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 ...

 

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.

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. 

 

 

Dreams deferred: Federal immigration dispute leaves many unsure about future

Waco Tribune-Herald by J.B. Smith

A Waco family talks about the delay in administrative action and how it is impacting them. 

DACA/DAPA Information Session in Waco March 3rd

The Baylor Law School Immigration Clinic and Mission Waco Legal Services are hosting a free informational session on administrative action:

Tuesday, March 3, 2015

7:00 p.m.

St.Louis Catholic Church (Sanctuary)

2001 N. 25th St., Waco, Texas 76708

The topics covered will be:

• Administrative actions announced by President Obama in June 2012 and November 2014
• Delay caused by the injunction ordered by South Texas federal judge to the November 2014 programs
• Deferred Action for Parents (DAPA) 
• Deferred Action for Childhood Arrivals (DACA) 
• How to prepare for DACA/DAPA
• Resources available to help

The speakers will be:

• Kent McKeever, Attorney/Director, Mission Waco Legal Services
• Laura A. Hernandez, Professor, Baylor Law School
• Susan I. Nelson, Adjunct Professor, Baylor Law School
• Anali Gatlin, Attorney, Baylor Law School Immigration Clinic

The Baylor Law School Immigration Clinic will be holding Clinics to assist DACA initial applicants and renewal applicants 

Deferred action expanded to more immigrants

Last night, President Obama announced that he is acting administratively to improve the immigration system. One of the changes will expand the number of people who can request deferred action.

Q - What is deferred action?

A - Permission to stay in the U.S. and obtain authorization to work legally. The grants of deferred action will be made for 3 years (an increase from the 2 years previously offered for DACA).

Q - Who can apply?

A - Deferred Action for Childhood Arrivals (DACA) will be revised to allow immigrants who came to the US prior to their 16th birthday and before 1/1/2010, to request DACA regardless of their age at the time that President Obama made the announcement. (Currently, those who were born before 6/15/1981 can not apply). Deferred Action for Parents (DAP) will allow immigrants who have U.S. citizen or legal permanent resident children to apply for deferred action.

Q - When can I apply?

A- Those newly eligible to apply for DACA will be able to apply in 90 days (Feb. 2015). Those eligible for DAP will be able to apply in 180 days (June 2015).

I will continue to monitor the developments on deferred action and let you know what I discover.

FREE DACA Immigration Clinics at Baylor Law School April 1st and 3rd

April 1, 2014 & April 3, 2014

APPOINTMENT REQUIRED.

Baylor Law School will offer free assistance to immigrants who qualify for Deferred Action for Childhood Arrivals (DACA).

When?   April 1, 2014 and April 3, 2014 from 6:00 to 9:00 p.m.

What are some of DACA’s benefits?

• Get a social security number
• Be authorized for legal employment

Who qualifies? Immigrants who:

• Were born on or after June 15, 1982;
• Came to the U.S. before the age of 16;
• Have continuously resided in the U.S. from June 15, 2007 to the present;
• Are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
• And have not been convicted of a felony, significant misdemeanor, or more than three misdemeanors.

When you contact us, our law students will help you determine if you qualify for DACA and our services.  While our services are completely free, U.S. Citizenship and Immigration Services charges an application fee of $465.  Translators will be available.  Baylor Law School will not provide additional services after the scheduled clinics. 

For an appointment, call or email us at:

[email protected]

888-497-0018

Immigration Judges encouraged to administratively close cases

My SA by Jason Buch

With immigration courts still backlogged more than a year after the Obama administration launched a controversial policy to close certain deportation cases, the nation's top immigration judge has encouraged colleagues to take matters into their own hands.

In a memo issued this month, Chief Immigration Judge Brian O'Leary wrote that judges are “encouraged to consider” a landmark ruling from last year that allows them to close deportation cases over the objection of prosecutors.

The decision was hailed by immigration lawyers, who said it will help relieve heavy dockets of languishing cases. San Antonio had the second-largest backlog in the state with 10,000 cases pending last year.

But a former immigration judge criticized the guidelines as sending the message that immigration laws won't be enforced, adding that administrative closure, which puts deportation proceedings on the shelf, leaves immigrants in legal limbo.

The recommendation to consider closing cases despite the government's objection came in a memo in which O'Leary lamented the backlog in the nation's immigration courts.

More than a year after U.S. Immigration and Customs Enforcement Director John Morton issued a memo, widely criticized by conservatives, directing prosecutors to use discretion in deportation proceedings, the problem is at an all-time high.

“The backlogs in the courts are still way out there,” San Antonio immigration attorney Lance Curtright said. “If you go into court today, you're not going back until 2014.”

The 10,000 pending cases San Antonio had in fiscal 2012 represented an increase of 2,000 from the previous year, according to Syracuse University's Transactional Records Access Clearinghouse.

Morton's prosecutorial discretion guidelines, which encouraged ICE's attorneys to focus on immigrants who committed serious crimes and shelve the cases of those who meet certain guidelines, such as serving in the military or having U.S. citizen families, haven't made much of an impact, Curtright said.

Of the more than 16,000 cases closed since the so-called Morton Memo was issued in 2011, only about 200 were in San Antonio courts, according to TRAC.

Administratively closing a case means a judge sets it aside and takes it off the docket, but it can be reopened at any time.

To deal with the backlog, O'Leary wrote, judges can administratively close cases even when ICE prosecutors object. In the past, he wrote, judges couldn't close a case unless the government recommended it. An appeals case decided last year changed that.

In the Matter of Bavakan Avetisyan, the Board of Immigration Appeals ruled that immigration judges can administratively close cases even if one side objects.

“Requests for administrative closure ... should be granted in appropriate circumstances. Since our resources are limited, those resources must be applied to situations where there is an actual dispute between the parties,” O'Leary wrote. “However, administrative closure cannot be used simply to remove a case from the court docket.”

Read more: http://www.mysanantonio.com/news/local_news/article/Migrant-courts-get-more-latitude-4356389.php#ixzz2NdAYnahu

 

Local attorney, Susan I. Nelson, discusses current immigration issues

Here is a copy of the Q&A  article that ran in Tiempo this week: 

Tiempo: Tell us about your experience with clients and immigration issues.

Nelson:  My first encounter with immigration law was when my husband and I adopted our daughter from Russia. Although we are both lawyers, we needed help to navigate the complex immigration process. After our experience with the adoption, I started receiving calls from other attorneys and individuals who knew of my experience. I began practicing immigration law beyond pro bono cases in 2003, and it is now where I spend the majority of my time. 

I like immigration law because it allows me to help people keep their families together. Many lawyers help pick up the pieces when families fall apart, but I work to help families who want to be together stay together. I am often frustrated by the current state of the law when I see deserving people whose families are being torn apart without remedy or recourse.

Tiempo:  What is the difference between the Texas DREAM Act and the one that is being discussed in Washington?

Nelson: The Texas DREAM Act was signed into law by Governor Rick Perry in 2001 and provides that all students, regardless of immigration status, may qualify for in-state tuition at Texas colleges or universities provided they have lived in Texas the three years leading up to high school graduation and resided in Texas the year prior to their enrollment in higher education.

The Texas Dream Act has succeeded by providing access to higher education for students who otherwise are unable to afford the increasing cost of attending college and by providing needed money to Texas colleges and universities. In the present legislature a bill has been filed that would repeal the Texas DREAM Act. Governor Perry hinted that he would veto such an attempt to repeal in-state tuition for undocumented students, but I hope that this bill will never reach his desk.

The federal DREAM Act (The Development, Relief, and Education for Alien Minors Act) was first introduced in Congress in 2001 with bipartisan support but never became the law. If enacted, it would provide a path to permanent residence for undocumented immigrants who were brought to the U.S. as children, who graduated from high school or obtained a G.E.D. in the U.S. and who have good moral character if they complete two (2) years of college or in the military.

Tiempo:  What can be expected with the political climate on immigration now that President Obama has been re-elected?

Nelson:  In recent years, attempts to fix our nation’s broken immigration laws have been hijacked by the anti-immigrant, anti-“amnesty” movement. I am hopeful there will be a change in the dynamics and an opportunity for Congress to make changes in our laws that will place the 12 million undocumented immigrants who are in the U.S. on a path to earning legal permanent residence.

Tiempo:  Could you explain in a few words the Deferred Action decision from last year?

Nelson: In June of 2012, the Obama administration announced that it would accept requests for Deferred Action for Childhood Arrivals (DACA). This initiative is designed to temporarily suspend the deportation of young people residing unlawfully in the U.S who were brought to the United States as children, are attending or have graduated from U.S. schools and who have good moral character. Young people who are approved for DACA receive an Employment Authorization for 2 years that can be renewed as long as the DACA program continues, but it does not provide a path to permanent residence for these young people.

Tiempo:   What cases have you dealt with recently regarding Deferred Action?

Nelson:  I represent a number of clients with DACA cases. In addition, I provide direction to the Baylor Law School Immigration Clinic. We assisted 120 young people to complete applications in the Fall, and plan to have another DACA Clinic this Spring. Most DACA applicants receive approvals in about 3 months.

Tiempo: What is the current status of applications for immigrants who have been victims of a crime in McLennan County?

Nelson:  In 2000, Congress created the U-Visa for victims of certain crimes in order to encourage undocumented victims to report crimes and cooperate with law enforcement agencies.

In order to apply for the U-Visa, a crime victim must first obtain a certification from a law enforcement agency, prosecutor or judge stating that they were the victim of a qualifying crime and that they cooperated with law enforcement.

There has been a problem in McLennan County in recent years. The Waco Police Department does not sign the required certifications but refers all requests to the District Attorney’s office.

District Attorney Abel Reyna has declined to sign all of the requests for certification that I submitted on behalf of crime victims, including one for a minor sexual abuse victim whose abuser is serving 35 years in prison because she and her mother came forward.

Fortunately, judges can also sign the certifications. Judge Ralph Strother recently signed the certification so that this brave young girl can apply for a U-Visa.

However, our judges cannot shoulder the entire burden. There is a need for the DA’s office and police departments to also sign the certifications, and I hope that they will reconsider their policies.

Tiempo:  What can the community do to support the DREAM Act Alliance locally?

Nelson: The Waco DREAM Act Alliance is a grassroots advocacy organization dedicated to promoting the DREAM act and immigrant rights. They meet regularly and support local DREAMers and their families. You can find them on Facebook at http://www.facebook.com/groups/WacoDREAM/ or on-line at www.wacodream.org.

You can also express your support for the DREAM Act and comprehensive immigration reform by contacting your congressional representatives and Senators. You can find your representative’s contact information at http://www.house.gov/representatives/find/. Your Senators’ contact information can  be found at http://www.senate.gov/.

The Waco DREAM Act Alliance and national organization United We Dream are working to stop the deportations of family members of DACA eligible young people and U.S. Citizens. If you know of someone in deportation proceedings who fits into this category, they should complete a Case Questionnaire at http://unitedwedream.org/end/ and contact the Waco DREAM Act Alliance. 

Tiempo:  What is the new rule that effects the way that spouses of U.S. Citizens obtain their permanent residence?

Nelson: The Obama Administration is attempting to lift the burden of our broken immigration laws by making rules that change the process but not the law.

Under current law, many immigrants who enter the country without inspection cannot apply for permanent residence (a “green card”) in the U.S., and instead must finish the immigration process abroad.  Unfortunately, for most people, just leaving the country—even to pick up a visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their “unlawful presence,” potentially separating them from their family for up to ten years.

For some, but not all, the penalty can be waived. To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count.  Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.

Under the old rule (which will continue to be the process for spouses of permanent residents), the applicant can not apply for the waiver until after they leave the U.S. and have their consular interview. They are required to wait in their home country while the waiver application is decided. 

Immigrants can be stranded outside the U.S. for months or even years while waiting for a decision on whether they can return to their family. Many families endure the emotional strain, financial hardship and dangerous conditions of this waiver process. Others simply are unwilling to take the risk.

The new rule allows spouses of U.S. Citizens to apply for a provisional waiver of unlawful presence before they leave the U.S. for their consular interview. If they receive the provisional waiver, they will leave the U.S. to apply for their immigrant visa knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of weeks.

The new rule takes effect on March 4, 2013.

Susan I. Nelson is a Waco attorney and practices with her husband, Alan Nelson, in The Nelson Law Firm, P.C. She represents individuals and businesses in immigration cases and writes the Texas Immigration Lawyer Blog (www.centeximmigration.com) in which she provides news and opinions on immigration law and policy.  Susan came to Waco in 1976 to attend Baylor University, and has been here since that time. She has practiced law in Waco since she graduated from Baylor Law School in 1990.