ILRC) is a national nonprofit that works with immigrants, community organizations, legal professionals, law enforcement, and policy makers to build a democratic society that values diversity and the rights of all people. Through community education programs, legal training & technical assistance, and policy development & advocacy, the ILRC’s mission is to protect and defend the fundamental rights of immigrant families and communities. https://www.ilrc.org

Stateside processing of unlawful presence waivers expanded to LPR family members

Today U.S.C.I.S. published the rule expanding stateside waiver processing to "all statutorily eligible individuals regardless of their immigration visa classification." The final rule is effective August 29, 2016. 

This expansion of the  provisional waiver process will allow family members of lawful permanent residents (LPRs) who are eligible for immigrant visas, to apply for waivers of unlawful presence and the 3 and 10 year bars prior to leaving the U.S. for their consular visa appointments, as U.S. citizen family members have been doing since 2013.  Applicants can apply for provisional waivers of the unlawful presence ground of inadmissibility, based on the extreme hardship their U.S. citizen or LPR spouses or parents would suffer if the waiver were not granted. 

A revision to form I-601A will be posted on August 29, 2016. 

USCIS also expects to update its Policy Manual to provide guidance on how USCIS makes “extreme hardship” determinations in the coming weeks.

 

Texas Private Detention Center licensed as a childcare provider

Texas had to change it's rules in order to license the Karnes County Residential Center as a child care provider, but the Texas Department of Family and Protective services has done it. The license was issued for 60 days, giving the facility time to correct problems found in a March 29, 2016 inspection.

The Karnes County Residential Center is located southeast of San Antonio, Texas, and consists of barracks behind brick walls. It holds a maximum of 580 migrants, most mothers and children apprehended crossing the border and is run by the GEO Group, a private correctional detention company.

This is a shame. Painting Sponge Bob Square Pants on wall murals does not a child care center make. 

See the Texas Observer and the New York Times articles for more information. 

Supreme Court Hears Oral Arguments in U.S. v. Texas

From the American Immigration Council:

Supreme Court Hears Oral Arguments in U.S. v. Texas
Government Makes Strong Case for Moving DAPA Forward

April 18, 2016

Washington D.C. - Today, the Supreme Court heard oral arguments in United States v. Texas. The highest court will now decide whether the President’s deferred action initiatives announced in November 2014, known as expanded DACA and DAPA, move forward.

“The lawyers arguing for the deferred action initiatives made a convincing case that the law and the Constitution are on our side. As expected, the Justices asked probing questions to both sides, demonstrating they understand the high stakes involved this case,” said Beth Werlin, Executive Director of the American Immigration Council.

According to the Council’s Legal Director Melissa Crow, “Much of the argument focused on whether Texas really has standing – a sufficient stake in the outcome of the case to file a lawsuit. The arguments highlighted the fact that this is a political dispute about enforcement policies, not the type of legal dispute that should be before the Supreme Court. Texas’ arguments on standing are unconvincing. As Justice Breyer noted, a finding by the Court that Texas has standing could flood the courts with lawsuits based on all kinds of political disagreements between States and the federal government.”

President Obama’s deferred action initiatives advance common-sense enforcement priorities. To qualify for deferred action, individuals must have continuously resided in the United States since January 1, 2010, register with the government and pass a criminal background check. Instead of tearing apart families through broad enforcement actions, the President is letting law enforcement officials focus their attention on those who pose the greatest threats to public safety.

The American Immigration Council and 325 other immigrants’ rights, civil rights, labor and service-provider organizations filed an amicus brief in the case outlining how families and communities would benefit from the initiatives.

Duo from UT immigration clinic plays key role at detention centers

Austin American Statesman by Jasmin Ulloa

“It is shocking to see that these are the women and children considered by our government to be a priority enforcement target,” [Denise] Gilman said. “Detention means that people are going to be summarily deported back to their countries, even though they have good asylum claims. It means that even if they are then released and allowed to pursue their asylum claims, they are going to be living with this trauma on top of trauma.”

Can Texas block Syrian refugees?

Texas Gov. Abbott wrote a letter to President Obama saying that Texas would refuse Syrian refugees after the recent terrorist attack in Paris:

Given the tragic attacks in Paris and the threats we have already seen, Texas cannot participate in any program that will result in Syrian refugees — any one of whom could be connected to terrorism — being resettled in Texas.

Refugees must prove they have no ties to terrorist organizations

Although security of our country and Texas is paramount, the screening process that refugees must go through before entering the U.S. is rigorous. The U.S. handpicks the refugees who resettle here, and they go through multiple layers of security checks involving the Department of Homeland Security, the FBI, the Department of Defense and intelligence agencies, making them the most vetted group of people who come to the U.S. These checks typically require from 2-3 year before the refugee is cleared and can be brought to the U.S.

In order to enter the U.S. refugees must prove that they (and their family members) have no ties and have provided no support to terrorist groups or their members. The U.S. has been criticized for making it nearly impossible to enter the U.S. as a refugee from a country where terrorist organizations operate and for people who are often victims of terrorist activity themselves. 

Refugees are a Federal matter

 The Refugee Act of 1980, gives the president power to admit refugees who face “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” into the United States. Once a refugee is admitted to the U.S. they are free to live anywhere in the U.S. (even Texas). There is no law that allows governors to overrule the President on who can be admitted to the U.S. as a refugee.

The Texas Health and Human Services Commission Office of Immigration and Refugee Affairs (OIRA) administers federal funds for refugees. The actual resettlement of refugees in the local communities is conducted by local voluntary resettlement agencies (VOLAGs) that work with the U.S. State Department. The Texas OIRA distributes funds to help refugees become employed, learn English and adjust to cultural differences.

Can Governor Abbott block Syrian refugees?

No. Governor Abbott cannot overrule President Obama regarding the admission of refugees. He may be able to restrict state funds that are available to refugees, but most of these are tied to federal monies and could endanger the entire program. Further, the refusal of only Syrian refugees raises equal protection concerns. 

Can Governor Abbott make Texas look unwelcoming and xenophobic? He already has. 

 

US immigration detention policies incompatible with basic principles of justice

ABA Journal by Lorelei Laird

At an ABA Annual Meeting panel on Friday, speakers had strong criticisms of the federal government’s detention policies for immigrant mothers with children.

“The government’s family detention policies of widespread detention of families and secure lockdown facilities are just incompatible with basic principles of justice and liberty,” said Denise Gilman, a professor at the University of Texas Law School and director of the school’s immigration law clinic.

* * *

Gilman, a member of the [C]ommission on Immigration] and a primary author of the report, has been working directly with detained women and children in her role at the law clinic. Because of the explosion of publicity surrounding the so-called surge of unaccompanied minors last summer, Gilman said, federal authorities switched from a policy of releasing families with small children, pending hearings, to a policy of detaining every one. The government originally said this was intended to deter further immigrants by showing they’d be locked up on arrival; and while it has changed its policy, she said, there’s no sign that expansion of detention has stopped.

Gilman said the facilities are prisonlike, with locked facilities and X-ray machines at the doors. Both Texas facilities, in Karnes City and Dilley, are run by private prison companies. Though the families are not technically prisoners, they’re treated like they are, she said. In one case, guards would not permit her students to bring a cupcake to a client celebrating his 9th birthday in detention, she said.

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. 

 

Do you qualify for DACA if you haven't graduated from High School in the U.S.?

One way to meet the educational requirements for Deferred Action for Childhood Arrivals (DACA) is by graduating from a U.S. high school, but there are other ways to qualify:

1. Obtain a certificate of completion from high school;
2. Obtain a General Education Development (GED) certificate;
3. Are an honorably discharged veteran; OR
4. Are "currently in school" at the time of your DACA application.

• Enrolled in:
• a public, private or charter school
• a homeschool program meeting state requirements
• an education, literacy or career training program (including vocational training) that has a purpose of improving literacy, mathematics or English or is designed to lead to placement in postsecondary education, job training or employment
• an education program assisting students either in obtaining a high school diploma or a GED
• GED, English as Second Language (ESL) or vocational training classes funded by the government, colleges or a non-profit organization (such as a church) qualify.
• Programs funded by other sources may qualify but are required to show that the program has demonstrated effectiveness. Ask the program before you enroll if it meets the requirements for for DACA.
• Beware of internet diplomas. Most of these will not qualify you for DACA. 

The other requirements for DACA are that you:

1. Were born after June 16, 1981;
2. Came to the U.S. before your 16th birthday;
3. Have continuously resided in the U.S. since June 15, 2007;
4. Were physically present in the U.S. on June 15, 2012, and at the time of your DACA application;
5. Have no lawful status on June 15, 2012;
6. Have not been convicted of a felony, significant misdemeanor, three or more misdemeanors, and do not pose a threat to national security or public safety.