Fifteen undocumented youth were arrested in Austin, Texas on Wednesday during a protest against Texas Attorney General Ken Paxton’s threat to sue the federal government over the Deferred Action for Childhood Arrivals (DACA) program, according to a statement from the protest organizers.

The protest, organized by national immigrant rights advocacy group Cosecha, brought together about 40 protesters for the first DACA-led civil disobedience action under the Trump Administration. Four DACA recipients and eleven allies were arrested after they blocked traffic by sitting in an intersection in front of the State Capitol, according to Cosecha.

“I am getting arrested today to tell my parents, my community, and the rest of the 11 million [undocumented immigrants] that no matter what politicians say, you are worthy and we will not settle for the crumbs they offer us in exchange for being the economic and labor force that sustains this country day in and day out,” said Catalina Santiago, a DACA recipient who was arrested during the protest.

Another shot of the sit-in blocking traffic. People opposing Paxton’s move to end DACA pic.twitter.com/V3KfkKMxMS

— James Barragán (@James_Barragan) July 26, 2017

 

Here’s video of DACA protesters being loaded onto police vehicle pic.twitter.com/MZQ0vf2xqy

— James Barragán (@James_Barragan) July 26, 2017

DACA is an Obama-era program which allowed undocumented immigrants to remain in the U.S. if they had entered the U.S. before they turned 16, in addition to certain other provisions. Paxton, alongside nine other Republican attorneys general, sent a letter to U.S. Attorney General Jeff Sessions in June. In the letter, the attorneys general threatened to sue the federal government if Trump does not rescind the DACA program by September.

During the protest, “DACAmented” youth–a combination of “DACA” and “documented”–and allies marched through the streets of Austin chanting and singing phrases like, “One struggle, one fight, immigrants of the world unite,” and “The power is in our hands. This is our state. Injustice is not welcome here.”

Upon arriving at the capitol building, protesters laid posters in the middle of the intersection which read “Permanent protection. Dignity and Respect,” but a state trooper removed the signs immediately. The protesters sat in the intersection as drivers blared their car horns, and law enforcement officials began arresting those protesters about 10 minutes later.

BREAKING: Support the #DACAmented youth who were arrested at a sit-in in Austin, TX this morning: https://t.co/bW7Oo3eKv3pic.twitter.com/sp8YP22Rbi

— Movimiento Cosecha (@CosechaMovement) July 26, 2017

“Best case scenario is that they don’t arrest us,” one protester in the intersection said in an interview with KVUE. “The worst case scenario is that we get deported and I’m willing to do that for all 11 million undocumented immigrants. Not just DREAMers, not just DACA recipients, all 11 million undocumented immigrants that deserve dignity, respect, and permanent protection.”

After the protesters in the intersection were arrested, the remaining protesters continued their demonstration on the lawn next to the capitol building with chants of “Undocumented, unafraid.” Cosecha live streamed the protest on their Facebook page.

Paxton’s opposition to DACA is the latest in a series of state and national actions aimed at ramping up restrictions against undocumented immigrants. Texas Governor Greg Abbott signed SB4 into law on May 7, punishing local governments, officials, and police who do not comply with federal immigration laws. Opponents say the SB4 law, which essentially bans sanctuary cities, threatens the safety of undocumented immigrants and communities as a whole by placing distrust in law enforcement and government officials.

President Donald Trump signed an executive order on January 25 which enlisted local law enforcement officers to act as immigration officials to arrest and deport undocumented immigrants. In the first 100 days of Trump’s presidency, undocumented immigrant arrests increased by 38 percent compared to the same period in 2016, according to data from Immigration and Customs Enforcement (ICE).

Wednesday’s protest is only the most recent demonstration in support of immigrant rights. A group of 15 girls donning quinceañera gowns took to the steps of the Texas capitol building on July 19, where they danced to “Immigrants (We Get The Job Done)” and spoke out against SB4.

“We will resist through celebrating our families and our culture.”

Latinas are protesting an anti-sanctuary city law, quinceañera-style. pic.twitter.com/PQgfMNF1et

— Splinter (@splinter_news) July 20, 2017

 

#SB4Basta Quinceañera protest. They begin by dancing to traditional music, finish w/@Lin_Manuel‘s Immigrants We Get the Job Done! pic.twitter.com/JJLdY2YY2t

— Alyssa Harad (@alyssaharad) July 19, 2017

The Trump Administration has taken a tough stance against immigration over the past six months. While delivering a speech to the National District Attorneys Association on July 17, Sessions said that “our goal is not to reduce illegal immigration but to end illegal immigration.” But as undocumented immigrants and allies push back against policies that would negatively affect their communities, the fight for immigrant rights wages on.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

The post 15 Protesters Arrested at Texas Capitol in Demonstration Defending DACA appeared first on Law Street.

For a president who has defined himself by his harsh immigration stance, President Donald Trump’s recent announcement seemed to go against this position. Dreamers, for now, will not have their protections eliminated, Trump said. In a June 15 statement, the Department of Homeland Security said: “The June 15, 2012 memorandum that created the Deferred Action for Childhood Arrivals (DACA) program will remain in effect.”

This seemed like good news for Dreamers. But White House officials said that the long-term plan for DACA and Dreamers has not been officially set, leaving hundreds of thousands of immigrants in limbo. Trump’s statement followed an interview with the Associated Press in April, when Trump said that Dreamers could “rest easy.” The Trump Administration is “not after the dreamers, we are after the criminals,” he said.

Becoming a naturalized U.S. citizen is a long process. U.S. Citizenship and Immigration Services lists the 10 steps that one must take to become a naturalized citizen. Though it’s broken down into 10 steps, these steps can, and do, take years. USCIS also created a “worksheet” that people can follow to see if they qualify to become U.S. citizens. For those without help–legal or otherwise–the process can seem daunting.

DACA created a channel for certain immigrants, specifically children brought to the U.S. by their parents to gain the legal documentation to remain in the country. Calling this channel into question causes anxiety for many immigrants who previously thought they were safe. 

What is a Dreamer?

“Dreamer” is the term often given to those covered by DACA. This gets confusing because there is a separate act, the “Development, Relief, and Education for Alien Minors Act of 2011,” commonly referred to as the DREAM Act. The distinction is that the DREAM Act was never passed. A report released by University of California, Los Angeles summarizes the program as such:

First introduced in 2001 by Senators Orrin Hatch (R-UT) and Richard Durbin (D-IL), the DREAM Act is a bipartisan bill that would provide undocumented youths who came to the United States before the age of sixteen a path toward legalization on the condition that they attend college or serve in the U.S. military for a minimum of two years while maintaining good moral character

Former President Barack Obama ultimately created an executive order that came to be known as DACA (see below for more details on the specifics). DACA, while it did not provide a path to citizenship, worked to ensure that immigrants who came to the United States as minors and who were now pursuing work or education, could not be deported. The fact that DACA is an executive order and not an act  opens it up to vulnerability at the hands of Obama’s successors, including Trump, who could roll it back.

The protections of DACA provide peace of mind for the Dreamers it covers. For young immigrants who are trying to earn a college degree, the program provides assurances that they can continue their studies without the risk of deportation. But under Trump, Dreamers cannot rest easy quite yet. On June 16, a day after announcing the program will stay for the time being, White House officials said that the long-term fate of the program has not yet been decided.

What exactly is DACA?

The Deferred Action for Childhood Arrivals, or DACA, is an immigration policy enacted in 2012 under the Obama Administration. Rather than working toward a path to legalization, DACA allows immigrants who entered the country illegally as minors to apply every two years for a work permit. The purpose of this policy was to take the pressure off non-threatening illegal immigrants. If an immigrant came to the U.S. as a minor and was working or attending school and not getting in trouble with the law, he or she would not be deported. DACA currently covers around 750,000 immigrants.  

Obama’s Legacy

Obama left a mixed legacy in terms of immigration. While Obama never incited chants to “Build a wall,” he still cannot be considered a savior for immigrants. According to the Department of Homeland Security, he deported more illegal immigrants than any of his predecessors. Compared to George W. Bush, Obama’s deportation numbers are far higher. Obama deported roughly three million compared to Bush’s two million. Obama, too, was stricter about fining companies that employed illegal immigrants.

But right now the most important remaining aspects of Obama’s immigration legacy stem from DACA. Immigrants protected under this policy do not represent the majority. In fact, of the almost 11 million illegal immigrants in the country, DACA covers about 750,000. So while the Trump Administration’s current promise to retain DACA is a step forward for those who support immigration, the status of a majority of illegal immigrants remains in jeopardy.

“You Need to be Worried”

White House officials have been careful to not mince words. Thomas Homan, acting director of Immigration and Customs Enforcement, had direct advice for illegal immigrants. At a recent House Appropriations subcommittee hearing, he said, “If you are in this country illegally, and you committed a crime by entering this country, you should be uncomfortable, you should look over your shoulder, and you need to be worried.”

The Trump Administration’s statement released on June 15 also said DAPA (Deferred Action for Parents of Americans) would be rolled back. DAPA, a policy to protect the illegal immigrant parents of American citizens or people who have legal documentation to be in the country, was never actually put in place. After making it all the way to the Supreme Court, a deadlocked 4-4 court could not rule on the proposed plan. But it has now been effectively voided by Trump.

More Uncertainty for Immigrants

Trump ran a campaign that was hardly subtle about his feelings about immigrants. Trump began his campaign making unsavory comments about Mexican immigrants. “Build a wall,” an allusion to increased security on the Mexican border, was one of the bastions of the president’s election rallies. But many immigrants, not just from Mexico, have felt the hostility of the current administration.

And once he got into office, Trump wasted no time in trying to stymie immigration. After exactly one week in office, the president signed an executive order suspending citizens from Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen from coming to the United States for 90 days. The following day, federal Judge Ann M. Donnelly blocked part of the executive order on the grounds that it “violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution.”

On February 2, the administration eased the executive order to exclude those with green cards. A month later, on March 6, the president released another revised travel suspension, this time excluding Iraq. This revised ban was blocked by district court Judge Derrick Watson of Hawaii. Additional parts of the revised ban have been blocked by federal judges as well. The actions taken by the Trump Administration have been for the safety of the American people, the president says. But more than protect Americans, the attempted bans have cast the Trump Administration as one that is unfriendly to immigrants.

While Trump has yet to sign an executive order that suspends immigration from Mexico or other Latin American countries, he has not been extending an open welcome to any of those citizens either. Trump has repeatedly emphasized the need to build a wall on the Mexican-American border– a wall that Mexico will pay for, he has said. Before Trump was inaugurated, Mexican President Enrique Peña Nieto made clear that Mexico would not be paying for the wall. For now, the fate of the wall (and who will pay for it if it ever gets built) remains uncertain.

What also remains uncertain is the fate of certain immigrants with DACA status. Juan Manuel Montes, 23, had been in the United States since he was nine. Montes had protection under DACA that allowed him to live in the United States legally, as long as he kept renewing his two-year work permit. Montes says that back in February he forgot his wallet (with his ID and DACA papers in it) in a friend’s car. While waiting for a ride home, border patrol agents stopped him.

Without papers, Montes had no way to prove he had legal justification to not be deported. He was swiftly sent to Mexico. The Department of Homeland Security denies deporting Montes at all. Rather, they said they found him crossing the U.S. border, an action Montes claims he took after being deported. While the details are unclear, the overall message is not. Immigrants protected by DACA are safe from deportation now, but their status could change.

Conclusion

The future remains murky for immigrants. Those coming from the Middle East could be subject to yet another revised travel ban. Those already in the country, living under protections that formerly guaranteed their safety may eventually not have those same privileges. The volatility that the Trump Administration has been demonstrating likely won’t put anyone at ease. With the president saying or tweeting something one day and then his officials clarifying his statements days or hours later, it makes it hard to know what is happening. Uncertainty is the biggest concern right now.

Anne Grae Martin

Anne Grae Martin is a member of the class of 2017 University of Delaware. She is majoring in English Professional Writing and minoring in French and Spanish. When she’s not writing for Law Street, Anne Grae loves doing yoga, cooking, and correcting her friends’ grammar mistakes. Contact Anne Grae at staff@LawStreetMedia.com.

The post The Future for Dreamers: A Road of Uncertainty Under President Trump appeared first on Law Street.

The Dreamers are here to stay–for now. Late Thursday night, Department of Homeland Security Secretary John Kelly issued a press release and Q&A page on the department’s website announcing a two-year expansion of President Obama’s 2012 DACA policy, which protects immigrants who came to The United States as children. These children are commonly known as “Dreamers.”

It’s a surprising move by the Trump Administration. During the campaign, Trump once said that Obama’s 2012 DACA program “defied federal law and the Constitution” and vowed to end the program if elected.

DACA, or Deferred Action for Childhood Arrivals, was an executive order issued by President Obama in 2012 designed to protect children who entered the U.S. as minors from being deported. While DACA does not provide citizenship to those who qualify, it prevents them from being deported from their established lives in the United States and makes them eligible for work permits.

A sister program known as DAPA, for the parents of American citizens and lawful permanent residents, was blocked a few years earlier by a federal judge in Texas who declared that the program overstepped the president’s constitutional authority. Last week’s announcement formally rescinded the program, although it had never actually been implemented.

This change in immigration policy was praised by members of the immigration community, but to Trump’s hardline supporters, it may be seen as a betrayal of one of his key campaign promise on immigration.

However, aides to the president and representatives from Homeland Security confirmed that the DACA program is only under a temporary extension. Assistant Secretary for Public Affairs Jonathan Hoffman stated that it is still up to Congress to form a long-term solution to the immigration debate. This means that when the extension of DACA ends in just two years, the ‘Dreamers’ could still face deportation in the absence of a further extension or legislative solution.

But for now, it looks as if the Dreamers are safe to stay, that is unless Trump changes his mind.

James Levinson

James Levinson is an Editorial intern at Law Street Media and a native of the greater New York City Region. He is currently a rising junior at George Washington University where he is pursuing a B.A in Political Communications and Economics. Contact James at staff@LawStreetMedia.com

The post Trump Gives Dreamers a Temporary Reprieve appeared first on Law Street.

Juan Manuel Montes was walking in Calexico, California, a small town on the Mexican border, on the night of February 17. A U.S. border patrol agent stopped Montes, a 23-year-old DREAMer, and asked him for identification. Montes told the agent he didn’t have his papers on him. The agent, according to Montes’ legal council, brought him to a patrol station, made him sign documents, denied him access to an immigration hearing, and “in the middle of the night, Montes was physically removed to Mexicali, Mexico.”

On Tuesday, Montes filed a federal complaint against the Trump Administration in the U.S. District Court for the Southern District of California. Montes, still in Mexicali, is represented by the National Immigration Law Center and three other law firms. In a press release, the NILC said Montes is the first DREAMer to be deported under the Trump Administration. Dozens of others have been deported, but only after their DREAMer status had been revoked because of gang affiliations or other criminal actions.

Montes was not stripped of his Deferred Action for Childhood Arrivals, or DACA, status. According to Nora Preciado, an NILC lawyer, Montes, who was taken to the U.S. at nine years-old, was whisked across the border to Mexicali without cause or explanation.

“Juan Manuel was funneled across the border without so much as a piece of paper to explain why or how,” Preciado said. “The government shouldn’t treat anyone this way—much less someone who has DACA. No one should have to file a lawsuit to find out what happened to them.”

Enacted in 2012 by former President Barack Obama, DACA provides protection to an estimated 750,000 children, teenagers, and young adults who were brought to the country before they turned 16. Under Obama, 365 former DACA recipients were stripped of their protection–because of a “significant misdemeanor” conviction, felony, or three or more misdemeanors–and deported. President Donald Trump has deported 43 former DACA enrollees in his first few months in office. Montes had not been stripped of his DACA status, yet he was still deported.

“I was forced out because I was nervous and didn’t know what to do or say, but my home is there,” Montes said in a statement through the NILC. “I miss my job. I miss school. And I want to continue to work toward better opportunities. But most of all, I miss my family, and I have hope that I will be able to go back so I can be with them again.”

On March 15, Montes filed a Freedom of Information Act (FOIA) request with U.S. Customs and Border Protection (CBP), seeking documents related to his deportation. CBP has yet to respond to the request. While he did not have any felonies on his record, Montes did have a collection of misdemeanors; three were for driving without a license, and one was for shoplifting. On Tuesday, Rep. Steve King (R-IA) tweeted a photo of him toasting the border patrol for deporting Montes:

First non-valedictorian DREAMer deported. Border Patrol, this one’s for you. https://t.co/56z1b8xrJ2 pic.twitter.com/iNjKd9FHtM

— Steve King (@SteveKingIA) April 18, 2017

Mónica Ramírez Almadani, an attorney with Covington & Burling LLP, one of the firms representing Montes in his lawsuit against the administration, is hopeful her client will find out why he was booted from Calexico that night in February. “We look forward to presenting our case to the court, because our client has the right to know why and how he was physically removed from the United States when he had permission to live and work here,” she said.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

The post First DREAMer Deported by Trump Files Federal Complaint appeared first on Law Street.

The Department of Homeland Security issued two memos on Tuesday, establishing harsher immigration enforcement when deporting undocumented immigrants. Taken together, the rules amount to a stricter interpretation of existing laws, and the expansion of others. The new guidelines also call for hiring more federal immigration officials, and erecting new detention facilities.

With last month’s executive order on illegal immigration and Tuesday’s memos, President Donald Trump seems to be following through with one of his principal campaign promises: cracking down on undocumented immigrants.

“The faithful execution of our immigration laws is best achieved by using all these statutory authorities to the greatest extent practicable,” DHS Secretary John Kelly wrote in one of the memos. “Accordingly, department personnel shall make full use of these authorities.”

White House Press Secretary Sean Spicer said on Tuesday that the rules were designed to “take the shackles off” immigration officers, and that “the number one priority is that people who pose a threat to our country are immediately dealt with.”

While President Barack Obama narrowly focused on deporting gang members, repeat criminal offenders, and high-level criminals who were in the country illegally (some dubbed him the “deporter in chief”), the new order essentially widens the scope of those who could be targeted for deportation by Immigration and Customs Enforcement, or ICE.

“ICE will not exempt classes or categories of removal aliens from potential enforcement,” said a fact sheet released by DHS on the order. “All of those present in violation of the immigration laws may be subject to immigration arrest, detention, and, if found removable by final order, removal from the United States.”

This effectively means that anyone found to have broken the federal immigration law–which is every undocumented immigrant living in the U.S.–is subject to being deported back to their home country. That does not mean this will happen, as there are roughly 11 million undocumented people living in the U.S., and there are not enough resources to deal with them all. But the new memos also call for more resources to help.

For one, the memos ask for an infusion of 10,000 new federal immigration officers. They also call for new detention facilities, and a new office within ICE to work with victims of crimes committed by undocumented immigrants. But it is unclear how the hiring increases and new infrastructure would be funded. In addition, Kelly told lawmakers on Capitol Hill earlier this month that more officers are not necessarily needed to strengthen security.

“I’d rather have fewer and make sure that they’re high-quality people,” he said. “I will not skimp on the training and the standards.” Regardless of whether ICE is able to hire thousands of new officers, it is expanding an existing program, known as 287(g), that uses local law enforcement officers as proxy federal immigration agents. Currently, 32 agencies across 16 states comply with the program; the new memos seek to expand the number of complying agencies. Between 2006 and 2013, the program resulted in about 175,000 deportations.

Immigration activists and some lawmakers strongly oppose the new guidelines. On Tuesday, Sen. Bernie Sanders (I-Vermont), tweeted:

Instead of frightening 11 million undocumented people with deportation, we need comprehensive immigration reform and a path to citizenship.

— Bernie Sanders (@SenSanders) February 22, 2017

“When you tell state and local police that their job is to do immigration enforcement,” Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project told the New York Times, “it translates into the unwarranted and illegal targeting of people because of their race, because of their language, because of the color of their skin.”

One group that is seemingly safe from the heightened enforcement are undocumented children who were brought to the U.S. by their parents. Obama enacted a program, the Deferred Action for Childhood Arrivals, or DACA, which protects the undocumented children, or Dreamers. That program protected roughly 750,000 children. But under the new rules, their parents are at greater risk of being deported.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

The post Homeland Security Broadens the Scope of Immigration Enforcement appeared first on Law Street.

Andrew Puzder Withdraws From Consideration as Labor Secretary

Yesterday afternoon, President Donald Trump’s nominee for the Secretary of Labor, Andrew Puzder, withdrew from the process. The decision came after reports that at least four, and possibly as many as 12 Republican senators, were going to vote “no.”

Personal issues plagued Puzder throughout the confirmation process. Allegations that he hired an undocumented immigrant as a housekeeper didn’t sit well with many senators. And in 1990, his ex-wife appeared on Oprah’s show and accused him of abuse.

Andrew Puzder’s ex-wife on Oprah in 1990: His physical abuse caused permanent damage. https://t.co/DmeFOhVOZq pic.twitter.com/odEE0mfNhp

— Slate (@Slate) February 15, 2017

There were also allegations that Puzder mismanaged restaurants when he served as CEO of the company that owns Carl’s Jr. and Hardee’s. Employees said they have filed a total of 33 complaints against his company, alleging wage theft, manipulated overtime, sexual harassment, and unfair labor practices. “No matter how you cut it, there is no worse pick for labor secretary than Andrew Puzder, and I’m encouraged my Republican colleagues are starting to agree,” said Senate Democratic Leader Chuck Schumer yesterday.

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

The post RantCrush Top 5: February 16, 2017 appeared first on Law Street.

This post is part of Law Street’s continuing analysis of the recent Supreme Court rulings. To read the rest of the coverage click here.

Immigration: United States v. Texas

The decision: With the court in a 4-4 split, the decision of the Fifth Circuit is upheld, blocking president Obama’s executive action on immigration, namely DAPA and the expansion of DACA.

So what are DACA/DAPA?

DACA (Deferred Action for Childhood Arrivals) is an initiative launched in 2012 as an act of prosecutorial discretion by president Obama. The order allows undocumented immigrants who move to the United States before the age of 16 to seek temporary relief from deportation given they meet criteria for age, arrival time, criminal record, and schooling.

The expansion of DACA (or DACA+) was authorized by President Obama in 2014 that eliminates certain arrival timeline requirements, the age ceiling, and extends relief period from two years to three years.

DAPA (Deferred Action for Parents of Americans) is also an initiative launched in 2014 that would allow parents of U.S. citizens and permanent residents to seek temporary relief from deportation and apply for work permits.

These executive actions were intended to allow deportation officials to focus on illegal immigrants who engage in criminal behavior and thus threaten public safety, while allowing other immigrants who do not have legal status but have vested interests in the United States (for example, if they spent their childhood here or  have a child who is a citizen) to stay for a temporary period.

How did the lawsuit begin?

The lawsuit came to fruition when 26 states sued the federal government claiming that DAPA/DACA+ violated the Administrative Procedure Act by not allowing a notice-and-comment period during rulemaking.

When the states took the case to district court in February 2015, Judge Andrew S. Hanen issued a preliminary injunction, prohibiting further action on DAPA/DACA+ indefinitely. In November 2015, the Fifth Circuit Court of Appeals upheld the district court’s order to grant a preliminary injunction. The federal government filed a petition for certiorari later that month and the Supreme Court decided to take up the case in January. The Supreme Court also decided to consider whether DAPA/DACA+ violated the “Take Care Clause” of the Constitution.

Check out this article to read more about the case’s background.

What does today’s tie mean?

The deadlocked ruling in United States v. Texas affirms Fifth Circuit Court’s decision to block the president’s executive actions. Today’s ruling amounted to just one sentence: “The judgment is affirmed by an equally divided Court.” As a result, as many as five million undocumented immigrants will no longer be protected from deportation

Because the court did not actually decide on the case but rather affirmed the affirmation of an indefinite suspension of a program, the future of DAPA/DACA+ is obviously ambiguous. Immigration advocates find it unfair that the Court of Appeals for the Fifth Circuit would be able to determine immigration policy for the whole country. Some also speculate that another group of states will sue in favor of the actions, which could create a split between appellate courts while the Supreme Court remains deadlocked in a tie.

If the decision remains through the 2016 election, the future of DAPA/DACA+ and immigration policy will be decided by the next president or it may require a ninth Supreme Court justice to break the tie.

You can read the (very brief) opinion here.

Ashlee Smith

Ashlee Smith is a Law Street Intern from San Antonio, TX. She is a sophomore at American University, pursuing a Bachelor of Arts in Political Science and Journalism. Her passions include social policy, coffee, and watching West Wing. Contact Ashlee at ASmith@LawStreetMedia.com.

The post Supreme Court Split Blocks Obama’s Immigration Actions appeared first on Law Street.

President Barack Obama is set to face the gauntlet as the Supreme Court gears up to hear a case that challenges the President’s use of executive power, has the potential to wreck havoc on the 2016 Presidential election, and may go beyond judicial power by granting states more rights and control than the national government on a notoriously federally controlled area of law and politics–immigration. Twenty-six states are challenging the President’s executive actions relating to immigration implementations made in 2014 as an abuse of power and an attempt to circumvent Capitol Hill on policy making.

To date, the case is scheduled to be resolved by the court in June 2016 as the Supreme Court issued that it would review the case, thereby granting the President the authority to execute the programs prior to leaving office, should he be victorious. Read on to learn more about the executive actions in question, the procedural posture and legal history of the case, and what it all could mean for U.S. citizens and aliens in the future.

DAPA and DACA: The Troublesome Two

On November 20, 2014, an executive order was issued expanding the rights of individuals within the Deferred Action for Childhood Arrivals (DACA) program and introduced the creation of Deferred Action for Parents of Americans (DAPA).

DACA, a program created in 2012, allows undocumented young people who came to the U.S. as children relief from deportation so long as specific criteria are met. These criteria include: 1) must be under 31 years of age as of June 15, 2012; 2) must have entered the U.S. under the age of 16; 3) must show continuous residence in the U.S. from June 15, 2007 until the present; 4) entered the U.S. without inspection (EWI) or fell out of a lawful visa status before June 15, 2012; 5) were physically present in the U.S. when applying for consideration of deferred action; 6) 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; 7) have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors; and 8) do not pose a threat to national security or public safety.

Initially, DACA was available for a period of two years at a time–meaning that individuals were only granted temporary relief for two years before they had to re-apply and be approved by the government again. DACA also included a work authorization for those approved, but the executive action of 2014 made it and the work authorization renewable in three-year increments. Additionally, the requirement that the individual be under 31 years old as of June 15, 2012 or now no longer applies. The new DACA provisions do not discriminate against those currently over 31 years old. Further, the eligibility cut-off date was moved from June 15, 2007 to January 1, 2010. Anyone applying must show physical presence in the U.S. prior to January 1, 2010 and during the time of application.

DAPA, unlike DACA, did not have a predecessor. Under DAPA, individuals that have children who are U.S. citizens or lawful permanent residents (LPRs) may obtain relief from removal should they meet the following criteria: 1) as of November 20, 2014, have a son or daughter who is a citizen or LPR; 2) have continuously resided in the U.S. since or before January 1, 2010; 3) are physically present in the U.S. as of November 20, 2014 and during their application for consideration; 4) have no lawful status as of November 20, 2014; 5) are not an enforcement priority; and 5) present no additional factors that would deem the granting of their application inappropriate.

Deferred action is an administrative mechanism used by the U.S. government to de-prioritize individual cases for removal for “humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.” It is a way for the government to categorize the urgency with which individuals be removed from the country. Generally speaking, deferred action carries great discretion. It can be terminated at any point should the U.S. Department of Homeland Security deem termination appropriate and necessary. Furthermore, receiving DACA or DAPA does not provide legal status, a pathway to citizenship, or a pathway to obtain a green card, but rather permits for an individual to be legally present within the U.S. for a specified period of time. In order to be a valid permission, deferred action applications must be considered on a case-by-case basis and do not apply as all-inclusive or sweeping legal policies. An application process is required and permission must be granted for an individual to continue to stay within the U.S.

Substantive rights, immigration status, and pathways to citizenship are under the control of Congress. Only Congress can confer such rights and policies upon individuals within the confines of the U.S. However, the Executive Branch has the authority to set forth policies under prosecutorial discretion and deferred action so long as they fall within the framework of existing law.

The 26 states named in the lawsuit are greatly dissatisfied by the way that President Obama has taken to resolving the many pitfalls of current immigration policy and justice. A major point of contention for the states is that the President allegedly worked to circumvent Congressional authority and undermined the importance of the notice-and-comment process pursuant to administrative law. Notice-and-comment is an informal rule-making process, codified in the Administrative Procedure Act (APA) under § 553. It requires the agency proposing the rule to publish its proposal in the Federal Register and grant opponents or supporters of the proposed rule to comment, amend, present data and evidence for or against, and generally speaking, participate in the development of a newly proposed rule.

Additionally, while immigration is an issue controlled by federal law, the states fear that the changes made to federal immigration laws will place a great burden on the states to change their laws and be forced to provide services they are unable or unwilling to provide to individuals lacking legal status. Specifically, some states worry that the quasi-legal status and work authorizations will require the states to provide “state-subsidized driver’s licenses and unemployment insurance.”

Image Courtesy Of [Nevele Otseog via Flickr]

History of Legal Action: The Procedural Posture

Shortly after President Obama’s executive action on November 20, 2014, the highly publicized Maricopa County Sheriff, Joe Arpaio, challenged the action on behalf of Arizona in a case called Arpaio v. Obama. Arpaio’s lawsuit was dismissed by the Washington, D.C. federal court and upheld unanimously by the D.C. Circuit Court of Appeals on August 14, 2015. That decision has not been appealed to the Supreme Court.

Following in Sheriff Arpaio’s footsteps, 17 states filed a lawsuit, with 9 states joining thereafter, challenging President Obama in Texas v. United States. The President held the support of 15 states and D.C., who filed “friend of the court” briefs on his behalf. Ultimately, the Texas federal court blocked President Obama’s initiatives on a procedural basis on February 16, 2015. U.S. District Court Judge Andrew Hanen found that Texas had standing, or legal capacity and authority, to sue and that the President did not comply with the requirements of the APA, particularly the requisite need for notice-and-comment. It rationalized that the changes enacted by President Obama were substantive rules rather than simple alterations to existing and general policy, which required a specific procedural process.

The Department of Justice subsequently appealed the lower court’s decision and argued the case in front of the Fifth Circuit Court of Appeals on July 10, 2015. In a split decision, the Fifth Circuit upheld the lower court’s ruling, 2-1. The majority decision, authored by Judge Jerry E. Smith, found that Texas did, in fact, have standing to sue and that the changes to policy would greatly increase state costs and burden the states with additional processes and services as required by the national law. While it recognized that judicial review was unavailable under the APA in matters pertaining to agency discretion, it noted that the changes made to DACA and DAPA required notice-and-comment rule-making, and therefore, were non-discretionary. Further, the court ruled on an issue unaddressed by the district court and found that the President’s interpretation of the Immigration and Nationality Act (INA) was misguided and inaccurate because it vested great authority to the Secretary of U.S. Department of Homeland Security. This indirectly re-classified the specified classifications of immigrants codified in the INA and those petitioning to enter, all in violation of the Act itself.

Judge Carolyn King of the Fifth Circuit delivered a blunt dissent, ultimately stating, “I have a firm and definite conviction that a mistake has been made.” Further, Judge King argued that the case should have been dismissed as it follows prosecutorial discretion and therefore, not subject to review by federal courts. In criticism of her colleagues, she penned that allowing states to dictate national policy, particularly in areas solely within federal control, would be a great intrusion to the long-standing separations between government and state. Judge King added that the President’s executive actions were matters of general policy not subject to notice-and-comment procedure and that the interpretation of law under the INA actually sought to further the Department of Homeland Security’s mission in “[e]stablishing national immigration enforcement policies and priorities.”

Critics of the decision, including Judge King herself, highlighted the fact that the expedited appeal was anything but, as the Fifth Circuit took a very long time to render an opinion, likely in an effort to place the case under review by the Supreme Court after the conclusion of President Obama’s term in office.

The Petition Filed by the Department of Justice

In a writ of certiorari petition filed on November 20, 2015, exactly one year from the President’s executive actions, the Department of Justice sought review of U.S. v. Texas by the Supreme Court. While the Court has yet to make a decision as to whether it will review the case or not, the petition outlined key elements of President Obama’s argument demanding for review of this extremely crucial issue.

The DOJ Claims Valid Authority for Action Over States

The Department of Justice highlighted that the authority to make any and all immigration laws and policies is vested in the federal government, particularly under the control of the Secretary of the Department of Homeland Security, who hold authority to establish regulations pertaining to removal and admissibility rules. The Department has broad discretion over enforcement of immigration laws and the ability to prioritize which offenses or conduct deems immediate removal and which groups are not the top priority of government funds allocated for removal and enforcement. While 11 million removable aliens are estimated to live in the United States, the Department can only remove approximately 4 percent of those individuals within a given year. Congress has granted the Department $1.6 billion to remove those convicted of deportable crimes, thereby committing to the Secretary’s discretion in handling these cases in the most efficient manner possible. Therefore, prioritizing is of utmost importance to best allocate funding.

Additionally, the Department emphasized that continued presence through deferred action does not violate any criminal laws, as removal and inadmissibility under immigration laws is civil in nature. Deferred action has been an “exercise in administrative discretion,” that can be revoked at any point in time. It does not offer any legal status to those that fall within its classification. What is offered under deferred action, however, is work authorization protecting such individuals from exploitation under U.S. labor laws, subjecting them to taxation, Social Security, and welfare payments, and providing them with a way to make ends meet so they do not become a burden on U.S. citizens and society. Only “qualified” aliens are entitled to public benefits provided by the state in which they reside, and individuals lawfully allowed to stay within the U.S. under deferred action status are not deemed “qualified,” therefore, they are not entitled to public benefits unless their state specifically provides those under its own laws.

The Sticking Points: Substantive Arguments Against the States

Deferred action has been utilized in a variety of ways to grant individuals lawful presence in the U.S. Examples include individuals who petitioned under the Violence Against Women Act of 1994 and individuals whose lawful family members were killed on September 11, 2001 or in combat were granted temporary relief from deportation under deferred action. Decisions made based on deferred action have legally and historically been barred from judicial review.

Key elements of the petition included the Secretary’s discretion in enforcing immigration laws under resource constraints, the historical utilization of deferred action and its revocability, the security and economic interests in paying fees and applying for work authorization, and the effect that the divided Court of Appeals decision could have on the States’ ability to “frustrate the federal government’s enforcement of the Nation’s immigration laws.”

The petition discussed the lack of standing or authority by the states to bring the lawsuit, stating that private parties lack any “judicially cognizable interest” in the enforcement of immigration laws that are not threatened by prosecution, nor do collateral consequences of federal immigration policy grant a state standing to bring suit. Further, the Department of Justice noted that even if the states were able to show standing to sue, they would have to identify injury resulting from the specified policy that affects it in an “individual way.” Such an expansive reading of state standing would open a door for many more federal-state disputes in the long run and give states far-reaching and independent authority to challenge federal laws with more regularity.

The government further argued that the states lack a valid claim under the Administrative Procedure Act, as the Act does not allow suit by every individual “suffering an injury in fact,” and strictly limits the scope of judicial review to those who are “adversely affected or aggrieved by agency action.” Additionally, the government noted that the agency’s discretion in deferred action is not reviewable by the courts as there is “no meaningful standard against which to judge the agency’s exercise of discretion.”

An entire section of the petition offered examples of the Secretary’s authority to implement deferred action without challenge due to the long-standing history and nation of this power. Ultimately, the Department of Justice pointed to the authority vested in the Secretary to implement the executive actions as lawful within the scope of his power. Finally, the petition outlines the reasoning for why the deferred action is not subject to notice-and-comment rule-making as required by the APA because the actions were “general statements of policy” exempt from such procedural requirements.

What Could It All Mean?

Should the Supreme Court uphold the Fifth Circuit’s decision, great authority would be vested onto the states over a historically federal issue, making it inexplicably difficult to pass any immigration laws on a national level. It would force millions of people, subject to removal but not removal priorities, to continue living in the U.S., working off the books or not working at all, potentially creating a burden on society in the long run. Further, it could ultimately punish the individuals that gained temporary lawful relief under the 2012 DACA provisions that have never been challenged by any of the 26 states in question. The decisions spanning over the last year could potentially invalidate the 2012 DACA actions as well.

While the importance of review is undoubtedly clear, from an administrative law aspect, a constitutional law aspect, as well as a separation of powers aspect, it is unclear exactly what the fruit of review will be. If history were any indication, President Obama would be victorious in his challenge. However, the lower courts have addressed key issues that fall squarely within the context of interpretation and interestingly added some of their own issues, which remain undecided by the district court. How the Supreme Court reads and interprets the statutes in question, as well as its analysis of the interworkings of several federal laws will be determinative for its decision. This may ultimately be a case about procedure and the process of implementation rather than power and constitutionality of law.

Resources

Primary

United States of America v. Texas: Writ of Certiorari

 U.S. Department of Homeland Security: Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children and With Respect to Certain Individuals Who are Parents of U.S. Citizens or Permanent Residents

Additional

Politico: Obama Administration Takes Immigration Battle to Supreme Court

Politico: SCOTUS Keeps Obama Immigration Case on Track For Ruling by Summer

Cornell University Law School – Legal Information Institute: 5 U.S. Code § 553 – Rule Making

Immigration Equality: Deferred Action for Childhood Arrivals

 The Atlantic: A Ruling Against the Obama Administration on Immigration

 The New York Times: Appeals Court Deals Blow to Obama’s Immigration Plans

American Immigration Council: Understanding the Legal Challenges to Executive Action

 National Public Radio (NPR): Supreme Court Agrees to Hear Case on Obama’s Immigration Actions

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post The Federal Government’s Immigration Showdown: SCOTUS Will Decide appeared first on Law Street.

As of March 2012, there were roughly 11.7 million undocumented immigrants living in the United States, many of whom had brought their children with them when they crossed the border. America has been left to figure out how to deal with this massive immigration influx and to determine the best course of action for possible immigration reform. Special attention is paid to undocumented youth who were brought to America illegally as children and have been residing in the country for some time. One big question that the country is struggling to answer is should these young people receive in-state college tuition? Read on to learn about the debate.

What action has been taken?

The Obama administration started the program Deferred Action for Childhood Arrivals (DACA), which permits undocumented youth who were brought to the US under the age of 16 and have been in the US for more than five years to work, get a driver’s license, get a loan, and go to college without the fear of being deported. These youths have also attended their local school systems through programs designed to provide undocumented youths with a K-12 education. Now, as these individuals prepare to graduate high school, they are met with an insurmountable financial wall that prevents them from attending college and pursuing high-paying careers. While DACA permits these students to attend college, they are required to pay out-of-state tuition costs based on their immigration status, which can be considerably more expensive than in-state tuition. Out-of-state tuition is often unaffordable for undocumented families. Paying in-state tuition would greatly reduce this financial burden and make college a real possibility for many undocumented students.

Several states have begun passing “tuition equity” legislation that allows undocumented youths who have graduated from state high schools to pay in-state tuition costs at state schools. Advocates see this as a model of immigration and education reform. Seventeen  states currently provide tuition equity. However, this legislation has been met with strong opposition by those who feel that offering undocumented citizens in-state tuition cheapens American citizenship and rewards illegal behavior.

What’s the argument for providing tuition equity?

Advocates argue that tuition equity could benefit undocumented students and US citizens alike by providing a clear and navigable path toward achieving the American dream. Advocates argue that these students should not be blamed for the actions of their parents, and while they are not US citizens they have grown up and received their education in this country, and cannot call any other place home.

US public school districts currently spend roughly $243,000 per student to educate undocumented youths in K-12. Many feel that this effort and taxpayer money is wasted if these students, who have worked hard throughout their K-12 education, are not given a chance at an affordable college education. While many middle-class families currently struggle to afford hefty out-of-state tuition costs for their children, those tuitions are nearly impossible for undocumented citizens to afford. Upon this realization, many undocumented youths are motivated to drop out of high school and fail to live up to their academic potential. Advocates argue that making tuition feasible would inspire more undocumented students to graduate high school, attend college, and pursue a high-paying career, which could potentially benefit US citizens and the American economy.

Having a college education would encourage more of these students to enter the job market as tax-paying American citizens. The influx of more college-trained individuals into the job market could encourage job growth through entrepreneurial enterprises and increase tax revenue from the higher salaries these individual could make by having a college degree. In the long run, advocates say, tuition equity benefits undocumented and documented citizens alike.

What’s the argument against providing in-state tuition?

Opponents of offering in-state tuition to undocumented students argue that tuition equity validates illegal immigration and is inequitable to tax-paying US citizens. The parents of undocumented students often do not pay taxes that contribute to the funding and maintenance of state colleges and universities, and opponents argue that therefore their children should be charged out-of-state tuition costs. The cost of running these educational institutions would instead be deferred to state citizens who are legal residents. Following California’s DREAM Act, a tuition equity bill signed into law in 2011, the nonpartisan Legislative Analyst’s office estimated that it would require an additional $65 million per year by 2016/2017 in order to provide higher education benefits to undocumented citizens.

Opponents also feel that tuition equity is inherently inequitable toward out-of-state students who are legal residents of the United States. These students would be required to pay a higher tuition merely because they happen to live in a different state than the college they are interested in attending, albeit legally. Some argue that if in-state tuition costs are offered to undocumented residents, then these same lower tuition rates should be offered to out-of-state legal citizens as well, at which point the concept of in and out of state tuition becomes moot.

Because tuition equity is largely backed by Democrats, some opponents feel that it is used merely as a political tool to attract the Latino vote and to secure a growing population for the Democratic Party. Opponents argue that tuition equity and DACA do not actually provide any real immigration reform, but rather pander to Hispanic voters. Momentum for tuition equity has been gaining steadily, however, and this debate will continue to unfold as more states struggle with questions of immigration and education.

Conclusion

The status of children who are brought into the United States illegally by their parents is a tough topic from all angles. Whether or not they should receive in-state tuition for college education continues to be a divisive fight at all levels of government. Some states have moved forward to allow it, while others continue the argument.

 Resources

Primary

Oregon State Legislature: Tuition Equity Bill HB 2787

State of New Jersey: Tuition Equality Act

Additional

USA Today: Why Christie Should Endorse Tuition Equity

Voxxi: Oregon Is One Step Away From Allowing Dreamers to Pay In-State Tuition

American Immigration Council: Tuition Equity Could Be Coming Soon to a State Near You

Students for a Democratic Society: SDS Launches National Push For Tuition Equity

Gazette Times: Tuition Equity Has A Political Agenda

Oregon Catalyst: Tuition Equity Bill: Worst Example of Agency Advocacy

Daily Californian: Children of Illegal Immigrants Should Not Go to College and Gain Legal Status

NJ Policy Perspective: To Put the “Equity” In Tuition Equity, Access to State Aid is Essential

Oregon Public Broadcasting: Tuition Equity Bill Has Backers, Doubters

Washington Post: Seven Immigrants Brought to U.S. as Children Sue For In-State Virginia College Tuition Rates

The New York Times: The Uncertain Cost of Helping Illegal Immigrants Go to College

Joseph Palmisano

Joseph Palmisano is a graduate of The College of New Jersey with a degree in History and Education. He has a background in historical preservation, public education, freelance writing, and business. While currently employed as an insurance underwriter, he maintains an interest in environmental and educational reform. Contact Joseph at staff@LawStreetMedia.com.

The post Just a DREAM? In-State Tuition for Undocumented Immigrants appeared first on Law Street.