Current Status of DACA Litigation

June 8, 2018 § Leave a comment

In September of 2017, Attorney General Jeff Sessions made an announcement that the DACA program would be terminated. Following the announcement, then-Secretary of Homeland Security Elaine Duke issued a memorandum directing Department of Homeland Security (DHS) officials to reject all initial applications received after September 5, 2017 and all renewal applications received after October 5, 2017.

Numerous lawsuits were filed almost immediately and were continued to be filed in the following weeks and months. Two courts have since enjoined, or halted, the government’s termination of DACA and required U.S. Citizenship and Immigration Services (USCIS) to continue accepting DACA applications from individuals who have previously had DACA. A third court has ordered the government to follow its original 2012 policy of not sharing DACA recipients’ private information for enforcement purposes, and a fourth court has issued an order to strike down the termination of DACA and reinstate the original program, but it “stayed” its own order for 90 days to give the government a chance to further explain its decision to terminate the DACA program.

Most recently on May 1, 2018, Texas and six other states filed a lawsuit against the federal government in the Southern District of Texas and asked the court to issue a preliminary injunction that would prevent USCIS from adjudicating DACA applications while the lawsuit is pending. The court has not released any opinions or orders on this issue since. However, on May 8, 2018, 22 individual DACA recipients, represented by the Mexican American Legal Defense and Educational Fund (MALDEF), asked the presiding Judge Hanen to add them as party defendants in this lawsuit in an effort to more adequately address the DACA recipients’ interests. The federal judge has granted this request.

The following is a summary of DACA litigation leading up to the present time.

Regents of the University of California, et al. v. Department of Homeland Security, et al.

 In early January of 2018, a federal judge in California issued a preliminary injunction, ordering the government to continue the DACA program and accept renewing applications. The government tried to skip a step and take the case straight to the U.S. Supreme Court through “cert. before judgement”. This step is rarely accepted by the Supreme Court and only is accepted “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court”. In February 2018 the Supreme Court denied the request for early review, pushing it back to the Ninth Circuit Court of Appeals in San Francisco. Meanwhile, since the federal government did not challenge this ruling, USCIS must continue to accept DACA renewal applications

Batalla Vidal, et al. v. Nielsen, et al., and State of New York, et al. v. Trump, et al.

In February of 2018, A New York district court located in Brooklyn issued a preliminary injunction similar to the one in California. It ordered that the government must continue to accept applications from those who were previously supported by DACA. The order was inspired by two pending cases. Batalla Vidal, et al. v. Nielsen, et al. was brought to a New York court by six individuals that previously benefited from DACA and the State of New York, et al. v. Trump, et al. was brought in front of the same judge by seventeen attorneys general.

The government has appealed the decision to the Second Circuit Court of Appeals. The parties have completed their briefing and are waiting for an oral argument to be scheduled.

CASA de Maryland, et al. v. Dept. of Homeland Security, et al.

On March 5th 2018, the court delivered an opinion in this case that dismissed many of the plaintiffs’ claims. However, the court did make an order regarding the protection of personal information from DACA applications in previous years. The order refers back to the 2012 DACA policies, stating that the government may not use this information for enforcement purposes unless approved by the court prior to collecting the information. This will likely only happen if an individual is involved in a serious crime or he/she poses a national security threat.

NAACP v. Trump, et al., and Trustees of Princeton, et al. v. United States of America, et al.

In late April of 2018, a D.C. federal judge ordered that the court rules in favor of the DACA recipients in both cases and reverses the termination of the program. This decision would not only include the continuing acceptances of DACA renewals, but also initial applications. However, the decision was paused for 90 days (i.e. until July 23, 2018) to allow the government time to develop a more reasonable argument to terminate DACA. While the decision is on hold, the government is still required to process the renewal applications.

Texas, et al. v. Nielsen, et al.

On May 1, 2018, seven states filed a lawsuit against the federal government in the U.S. District Court for the Southern District of Texas, challenging the 2012 DACA program. These states had threatened that three more states would file lawsuits if the DACA program did not end in September of 2017, which resulted in the government announcing the termination of September 5th. These seven states are challenging DACA because they believe it is unlawful and violates the Administrative Procedure Act and the Take Care Clause. The court has not yet made a decision, but an initial scheduling conference be held on July 31, 2018.

For more information on how to apply for DACA, refer to National Immigration Law Center’s FAQ’s and also the USCIS website.


Response Protocol for I-9 Audit and Immigration Raid

May 18, 2018 § Leave a comment

An I-9 audit (also known as an Administrative Inspection) begins when ICE gives a Notice of Inspection to a company, requesting a review of I-9 forms for every employee. This notice must given at least 3 days before the inspection takes place. ICE is only allowed to request I-9 forms and a list of current and past employees with their social security numbers.

After the inspection takes place, the company is given feedback and is allowed ten days to correct any mistakes found by ICE. If corrections are not made, fines can reach up to $1,100 per violation. If ICE has found that the company is employing an unauthorized worker and the company has not terminated or provided proper documentation, fines can reach up to $16,000 per violation.

Raids take place when ICE shows up to a company to search the premises, question workers, and review documentation without giving a notice to the employer. Raids require prior approval through a judicial search warrant. Judicial search warrants give ICE permission to search parts of the business not open to the public.

In the case of a raid, it is recommended that the employer pick a “response lead” The lead will have the responsibility of informing management and other important personnel,  The lead should also inform the ICE agent in charge of the raid that they are the point of contact during the raid.

U.S. Cracks Down on Birth Tourism Industry

May 18, 2018 § Leave a comment

Birth tourism is a developing industry in the United States that has become very appealing to pregnant women from all over the world, especially from China, Taiwan, Saudi Arabia, South Korea, Nigeria, Turkey, Russia, Brazil, and Mexico. These women come to the United States in hopes to give birth on American soil, allowing their child to be a United States citizen. However, U.S. officials have caught on to the growing industry. ICE has started raiding hotels with groups of the mothers-to-be traveling together and CBP has also tightened security at the Los Angeles airport for pregnant Chinese women.

The birth tourism industry has proven to be beneficial to the shopping and restaurant economy where the women tend to congregate (New York, California, and Florida). Also, many travel agencies, law firms and landlords benefit from the industry. When coming to America, women may be asked by landlords to pay up to six months rent upfront, making it a financially heavy choice for the woman. Not only do they have to consider rent, but there are law firms (such as Miami Mama in Florida) that focus on birth tourism specifically. The entire trip itself can take months of planning and traveling and can cost between $50,000 and $100,000.

The Trump administration is cracking down on the birth tourism industry because of their policy ideas regarding chain migration. When the American-born baby turns 21, he or she can sponsor their parent for a green card.

Enforcement Priorities

May 18, 2018 § Leave a comment

Historically since 1996, Immigration policies have guided officials to prioritize arrests and investigations involving undocumented individuals. Top priority was given to those individuals charged with felonies and other high crimes. However, the Trump administration announced in January of 2017 through an executive order, “Enhancing Public Safety in the Interior of the United States”, that priority has been given a new meaning. Immigration forces have been directed to make any unauthorized individual at risk for being deported or arrested, regardless of how long they have been in the United States, how obedient they have been to United States laws, or how many of their relatives are U.S. citizens. The order also stripped money from sanctuary cities.

We have already seen an increase in arrests of undocumented individuals. Since fiscal year 2016, ICE arrests have increased by 42 percent. While ICE reported that 92 percent of these arrests were being charged or had been convicted for a criminal offense, it was found that they used the term “criminal offense” for traffic violation and other minor and non-violent offenses.

Setting these enforcement priorities allows law enforcement to have wiggle room for discretion. Discretion is the choice that officers, prosecutors and judges must determine if they want to pursue a case. Discretion plays an important role in a functioning justice system, primarily serving to make an effective use of the justice system’s limited resources, as there simply aren’t enough police, prosecutors, and other criminal justice personnel to act against every person who has broken the law, no matter how minor the offense.

Under the Obama administration and pursuant to the Morton Memo from 2010 that was rescinded and released again in 2011, law enforcement was told to give priority to those individuals who:

  1. Were threats to public safety or national security, specifically those with criminal convictions
  2. Undocumented migrants who recently crossed the border
  3. Migrants who didn’t heed a previous order of removal, or who re-entered after being deported

A criticism of the 2010 Morton memo was that it lumped individuals together who were convicted of very different crimes (for example: shoplifting and murder are two very different criminal convictions). Another issue with the memo is that the peopled referred to in numbers two and three often don’t know they are breaking immigration laws. The Obama administration realized their mistakes and wrote a more specific memo in June of 2011.

A concern of having no priorities set in place is that while we are catching undocumented individuals, we could be missing those who are actually a threat to society.

A November 2014 memo written by then-DHS secretary Jeh Johnson rescinded the 2010 Morton Memo. The Johnson Memo referred to not just ICE, but the entire Department of Homeland Security. The Johnson Memo was very similar to the Morton Memo, giving priority to those individuals who:

  1. are threats to national security, border security (specifically individuals who were arrested while attempting unlawful entry), and public safety
  2. misdemeanants and new immigration violators (including anyone apprehended after unlawfully entering the U.S. and who had not been present in the United States since January 1, 2014)
  3. “other immigration” violators, specifically those who had been issued a final order of removal on or after January 1, 2014

The Johnson Memo also elaborated on the extent of discretion. Johnson stated that discretion should not be limited to the prosecutorial processes of issuing, serving, filing, or cancelling a Notice to Appear, but should also include other discretionary decisions regarding enforcement such as “whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case”.

In February of 2017, then-DHS Secretary John Kelly strictly adjusted the limitations of discretion. For example, the Kelly Memo directed that officials should consult with the head of their department before making discretionary decisions. The Kelly Memo also directed the director of ICE to “immediately reallocate any and all resources that are currently used to advocate on behalf of illegal aliens…  to the new VOICE Office (Victims of Immigration Crime Engagement), and to immediately terminate the provision of such outreach or advocacy services to illegal aliens”.

The Proposal of the I-Squared Act

February 21, 2018 § Leave a comment

Senators Orrin Hatch and Jeff Flake proposed the Immigration Innovation Act of 2018 (I-Squared Act) with intentions on improving the high-skilled immigration system with increased obligations for sponsoring employers. According to Hatch, this bill incorporates a merit-based system into immigration policy, which has been an important issue on the Trump agenda.  However, unlike the Raise Act, sponsored by Senators Tom Cotton (R-AR) and David Perdue (R-GA) and supported by Trump, I-Squared would not cut legal immigration over a 10-year period. It will increase programs that support highly skilled foreign workers while protecting U.S. workers.

The I-Squared Act would increase the H-1B cap from a baseline of 85,000 per year up to 195,000 in high demand years. The bill would bring about unlimited cap exemption for U.S. advanced-degree graduates for whom an employment-based green card case is begun within a year after they obtain H-1B status. If the cap were reached in the first five business days of the cap season, a priority system would be used to allocate cap numbers. Priority would be given to (1) cap-subject U.S. advanced degree holders; (2) beneficiaries holding doctoral degrees earned outside the United States; and (3) foreign nationals holding U.S. bachelor’s degrees in designated STEM fields.

Under the Act, H-4 dependents (children and spouse of the H-1B visa holder) can receive work authorizations providing the H-1B spouse has a pending or approved Labor Certification or I-140 and require H-4 employers to certify they will pay the spouse the greater of the actual wage or the prevailing wage. This change will make decisions related to cap-subject H-1B visas a priority based on the degree of the individual and speeds up the process for employers filing multiple immigrant or nonimmigrant petitions. The new bill would require that an H-1B employer can only hire an H-1B employee if there is no intent of replacing a U.S. worker unless the U.S. worker received a promotion, transferred, retired or left the company voluntarily.

In regards to the monetary aspect of the I-Squared Act, USCIS filing fees required for H-1B petitioners in accordance to the American Competitiveness and Workforce Improvement Act (ACWIA) would increase in order to contribute to STEM education funding; however, it is also planned to increase prevailing wages in the workforce.

The I-Squared Act not only affects the H-1B visa programs, but also green card programs. Currently, there are numerical limitations on each country on immigrant visas. The Act would eliminate these limitations and recapture unused visas from FY 1992 through FY 2013 to cut the backlogs. It will also increase employment-based immigration visas to 35,000 and create dual intent for student visa holders to make it easier for them to apply for a green card.

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