Immigration

  • 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.

  • July 20, 2017
    Guest Post

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

    On June 26, the Supreme Court granted a partial stay and also granted certiorari in Trump v. Hawaii and Trump v. International Refugee Assistance Project, the Muslim travel ban cases. Here is a short analysis. The scope of the partial stay is as follows: within 72 hours of the ruling, any person from the six designated countries or refugee who cannot show a “bona fide relationship to a person or entity” will be banned from entry. The Department of State indicated that the travel ban would go into effect at 8:00pm EDT on June 29, 2017. Hours before the ban was to go into effect, the government issued guidance defining what constitutes a “bona fide relationship” narrowly. Litigation about the meaning of a “bona fide relationship” ensued in the Hawaii District Court and Ninth Circuit Court of Appeals.

  • July 14, 2017
    Guest Post

     

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

    A travel ban was signed by the president in the form of an Executive Order on March 6, 2017. The most controversial provisions of the ban include a 90-day travel restriction for nationals from six countries with Muslim populations of more than 90 percent: Iran, Libya, Somalia, Sudan, Syria and Yemen as well as a suspension of the refugee admissions program for a period of 120 days. The ban was successfully challenged in the courts on both constitutional and statutory grounds. 

    On June 26, the Supreme Court of the United States issued a significant decision on the travel ban, agreeing to hear the case in the October 2017 term and also allowing part of the ban to go into effect. The formula offered was as follows: any national from the six countries impacted by the ban or refugee who lacks a credible “bona fide relationship to a person or entity” is banned from the United States. Unsurprisingly, attorneys and affected communities were eager to understand how “bona fide relationship” would be defined and applied. While the Supreme Court offered a few examples of what might qualify as a bona fide relationship to a person or entity, the uncertainty about how this would be applied by the implementing agencies (in this case Department of Homeland Security and Department of State) is real.

    Hours before the ban was to go into effect at 8:00pm EST on June 29, the Departments of State and Homeland Security issued “guidance” which to say the least is controversial. Guidance from DHS offered the following question and answer regarding the definition of “bona fide relationship:”

  • May 22, 2017
    Guest Post

    *This piece originally appeared on the Law Professor Blogs Network

    by Geoffrey A. Hoffman, director of the Immigration Clinic at the University of Houston Law Center

    The anti-sanctuary cities and campuses bill, SB-4, was signed into law on May 7, 2017. Most importantly, state laws are subject to federal preemption especially where there is a pre-existing structure in place for providing enforcement of federal laws by state officials. In fact, such a statutory federal structure already exists. It is Section 287(g) of the Immigration and Nationality Act (INA), which provides the mechanism whereby state law enforcement can be deputized to act as federal law enforcement officials. In addition, there are other federal laws which may “occupy the field” which already govern information-sharing between state and federal officials. See 8 USC § 1373. The new law also makes it mandatory to comply with ICE “detainers” signed by ICE officials and not a judge or magistrate. The new litigation brought by the governor seeking a declaratory judgment will have to grapple with the many federal district court cases that already have made pronouncements about the unconstitutionality of such ICE detainers. Under certain cases state officials have been sued and plaintiffs have received monetary damages due to detainers’ improper use.

    First, consider INA 287(g). The section provides that localities may “voluntarily” enter into a memorandum of agreement (MOA) with the federal government. Then, the state or local entity receives delegated authority by the federal government to enforce the immigration laws within their jurisdictions. Part of 287(g) provides for training and oversight of the state officers so they can properly execute the federal immigration laws. Where is the oversight and training in SB-4? The SB-4 framework does not have any safeguards, such as any training by federal officials, among the other aspects of the federal-state partnership set out in the 287(g) framework. The SB-4 statute says state officers cannot be prohibited from asking about someone’s immigration status for one who is lawfully detained or arrested. It also specifically provides that state entities cannot have a policy which “prohibits or materially limits” the enforcement of immigration laws (by their own state officers).   

  • May 17, 2017
    Guest Post

    by Pratheepan GulasekaramProfessor of Law at Santa Clara University School of Law and Co-Author of “The New Immigration Federalism” (Cambridge Press)

    For the second time within the span of week, Trump’s immigration ban 2.0 headed to a federal appeals court. On Monday, the Ninth Circuit heard the government’s appeal from district court’s issuance of an injunction in Hawaii v. Trump. The three-judge panel vigorously questioned both Acting Solicitor General Jeffrey Wall and counsel for Hawaii, Neal Katyal. The argument showcased some of the best oral advocacy thus far on the immigration ban executive order (EO), and featured several marquis moments that are sure to garner extended commentary. The range of topics explored by the Ninth Circuit panel were similar to the other cases challenging the EO: The proper level of judicial review; whether any plaintiffs have standing, and if so, what aspects of the EO their standing allows them to contest; whether the district court’s injunction was proper in scope; and, of course, whether and to what extent a court should consider Trump’s campaign and post-election statements in evaluating religious animus.

    My goal here is not to comprehensively discuss all important questions covered in the oral argument, rehash the voluminous legal commentary already available about the EO, or to make predictions about the panel opinion. Here, I highlight three moments, among the many, that stood out to me as notable inflection points.  The first exchange concerns the issue of statutory analysis, the second with the limits of religious animus, and the third with the historical legacy of this ruling.