Immigration

  • November 21, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar, Clinical Professor of Law and Director of the Center for Immigrants' Rights at Penn State Law

    In the wake of the election, immigration has been a centerpiece. Immigration attorneys and advocates have worked around the clock speaking to clients about how best to proceed in their cases and to the immigrant community and beyond about the rule of law. The fear and uncertainty sweeping immigrant communities are propelled by an anti-immigrant agenda by President-elect Donald Trump and his transition team. Specifically, proposals to end the Deferred Action for Childhood Arrivals (DACA) program; deport two to three million “criminal aliens”; and subject certain individuals to a “Muslim registry” have caused immediate and specific concern and also confusion between rhetoric and reality.

    DACA is a program implemented by President Obama in 2012 that enables noncitizens without status to apply for a form of prosecutorial discretion called “deferred action” if they entered the United States before the age of 16, are currently in school, have resided continuously since June 15, 2007 and meet other program requirements. Since the program started, more than 700,000 people have received DACA and employment authorization pursuant to their deferred action status- thousands more have had their DACA status “renewed”. Whether the President-elect will revoke DACA and work permits from DACA holders remains to be seen, but the concerns are real and have furthermore heightened the risks for prospective applicants and applications for renewal which may be pending through inauguration day. Current and would-be recipients of DACA represent the lowest priorities and should not be targeted by any Administration.

  • January 27, 2016
    BookTalk
    Beyond Deportation
    The Role of Prosecutorial Discretion in Immigration CasesThe Role of Prosecutorial Discretion in Immigration Cases
    By: 
    Shoba Sivaprasad Wadhia (with a Foreword by Leon Wildes)

    by Shoba Sivaprasad Wadhia, author and Samuel Weiss Faculty Scholar at Penn State Law- University Park

    As a law student in summer 1998, I began working for a boutique immigration law firm in Washington D.C., and during my years there met noncitizens from all over the globe seeking refuge from persecution abroad; opportunities to continue research at an internationally renowned institution; and relief from deportation (removal) to remain with their families in the United States; among others. The most compelling cases I handled as lawyer involved prosecutorial discretion (PD), a powerful sword used by the immigration agency (now Department of Homeland Security or DHS) to shield certain people from deportation. I later spent six years with an advocacy organization committed to comprehensive immigration reform but also challenged by the sharp reaction to the terrorist attacks of September 11, 2001, which resulted in many immigration policies with far reaching consequences for Arab, Muslim and South Asian communities and with minimal attention to or understanding for the role of prosecutorial discretion in immigration cases. When I joined Penn State Law in 2008 to teach, train and write about immigration, the study of prosecutorial discretion emerged as a natural calling for my research and culminated into several law reviews and my first book: Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases.

    In the immigration context, prosecutorial discretion can be exercised at many different stages of enforcement, not just the charging stage. When DHS makes a decision not to detain a mother who legally qualifies for detention or chooses to stay a removal order for a middle aged man who has been ordered removed but serves as a primary caregiver to his United States citizen children, DHS is said to be exercising prosecutorial discretion favorably. The economic reasons for prosecutorial are pronounced as DHS has the resources to deport less than 4 percent of the entire undocumented population. The reasons for a prosecutorial discretion grant are not limited to resources as there are also humanitarian reasons for why DHS might wish to shield a person from deportation. The political factors that influence prosecutorial discretion are an important third reason we have this kind of discretion  -- Congress failed to move forward on a comprehensive immigration solution; advocates pushed the Executive Branch to use prosecutorial discretion; and now the U.S. Supreme Court has decided to address whether the administration’s own prosecutorial discretion exceeds legal boundaries if it turns out that the plaintiffs-states who have sued have the legal authority to do so.

    The role of prosecutorial discretion during the Obama administration is a fascinating one, but only one piece of a larger history that is discussed in my book. Published in 2015 by NYU Press, Beyond Deportation takes the reader through a rich history of prosecutorial discretion and profiles scores of noncitizens who have been processed for this kind of discretion for largely humanitarian reasons -- family, medical and other goals. One chapter describes the immigration case of the former Beatle John Lennon and the efforts undertaken by his attorney Leon Wildes to obtain public information about the agency’s deferred action program. The next chapter describes the relationship between the use prosecutorial discretion in the criminal justice system to that in the immigration system and the extent to which prosecutorial discretion in immigration law derives from criminal law. Another chapter chronicles my journey in seeking data through the Freedom of Information Act (FOIA) and highlights the need for transparency in immigration prosecutorial discretion.

  • January 21, 2016
    Guest Post

    by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    Texas’ lawsuit against the Obama administration over its proposed new immigration regulations adds one more important public policy issue to the Court’s term which already has abortion, affirmative action, voting rights, and freedom of speech and religion on its agenda. This battle over immigration policy, however, does not belong in federal court because Texas should not be allowed to turn what is essentially a political controversy between Republicans and Democrats over immigration reform into a federal case.

    The Supreme Court has long required every plaintiff in federal court, including individuals, corporations, and the states, to suffer a personal injury caused by the defendant that can be redressed by the Court. This requirement of injury, known as standing, is a constitutional prerequisite to jurisdiction that cannot be waived by the parties or the Court. The Justices have repeatedly said that standing is necessary to maintain the appropriate separation of powers between unelected, life tenured federal judges and the elected branches of government.

    President Obama’s new immigration regulations, collectively known as DAPA, seek to change the immigration status of approximately four million undocumented aliens who are parents of children who are either legal citizens or legal resident aliens. Texas argues that only Congress has the power to alter the legal status of those immigrants.

    Texas may disagree strongly and sincerely with the President’s policy and/or think such a policy is illegal, but it may only challenge that policy in federal court if it has suffered an injury sufficient to satisfy the Court’s standing doctrine. The primary injury Texas has alleged in this lawsuit is that it will incur increased expenses because, once the regulations go into effect, Texas will feel obliged to provide driver’s licenses at reduced costs to some people with altered immigration status under DAPA. Yet, nothing in DAPA implicates the manner in which Texas provides driver’s licenses to its citizens. The proposed regulations leave all issues relating to Texas driver’s licenses, including their costs, up to Texas.

    Texas also argues that, even though it has the final decision on whether to grant driver’s licenses to DAPA beneficiaries, the need to change or reconsider its current policies gives it sufficient injury to support its lawsuit. Texas also argues that it will incur additional expenses in a host of different ways including “healthcare, law-enforcement, and education costs,” if DAPA goes into effect.

    Texas’ argument fails to support standing because it would allow any state to sue the federal government every time either Congress or the president increases or decreases the number of legal immigrants in this country.  Whenever the federal government changes immigration requirements, both the states’ expenses (in terms of its services) and revenues (through taxes now collected from more legal residents) “may” go up or down. But changes in Texas’ public policy because of those shifts remain completely up to the State of Texas.

    If the states could sue the federal government every time either Congress or the president passes legislation that alters how Texas manages its own public policy due to the number of people lawfully in the state, virtually all federal policy (beyond immigration law) will be transferred from elected officials to federal judges. The very purpose of the standing doctrine is to prevent that transfer of power.

    Texas relies on the Court’s 5-4 decision in Massachusetts v. EPA where the justices allowed Massachusetts to challenge decisions made by the EPA relating to global warming which allegedly harmed the coastline in that state. But, in that case Massachusetts asserted that its own sovereign property was being damaged by allegedly illegal federal policies. In this case, Texas remains sovereign over all of its internal policies and all of its property.

  • January 20, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law; author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)

    Early Tuesday, January 19, 2016 the United States Supreme Court agreed to hear the case of United States v. Texas, a largely political lawsuit brought by a faction of 26 states challenging the legality of two programs announced by President Obama on November 20, 2014. Specifically, the high court agreed to hear arguments on the following issues: “(1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.” Rulings on the first three of those issues were requested by the government; the fourth issue was raised on the Court's own initiative.  On November 9, 2015, by a 2-1 majority, a panel of the Fifth Circuit Court of Appeals ruled against the Administration.

    The executive actions being challenged by states are coined as an expansion of “Deferred Action for Childhood Arrivals” (DACA) and the creation of "Deferred Action for Parents of Americans and Legal Residents” (DAPA). These actions would expand a pre-existing deferred action program for young people and create a new program for qualifying parents who have resided in the United States for at least five years. Deferred action is a form (among more than a dozen forms) of prosecutorial discretion in immigration law. When prosecutorial discretion is exercised favorably towards a person, the government (in this case Department of Homeland Security or DHS, the agency whom Congress has specifically delegated to administer and enforce the immigration laws) abstains from bringing a legally valid immigration charge against a person or group of persons. Prosecutorial discretion exists for humanitarian reasons to the extent the individual bear positive equities like intellectual promise or the position as a primary caregiver to a family; and for economic reasons as DHS has limited resources and the responsibility to target its enforcement against true priorities. This dual activity of enforcing the immigration laws against high priorities and exercising prosecutorial discretion favorably towards others lies at the core of the Take Care Clause which I have described in earlier work in the following way:

    Importantly, the President’s faithful execution of the immigration laws is not just limited to bringing enforcement actions against individuals and ultimately deporting them, but also to prioritizing the deportable population in a cost-effective and conscientious manner, and providing benefits to deportable noncitizens when they qualify for them. The President must “walk and chew gum” at the same time to carry out an effective immigration policy. 

    Apart from the deferred action programs is another memo announced on November 20, 2014 entitled “Policies for Apprehen­sion, Detention, and Removal of Undocumented Immigrants.”  These policies identify priorities for removal which include but are not limited to those with criminal histories, recent entrants, and those with removal orders issued on or after January 1, 2014. This memo is operational today and has sparked great debate and controversy since the Administration’s announcement to conduct raids against Central American families and unaccompanied children who seemingly fall within these priorities. This same memo contains a primer on the use of prosecutorial discretion, but immigration attorneys and advocates have criticized its actual implementation since its inception.

  • January 20, 2016
    Guest Post

    by Gabriel J. Chin, Martin Luther King Jr. Professor of Law, UC Davis School of Law

    The Supreme Court granted certiorari this week in United States v. Texas; the case will undoubtedly be one of the term’s most interesting, important, or both. In a 2-1 decision, the Fifth Circuit invalidated the Obama Administration’s DAPA program making “deferred action” available to as many as four million unauthorized migrants who are parents of U.S. citizens or green card holders. Deferred action represents a formal decision by the government to exercise prosecutorial discretion not to initiate deportation proceedings; it creates neither a right to remain nor a path to permanent status. However, by regulation, the government may grant work authorization to holders of deferred action.

    The Court will review several critical questions.

    The merits issues are whether the administration had the power to establish the program, and if it did, whether it should have gone through formal notice and comment under the Administrative Procedure Act. As Congress does not appropriate enough money to completely enforce the immigration laws (or any other laws, for that matter) there is no question that prosecutorial discretion, for better or for worse, is inevitable. There is also little doubt that even in the government, bosses are allowed to give direction to subordinates about how programs are to be carried out.

    The line between permissible “guidance” and formal, binding enforcement rules requiring notice and comment is debated by the parties. But given that the program does not purport to give noncitizens enforceable rights to relief and allows for case by case, discretionary evaluation of applications in the field, there is a strong reason to believe that the program constitutes permissible enforcement guidance. Certainly it is hard to dispute the idea that, in principle, discretion should be exercised consistently, transparently, and based on reasons rather than at the whims of individual officers in the field. I consider it unlikely that a majority of the Court will rule that general, non-binding guidance of this sort is impermissible.