DACA

  • September 7, 2017
    Guest Post

    by Brad Smith, President and Chief Legal Officer, Microsoft

    This piece was originally posted on Microsoft On The Issues

    We are deeply disappointed by the administration’s decision today to rescind protection under the program for Deferred Action for Childhood Arrivals (DACA). As we said last week, we believe this is a big step back for our entire country.

    The question for individuals, employers and the country is what we do now.

  • September 5, 2017
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law - University Park and Lorella Praeli, Director of Immigration Policy and Campaigns and former Dreamer, American Civil Liberties Union

    *This piece draws from an ACS briefing call on DACA from August 24, 2017

    During the 2016 presidential campaign, Trump promised to deport Dreamers, a reference to people who came to the United States as children.

    The Deferred Action for Childhood Arrivals program (DACA), announced by the Obama Administration in June 2012, allows qualifying young people who were brought to the United States as children to request that any removal action against them be deferred in the exercise of prosecutorial discretion. Texas Attorney General Ken Paxton and 10 other state attorneys general have written to Attorney General Jeff Sessions indicating their intent to challenge DACA in court unless the administration agrees to rescind the program by September 5, 2017. Against this backdrop, the Trump administration announced the decision to terminate DACA.

  • May 23, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law- University Park.

    On May 19, 2016, Judge Andrew Hanen issued an unusual 28-page order scolding the Department of Justice for making statements that in the view of Judge Hanen were misleading. The order alleges that Department of Justice attorneys deceived the court about its activity surrounding two deferred action programs announced by President Obama on Nov. 20, 2014. Deferred action is one form of prosecutorial discretion in immigration law that temporarily protects the government’s lowest priorities from deportation. The 2014 deferred action programs would modify the 2012 Deferred Action for Childhood Arrivals (DACA) program and establish a similar program known as Deferred Action for Parents of Americans and Lawful Permanent Residents for qualifying parents who lack a formal legal status. The allegation by Judge Hanen is that the government erroneously granted DACA renewal applications for three years pursuant to the 2014 Directive (DACA +) as opposed to the two-year period contemplated under 2012 DACA.

    Much of the press coverage on Judge Hanen’s May 19 order has focused on the order’s scolding. But equally, if not more alarming, are the implications of Judge Hanen’s demand on the Department of Justice to provide a list of individuals granted DACA under the 2014 directive. According to the order: “This list should include all personal identifiers and locators names, addresses, “A” file numbers and all available contact information, together with the date the three-year renewal of approval was granted.” If the order has a legal effect, unleashing a list of names and A-numbers raises privacy concerns and has the potential to instill greater fear in a community that is already vulnerable to the delay caused by the Texas litigation and announcements by the government to use raids as a tool to detain and deport adults and children who purportedly fall within its enforcement priorities. Judge Hanen has also ordered “any attorney employed at the Justice Department in D.C. who appears, or seeks to appear in a court (state of federal) in any of the 26 Plaintiff states annually attend a legal ethics course”, believing himself that Justice attorneys have failed to comply with their ethical duties during the course of the Texas litigation.

    A real conversation about the ethics of the Texas litigation should cover the distortions made by the Plaintiff states and lower courts around the history and legal foundation to implement the 2014 deferred action programs. The 123-page opinion issued by the district court on Feb. 16, 2015 and authored by Judge Hanen contained misrepresentations about immigration law and policy, some of which were memorialized in a letter signed by 104 scholars and teachers of immigration law who identified the opinion as “deeply flawed.” As one example, the letter criticizes the district court’s characterization of deferred action as lacking statutory authority and beyond the scope of prosecutorial discretion – despite the ample authority held by the Department of Homeland Security to operate a deferred action program. Subsequent to the district court opinion, oral arguments were heard by a three-judge panel at the Fifth Circuit Court of Appeals and again displayed great confusion around the terms lawful presence, deferred action, and employment authorization to name a few. As I described earlier:

  • November 13, 2015

     by Jim Thompson

    In The Huffington Post, Geoffrey R. Stone discusses the issue of free speech on college campuses and argues that “universities have a deep obligation to protect and preserve the freedom of expression.”

    Following Justice Sonia Sotomayor’s sole dissent in Mullenix v. Luna, Matt Ford at The Atlantic reflects on her previous efforts to defend the Fourth Amendment’s constraints on law enforcement.

    In The New York Times, Jesse McKinley reports that Gov. Andrew Cuomo (D-NY) announced Tuesday that he will “unilaterally establish a $15 minimum wage for all state workers, making New York the first state to set such a high wage for its public employees.”

    At Hamilton and Griffin on Rights, Angela Morrison explains why Tyson Foods, Inc. v. Bouaphakeo could have significant implications for low-wage workers.

    Linda Greenhouse, a member of the ACS Board of Directors, writes in The New York Times that the Roberts court will have the opportunity to “demonstrate that it cares more about principle than politics” when it reviews the Fifth Circuit’s decision to uphold the injunction against DACA and DAPA.

  • April 6, 2015
    Guest Post

    by Alan B. Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law; Professional Lecturer in Law, George Washington University Law School

    The area near the border between Texas and Mexico is a dangerous one, especially if you are a liberal Democrat from the North trying to deal with about 11.3 million individuals who are not lawfully in the United States, when the budget and the personnel to operate existing systems will not enable you to deport more than 400,000 a year. And judging from the February 16 opinion in Texas v. United States by District Judge Andrew Hanen, who sits in the Brownsville Federal Court located there, the courthouse is not a safe place to be either.

    Judge Hanen’s ruling, which runs 123 pages and was followed by a three-page preliminary injunction, has so much in it that it is impossible to do more in an essay like this than to summarize the key points. Meanwhile, the Federal Government has appealed and is seeking a stay in the Fifth Circuit, which will be heard on April 17. But first, let’s start with what Judge Hanen did and then take a look at the appellate posture. 

    The first step is to recognize who in the Executive Branch did what that precipitated the lawsuit. Although the popular notion is that it was a decision of President Obama that was being challenged, the President did not issue an executive order or anything else to bring about these changes: he left those to the Secretary of Homeland Security, Jeb Johnson.  This choice may actually matter here because the flaw that Judge Hanen identified – failure to comply with the Administrative Procedure Act (APA) – applies only to agency officials, which excludes the President. 

    Secretary Johnson, acting with at least the president’s blessing, if not at his direction, created a new program for parents of children lawfully in the United States – Deferred Action for Parents of Americans and Lawful Aliens (DAPA) – and expanded the existing program for children – Deferred Action for Childhood Arrivals (DACA).  Each has two major components.  First, they direct agency officials not to deport otherwise deportable aliens who fall into certain categories whose presence in the U.S. does not present significant dangers to the country, mainly parents of others authorized to be in the U.S. Second, they authorize the estimated 4.3 million individuals who fall in each category to receive federal work authorizations, which aliens need to obtain a legal job, as well as other benefits that flow from being authorized to work. The legal issues for the two parts are different, but before turning to those questions, there is the ever-present and often devilish issue of standing or, in lay language, what says you have a right to sue over this claim?