DHS Announces Enhanced Aviation Security Measures for Flights to the United States

On June 28, 2017, the Department of Homeland Security (DHS) announced new aviation security measures for flights to the United States [PDF version]. It is important to understand that these aviation security measures are not immigration-related, and that they will affect both foreigners and U.S. citizens flying into the United States. We previously discussed measures specific to certain airports in the Middle East and North Africa here on site [see blog]. In this post, we will briefly examine the DHS's new aviation security measures.

Homeland Security Secretary John Kelly determined it necessary to implement the new aviation security measures “[i]n light of evaluated intelligence.” These security measures will apply to all commercial flights to the United States. The new aviation security measures will affect 105 countries, approximately 280 airports, 180 total airlines, 2,100 average daily flights, and 325,000 average daily passengers.

The DHS explains that the enhanced aviation security measures will include, but not be limited to:

• Enhanced passenger screening;
• Heightened screening of personal electronic devices;
• Increased security protocols around aircraft and in passenger areas;
• Deployment of advanced technology;
• Expanded canine screening; and
• Establishment of additional preclearance locations.

The DHS explained that it will work with stakeholders to ensure that the enhanced aviation security measures are properly and fully implemented. Stakeholders that fail to fully implement the enhanced aviation security measures will “run the risk of additional security restrictions being imposed.”

Interestingly, the DHS did not expand its laptop and other similarly-sized device ban despite speculation that it would do so. That should come as welcome news for travelers flying to the United States from abroad. I will update the blog if DHS provides further updates on this issue.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

OFLC Discusses Progress on Implementing Changes After "Buy American and Hire American" EO

On June 21, 2017, the American Immigration Lawyers Association (AILA) posted the minutes of a meeting with the Office of Foreign Labor Certification (OFLC) that took place on June 6, 2017 (see AILA Doc. No. 17062131 (6/21/2017)). In this post, I will examine in brief an update provided by the OFLC regarding the implementation of the provisions of President Trump's April 18, 2017, Executive Order 13788 titled “Buy American and Hire American” [PDF version]. Please see our full article on the “Buy American and Hire American” Executive Order to learn in more detail about its immigration-related provisions [see article].

AILA asked the OLFC about the Department of Labor's (DOL's) progress in implementing the “Buy American and Hire American” Executive Order. The OFLC stated that the DOL has released a memo in response to the Executive Order. However, the DOL is still early in the process of devising new policies and, according to the OFLC, does not yet know how it will implement the policies directed by the Executive Order.

In the same vein, the OFLC stated that changes to the Labor Condition Application procedures for H1B petitions “are currently under review.” The OFLC is working to make changes “intended to provide greater transparency to personnel, workers, and the public.” The OFLC stated that it is too early to share details relating to changes to Labor Condition Application rules and procedures or any other associated regulatory changes. However, the OFLC stated that it will share details on its new rules and procedures “as soon as appropriate.”

It is important to note that, under the “Buy American and Hire American” Executive Order, all changes implemented by the relevant departments must fall within the scope of existing statutes. We will update the site with any immigration policy changes stemming from the Executive Order, or any other immigration policy changes in general, when the information becomes available. To learn more about the points of emphasis for the DOL, please see our article on Secretary of Labor Alexander Acosta's statement on combatting fraud and abuse in the H1B program [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

EOIR Swears in 11 New Immigration Judges

On June 16, 2017, the Executive Office for Immigration Review (EOIR) announced that it had sworn in 11 new immigration judges [link]. The 11 new immigration judges were selected by Attorney General Jeff Sessions. The 11 new judges will serve on 10 immigration courts, with the Otay Mesa Immigration Court welcoming two new immigration judges.

With the 11 new judges, there are now 326 immigration judges serving at immigration courts across the United States.

The following are the 11 new immigration judges and the immigration courts on which each will serve:

• Olga Atta (Otay Mesa Immigration Court)
• David Cheng (Newark Immigration Court)
• Scott D. Criss (Atlanta Immigration Court)
• Christopher M. Greer (Salt Lake City Immigration Court)
• Catherine E. Halliday-Roberts (Otay Mesa Immigration Court)
• Elizabeth G. Lang (Chicago Immigration Court)
• Eric W. Marsteller (New Orleans Immigration Court)
• Jennifer L. Page-Lozano (Miami Immigration Court)
• Helaine R. Perlman (Arlington Immigration Court)
• Frank T. Pimentel (Port Isabel Immigration Court)
• Michael S. Pleters (El Paso Service Center)

(Note: Otay Mesa is in San Diego and Port Isabel is in Texas)

The EOIR is facing increasingly large backlogs of immigration cases. We addressed the issue in the context of a recent Government Accountability Office (GAO) report on the subject [see blog]. Regarding the backlog, the Acting Director of EOIR, James McHenry [see blog], explained that “[t]he continued hiring of immigration judges as quickly as possible is an important component of EOIR's multi-step effort to address the backlog…”

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Two Important Supreme Court First Amendment Decisions

INTRODUCTION

On June 19, 2017, the Supreme Court of the United States released a flurry of decisions as the term came to a close. In this post, I will examine in brief two interesting First Amendment cases that are not related to immigration law. The two cases are Matal v. Tam, 582 U.S. __ (2017) [PDF version], and Packingham v. North Carolina, 582 U.S. __ (2017) [PDF version]. Please follow our site closely for information on likely upcoming Supreme Court decisions that directly implicate immigration issues.

MATAL V. TAM, 582 U.S. __ (2017)

Matal v. Tam concerned an Asian rock group that attempted to trademark the name “THE SLANTS” for the band. The Patent and Trademark Office (PTO) denied the application for the trademark, citing to a provision of the Lanham Act, codified at 15 U.S.C. 1052(a) [PDF version]. The provision prohibits the registration of trademarks that may disparage or bring into contempt or disrepute any persons living or dead. The United States Court of Appeals for the Federal Circuit ruled in favor of Tam, finding that the disparagement clause was unconstitutional under the Free Speech Clause of the First Amendment [PDF version]. The Supreme Court took the case on appeal from the Federal Circuit decision.

Eight members of the Supreme Court considered the case, with Justice Neil Gorsuch sitting out due to the fact that he was not yet on the Court when it was argued.

All eight Justices agreed that the disparagement clause was unconstitutional under the First Amendment. However, there were multiple opinions that evinced distinctions in the reasoning of some of the justices.

The opinion of the Court was authored by Justice Samuel Alito. Parts I, II, and III-A of his decision commanded a majority of the justices. In parts I and III-A, he was joined by his seven colleagues, and in part II he was joined by every justice except for Justice Clarence Thomas (part II was not central to the Court's ruling on the First Amendment issue). The key point in Justice Alito's opinion of the court is that the justices found that the disparagement clause violates the free speech clause. In so finding, the Court rejected the Government's argument that trademarks are government speech and thus subject to more regulation. Rather, the Supreme Court took the position that trademarked speech is private speech, and the conferral of a trademark does not make it government speech.

The Court split into blocs of four justices regarding the reasoning.

Justice Alito was joined for parts III-B, III-C, and IV of his decision by Chief Justice John Roberts and Justices Clarence Thomas and Stephen Breyer. Justice Alito took the position that the disparagement clause could not be sustained under the Court's government-speech and government subsidies cases or under the Government's proposed “government-program” doctrine. Justice Alito found that the question of trademarks did not fall within any of these categories.

Justice Anthony Kennedy filed a concurring opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. They took the position that the disparagement clause constituted impermissible viewpoint discrimination under the First Amendment and that, accordingly, it was not necessary to reach any other questions presented in the case.

Justice Thomas wrote a concurring opinion explaining that he did not join part II of Justice Alito's opinion because the issue of whether commercial speech was subject to “strict scrutiny” or, as Justice Alito concluded, “intermediate scrutiny” review was, in his view, not presented. Justice Thomas took the position that strict scrutiny applies to all government restrictions of truthful speech regardless of whether the speech can be characterized as “commercial” However, Justice Thomas stated that he joined in Part IV of Justice Alito's opinion, holding that the disparagement clause was unconstitutional even under a less stringent test.

ANALYSIS

In Matal v. Tam, the Supreme Court correctly struck down a ridiculous statute that had been on the books for over 70 years. Government approval of a trademark request does not transform the trademarked speech into government speech. Rather, it is private speech with trademark protection.

The Court made clear that the Government does not have the authority to ban or otherwise restrict speech on the basis that it may offend a group or subset of a group of individuals. For all of the law's allegedly good intentions, both concurring opinions by Justice Alito and Justice Kennedy noted that the law does not even accomplish the nevertheless impermissible objective of restricting only speech that a significant number of people would likely find offensive. Justice Alito noted that the law is so sweeping that it would encompass denunciations of slavery, for it covers both the living and the dead. Justice Kennedy noted that the law could very easily be turned against minority and dissenting views.

The Tam decision is a victory for the principle of free speech and free expression. As I discussed on a blog from 2016, the remedy to speech that one does not like is more speech.

PACKINGHAM V. NORTH CAROLINA, 582 U.S. __ (2017)

Packingham concerned a North Carolina statute that prohibited registered sex offenders from accessing any commercial networking web site where the sex offender knows that the web site permits minor children to become members or to create or maintain personal web pages. The statute in question is N.C. Gen. Stat. Ann. Sections 14-202.5(a), (e). The case was taken on appeal from a decision by the North Carolina Supreme Court upholding the law.

All eight justices (minus Gorsuch) agreed that the law violated the First Amendment and was, therefore, invalid. Similarly to Tam, the justices did not all agree on the analysis. However, in Packingham, the majority opinion had five justices on each point.

The opinion of the Court was authored by Justice Kennedy, who was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy found that the statute was overbroad. He noted that the Court must be careful in finding that the internet is not subject to robust First Amendment protection. Justice Kennedy held that the statute's prohibition was unprecedented in the scope of the First Amendment speech it burdened. He noted that registered sex offenders may rely on the internet for staying abreast of current events, finding employment, and accessing information. He found that the breadth of the restrictions prevented sex offenders in North Carolina from legitimately exercising their First Amendment rights. In a key point, Justice Kennedy found that North Carolina did not sustain its burden of showing that the scope of the law was necessary or legitimate in serving its purpose of keeping sex offenders away from children.

Justice Alito wrote an opinion concurring in the judgment only and was joined by Chief Justice Roberts and Justice Thomas. Justice Alito agreed with the majority that, because of the law's “extraordinary breadth,” it violated the First Amendment. However, Justices Alito, Roberts, and Thomas declined to join the majority opinion because of its “undisciplined dicta.” Justice Alito criticized the majority for equating the internet “with public streets and parks.” Furthermore, he took issue with the fact that the majority opinion would preclude the state from enacting more narrowly tailored restrictions, such as those preventing sex offenders from visiting teenage dating sites or sites designed to help minors discuss problems with their peers. In short, Justice Alito agreed with the result as applied to the specific statute, but he took issue with the scope of the majority opinion. He argued that the Court “should proceed circumspectly” regarding the internet. He listed several issues particular to sex offenders using the internet that may justify more narrowly tailored restrictions in a different case.

ANALYSIS

The Court was correct in Packingham in finding the North Carolina statute unconstitutional. While it is likely that few among us would argue that protecting minors from sex offenders is a valid state interest, restrictions must be very carefully and narrowly tailored when they implicate basic constitutional rights. It is telling that both Justice Kennedy and Justice Alito found that the North Carolina statute was overbroad despite Justice Alito seeming to be more open to the idea of restrictions placed upon the speech of sex offenders in different cases. Without a doubt, the Supreme Court will be litigating complicated cases involving the internet in a variety of contexts for years to come. However, in Packingham, the Court wisely struck down a statute that restricted speech on the internet indiscriminately.

Although Packingham is not an immigration case, it is worth noting that we have several articles on important issues involving sex offenses and the immigration laws. For some examples, please see our articles on deportability for failure to register as a sex offender [see article], the Adam Walsh Act [see article], and the Supreme Court's recent decision on statutory rape in the immigration aggravated felony context [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

AILA Reports Members Erroneously Received ASC Appointment Notices from NBC

The American Immigration Lawyers Association (AILA) reported on June 19, 2017, that several of its members have erroneously received Application Support Center (ASC) Appointment Notices from the United States Citizenship and Immigration Services (USCIS). AILA explained that the biometrics notices were issued to AILA attorneys by the National Benefits Center (NBC), but did not relate to any individual clients of the attorneys. NBC informed AILA that it would provide updates as necessary.

See AILA Doc. No. 17061933 (June 19, 2017)

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

GAO Report on Case Backlogs in Immigration Courts

INTRODUCTION

On June 1, 2017, the United States Government Accountability Office (GAO) released a 146-page report titled “Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operations Challenges.” The report focuses on backlogs in the processing of immigration cases at the Executive Office of Immigration Review (EOIR), and it details the dramatic increase in processing times at the EOIR over the past decade. The report makes 11 recommendations for beginning to address the issues. In this article, we will examine key points from the GAO report as well as its recommendations for the EOIR. In so doing, we will rely on the following two documents that we have uploaded for those who want to follow along:

• One-Page Report Highlights [PDF version];
• Full Report [PDF version]; and
• GAO Recommendations [PDF version].

PAGE 21-22 OF FULL REPORT: GROWING BACKLOGS (FY 2006-2015)

On Page 21 of the full report, the GAO provides statistics on the annual caseloads for immigration courts from FY 2006 to FY 2015.

First, the GAO found that new case receipts at immigration courts have remained relatively steady over the sampled years. Interestingly, the number of new case receipts has been gradually declining since 2009. From FY 2006-2009, the new case receipts ranged from about 247,000 to 256,000 annually. However, in FY 2015, there were only about 202,000 new cases.

There has been a slow but gradual increase in other case receipts (e.g., motions to reopen, motions to reconsider, and motions to recalendar). There were about 50,000 such receipts in FY 2006 and about 108,000 in FY 2015.

However, in this period from FY 2006 to FY 2015, the case backlog has increased dramatically. The GAO found that the total case backlog was about 212,000 in FY 2006, and it dipped slightly under that at its lowest point in the sample in FY 2009. However, since 2009, the case backlog has increased each year. At the beginning of FY 2015, the case backlog stood at a staggering 437,000 cases, more than double the backlogs in FY 2006, 2007, 2008, and 2009. This has led to a marked increase in case processing times. In FY 2006, the median processing time for backlogged cases was 198 days. In FY 2015, that had risen to 404 days.

The GAO explained that due to the backlogs, “some immigration courts were scheduling hearings several years in the future…” Half of all courts, as of February 2, 2017, had individual merits hearings “scheduled as far as June 2018 or beyond.” However, this varied from court to court. The GAP noted that while one immigration court “had individual hearings scheduled out no further than March 2017,” another unidentified hearing court had hearings scheduled as far out as February 2022.

Interestingly, on page 23 of the report, the GAO noted that although the number of immigration judges had increased from 212 in FY 2006 to 247 in FY 2015, the annual number of completed cases had declined from just under 300,000 to just over 200,000 from FY 2006 to 2015.

PAGE 26: INCREASE IN MEDIAN NUMBER OF DAYS FOR INITIAL CASE COMPLETION TIME

In FY 2006, the median number of days for initial case completion (all case types) was 43. This hit a low point in the sample for FY 2008 and 2009, when it stood at 28 and 29 days, respectively. However, beginning in FY 2013, the overall number of days for initial case completion rose sharply. FY 2013 saw the highest number at 301 days, and in FY 2015 it remained a very high 286 days.

Interestingly, the increase has not been uniform by case type. For example, the median wait time for asylum only proceedings has been over a year for all but three years in the sample. Withholding only median wait times for initial decisions has also remained relatively steady over the sampled years.

The most substantial increase in median wait times has been in regular removal proceedings, which track very closely with the number for all cases. Similarly to the average time for all case times, the median days required for regular removal proceeding cases was no more than 65 for any year through FY 2011. Then, from FY 2012 to FY 2015, the numbers were 140, 321, 316, and 336, respectively. There was also a substantial increase in other case types.

The GAO explained that the EOIR offered numerous factors that may have contributed to the increase in median wait times. One reason it noted was the surge of cases arising from migrants crossing the Southwest Border beginning in FY 2014. Specifically, the EOIR noted that cases involving unaccompanied alien children often take longer to adjudicate than other case types.

PAGE 31-33: BIA APPEAL WAIT TIMES DECREASE

The GAO found that the Board of Immigration Appeals (BIA) wait times actually decreased on average because BIA appeal receipts declined at a faster rate than appeal completions. The overall median time it took for the BIA to complete any type of appeal was 317 days in FY 2006. In FY 2015, it was only 224 days. The following is a chart of BIA appeals completions by appeal time and median completion time on an annual bases [see here].

PAGE 76: AVERAGE CASE COMPLETIONS PER JUDGE

In FY 2015, there were 584 case completions per immigration judge.

PAGE 87-98: RECOMMENDATIONS AND RESPONSES

In light of the increasing backlogs in immigration courts, the GAO made 11 recommendations to the EOIR (see introduction for PDF).

The first two recommendations had to do with implementing new methods for properly hiring staff at the EOIR and creating a new hiring strategy for immigration judges. The third and fourth recommendations dealt with creating oversight to help the EOIR meet cost and schedule expectations. In points five through eight, the GAO recommended that the EOIR collect complete and reliable data on the EOIR's use of video teleconference for immigration hearings to ensure that these proceedings are outcome-neutral, meet all user needs, and function properly. In point nine, the GAO recommends that the EOIR establish and monitor comprehensive case completion goals, “including a goal for completing non-detained cases not currently captured by performance measures…” Point ten calls for the EOIR to systematically analyze immigration court continuance data in order to address operational challenges and related areas for further guidance and training. Finally, the GAO recommended that the EOIR update its policies and procedures “to ensure the timely and accurate reporting of notices to appear.”

The GAO explained that the EOIR had stated that it agreed with most of the 11 recommendations and that it had begun to address them. However, GAO took the position that the steps taken thus far by EOIR do not fully address the recommendations. Furthermore, the EOIR did not state whether it agrees with individual recommendations. EOIR provided comments on recommendations 1-5. Regarding the first three recommendations, GAO believed that the EOIR was taking steps to address them but still had work to do in all three areas. Regarding video teleconference hearings, the EOIR noted that five U.S. Courts of Appeals have upheld the use of video teleconferencing in proceedings, but that it was nevertheless open to collecting more data. However, the EOIR did not agree with the recommendation that it solicit feedback from respondents in video teleconference hearings. The EOIR agreed in full with recommendations that it should establish and monitor comprehensive case completion goals, analyze continuance data, and update guidance recording notices to appear.

It is worth noting that the EOIR disagreed with the GAO's methodology at certain points. Most of these regard aspects of the report not discussed in this article. However, there is one point we addressed in detail. The EOIR took the position that “the report is missing a contextualized discussion of why its caseload has grown.” The GAO disagreed, noting that it listed several factors that contributed to the increase (e.g., the number of cases involving unaccompanied alien children).

ANALYSIS AND CONCLUSION

The increasing backlog in the immigration courts is a serious problem for our immigration system. This is especially true with regard to the dramatically increasing wait times for adjudication of regular removal cases. The problems faced by the immigration courts are complicated, and there is no single solution to gradually decreasing the wait times. The GAO report is a valuable contribution to the discussion, and even if the EOIR disagrees with some of its methodology and solutions, there is still much to be gleaned from carefully studying its findings and recommendations. Furthermore, the Department of Justice (DOJ) is working to hire new immigration judges expeditiously in accordance with President Donald Trump's January 25, 2017 Executive Orders.

Because the GAO report is 146 pages, we were only able to cover it in brief on site. We focused on information that may be of interest to stakeholders and laymen alike. Stakeholders and other interested persons should read the report in more detail to see the GAO's full analysis, including on many points that we did not discuss. The appendices beginning on page 99 are especially interesting in that they include the detailed statistics relied upon by the GAO in forming its recommendations.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

BIA Issues Amicus Invite on Statutory Interpretation in CIMT Cases

On June 12, 2017, the Board of Immigration Appeals (BIA) issued Amicus Invitation No. 17-06-12 [PDF version]. The Amicus Invitation, titled “Modified Categorical Approach & CIMTS),” welcomes interested members of the public to file amicus curiae briefs with the BIA by July 12, 2017, addressing the following issues (paraphrased):

1. Is the Board precluded from using the modified categorical approach for an indivisible or means-based statute within the context of a crime involving moral turpitude (CIMT) determinations when the requirement in question is whether the conduct involved was reprehensible, which is a subjective determination and not an element (something that must be proven to convict) of the state offense?
2. Do the “three basic reasons for adhering to an elements-only inquiry” set forth in the Supreme Court of the United States decision in Mathis v. United States, 136 S.Ct. 2243, 2252-53 (2016) [PDF version], have force in the CIMT context?
3. Do the answers to the first two questions require modification in the Board's published decision in the Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) [PDF version]. If so, how?

When determining whether a criminal conviction is an immigration offense under the Immigration and Nationality Act (INA), the Board is generally restricted in the type of evidence that it may evaluate. Mathis clarified when courts may look beyond the language of the statute to determine whether the criminal offense falls within a federal provision (Mathis dealt specifically with a federal sentence-enhancement statute, but it has also been applied to the INA), and when courts and adjudicators are limited to examining only the language of the statute of conviction. If a statute is indivisible, the Board is limited to examining the text of the statute.

In the Amicus Invitation, the Board is asking questions specific to determining whether a conviction is for a CIMT under the INA. The questions consider whether the conviction in question was in violation of an indivisible statute, meaning one where the Board would normally be prohibited from looking beyond the language of the statute of conviction. Specifically, the Board is looking for opinions on whether it may nevertheless in such a case look beyond the record of conviction to determine if the alien's conduct was “reprehensible,” which of course is a subjective determination that arises in the CIMT context rather than an element that would be required for a conviction. More broadly, the Board seeks guidance on whether the test set forth in Mathis should apply in the CIMT context at all. Finally, the Board is examining, depending on the answers to the first two questions, whether it should modify its decision in the third Silva-Trevino case.

This issue will bear watching for two reasons. Firstly, being found to have committed a CIMT carries the potential for very serious immigration consequences. Secondly, CIMTs reach a broad range of conduct, and therefore represent a relatively common immigration issue in the inadmissibility and removal contexts. Any change to how the Board handles CIMT adjudications would be highly significant.

To learn more about the issues presented in the Amicus Invitation, please see our comprehensive articles on Mathis [see article] and Silva-Trevino [see article]. Please see also our article on a series of cases discussing the current state of the categorical approach and the modified categorical approach in immigration law (includes Mathis) [see blog].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Justice Neil Gorsuch Authors First Opinion on Supreme Court

On June 12, 2017, Justice Neil Gorsuch authored his first opinion as a Justice of the Supreme Court of the United States.

Justice Gorsuch wrote for a unanimous court in Henson v. Santander Consumer USA Inc., 582 U.S. ___ (2017) [PDF version]. The Court held that the Fair Debt Collection Practices Act, which authorizes private lawsuits and fines to deter certain debt collection practices, does not apply to entities that purchase debt and then attempt to collect the debt. In short, the Court found that such entities were not “debt collectors” under the plain language of the statute.

Because the decision has no bearing on immigration law, we will not examine it in any detail. However, after our coverage of Justice Gorsuch's nomination and confirmation, I thought it was worth sharing [see blog]. One key passage in the decision may provide a window into Justice Gorsuch's broader views of interpreting statutes:

“And while of course it is our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone's account, it had never faced.”

This portion of Justice Gorsuch's opinion in Henson v. Santander Consumer USA Inc. is hardly controversial in the abstract — evinced by the fact that his eight colleagues on the Supreme Court joined in full in the deciaion. However, it should be instructive to those who are not intimately familiar with the work of the judiciary and the practice of statutory interpretation. The job of the Court is to interpret statutes. If a statute is constitutional, it is not the job of the Court to divine what Congress may have done in addressing a separate issue not covered by the statute. This principle even applies to laws that judges may find to be lacking in one policy sense or another (indeed, Justice Gorsuch implied that it is possible Congress would write the statute different if it was doing so now). Justice Gorsuch's predecessor, Justice Antonin Scalia, would often remind audiences that it is possible for a law to be both “stupid” and “constitutional.”

Henson v. Santander Consumer USA Inc., is unlikely to be a long-remembered decision. It applies basic principles of statutory interpretation to the unambiguous language of a single statute. In general, new Justices are usually assigned proverbially “easy” decisions for their first assignments on the bench. With hope, this decision will represent the first of many solid efforts in what promises to be a long tenure for Justice Gorsuch on the Supreme Court.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

FWVP Performance Statistics and Potential Changes to Parole Policy in the Future

INTRODUCTION

In this article, we will examine several issues relating to the Filipino World War II Veterans Parole Program (FWVP). First, we will examine recently-released performance statistics for Form I-131, Application for Travel Document, applications for benefits under the FWVP through the second quarter of fiscal year (FY) 2017. Second, we will discuss uncertainty about the prospects of the FWVP for future applicants with respect to potential changes in immigration parole policy. Notwithstanding the second point, it is important to note that as of June 14, 2017, the USCIS is processing applications for benefits under the FWVP as it did when it commenced the program on June 8, 2016. Please see our full article to learn about the rules and eligibility requirements of the FWVP [see article].

FWVP STATISTICS

On June 8, 2017, the United States Citizenship and Immigration Services (USCIS) released performance data for the number of Form I-131, Application for Travel Document, applications for benefits under the FWVP as of March 31, 2017 [PDF version]. The data covers the second quarter of fiscal year (FY) 2017. The data is reproduced as follows [see here].

Through Q2 FY 2017, the USCIS accepted 361 applications for benefits under the FWVP. Of these, it granted conditional approval for 179. The USCIS approved 52 applications and denied 33, leaving 276 applications pending (including those granted conditional approval).

FWVP IN GENERAL

The FWVP offers benefits to a limited number of Filipino WWII veterans and widows with long-pending immigrant visa applications. Please see our full article to learn about the details of the program [see article].

QUESTIONS ABOUT THE FUTURE OF THE FWVP?

On February 20, 2017, the Secretary of Homeland Security, John Kelly, issued a Memorandum titled “Implementing the President's Border Security and Immigration Enforcement Improvements Policies” [see article]. Section K of the Memorandum addressed the use of immigration parole authority found in section 212(d)(5) of the Immigration and Nationality Act (INA) [see section]. Secretary Kelly instructed that the parole authority should be used “sparingly” and should not be used to “create immigration programs not established by Congress.” To this effect, Secretary Kelly instructed the relevant agencies of the DHS to create new guidance regarding the use of parole authority that would be consistent both with his Memo and with President Donald Trump's January 25, 2017 Executive Orders on immigration.

The language of Secretary Kelly's Memorandum would seem to call into question the future of the FWVP, which creates a protocol for granting parole to a class of aliens, albeit on a case-by-case basis. To that effect, it may arguably constitute an “immigration program[] not authorized by Congress.” However, it is important to note a few key points. First, notwithstanding the Memo and President Trump's Executive Order, the USCIS has continued to process cases under the FWVP as it was before. Second, it will not be clear whether the FWVP is affected in the future by any policy changes until the promised guidance on the use of parole authority is released. Third, even if the FWVP is the type of parole program called into question in Section K of the Kelly Memo, that does not necessarily mean that it will be discontinued for future applicants upon the release of new parole guidance. For example, in other places, the Kelly Memoranda state that prosecutorial discretion should not be used to exempt classes of aliens from immigration enforcement. Nevertheless, the Trump Administration has left in place the Deferred Action for Childhood Arrivals (DACA) program, which is undoubtedly the most significant example of using prosecutorial discretion to exempt a class of aliens from immigration enforcement.

We will update the site when the DHS releases new guidance on the use of immigration parole and with any information specific to the FWVP.

CONCLUSION

Those with applications for benefits under the FWVP or general questions about the program should consult with an experienced immigration attorney for expert and case-specific guidance.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

USCIS to Transfer Certain H1B Extension of Stay-Related Petitions from NSC to CSC

On June 1, 2017, the United States Citizenship and Immigration Services announced that it will transfer a selection of the following pending H1B-related extension of stay petitions from the Nebraska Service Center to the California Service Center [link].

1. Form I-129, Petition for a Nonimmigrant Worker (for petitioners requesting an Extension of Stay for the H1B classification); and
2. Form I-765, Application for Employment Authorization, filed together with the Form I-539, Application to Extend/Change Nonimmigrant Status (for petitioners requesting an Extension of Stay for an H1B worker to continue with the same employer).

If the USCIS transfers a petition, it will send a transfer notice to the petitioner. Transfers are routine, and are not supposed to in any way negatively affect case processing. Please see our full article to learn about workload transfers in general [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Supreme Court Stays Ninth Circuit Decision Limiting Scope of Suspension of Refugee Travel of "Travel Ban"

The Supreme Court of the United States stayed a decision of the United States Court of Appeals for the Ninth Circuit regarding the injunction against the implementation of parts of President Donald Trump's Executive Order 13780, colloquially known as the “travel ban.”

On appeal from the United States District Court for the District of Hawaii, the Ninth Circuit had held that President Trump's Executive Order 13780 could not be enforced against refugee applicants who are covered by a formal assurance by a refugee resettlement agency. The Supreme Court stayed this portion of the Ninth Circuit decision, meaning that refugees who are covered by such a formal assurance are not exempt from the suspension of refugee provisions pending further action by the Supreme Court. In short, this means that refugees with no connection to a person or entity in the United States other than to a refugee resettlement agency will be subject to Executive Order 13780. However, refugees with a connection to a different qualifying U.S. person or entity may be exempt subject to a case-specific inquiry.

The Supreme Court did not address the portion of the Ninth Circuit decision holding that the suspension of entry provisions against six countries does not apply to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and first cousins of Americans, meaning that this portion of the lower court injunction remains in place.

Please see our full articles on the issues being considered by the Supreme Court [see article], the implementation of the initial Supreme Court decision [see article], and the suspension of entry [see article] and refugee travel [see article] portions of Executive Order 13780.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Updates on Status of MAVNI Program

On December 2, 2016, the Student and Exchange Visitor Program (SEVP) received notice from the United States Department of Defense (DOD) that the DOD would not accept applications for benefits under the Military Accessions Vital to the National Interest (MAVNI) program for fiscal year (FY) 2017 [PDF version]. The SEVP notice stated that the DOD had informed it that the suspension would be in place until revisions to the MAVNI implementation plan for FY 2017 are completed.

The notice stated that the Office of the Secretary of Defense (OSD) had already implemented additional and retroactive security protocols for MAVNI applicants, but also that the Army was in the process of drafting a plan to implement the new security protocols for new FY 2017 applicants. SEVP had been informed that the Army would begin processing new MAVNI applications in FY 2017 for those who met the MAVNI program eligibility requirements for enlistment.

On January 19, 2017, the MAVNI Center posted a clip from a U.S Army Recruiting Center virtual town hall with Major General Jeffrey J. Snow speaking.[1] Major General Snow stated that the MAVNI program should be “considered suspended.” Furthermore, he stated that the Army would not be permitted to accept new recruits under the MAVNI program until the backlog of current applicants is addressed.

On March 10, 2017, the MAVNI Center posted a clip from a U.S. Army Recruiting Command virtual town hall.[2] In the town hall, the Army official stated that it had no MAVNI updates as of that date , but that it would be in position to provide updates in “the next couple of weeks.”

MAVNI is a valuable program for boosting military recruitment and rewarding noncitizens who choose to serve in the United States armed forces. Unfortunately, there have been few updates since MAVNI was effectively suspended in December of 2016, and none since March 10, 2017. All indications are that the Army will eventually restart MAVNI for new recruits in FY 2017, although there is not yet any indication when. We certainly hope that the Army will be able to clear out its backlog and complete revisions to its FY 2017 implementation plan in an expeditious manner.

We will update the site with information on the status of the MAVNI program as it becomes available.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. MAVNI Center. “The 2017 MAVNI Program Updates During a USAREC town hall meeting on 01/09/2017.” MAVNI Center. Jan. 19, 2017. Mavnicenter.com
2. MAVNI Center. “The 03/10/2017 MAVNI Program Updates from the USAREC town hall meeting.” MAVNI Center. Mar. 10, 2017. Mavnicenter.com

Lawyer website: http://myattorneyusa.com

President Trump Weighing Whether to End DACA

UPDATE: AUGUST 31, 2017

Several outlets are reporting that President Donald Trump will terminate Deferred Action for Childhood Arrivals (DACA) imminently. However, White House spokeswoman Sarah Huckabee-Sanders contradicted these reports, stating that no decision has been made. The decision is being forced by the legal moves of Texas and ten other states. We reported recently on President Trump's deliberations on the issue [see article]. We will update the website with more information once President Trump announces his decision on DACA.

On August 24, 2017, Jonathan Swain of Axios reported that President Donald Trump is giving strong consideration to ending Deferred Action for Childhood Arrivals (DACA) [link].[1] As we discussed previously on site, Texas Attorney General Ken Paxton gave the Trump Administration until September 5, 2017, to end DACA or face a legal challenge to the program [see article].

According to the Axios report, President Trump has not yet made a final decision on whether he will seek to defend DACA.

Axios notes that the Trump administration does not believe it has the legal authority to defend DACA. We noted on site that while serving as Homeland Security Secretary, White House Chief of Staff John Kelly had taken the position that DACA may not be able to withstand legal scrutiny, although he supported its goals. Nevertheless, Axios describes DHS as taking a “nuanced position” in current deliberations.

Meanwhile, Axios reports that the U.S. Attorney General, Jeff Sessions, “strongly believes Trump should end DACA.” Sessions has been an opponent of DACA since his time in the U.S. Senate. In response to the letter from the Texas Attorney General, Sessions stated on Fox and Friends: “I like it that our states and localities are holding the federal government to account, expecting us to do what's in our responsibility to the state and locals and that's to enforce the law.”

Ultimately, the decision on how to proceed will be President Trump's. Although he campaigned on ending DACA, he has subsequently stated as president that a solution would be found for its beneficiaries. He has not made any public statements on the issue since the Texas letter, although there were reports that he was not in favor of the proposed legislation from senators Lindsey Graham and Dick Durbin designed to codify protections for many of those who benefit from DACA [see blog].

We will update the site with more information as soon as the White House decides whether it will defend DACA or cease the program.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Swain, Jonathan. “Trump seriously considering ending DACA.” Axios. Aug. 24, 2017. Axios.com.

Lawyer website: http://myattorneyusa.com

CBP to Employ Facial Recognition Biometric Exit Technology in Limited Trial at Washington Dulles International Airport

On June 2, 2017, the Department of Homeland Security released a document titled “CBP Deploys Biometric Exit Technology to Washington Dulles International Airport” [PDF version].

The United States Customs and Border Protection (CBP) announced that it will deploy “facial recognition biometric exit technology for one daily flight from the United States to Dubai.” This builds on a June 2016 pilot program by the CBP at Hartsfield-Jackson Atlanta International Airport that also used facial recognition [link].

The CBP explained how the process works:

1. Using the flight manifest, the CBP builds a flight-specific photo gallery using the photographs from the travel documents provided by travelers to the airline; and
2. The CBP compares the live photo taken of the traveler against the document photo in the gallery in order to ensure that the traveler is the true bearer of his or her travel document.

If the live photo is confirmed to match a U.S. passport, the traveler is determined to be out of scope for biometric exit purposes. This is because the traveler would be a U.S. citizen. The photos of U.S. citizen are discarded after a short period.

The DHS stated in the news release that future deployments of the technology are expected at more airports this summer.

The DHS also noted that on May 31, 2017, JetBlue announced that it would collaborate with the CBP to test a new “self-boarding process” as part of trials to implement a biometric exit process. The program will start in June on flights from Boston Logan International Airport to Queen Beatrix International Airport in Aruba. Customers will be able to “opt-in” to the new trial. The DHS stated that additional pilot programs will be implemented by other airliners this summer.

The DHS explained that “[t]here are several Congressional mandates that direct the [DHS] to record the arrival and departure of non-U.S. citizens by collecting biometrics.”

Please see our full article on FY 2016 visa overstay statistics for more information about the ongoing plans to develop a comprehensive biometric entry-exit system [see blog].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

AG Sessions Appoints James McHenry as Acting Director of EOIR

On May 30, 2017, Attorney General Jeff Sessions selected James McHenry as the new acting Director of the Executive Office for Immigration Review (EOIR) [link]. McHenry will replace Juan P. Osuna, who has served as Director of EOIR since 2011 [see blog].

The Department of Justice (DOJ) news release on the McHenry selection provides an overview of his background. McHenry has worked as an attorney in the U.S. government in various capacities over his career. He first worked for the EOIR in 2003 through the Attorney General's Honors Program. He returned to the EOIR in 2016 to serve as an administrative law judge (ALJ) for the EOIR's Office of the Chief Administrative Hearing Officer (OCAHO). McHenry has also served as an attorney and an ALJ in the Immigration and Naturalization Service (INS), Department of Homeland Security (DHS), Social Security Administration, and the U.S. Attorney's Office for the Northern District of Georgia. He is a graduate of Vanderbilt University School of Law.

The Director of EOIR plays a crucial role in administering the system of Immigration Courts and the Board of Immigration Appeals (BIA).

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

President Trump's FY-2018 Budget Proposal for Immigration-Related Functions of DHS

On May 23, 2017, President Donald Trump submitted his fiscal year (FY) 2018 budget proposal to Congress. The budget proposal includes the Trump Administration's funding requests for the federal government. For immigration purposes, the most important component is President Trump's requests relating to the Department of Homeland Security (DHS). The DHS released a document titled “FY 2018  Budget in Brief” [PDF version], which overviewed President Trump's budget requests for the DHS. In this article, we will review the budget requests for DHS as they relate to immigration (note that DHS has many other functions that do not relate directly to immigration).

Before continuing, it is important to note a few key points about the issue.

First, the government is currently funded through September 30, 2017. In all likelihood, the earliest we will see a budget agreement will be close to that date. It is also entirely possible that Congress will end up passing one or more short-term extensions before reaching a final agreement.

Second, the president's budget requests are only requests. Congress is ultimately entirely possible for drafting a budget and sending it to the president's desk for his consideration. Although the president's requests may inform Congress in its deliberations, it is no way binding. It is quite likely that the final budget will represent funding levels significantly different from those requested by the Trump Administration.

OVERVIEW OF THE PRESIDENT'S BUDGET FOR DHS

President Trump requested $44.1 billion in net discretionary funding for the DHS.

The DHS blueprint explained that the budget “proposes crucial investments in Customs and Border Protection (CBP) staffing, equipment, and technology to enhance the capabilities of frontline border officers and agents.” The CBP is also working to identify priorities for improving border security. The following are some of the “key investments” in border security described by the DHS that address immigration issues:

• $7.2 billion for the United States Coast Guard's operating expenses, including pay. The DHS notes that the U.S. Coast Guard is responsible for the “interdiction of illegal aliens at sea.”
• $1.6 billion for border wall construction.
• $975.8 million “for high-priority tactical infrastructure and border security technology improvements.” The DHS explains that the purpose of this funding is to increase defense at the border and give CBP law enforcement personnel the technology to help “detect and interdict illegal activity in a safer environment.”
• $272.8 million for the Federal Law Enforcement Training Center. This funding would contribute to the hiring of an additional 1,000 immigration enforcement officers and 500 CBP agents, which was directed by President Trump's Executive Order 13767.
• $100 million to support 20,258 Border Patrol positions. This encompasses recruiting, hiring, and training 500 new Border Patrol agents.

The DHS explained that it is working on procuring funds to improve its ability to enforce the immigration laws in the interior. The following are funding requests detailed in the DHS overview that relate to interior enforcement:

• $2.7 billion to fund both direct and indirect cost for 51,379 detention beds.
• $185.9 million to support the expansion of the Immigration and Customs Enforcement's (ICE's) interior enforcement activities, as directed by Executive Order 13768. These funds would go toward hiring an additional 850 immigration officers, 150 criminal investigators, 805 law enforcement mission support staff, and 125 Office of Principal Legal Advisor attorneys to represent the government in immigration proceedings before the Department of Justice's (DOJ's) Executive Office of Immigration Review (EOIR). This bloc of funding would also include $1.0 million to enhance current operations at the DHS's new VOICE Office.
• $484.9 million for transportation costs associated with the immigration detention population.
• $177.7 million for the ICE's Alternatives to Detention (ATD) Program. This funding would go toward monitoring in lieu of incarceration an average of 79,000 daily participants in order to ensure their compliance with immigration proceedings until the execution of final orders of removal.
• $131.5 million for E-Verify operations and upgrades. This funding would include investments to expand E-Verify in order to support mandatory E-Verify use nationwide.

Finally, the budget proposal requests $354 million to support biometric initiatives. Of this money, $263.4 million would go toward the Office of Biometric Identity Management (OBIM) and $90.6 would go toward the CBP's expedited completion of the Biometric Entry-Exist System, which was directed by President Trump's Executive Order 13769 and 13780. The DHS states that the CBP “envisions that biometrics can replace documentation like a passport, boarding pass, or a driver's license for many of the routine aspects of airline travel…” It explains that in 2018 the CBP will use funds from visa fee collections “to develop essential program elements and back-end infrastructure for the Biometric Entry-Exit System, and to implement public-private partnerships with airports and airlines to implement biometric air exit.”

CONCLUSION

President Trump's budget proposal includes robust funding requests for several important immigration initiatives. Border security and managing the immigration system are two areas that are clearly the Federal government's responsibility and within its jurisdiction. Accordingly, ensuring that the Federal government has the requisite funding to carry out these missions should be a high priority for Congress. We will discuss the issue further when the budget negotiations pick up in the summer of 2017.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Juan P. Osuna (Director of EOIR) to Leave EOIR at End of May 2017

The Director of the Executive Office for Immigration Review (EOIR), Juan P. Osuna, confirmed that he will leave his post as Director of EOIR at the end of May (see 94 No. 21 Interpreter Releases Art. 1 (May 22, 2017)). Osuna has been Director of EOIR since May of 2011. You may learn about Osuna's background and tenure at EOIR here [PDF version].

The EOIR is an agency of the Department of Justice (DOJ). It includes the Immigration Court system and the Board of Immigration Appeals (BIA). The Director of EOIR, who reports directly to the Deputy Attorney General, supervises key personnel in the EOIR. Attorney General Jeff Sessions will be responsible for appointing the next Director of EOIR, who will report to Deputy Attorney General Rod Rosenstein.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Statements From President Trump and Others on the Rescission of DACA

INTRODUCTION

On September 5, 2017, the Acting Secretary of Homeland Security, Elaine C. Duke, issued a memorandum rescinding the 2012 Deferred Action for Childhood Arrivals (DACA) memorandum, but also providing for a six-month wind-down of DACA. In our full article on the rescission of DACA, we discuss the background of the decision and how it will be implemented [see article]. In this supplementary post, we will examine statements from President Donald Trump, Attorney General Jeff Sessions, and Acting Secretary Duke on the decision. We will also examine a statement from Texas Attorney General Ken Paxton, whose lawsuit prompted the Trump Administration to make its decision, and from two key congressional leaders on what may happen next. Finally, we will also examine the critical response of former President Barack Obama.

• President Donald Trump
• Analysis
• Attorney General Jeff Sessions
• Acting Secretary of Homeland Security Elaine Duke
• Texas Attorney General Ken Paxton
• Speaker of the House Paul Ryan
• Senator Lindsey Graham
• Former President Barack Obama
• Conclusion

PRESIDENT DONALD TRUMP

See “Statement from President Donald J. Trump” [PDF version].

We have noted in numerous posts that President Trump has seemed conflicted about the DACA program. Although he campaigned on rescinding it, he had, for the first seven-plus months of his administration, declined to do so. Accordingly, at the top of his statement, he stated that although his highest duty is “to defend the American people and the Constitution,” he does not “favor punishing children … for the actions of their parents,” while also noting that most DACA recipients are now adults themselves.

In explaining his decision, President Trump noted that it is the job of the legislative branch, rather than the executive branch, to write the laws. He added that “this is the bedrock of our Constitutional system, which I took a solemn oath to preserve, protect, and defend.”

To that effect, President Trump criticized the decision of former President Barack Obama “to give work permits, social security numbers, and federal benefits to approximately 800,000 illegal immigrants currently between the ages of 15 and 36.” Describing DACA pejoratively as “executive amnesty,” he noted that Congress had, on several occasions, debated and declined to pass legislation that would have worked toward similar ends. He also noted that President Obama himself had taken the position that he did not have the authority to implement a program such as DACA before eventually doing so. President Trump described the decision to create DACA as “making an end-run around Congress and violating the core tenants that sustain our Republic.”

President Trump then discussed two additional reasons why he opted to end DACA. First, he referenced the pending litigation led by Texas. He noted that both Attorney General Sessions and other legal experts have advised him that the program is unlawful and unconstitutional and, accordingly, would not survive legal scrutiny.

Secondly, President Trump criticized the implementation on policy grounds in addition to legal grounds. He attributed the surge of unaccompanied minors that crossed the Southwest Border after the implementation of DACA in part to DACA.

President Trump took the position that “[t]here can be no path to principled immigration reform if the executive branch is able to rewrite or nullify federal laws at will.” Rather, he stated that “[o]nly the reliable enforcement of immigration law” can produce good results.

However, as we explained in detail in our full article on the rescission of DACA, President Trump did not end DACA completely as of September 5, 2017. Rather, DACA is being phased out in order to, in the words of the President, “provide a window of opportunity for Congress to finally act.”

Although DACA has been rescinded, President Trump emphasized that the DHS's enforcement priorities “remain unchanged.” He stated that they are focused on “criminals, security threats, recent border-crosses, visa overstays, and repeat violators.” Accordingly, President Trump explained, he has advised the DHS that DACA recipients are not enforcement priorities unless they are criminals, otherwise involved in criminal activity, or gang members. Please see our full article to learn about the Trump Administration's enforcement priorities [see article].

President Trump then moved on to criticize “[t]he decades-long failure of Washington D.C. to enforce federal immigration law,” which has, in his view, depressed wages, raised unemployment for American workers, and created other financial and law enforcement burdens. He stated that the interests of “American families, students, taxpayers, and jobseekers” must now come first. To this effect, President Trump reiterated his support for the RAISE Act proposal offered by Senators Tom Cotton and David Perdue, which we discussed in detail on site [see opinion blog].

Regarding DACA specifically, President Trump again pledged to solve the issues addressed by DACA “with heart and compassion.” He stated that reform must be done “through the lawful [d]emocratic process.” He added that any solution must “provide[] enduring benefits for the American citizens we were elected to serve.” He stated that “young Americans have dreams too…” and that the foremost obligation of any immigration reform “must be to improve jobs, wages[,] and security for American workers and their families.”

In typical rhetorical style, he concluded by stating that “[i]t is now time for Congress to act!”

ANALYSIS

According to his statement, President Trump appears to have mostly based his decision to rescind DACA on a concern for the rule of law and our constitutional system of government, while noting his many concerns with the process and authorities utilized by the Obama Administration in implementing DACA. Neverthelesss, he had appeared reluctant to terminate DACA prior to ultimately doing so, and he acknowledged the imminent escalation of the pending legal challenges to DACA as something that ultimately motivated his decision.

Regarding what President Trump hopes to happen next, his statement leaves many questions open. First, President Trump explained that the six-month wind-down is intended to give Congress time to act. The fact that he on multiple occasions noted his compassion for DACA recipients suggests that he hopes to see a legislative solution providing similar benefits. However, he rejected an “amnesty first” approach to immigration reform, referencing DACA, suggesting that he had issues with the policy itself in addition to its implementation, while also making the goal of protecting American workers, as opposed to aliens in the United States illegally, the top priority.

President Trump also expressed these distinct goals in two tweets.

First, at 5:04 AM, prior to the official announcement [see here].

Second, his account re-tweeted the following tweet from a different account [see here].

Presumably, this all suggests that President Trump wants new provisions for immigration enforcement and border security to accompany any legislative solution for DACA recipients. However, it is unclear at this moment which sorts of provisions President Trump expects and how forceful he will be in pursuing them.

For interested readers, we have also uploaded the White House talking points on the decision [PDF version]. The talking points list various instances in which the Trump Administration alleges that former President Obama had initially opposed a DACA-like action on both legal and policy grounds before reversing course. It touts the accomplishments of the Trump Administration in immigration enforcement and takes the same position that President Trump did in his remarks by asserting that the DACA policy undercut immigration enforcements and American workers.

We will follow the situation and post updates on his thinking as they become available.

ATTORNEY GENERAL JEFF SESSIONS

See “Attorney General Sessions Delivers Remarks on DACA” [PDF version].

Interestingly, while President Trump had ultimate decision-making authority over the future of DACA and the memorandum rescinding DACA was issued by Acting Secretary Elaine Duke, the announcement of the new policy was made by Attorney General Jeff Sessions. In his capacity as the head of the Department of Justice (DOJ), Sessions advised both President Trump and Acting Secretary Duke that DACA was illegal and that it would not survive legal scrutiny. Sessions had been an opponent of DACA on both legal and policy grounds when he was serving as a United States Senator from Alabama. Perhaps for these reasons, President Trump left it to Attorney General Sessions to deliver the news. The statement that we are reviewing is the remarks delivered by the Attorney General to the public. You may also watch the video of the remarks here.

Like President Trump, Attorney General Sessions focused on what he determined was the illegality of DACA. He noted that Congress had, on several occasions, refused to authorize the type of benefits legislatively that DACA did through executive action. He stated that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”

Attorney General Sessions grounded the decision in deep concerns over the rule of law. More broadly than the immigration debate, Sessions stated that “[s]ocieties where the rule of law is subject to political whims and personal biases tend to become societies afflicted by corruption, poverty, and human suffering.” He stated further that “if we are to further our goal of strengthening the constitutional order and the rule of law in America, the Department of Justice cannot defend this type of overreach.”

Attorney General Sessions noted the legal challenges to DACA, and he suggested that it was unlawful for the same reasons that the United States District Court for the Southern District of Texas and the United States Court of Appeals for the Fifth Circuit enjoined the larger Deferred Action for Parents of Americans (DAPA) program. To this effect, Attorney General Sessions focused on separation of powers concerns regarding DACA. Interestingly, he did not address concerns regarding the president's constitutional duty to ensure that the laws are faithfully executed, which was an additional ground on which Texas alleged that DAPA was illegal.

In addition to broader legal concerns, Attorney General Sessions addressed the immigration policy implications of DACA. He described DACA pejoratively as “unilateral executive amnesty,” and like President Trump he attributed the surge of unaccompanied minors crossing the Southwest Border in part to DACA. He also alleged that DACA had hindered the employment prospects of Americans. He added that “we cannot admit everyone who would like to come here. That is an open border policy and the American people have rightly rejected it.”

Attorney General Sessions addressed arguments that, regardless of legality, DACA was the right thing to do. He stated that, although “we are a people of compassion…” “there is nothing compassionate about the failure to enforce immigration laws.” Rather, he argued, the “compassionate thing to do is to end the lawlessness, enforce our laws, and, if Congress chooses to make changes to those laws, to do so through the process set forth by our Founders in a way that advances the interest of the nation.”

Attorney General Sessions struck a similar tone to President Trump while going into more specifics regarding his concerns that DACA had a negative effect on the rule of law and the constitutional order. He also touted the accomplishments of the Trump Administration on immigration enforcement and backed the RAISE Act. His remarks notably include fewer indications that his priority is replacing DACA benefits legislatively than President Trump expressed. However, Attorney General Sessions is unlikely to play a direct role in the debate over a legislative solution to DACA outside of any counsel on the subject that he may offer President Trump.

ACTING SECRETARY OF HOMELAND SECURITY ELAINE DUKE

See “Statement from Acting Secretary Duke on the Recession of Deferred Action for Childhood Arrivals (DACA)” [PDF version].

Acting Secretary of Homeland Security Elaine Duke issued the memorandum rescinding DACA. Again, you may read our full article on the subject on site [see article].

Acting Secretary Duke stated that the decision to rescind DACA was not made lightly, but only after consultation with the DOJ. She stated that given the legal vulnerabilities of DACA, the Trump Administration had two options available to it:

1. Wind DACA down in an orderly fashion that protects beneficiaries in the near term while working with Congress to pass legislation; or
2. Allow the judiciary to potentially shut DACA down completely and immediately.

Acting Secretary Duke stated that the Trump Administration opted for the first option because it was the least destructive.

Acting Secretary Duke expressed her sympathy with DACA recipients who now face uncertain futures. She noted that DACA itself was never more than a temporary bureaucratic delay, and that it never promised a permanent solution for beneficiaries. For this reason, she stated, “DACA was fundamentally a lie.”

Acting Secretary Duke expressed her belief that former President Obama acted out of good intentions and his frustration with Congress. Nevertheless, she stated that a DHS memorandum, even if it is intended to be temporary, is not a substitute for a law passed by Congress and signed by the President.

Acting Secretary Duke explained that prior to assuming her current position, she taught civics to naturalization applicants. She noted that it was her position that “[t]he DACA program violates those basic civics lessons that are fundamental to our country and to our citizens.” She stated that, regardless of intent, “[i]t is dangerous precedent to systematically ignore the law…” Similarly to President Trump and Attorney General Sessions, Duke stated that “[i]t is dangerous to encourage and reward illegal immigration.”

Acting Secretary Duke encouraged Congress to come up with a legislative solution if it believes that the current immigration laws do not reflect the values of the United States. She stated that the DHS would cooperate with Congress in providing information to come up with such a solution. In her opinion, America is “overdue for real answers…” and there should be “[n]o more stopgap measures, no more temporary options, and no more kicking the tough decisions down the road in the hope they become too painful to ignore for someone else.”

Acting Secretary Duke's statement expressed empathy for DACA recipients. However, like President Trump and Attorney General Sessions, she was harshly critical of the process under which DACA was implemented and the implications it had for constitutional governance, although granting that former President Obama may have been well-intentioned. Her statement seems to express stronger support for a permanent legislative replacement for DACA than articulated by Attorney General Sessions, although she too suggested that the process may have encouraged illegal immigration. In fact, in addition to legal concerns, a key theme of Acting Secretary Duke's statement is that DACA was temporary and never provided a real solution for its beneficiaries.

TEXAS ATTORNEY GENERAL KEN PAXTON

See “AG Paxton Applauds President Trump's Decision to Phase Out DACA” [PDF version].

The litigation led by Texas Attorney General Ken Paxton ultimately prompted President Trump to make a decision on the fate of DACA by September 5, 2017. Attorney General Paxton praised President Trump for phasing out DACA. He stated that leaving DACA in place “would have set a dangerous precedent by giving the executive branch sweeping authority to bypass Congress and change immigration laws.” Unlike Attorney General Sessions, Paxton also explicitly stated that DACA was “a violation of the President's duty to 'take Care that the Laws be faithfully executed…'”

Overall, the statement suggests that Texas will not pursue its case against DACA and DAPA further, notwithstanding the fact that the Trump Administration will allow a limited class of individuals to receive initial grants of DACA and DACA renewals subsequent to the rescission of DACA.

SPEAKER OF THE HOUSE PAUL RYAN

See “Statement on DACA Program” [PDF version].

As Speaker of the House, Paul Ryan will play a leading role in the congressional debate over a legislative solution in the aftermath of the DACA rescission. Interestingly, although Speaker Ryan believes that DACA is illegal, he had encouraged President Trump to leave it in place while Congress assesses the issue.

Speaker Ryan's sentiments echo those of Acting Secretary Duke. He suggested that while former President Obama may have been well-intentioned in implementing DACA, he abused his authority by “creat[ing] law out of thin air.” He added that DACA “was never a viable long-term solution…” to the problems it sought to address. He stated that it is Congress's duty to write laws, and that President Trump's decision “restore[d] the proper role of the executive and legislative branches.” In conclusion, he expressed his hope “that the House and Senate, with the president's leadership, will be able to find consensus on a permanent legislative solution that includes ensuring that those who have done nothing wrong can still contribute as a valued part of this great country.”

Speaker Ryan's statement strikes a softer tone than the statements of President Trump and his two secretaries. Although he stated that DACA was illegal, Speaker Ryan did not suggest that it had a negative effect on illegal immigration. In hoping for a solution, Speaker Ryan did not, as did President Trump and Attorney General Sessions, suggest that it would necessarily have to be accompanied by enforcement measures (although the language “legislative solution that includes” could be read this way). Speaker Ryan presides over a divided Republican caucus, so it remains to be seen how he will pursue crafting a solution that can pass both houses of congress.

SENATOR LINDSEY GRAHAM

See “Statement From U.S. Senator Lindsey Graham on DACA” [PDF version].

Senator Lindsey Graham of South Carolina has been the leading Republican proponent of a legislative solution to the issues purportedly addressed by DACA. We discussed his latest legislative proposal that preceded the DACA rescission in a detailed blog on site [see blog]. The following statement actually was made the day before the rescission when the decision appeared to be imminent.

Although Senator Graham is a leading supporter of Dream Act legislation, he expressed support for President Trump's decision to cancel DACA and give Congress six months to craft a legislative solution. He stated that DACA was “presidential overreach.” He referenced the legislation that he recently co-sponsored and stated that he looked forward to working with both the Trump Administration and his colleagues to come up with a solution. Notably, Senator Graham has not suggested that he would insist on new immigration enforcement measures to accompany his proposal, although it remains to be seen if he will adopt such a position as the debate moves forward.

FORMER PRESIDENT BARACK OBAMA

See “Barack Obama Statement” [PDF version]

Former President Barack Obama — whose administration implemented DACA — issued a harsh response to the decision of the Trump Administration. Although he is out of office, it is worth noting that the former President is still a highly influential figure in his party.

Obama stated that immigration is a complicated and heavily debated topic, and that those of good will can disagree on specific policies and fixes. However, he observed that the decision of the White House is not about fixing the immigration system or ensuring that everyone plays by the rules. He noted that “dreamers,” those protected by DACA, are “young people who grew up in America — kids who study in our schools, young adults who are starting careers, patriots who pledge allegiance to our flag.” He noted that these individuals are Americanized and many may not know a language other than English.

He explained that, as president, he asked Congress to send him a bill creating a permanent solution. When the bill never came, he concluded that it then made sense to “lift the shadow of deportation from these young people, so that they could continue to contribute to our communities and our country.”

Regarding allegations that the policy was illegal, Obama stated that it was “based on the well-established legal principle of prosecutorial discretion…” To this effect, he explained, the policy was legal and made sense on practical grounds due to the necessity of allocating limited resources. He suggested that it had a positive effect on immigration enforcement by allowing resources to be focused “on those who come illegally … to do us harm.”

Accordingly, the former president took the position that the rescission of DACA was not “required legally.” He opined instead that it was “a political decision, and a moral question.” He added that the decision was “cruel,” noting that many good people who came to the United States as children may end up subject to immigration enforcement.

Obama stated that now the responsibility has been shifted to Congress, it is incumbent on the legislature to devise a permanent legislative solution. He stated that the issue is ultimately about “basic decency” and “who we want to be.”

Former President Obama framed his disagreement with the DACA rescission in mostly moral terms, although he defended the action legally on grounds that it was a basic exercise of prosecutorial discretion and resource allocation. It is unclear whether he will take an active role in the forthcoming debate. However, given his influence as a two-term president who is still well-liked by the majority of Democrats in congress and across the country, it is quite likely that many will listen whenever he weighs in on the issue.

CONCLUSION

In this post, we examined a selection of statements from the Trump Administration, Congressional leaders, and former President Barack Obama. We will continue to follow the issue as it develops on site. Those who are unsure about their situation should consult with an experienced immigration attorney for guidance.

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