USCIS Announces Conviction in Immigration Fraud Scheme

On July 17, 2017, the United States Citizenship and Immigration Services (USCIS) announced that Nimon Naphaeng, a native and citizen of Thailand who resided in Rhode Island, was sentenced on July 17, 2017, to 27 months in federal prison for running an immigration fraud scheme [link]. In addition to his conviction, Naphaeng will likely face removal for his criminal conduct.

In entering his guilty plea, Naphaeng admitted to details of his immigration fraud scheme. Using both the internet and fliers posted in Thai restaurants, he had advertised himself as being able to help Thai nationals obtain employment authorization documents. In reality, Naphaeng was filing false asylum applications on behalf of these individuals without their consent or knowledge. In order to complete his scheme, Naphaen had applicants provide him with their personal information. By filing these false asylum applications, many of his unwitting clients became eligible for employment authorization documents and other benefits. Naphaeng charged about $1,500 to $2,500 per client. He ultimately defrauded more than 320 individuals of at least $400,000.

Naphaeng ultimately pled guilty to seven counts of mail fraud and two counts of visa fraud. Both the government and the defense recommended that Naphaeng be sentenced to 18 months imprisonment. However, U.S. District Court Chief Judge William E. Smith followed the federal sentencing guidelines and imposed a harsher sentence of 27 months imprisonment. Naphaeng will also be required to pay restitution, which according to court documents, may exceed $518,300.

The case was prosecuted by Assistant U.S. Attorneys Richard W. Rose and Mary E. Rogers.

Unfortunately, there are individuals looking to take advantage of vulnerable foreign nationals in the United States in complex fraud schemes. For this reason, an individual seeking any sort of immigration benefit should consult with an experienced immigration attorney. It is always crucial to check the credentials of the individual offering immigration assistance. Careful vetting is the safest way to avoid becoming victim to an immigration fraud scheme.

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

November 2017 Visa Bulletin

INTRODUCTION

On October 6, 2017, the U.S. Department of State (DOS) released the November 2017 Visa Bulletin, containing the filing dates and final action dates for both the family-sponsored and employment-based immigrant visa preference categories [PDF version]. On October 13, 2017, the United States Citizenship and Immigration Services determined that, for the second consecutive month, family-sponsored applicants must use the filing dates whereas employment-based applicants must use the final action dates [PDF version].

In this article, we will reproduce the relevant charts from the November 2017 Visa Bulletin for beneficiaries of approved family-sponsored and employment-based immigrant visa petitions. We will also examine news and notes from the DOS on visa trends.

Before reading, please see our full article on using the immigrant visa bulletin for adjustment of status hopefuls and for those who intend to apply for visas through consular processing [see article]. Please also see our article on the difference between filing dates and final action dates [see article].

For a list of past Visa Bulletin articles, please see our compendium [see article].

FAMILY-SPONSORED CASES

The USCIS determined that the beneficiaries of approved family-sponsored immigrant visa petitions will use the dates for filing charts on the November 2017 Visa Bulletin during that month. The filing dates allow for earlier filing of adjustment of status applications than do final action dates. In November 2017, the beneficiary of an approved family-sponsored immigrant visa petition may apply for adjustment of status if his or her priority date is earlier than the applicable final action date for his or her preference category and chargeability area. For family-sponsored beneficiaries, the priority date is the date on which the immigrant visa petition was properly filed.

The following is the filing dates for family-sponsored cases as provided by the USCIS [see here].

For your reference, the following [see here] is the chart of final action dates for family-sponsored cases courtesy of the DOS. These dates represent the dates on which final action can be taken on an application for an immigrant visa for family-sponsored cases in November 2017. As we noted, family-sponsored beneficiaries of approved immigrant visa petitions who are eligible for adjustment of status should use the filing dates in determining whether they are eligible to apply for adjustment of status in November 2017.

EMPLOYMENT-BASED CASES

The USCIS determined that beneficiaries of approved employment-based immigrant visa petitions must rely on the final action dates from the November 2017 Visa Bulletin for determining eligibility to file for adjustment of status. The beneficiary of an approved employment-based immigrant visa petition may only file for adjustment of status if his or her priority date is before the applicable final action cutoff date for his or her preference category and chargeability area. For petitions for which labor certification was required, the priority date will generally be the date on which the labor certification application was approved by the U.S. Department of Labor (DOL). For all other cases, the priority date will generally be the date on which the employment-based petition was properly filed.

Courtesy of the USCIS, the following are the final action dates for employment-based cases from the November 2017 Visa Bulletin [see here].

Please remember that a priority date of “C” stands for “current.” Individuals who have a priority date of current may apply for adjustment of status in November 2017 provided that they are otherwise eligible.

NEWS AND NOTES FROM THE NOVEMBER 2017 VISA BULLETIN

The DOS did not provide any new projections for future months based on visa trends in the November 2017 Visa Bulletin. To read about its most recent projections, please see the section of our article on the October 2017 Visa Bulletin titled “News on Visa Availability for Upcoming Months” [see article]. The November 2017 Visa Bulletin also includes a note on the Special Immigrant (SI) Translator Category. You may read our discussion of the same note in the penultimate section of the October 2017 Visa Bulletin article.

CONCLUSION

The beneficiary of an approved immigrant visa petition should stay abreast of visa trends if his or her immigrant visa number is not immediately available. This is especially important for those who intend to file for adjustment of status. Beneficiaries of approved immigrant visa petitions are well advised to consult with an experienced immigration attorney throughout the application process.

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

New York City Immigration Court Welcomes Judge James McCarthy to the Bench

On July 13, 2017, the Executive Office of Immigration Review (EOIR) swore in one new Immigration Judge [link].

Immigration Judge James McCarthy was appointed by the U.S. Attorney General, Jeff Sessions, to serve on the New York City Immigration Court.

The EOIR news release details now-Judge James McCarthy's resume. From 1995-2000, Judge McCarthy served as an assistant district attorney in the Kings County (Brooklyn, N.Y.) District Attorney's Office. From 2000-2004, he served as an attorney on the Mayoral Commission to Combat Police Corruption. From 2004-2017, he served as an attorney in various capacities for the Department of Homeland Security (DHS) and, specifically, the U.S. Immigration and Customs Enforcement (ICE). He spent the last eight years of his tenure with DHS and ICE working in New York City, before that having worked in Arizona. Judge McCarthy obtained his law degree from Brooklyn Law School.

At The Law Offices of Grinberg & Segal, we represent clients at immigration courts all across the United States. It goes without saying that being based in the center of New York City; we handle many immigration cases at the New York City Immigration Court. Judge James McCarthy brings a wealth of experience in immigration law and in practicing law in New York City in particular to the immigration bench. Judge McCarthy's experience will be needed, as the EOIR noted that the New York City Immigration Court is one of the “highest volume courts” in the immigration court system.

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

Dissent From Disappointing Decision by SCOTUS to Not Hear an Important 2A Case

On June 26, 2017, the Supreme Court of the United States denied a petition for writ of certiorari (to hear on appeal) a case titled Peruta v. California, No. 16-894 (U.S. June 26, 2017). The issue in Peruta was whether the Second Amendment to the United States Constitution includes a general right for ordinary and law-abiding citizens to carry guns outside of the home for self-defense. In Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc) [PDF version], in a decision that now stands, the full United States Court of Appeals for the Ninth Circuit, held that the Second Amendment does not entitle such individuals to carry handguns outside of the home for self-defense. Interestingly, the en banc Ninth Circuit thereby reversed the original decision of a three-judge panel of the Ninth Circuit in Peruta v. County San Diego, 742 F.3d 1144 (9th Cir. 2014) [PDF version], which had held that the Second Amendment does include within its scope the guarantee of the right to carry handgun outside of the home for self-defense.

Justice Clarence Thomas filed an opinion dissenting from the denial of the petition to hear Peruta at the Supreme Court. He was joined in his dissent by Justice Neil Gorsuch. In this post, I will examine Justice Thomas's dissent before explaining why I agree with his reasoning. The dissent only numbers eight pages and it is well worth reading in full in addition to this post [see dissent].

DISSENT FROM DENIAL OF PETITION FOR CERTIORARI: JUSTICE THOMAS

Part I of Justice Thomas's dissent focused on the facts and procedural history of Peruta.

First, he explained that open carry of handguns is generally prohibited in California by sections 25850 and 26350 of the Cal. Penal Code Ann. However, the issue in Peruta was not California's restrictions on open carry, but rather its restrictions on concealed carry by average citizens in public for the purpose of self-defense. Under sections 26150 and 26155 of the Cal. Penal Code Ann., an individual must show “good cause,” among other criteria, in order to be licensed or permitted to carry a concealed handgun. Section 26160 authorizes individual counties to interpret the “good cause” provision.

The county where the petitioners in Peruta resided interpreted “good cause” narrowly. The sheriff's policy, for example, was that “concern for one's personal safety” was not sufficient for establishing “good cause.” 742 F.3d at 1148. An individual was instead required to show “a set of circumstances that distinguish the applicant from the mainstream and cause him to be placed in harm's way.” Id., at 1169. The result of the sheriff's policy was that the average citizen in San Diego County would be prohibited from obtaining a permit to carry a concealed handgun for self-defense. The sheriff's policy instead restricted the allocation of concealed carry permits to individuals whom he deemed distinguishable from the average person, or the “mainstream,” they having demonstrated a heightened risk of danger to his or her personal safety.

The petitioners in Peruta challenged certain aspects of California's statutory scheme and the particular sheriff's policy, arguing that they violated their Second Amendment right to bear arms. After San Diego County prevailed in District Court, a three-judge panel of the Ninth Circuit held that carrying an operable handgun outside of the home for self-defense falls within the scope of the Second Amendment. It held further that the sheriff's reading of the “good cause” provision in conjunction with other aspects of California's statutory scheme violated the Second Amendment requirement that California “permit some form of carry for self-defense outside the home.” Id. at 1172.

The en banc Ninth Circuit held that because the petitioners had challenged the sheriff's interpretation of “good cause,” the case before the court was limited only to that aspect of California's regulatory scheme. Accordingly, it declined to address whether the Second Amendment protects the right of members of the general public to carry firearms openly in public. 824 F.3d at 942. The en banc Ninth Circuit held that the Second Amendment neither preserves nor protects the right of members of the general public to carry concealed firearms in public. Id. at 924.

In Part II of the dissent, Justice Thomas argued that the Supreme Court erred in declining to grant certiorari in Peruta.

Justice Thomas argued that the approach of the en banc Ninth Circuit was “indefensible.” He criticized the Ninth Circuit for limiting its review to whether the Second Amendment protects only the right to open carry as opposed to a general right to public carry. In addition to describing the approach as “untenable,” Justice Thomas asserted that “it was not justified by the terms of the complaint,” which challenged California's statutory scheme more broadly. He added that both the District Court in Puerta v. County of San Diego, 758 F.Supp.2d 1106 (SD Cal. 2010) [PDF version], and the three-judge panel of the Ninth Circuit had correctly considered whether California's licensing scheme as a whole violated the Second Amendment in its effective prohibition of carrying a weapon for self-defense by responsible and law-abiding citizens.

Justice Thomas then took the position that “[h]ad the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result.” To this effect, Justice Thomas cited to the Supreme Court's landmark decision in District of Columbia v. Heller, 554 U.S. 570, 580 (2008)[1] [PDF version], wherein the Court held that the Second Amendment protects the right of individuals to possess arms for lawful purposes, with one example being self-defense within the home. Justice Thomas — a member of the five-justice majority in Heller - stated that Heller suggested that the Second Amendment “protects the right to carry firearms in public in some fashion.” Justice Thomas cited to a dissenting opinion by Judge Thomas Hardiman[2] in a Third Circuit case titled Drake v. Filko, 724 F.3d 426, 444 (3d Cir. 2013) (Hardiman, J., dissenting) [PDF version], in which Judge Hardiman took the position that reading Heller as only covering “bearing” arms in one's home was improper. Justice Thomas also cited to Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) [PDF version], wherein the Seventh Circuit reached a similar conclusion to that of Judge Hardiman.

Justice Thomas agreed with Judge Hardiman and the Seventh Circuit that the relevant history of the Second Amendment supports the understanding that the Second Amendment's right to bear arms includes the right to bear arms in public in some manner. He cited to Nunn v. State, 1 Ga. 243 (1846), a decision relied upon the Court in Heller, as instructive on the proper meaning of the right to bear arms. In Nunn, the Georgia court struck down a ban on open carry while upholding a ban on concealed carry. Citing to State v. Reid, 1 Ala. 612, 616-617 (1840), Justice Thomas suggested that other cases from the era indicate that, while some restrictions on public carry are permissible, an effective ban on public carry is not.

Justice Thomas added that in Heller 554 U.S., at 599, the Court held that “self-defense” is “the central component” of the Second Amendment's right to bear arms. In his opinion, this core right of self-defense cannot be limited to the home, although it may be “most acute” in the home. Id., at 628.

Justice Thomas stated that even if a majority of the Supreme Court does not agree that the Second Amendment protects a right to public carry, the Court ought to answer the question definitively. He noted that twenty-six states had joined in asking the Court to resolve the question in Peruta. He added that four Courts of Appeals and three state courts of last result have addressed the issue, all the while reaching different conclusions. For these reasons, Justice Thomas saw no reason to wait for more lower court decisions on the issue, “especially when constitutional rights are at stake.”

Finally, Justice Thomas argued that the Court's decision was part of a “distressing trend” wherein the Court has treated the Second Amendment “as a disfavored right.” He argued that “the Constitution does not rank certain rights above others.” Justice Thomas referred to his dissent from denial of certiorari in Friedman v. Highland Park, 577 U.S. __, __ (2015) (Thomas, J., dissenting from denial of certiorari) (slip op., at 6) [PDF version], wherein he criticized the Court for declining to hear cases that “flout” the Court's decisions in Heller and McDonald while being willing “to summarily reverse courts that disregard our other constitutional decisions.” Justice Thomas accused the Court of “impos[ing] a hierarchy by selectively enforcing its preferred rights.” He added that since the Court had last addressed the Second Amendment in 2010 in McDonald, it has heard 35 cases where the question turned on the First Amendment and 25 cases where the question turned on the Fourth Amendment. He described the discrepancy as “inexcusable,” especially in light of the fact that the Court's jurisprudence on the Second Amendment is comparatively under-developed.

CONCLUSION

Justice Thomas concluded his dissent with the following passage:

“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent”

I agree in full with Justice Thomas's dissenting opinion from the Court's disappointing decision to again decline to hear an important Second Amendment case. Although the Court did not address the right to carry specifically in the controlling opinions in Heller and McDonald, Justice Thomas — who was in the majority in both occasions — is correct in noting that the Court has held that the central point of the “right to bear arms” is self-defense, citing to a substantial corpus of evidence to that effect. For lower courts, this should indicate strongly that jurisdictions are not permitted to effectively ban all types of carry to normal law-abiding citizens, reserving it only for those deemed worthy to exercise their constitutional rights by local authorities. Furthermore, Justice Thomas was correct in noting that, even if five justices do in fact agree with the Ninth Circuit, Peruta was ripe for consideration by the Supreme Court considering both that it involves a constitutional right and the fact that there is already a split among the lower courts of appeals on the issues presented.

In a final note, it was heartening to see Justice Gorsuch — who thus far has lived up to his billing as a terrific addition to the Supreme Court  — join Justice Thomas in dissent. Justice Thomas and the late Justice Antonin Scalia — whose position at the Court Justice Gorsuch now fills — have been the staunchest defenders of the Second Amendment on the Court in recent years. This is one issue where it is very encouraging to see Justice Gorsuch step into Justice Scalia's shoes.

The Court will inevitably be forced to take a case involving the issues raised in Peruta. We can only hope that the Court decides to — as Justice Thomas implored — expeditiously begin to treat the Second Amendment with the same respect that it treats other constitutional provisions.

I look forward to blogging about other Second Amendment issues and litigation in the near future.

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. The Supreme Court subsequently extended its reading of the Second Amendment to the States in McDonald v. Chicago, 561 U.S. 742 (2010) [PDF version].
2. In an interesting aside, recall that Judge Hardiman was reportedly one of the three judges under consideration by President Donald Trump for the vacant Supreme Court seat that was ultimately filled by Justice Neil Gorsuch [see blog].

Lawyer website: http://myattorneyusa.com

Matter of Deang, 27 I&N Dec. 57, 64-66: Dissenting Opinion of Board Member Garry Malphrus

INTRODUCTION: MATTER OF DEANG, 27 I&N DEC. 57, 64-66

On June 16, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Deang, 27 I&N Dec. 57 (BIA 2017) [PDF version], in which it held that an essential element of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Immigration and Nationality Act (INA) is that the offender must receive the stolen property with the “knowledge or belief” that it has been stolen. Significantly, this excludes offenses that require proof of a mens rea (mental state) of only a “reason to believe” and not actual knowledge or an actual belief that the property has been stolen from the scope of aggravated felony receipt of stolen property under section 101(a)(43)(G) receipt of stolen property. As a result of its reading of section 101(a)(43)(G), the Board held that the offense receipt of a stolen vehicle under section 32-4-5 of the South Dakota Codified Laws does not categorically define an aggravated felony receipt of stolen property offense because it requires a minimum mens rea of “reason to believe.”

However, Judge Garry Malphrus, who was a member of the three-judge panel considering the case, dissented from the opinion of the Board. Although Judge Malphrus's dissent is not controlling — and the majority's decision now constitutes binding precedent — it evinces that there may be members of the Board open to reassessing Matter of Deang in the future.

In this post, we will examine Judge Malphrus's dissenting opinion. This post presumes familiarity with the facts of the case and the majority's reasoning and decision in Matter of Deang. This post picks up from where our main article leaves off. Accordingly, if you have not already, please see our full article on the precedent majority opinion in Matter of Deang [see article].

JUDGE MALPHRUS'S DISSENTING OPINION: 27 I&N DEC. AT 64-66

Judge Malphrus agreed with the majority that the task of the Board was “to determine the generic, contemporary meaning of the phrase 'receipt of stolen property' as used in section 101(a)(43)(G) by surveying the Federal and State statutes as they existed in 1994, when Congress added the phrase 'receipt of stolen property' to section 101(a)(43)(G) of the [INA]…”

However, Judge Malphrus disagreed with what the majority concluded from its survey. Instead, he took the position that “there was simply no consensus regarding the mens rea standard for receipt of stolen property offenses in 1994.” He added that he could not “conclude that Congress intended to adopt a mens rea that, according to the majority, would preclude offenses in 21 jurisdictions, as well as a Federal offense…”

Judge Malphrus agreed with the majority that “particular importance” should be paid to Federal law in 1994. However, he focused on the point that Federal law itself had not been uniform with respect to the minimum mens rea in Federal receipt of stolen property offenses. Although the majority of Federal receipt of stolen property offenses required a knowing mens rea, 18 U.S.C. 922(j) (1994), which was a receipt of stolen firearms offense, had a minimum mens rea of “reason to believe.” Furthermore, Judge Malphrus noted, the penalty for violating 18 U.S.C. 922(j) (1994) was a term of imprisonment of up to 10 years, making it one of the most strongly punished Federal receipt of stolen property offenses on the books at the time. However, Judge Malphrus explained, a conviction under that statute would now not qualify as an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) under the majority's reading of the provision.

Judge Malphrus listed other similar statutes that used a lower mens rea standard than that which was required by the majority. 18 U.S.C. 842(h) (1994), which criminalized receipt of stolen explosive materials, required that the Government prove beyond a reasonable doubt that the defendant had received such stolen materials while “knowing or having reasonable cause to believe” that they were stolen. 18 U.S.C. 231(a)(2) (1994) criminalized the transportation of firearms while “knowing or having reason to know” that the firearms would be used unlawfully. 21 U.S.C. 841(d)(2) (1994) criminalized the possession or distribution of certain chemicals while “knowing or having reasonable cause to believe” that the chemical or chemicals would be used to manufacture a controlled substance.

Judge Malphrus noted that the majority's survey of State laws found that 29 jurisdictions used the standard required by the majority whereas 21 used a lower standard regarding the requisite mens rea for receipt of stolen property offenses. Judge Malphrus stated that “there were different approaches among the States as to their general receipt of stolen property statutes.”

Judge Malphrus also noted that the statute in question in the Matter of Deang was not a general receipt of stolen property offense, but rather a specific kind — that is, receipt of a stolen motor vehicle. He referenced the majority's point that States used different mens rea standards with respect to statutes covering stolen motor vehicles. In fact, most States used the “reason to believe” standard for such offenses. Additionally, Judge Malphrus took the position that the majority did not assess how each State applies its receipt of stolen property statutes. As an example, he noted that the text of 5/4-103 of Chapter 625 of the Illinois Compiled Statutes required proof in 1994 that the violator had “knowledge” that a motor vehicle had been stolen. However, in People v. Whitfield, 573 N.E.2d 1267, 1272 (Ill. App. Ct. 1991), an Illinois appellate court held that the “knowledge” requirement could be established “by proof of circumstances that would cause a reasonable person to believe property had been stolen.”

In addition to there being no consensus among the states of the minimum mens rea required for convictions for receipt of stolen property, Judge Malphrus cited to H.R. Re. No. 104-22, at 18 (1995) as evidence that the intent of Congress at the time was to expand the classes of aliens deportable for aggravated felonies. Citing to Taylor v. United States, 495 U.S. 575, 598 (1990) [PDF version], Judge Malphrus took the position that Congress intended for section 101(a)(43)(G) to encompass theft of stolen property offenses that required only that the offender have had a reason to believe the property was stolen due to the prevalence of such similarly constructed statutes in 1994.

Judge Malphrus recognized that the United States Courts of Appeals for the Fifth and Ninth Circuits had previously reached the same conclusions as the majority with respect to the proper reading of section 101(a)(43)(G). However, he explained, neither had conducted a comprehensive survey of Federal and State laws in effect in 1994. Having conducted the analysis, and in consideration of the fact that the United States Court of Appeals for the Eighth Circuit had not issued any rulings on the issue binding the Board, Judge Malphrus stated that “[f]or the benefit of circuits that have yet to address this issue, I would conclude that a receipt of stolen property conviction in which the defendant knew, should have known, or had reason to believe that the property was stolen falls within the generic definition of an aggravated felony under section 101(a)(43)(G) of the [INA].” For this reason, he would have sustained the Department of Homeland Security's (DHS's) appeal.

CONCLUSION

Judge Malphrus issued an interesting dissenting opinion that was not only contrary to the majority in Matter of Deang, but also to the precedent of the Fifth and Ninth Circuits. At the present, Judge Malphrus's dissent has no effect. The majority opinion in Matter of Deang now constitutes binding precedent on Immigration Judges nationwide and, even if the Board had agreed with Judge Malphrus, it would still be bound in cases arising from the Fifth and Ninth Circuits.

However, Judge Malphrus's dissent is worth watching in two areas. First, it is worth noting that most Federal circuit courts have not addressed the issue directly. It is quite likely that Judge Malphrus put his dissent on record in order that Federal courts may consider it in the event that a case presenting similar issues comes before it. Indeed, Judge Malphrus revealed that to be one of his objectives in the following passage:

“For the benefit of the circuits that have yet to address this issue, I would conclude…”

Second, it is always possible that in a different case a BIA panel may opt to reconsider Matter of Deang and, in so doing, consider adopting Judge Malphrus's dissent. Furthermore, his dissent may cause Congress to consider whether it agrees with the Board's reading of the statute.

We will update the site with any information regarding the interpretation of section 101(a)(43)(G) 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.

Lawyer website: http://myattorneyusa.com

Secretary Kelly Reportedly Does Not Commit to Defending DACA Against Potential Legal Challenges

On July 12, 2017, Politico reported that Homeland Security Secretary John Kelly had told thirty members of the Congressional Hispanic Caucus that, while he personally supported the Deferred Action for Childhood Arrival (DACA) program, the Trump Administration would not commit to defending it against potential legal challenges from Texas and several other states.[1] Secretary Kelly reportedly explained that part of the reason for his reluctance in making a commitment to defending DACA was that government attorneys had suggested to him that DACA would not survive a legal challenge.

Secretary Kelly himself did not comment on the meeting, which took place behind closed doors. Senator Bob Menendez of New Jersey — a prominent DACA supporter — stated that the Congressional Hispanic Caucus has a “different view” than does Secretary Kelly on the legal sustainability of DACA.

Politico reported in the same story that a spokesman for the Department of Homeland Security (DHS) seemed to confirm the reported substance of Secretary Kelly's remarks, stating that most of the lawyers with whom Secretary Kelly has consulted have come to the conclusion that DACA is not legally defensible as currently constituted.

We recently posted a comprehensive article about Texas' potentially forthcoming legal challenge to DACA [see article]. Texas' indication that it would challenge DACA came in the wake of its litigation against the Deferred Action for Parents of Americans (DAPA), which led to the DHS's decision to terminate both DAPA and an associated DACA expansion [see article].

It is important to note that Secretary Kelly's reported remarks do not indicate definitively whether the Trump Administration will leave DACA in place and choose to defend it in court if it is challenged. We will be sure to update the website with information on this important issue as it becomes available. Individuals with questions about DACA and/or more general questions about their immigration status should consult with an experienced immigration attorney for 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.

1. Hesson, Ted. “Kelly Won't Commit to Defending DACA in Court.” Politico. July 12, 2017. politico.com

Lawyer website: http://myattorneyusa.com

Interesting Dissent From Denial of Certiorari by Justice Gorsuch in VA Case

On June 26, 2017, the Supreme Court of the United States denied a petition for certiorari in an interesting case titled Mathis v. Shulkin, No. 16-667 (U.S. Jun. 26, 2017) [PDF version]. The question before the Court was whether medical evaluators at the United States Department of Veterans Affairs (VA) are entitled to a presumption of competency to provide expert opinions on any medical issues. This presumption of competency places the burden on disabled veteran claimants to rebut the presumption of competency of specific medical evaluators in raising a claim against the VA. The United States Court of Appeals for the Federal Circuit held in an unpublished decision that the medical evaluators are entitled to a presumption of competency [PDF version]. That decision now stands with the Supreme Court having declined to hear the case.

However, the denial of the petition for certiorari drew a lone dissent from Justice Neil Gorsuch. Although the issue does not touch on the immigration laws, it provides an early look into how Justice Gorsuch may view complicated issues involving administrative regulations and procedures. We have discussed previously that Justice Gorsuch's record on the United States Court of Appeals for the Tenth Circuit suggests that he may be hostile to a separate administrative issue regarding the principle of Chevron deference, a distinct issue in administrative law [see blog].

Justice Gorsuch began his dissent by noting that “[l]ower courts often presume that Department of Veterans Affairs medical examiners are competent to render expert opinions against veterans seeking compensation for disabilities that they have suffered during military service.” He added that the VA itself applies the presumption that its medical examiners are competent during its own administrative proceedings.

Justice Gorsuch questioned where the presumption of competency comes from. He noted that it is not found in the applicable statutes duly enacted by Congress. Instead, Justice Gorsuch noted, 38 U.S.C. 5103A(a)(1) “imposed on the VA an affirmative duty to assist-not impair-veterans seeking evidence for their disability claims.”

Justice Gorsuch moved to describe how the presumption of competency works in practice, and how that practice may well contradict the statutory duty it has to assist veterans seeking evidence for their disability claims.

Justice Gorsuch explained that, in general, the VA declines to provide a veteran with information that may allow him or her to challenge the presumption of competency of a medical examiner without an order from the Board of Veterans Appeals. However, the Board of Veterans Appeals will generally decline to issue such an order unless the veteran can supply a specific reason for thinking that the medical examiner is incompetent.

Justice Gorsuch acknowledged that this arrangement makes the job of the VA easier, but he questioned how it is “that an administrative agency may manufacture for itself a win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the interests of those the law says the agency is supposed to serve?”

Justice Gorsuch noted that some judges on the United States Court of Appeals for the Federal Circuit began to question this presumption of competency in dissenting from the denial of a petition for rehearing en banc of the Federal Circuit decision in Mathis v. McDonald [PDF version]. In light of this, he suggested, “the presumption's days [may well be] numbered.” However, he stated that had it been up to him alone he would not have waited in the hope that the Federal Circuit would one day rule against the presumption, but rather he would have considered the issue now.

CONCLUSION

Justice Gorsuch's dissent makes for interesting reading, and it suggests that he will apply careful scrutiny to the internal policies and practices of administrative agencies. Although there is no direct analogue between the specific issue in Mathis v. Shulkin and the immigration agencies, there is a one sentence passage of Justice Gorsuch's dissent that seems particularly noteworthy:

“But how is it that an administrative agency may manufacture for itself or win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the interests of those the law says the agency is supposed to serve?”

There are two key points. First, Justice Gorsuch criticized the VA both being afforded and affording itself a benefit through the presumption of regularity for its medical examiners, which Justice Gorsuch explained has no basis in statute or regulation. Second, Justice Gorsuch criticized it on the additional ground that it appears — to him at least — to contradict the statutory mandate that the VA assist veterans in seeking evidence to support their disability claims.

This dissent is worth keeping in mind, and it will be very interesting to see how Justice Gorsuch approaches cases that arise involving administrative policies of immigration agencies.

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

Interesting Post on AILA Blog Again Misses the Mark on Advocacy During the Trump Administration

A couple months ago, I wrote an opinion blog post titled “Why AILA's 'Justice Campaign' Misses the Mark on Advocacy During the Trump Administration” [see blog]. That post addressed the newly-created “Justice Campaign” of the American Immigration Lawyers Association (AILA), wherein it listed ways it plans to oppose the immigration policies of the administration of President Donald Trump.

As an immigration attorney and a member of AILA, I share AILA's passion for providing the best possible representation to those involved in one way or another in our complicated (and often inadequate) immigration system. However, readers of my blog will note from that piece and many of my other pieces on immigration issues that my opinions on immigration policy — and politics — often diverge from AILA's official line. However, my “Justice Campaign” post focused not only on policies, but also on tactics. Therein, I advanced the argument that AILA's posture toward the Trump Administration was hyperbolic, lacked nuance, and ultimately failed to recognize that the Trump Administration may be more amenable to pro-immigration reforms than AILA is inclined to acknowledge. In this post, I will address an interesting and provocative blog post from a leading AILA member that, while interesting, shows that AILA's leadership is continuing down the wrong path of advocacy during the Trump Administration.

The post we will be examining is written by Anthony Drago, Jr., Esq., a fellow immigration attorney and active member of AILA. It was posted on AILA's think immigration blog on June 30 and titled “Will Government Employees Show Some Moxie in the Immigration Struggle?”[1]

SUMMARY OF DRAGO'S POST

Drago begins his post by taking the position that “advocates for immigrants and favorable immigration policies in this country are at war with the current administration in Washington.” After rejecting categorically the possibility that the Trump Administration's policies are fluid, rather than inexorably opposed to positive immigration reform, he urges advocates “to be ready for battle at every turn.”

Drago's post focuses on who he sees as potential allies in the war with the Trump Administration: government employees. He asks whether these employees, who “know that anti-immigrant sentiment is not only wrong but will also have serious negative consequences for America,” will oppose the policies of the Trump Administration. As an example of policies that he opposes, he noted the directive from Attorney General Jeff Sessions — who sets policy for the Department of Justice (DOJ) — to increase criminal prosecutions of immigration violators.

Drago acknowledges that officials in the DOJ “answer to the Attorney General,” and that the work of many DHS officials goes hand in hand with that of the DOJ. He concludes that such employees are “under immense pressure to oppose any positive immigration practice or policy…”

Drago's solution is to call upon government officials in the DOJ and DHS to “stand up to the anti-immigrant sentiment.” Drago acknowledges that government employees could lose their jobs as a consequence of opposing official policy, but he asks rhetorically, “at what point do compassionate people stop kowtowing and start standing up to the current administration?”

As an example for government employees, he cited to then-Acting Attorney General Sally Yates' decision to not defend what he described as the “unconstitutional Muslim and refugee bans,” at the cost of her position.

For concrete examples of what he hopes to see, he suggests that U.S. Attorneys exercise discretion and stand up to Attorney General Sessions, notwithstanding potentially binding policy guidance. He suggests that Immigration Judges should seek to, where possible, “render discretionary decisions in favor of immigrants.” He encouraged officers of the United States Immigration and Customs Enforcement (ICE) to exercise discretionary powers to release people from detention, even if to do so would be against binding policy.

While waiting to see if government employees will challenge the Trump Administration, Drago stated that AILA and other likeminded individuals must stand up to the Trump Administration “and everyone associated with the anti-immigrant trend.” He noted that it is irrelevant if they lose most of the battles, for the key is to someday win the war. He added: “and make no mistake, this is war.”

ANALYSIS

While I cannot help but admire Drago's passion and fighting spirit, I fear that his post takes the worst parts of AILA's “Justice Campaign” and amplifies them tenfold. Unfortunately, AILA may well disagree, as it provided a link to the blog on its “Recent Postings” page. In this section, I will explain my disagreements with the post. I encourage you to read his original post along with my response and evaluate the arguments for yourself.

1. THE TRUMP ADMINISTRATION'S IMMIGRATION POLICIES ARE NOT EXTREME

During the campaign, I expressed serious concerns with the now-President Trump's position on immigration. You will find blog posts on our site criticizing his rhetoric, his understanding of immigration issues, and his inconsistency.

Fortunately, the direst of these concerns about candidate Trump's stance on immigration have thus far not been fulfilled by President Trump. The Trump Administration is undoubtedly enforcing the immigration laws more vigorously than did the Obama Administration [see article], but there is no deportation force and no extralegal alterations to nonimmigrant and immigrant visa requirements. Although the Travel Executive Order is controversial, it is limited in scope, and the argument that it is illegal is certainly not clear at all, as was recognized recently by the Supreme Court (for the record, I believe that the Order is legal in full). Furthermore, it is important to note that the new policies have shown early signs of improving enforcement against serious immigration law violators [see blog] and in improving border security [see blog].

Even if one takes a more dour view of the first six months of the Trump Administration actions on immigration, it makes no sense to pretend that that enforcing pre-existing immigration laws enacted by Congress is a radical attack on immigration and individual immigrants. Those who disagree with the President's policies can oppose them while recognizing that they fall well within normal legal and policy parameters.

2. THE TRUMP ADMINISTRATION IS INEXORABLY ANTI-IMMIGRANT

Drago insists on multiple occasions that AILA and other liberals are at “war” with the Trump Administration. In the end, he concedes that in the course of waging this war, they may lose many battles, while claiming that these losses will not matter provided that they ultimately win the war.

To be clear, I am not objecting to the hyperbolic rhetoric in and of itself. My objection is that the hyperbolic rhetoric is detached from reality. As I noted in point one, the Trump Administration has hewed to the immigration laws in its first six months. Regarding future policies, President Trump has not only shown an interest in modernizing our immigration system and improving our employment immigration policies [see blog], but he has also noted an interest in “comprehensive immigration reform,” something that should perhaps be more disconcerting to conservatives like me than to AILA [see blog].

Thus far, President Trump has not fulfilled his campaign promise to repeal President Obama's Deferred Action for Childhood Arrivals (DACA) program, which for its noble policy goals, undoubtedly has legal vulnerabilities. To the latter effect, President Trump is in fact facing the prospect of a lawsuit from Texas if he does not repeal the program before September [see article]. It is worth noting that Homeland Security Secretary John Kelly has asked Congress to come up with a permanent solution.

I certainly do not expect that AILA will agree with as many of the Trump Administration's immigration policies as I have thus far and hope to continue to in the future. However, the evidence does not even suggest that the Trump Administration is fanatically opposed to immigrants and immigration. To the contrary, President Trump seems as fluid and amenable to influence on immigration policy as he does on most other issues (regarding both policies I support and policies I would oppose).

3. IN ANY CASE, HOPING FOR INSUBORDINATION FROM GOVERNMENT OFFICIALS IS A LOSING STRATEGY

Let us assume for argument's sake that Drago's read on the situation is correct, that President Trump is waging a war on our immigration system and on immigrants, and that the only response is to engage in this war. If the battle strategy is to hope for individual acts of defiance and insubordination by government officials who have sworn an oath, then I must agree with what Drago himself seemed to concede in his conclusion: President Trump will be winning the vast majority of battles going forward.

Government employees can and should refuse to follow clearly unlawful orders. Alas, Drago does not identify any such orders from the Trump Administration. Rather, he identifies lawful policies with which he disagrees, and he then encourages government officials to defy lawful orders and directives issued to implement those lawful policies. This argument is, on one hand, fruitless and, on the other irresponsible and counterproductive. For example, if one encourages an official at the DOJ to shirk his or her responsibility to defend the legal position of the Government when that position is legally defensible, what would stop someone from arguing that an immigration attorney should sabotage his or her client's legal case if the attorney dislikes the client? Neither Drago nor I nor any upstanding member of AILA or the broader immigration bar would contemplate such a disgraceful action, but that is exactly the point. It is fair enough if a government official comes to the conclusion that he or she cannot follow an order, lawful or unlawful. In such a case, the government official should resign for this principle rather than engage in insubordination.

To be fair, Drago did cite several arenas where officials likely retain discretion in the Trump Administration. Any immigration attorney understands that our immigration system counts on Government officials acting reasonably and out of good will within the parameters of their discretion. This is true no matter who the president is. However, Drago's invocation of Sally Yates makes clear that he is more broadly encouraging insubordination. I discussed the Yates issue when it happened [see blog]. In short, she not only declined to defend President Trump's original Travel Executive Order, which had been determined by the Office of Legal Counsel to be legal on its face, because she did not personally believe it was legal, but she also instructed the attorneys at DOJ to follow her lead. Whether Yates sincerely believed that the Order was illegal or whether she merely disagreed with it on policy grounds was irrelevant. Yates's job was to represent the government's position where there were reasonable legal arguments to be made in favor of that position. Instead of doing the proper thing and resigning if she could not fulfill her responsibility (which would have been reasonable), she engaged in insubordination, and was rightfully fired regardless of one's position on the merits of her argument.

Those actions were not admirable, but improper. To encourage others to act similarly is not a strategy but rather a fantasy. Furthermore, Yates did not “pa[y] for [her decision] with her government career.” Yates, a prominent political appointee and holdover from the Obama Administration, was invariably already on her way out of government regardless and onto a lucrative private career. For whatever it is worth, Yates likely has more options for her future as a result of the publicity she garnered from her insubordination than she would have had she resigned quietly or, alternatively, continued to do her job at DOJ. The same would likely not apply for less credentialed and prominent government employees who opt to follow Drago's presumably well-intentioned but catastrophic career advice.

CONCLUSION

Unsurprisingly, it does not seem like AILA and its leaders are inclined to take my advice on immigration advocacy. Although I often disagree with AILA, I nevertheless find this unfortunate, as they and other more liberal groups have plenty to offer in advocating for immigrants and supporting some effective measures for modernizing our immigration system. Unfortunately, much like President Trump himself when he regales audiences with stories of his decisive Electoral College victory, AILA is choosing to re-litigate the mercifully concluded and fully resolved 2016 presidential campaign. The “war” described in Drago's post invokes less an image of a climactic struggle than it does simple virtue signaling. Unfortunately, this virtue signaling will constitute a significant missed opportunity for immigration advocates for however long it persists.

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. Drago, Anthony. “Will Government Employees Show Some Moxie in the Immigration Struggle.” AILA. June 30, 2017. http://www.thinkimmigration.org/2017/06/30/will-government-employees-show-some-moxie-in-the-immigration-struggle/ [link]

Lawyer website: http://myattorneyusa.com

Pentagon Reportedly Considering Termination the MAVNI Program

On July 3, 2017, NPR reported that the Pentagon is considering dismantling the Military Accessions Vital to the National Interest (MAVNI) program, which was originally established in 2009 [link].[1]

NPR's reporting is based on an internal memo from Pentagon officials written for the Secretary of Defense, James Mattis. NPR describes the memo as noting the following concerns in supporting its recommendation that the MAVNI program be terminated:

• Inadequate vetting of recruits under MAVNI;
• Risk that recruits have connections to foreign intelligence services; and
• “Elevated” risk of an insider threat.

According to NPR's reporting, the internal memo states that there are nearly 10,000 individuals in the MAVNI program. The memo divides these individuals into four groups, with each group reflecting a different potential security risk. NPR adds that some individuals in MAVNI who are already serving in the military have been flagged for enhanced security screening. Others, who have not yet undergone basic training, “would be separated from the military or have their enlistment contracts canceled.” NPR suggests that approximately 1,000 of the recruits who are awaiting naturalization could face potential immigration consequences were their enlistments to be canceled due to the fact that their visas have expired.

As we discussed in an earlier post, the MAVNI program was initially suspended in the summer of 2016 [see blog]. The suspension was prompted by the discovery that numerous individuals recruited under MAVNI had offered false educational credentials when seeking benefits. The memo reportedly suggests that the ensuing security review has proven to be taxing on the Pentagon's resources, especially those of the U.S. Army.

On June 16, 2017, the MAVNI Center posted a clip from a United States Army Reserve Command town hall meeting. We have embedded the video below for your convenience [see here].

In the clip, Major General Jeffery J. Snow restated that MAVNI remains suspended, something that he described as being “unfortunate.” He acknowledged that he was “sensitive about the fact” that there are approximately 1,800 future soldiers in the future soldier training pool who are affected by the MAVNI suspension. He added that many more soldiers have already undergone training but, due to the security review, they “have actually not been able to go to their first unit assignment.”

Major General Snow explained that the Army is currently prioritizing the process for those soldiers who “are actually in the training base to complete their additional security screening before they actually go to their first assignment.” He added that the implication of this is that those who are currently still in the future training pool are “unfortunately … going to be there a little bit longer.”

Major General Snow stated that he wished the situation were different and that the Reserve Command is continuing to track the situation. However, he added that decisions relating to the future of the MAVNI program and those affected by its suspension are made at a higher level, and that Reserve Command is waiting for more information like everyone else. He promised that the Reserve Command would provide updates on the situation when information becomes available.

MAVNI has been a valuable program for thousands of individuals here in the United States illegally. It allows many of these individuals to earn legal status in the United States in return for military service. We are certainly not privy to all of the security and resource allocation issues that appear to concern the Pentagon, and we acknowledge that those issues may weigh against continuing the MAVNI program in the long run, no matter how unfortunate that would be for many individuals who would otherwise serve in the military in return for the promise of a path to citizenship.

However, notwithstanding the ultimate fate of MAVNI, the individuals who signed up with the assumption that their service would lead to legal status must be accounted for. While certain individuals may have misrepresented facts in their applications or otherwise may present bona fide security risks, many others followed the proper rules and procedures. Those in the latter group should not be left out to dry if the Pentagon ultimately terminates MAVNI. Congress should take an interest in the situation if the Pentagon ultimately fails to account for these individuals en masse.

We will update the site with more information on MAVNI as it becomes available. Individuals with questions should consult with an experienced immigration attorney for up-to-date information. To learn about citizenship and naturalization in general, please see the relevant section of our website [see category].

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. Gonzales, Richard and Tom Bowman. “Pentagon Considers Canceling Program That Recruits Immigrant Soldiers.” NPR. NPR.com. July 3, 2017.

Lawyer website: http://myattorneyusa.com

EOIR Appoints New Acting Deputy Director

On July 3, 2017, the Executive Office for Immigration Review announced that Katherine H. Reilly has been appointed as the new EOIR Acting Deputy Director [link]. As EOIR Acting Deputy Director, she will supervise the EOIR's components and assist the EOIR in formulating and administering policies and strategies.

Prior to her appointment as EOIR Acting Deputy Director, Reilly served within the EOIR's Office of General Counsel as Chief Counsel of the Employee and Labor Relations Unit. Reilly had previously served in various capacities as a lawyer in the Federal Government, including with the United States Postal Service Office of Inspector General, the Federal Trade Commission, and the United States Attorney Office for the Northern District of Texas.

Please see our recent blog post to read about Acting Deputy Director Reilly's immediate superior, Acting Director James McHenry [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

New Jersey Chief Justice Letter Regarding Immigration Arrests in New Jersey Courts

On April 19, 2017, New Jersey Supreme Court Chief Justice Stuart Rabner submitted a letter to the Department of Homeland Security (DHS) objecting to the immigration arrest of two individuals as they were making required appearances in New Jersey Court for criminal proceedings. You may read the full letter here (courtesy of nj.com [link and see source]) [PDF version]. In his letter, Judge Rabner objected on the basis that “[a] true system of justice must have the public's confidence,” and that immigration enforcement activities in courthouses hurt this objective. Judge Rabner stated that he shared the DHS's concern for the rule of law, but he asked that it “find a thoughtful path to further that aim in a way that does not compromise our system of justice.”

A spokesman for the United States Immigration and Customs Enforcement (ICE) stated that the ICE only arrests targets at courthouses after all other options have been exhausted. He added that tracking criminal aliens is resource intensive, and that in certain cases courthouses provide “the most likely opportunity” to locate a target and take him or her into custody”. Furthermore, he added that courthouse arrests are safer for agents because courthouses have metal detectors and other screening processes.

New Jersey Governor Chris Christie sided with the DHS, but he went further by taking the position that it was inappropriate for Judge Rabner to have become involved in the issue.

We wrote about a similar dispute between the Chief Justice of California and the DHS and Department of Justice a couple of months ago [see blog].

One difference between the situation in California and the situation in New Jersey is that more jurisdictions in New Jersey are cooperative with the ICE, something that was in fact noted by Judge Rabner. Arresting criminal aliens is ICE's prerogative and an important job for ensuring public safety. Likewise, the ICE should, to the maximum extent practicable, seek to make arrests in ways that will not have collateral consequences.

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.

SOURCE:

Sullivan, S.P. “N.J.'s chief justice asks ICE to stop arresting immigrants at courthouses.” nj.com. (Apr. 20, 2017). http://www.nj.com/politics/index.ssf/2017/04/nj_top_judge_asks_ice_to_stop_arresting_i

Lawyer website: http://myattorneyusa.com

DACA

What is the Deferred Action for Childhood Arrivals (DACA) Program?

The DACA program was enacted by the administration of former President Barack Obama on June 15, 2012, through a Department of Homeland Security (DHS) memorandum authored by then-Secretary of Homeland Security Janet Napolitano.

The DACA memorandum instructs immigration agencies to exercise prosecutorial discretion towards certain aliens present in the United States without legal authorization who arrived in the United States as children.  Understanding that DACA is based on “prosecutorial discretion” is key.  In short, this means that DACA beneficiaries remain removable under the immigration statutes, but they are permitted to stay – provided they adhere to certain conditions – as an exercise of discretion on the part of the DHS.

In this article, we will examine the DACA memorandum and subsequent United States Citizenship and Immigration Services (USCIS) guidance found on its website to provide an overview of DACA.

Who is Eligible for Relief Under Deferred Action for Childhood Arrivals?

DACA is not available to all aliens who arrived in the United States as children and lack legal status, but only to a limited subset thereof.

In order to apply for DACA for the first time, the applicant must have been under the age of 31 as of June 15, 2012, must have come to the United States prior to his or her 16th birthday, and must have continuously resided in the United States since June 15, 2007, until making the application.  The applicant must have been physically present in the United States on June 15, 2012, and at the time he or she applies for DACA.  The applicant must have lacked lawful status in the United States on June 15, 2012.  “Brief, casual, and innocent” departures between on or after June 15, 2007, but before August 15, 2012, will not be considered interruptive of continuous residence for first-time applicants.

In addition to these requirements, there is an education or military service requirement for DACA eligibility.  An individual who is currently in school is eligible for DACA.  An individual who is not in school and who is otherwise eligible must have graduated high school or have obtained a GED, or must be an honorably discharged veteran of the Coast Guard or the Armed Forces of the United States.

Finally, the DACA applicant will be ineligible if he or she has been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors.  A DACA applicant will also be ineligible for DACA if it is determined that he or she otherwise poses a threat to national security or public safety.

In general, an individual must be 15 years or older in order to apply for DACA.  However, an individual younger than 15 may apply for DACA if he or she is otherwise eligible and currently in removal proceedings or subject to a final removal or voluntary departure order.

Filing an Application for Deferred Action for Childhood Arrivals

The DACA application is filed on the Form I-821D, Consideration for Deferred Action for Childhood Arrivals.  Applicants for DACA are also required to file the Form I-765, Application for Employment Authorization, and the Form I-765WS, Form I-765 Worksheet.  The Form I-821D has a non-waivable application fee of $495.  The Form I-765 also has a non-waivable application fee of $495 (including biometrics fee).  However, in very limited circumstances, a DACA applicant may be eligible for a fee exemption.  These same forms are required for DACA renewal applicants.

Applicants seeking DACA for the first time must submit extensive documentation establishing their eligibility for DACA.  For this reason, DACA applicants are strongly advised to work closely with an experienced immigration attorney.

Applicants seeking to renew DACA generally do not need to submit new documentation unless immigration or criminal circumstances arose subsequent to the previous DACA application.

There is no appeal from the denial of a DACA application.  This is because the decision whether to grant DACA is discretionary.  However, an applicant may contact the USCIS if he or she believes that the application was denied because of an administrative error on the part of the USCIS.

Maintaining and Renewing Deferred Action for Childhood Arrivals

DACA status may be approved in increments of two years.  DACA recipients are advised by the USCIS to apply for renewal between 120 and 150 days prior to the expiration of their Employment Authorization Documents (EADs).  DACA can be rescinded at any time.

A small subset of DACA recipients received DACA for periods of three years.  Although that three-year period will not be curtailed, those DACA recipients will thereafter only be eligible for two-year extensions, provided that DACA remains in effect.

While on DACA, a recipient may attend school or engage in employment under his or her EAD.

DACA recipients must be careful about any departures from the United States.  An unauthorized departure will interrupt continuous residence in the United States.  Prior to departing the United States, a DACA recipient should apply for advance parole by filing the Form I-131, Application for Travel Document.  Individuals who have previously been ordered deported or removed must be especially careful.  Before considering applying for advance parole, a DACA recipient should discuss his or her specific situation with an experienced immigration attorney.

Any violations of DACA status can lead to the termination of DACA and render the DACA recipient subject to removal.

While deferred action is in effect, a DACA recipient does not accrue unlawful presence for purpose of the 3- and 10-year inadmissibility bars.  However, DACA does not excuse any prior or subsequent periods of unlawful presence.

Uncertain Future for Deferred Action for Childhood Arrivals

Two events have thrown the future of DACA into doubt.  First, former President Obama’s expanded Deferred Action for Parents of Americans (DAPA), which included limited expansions to DACA, was stymied in Federal courts.  Ultimately, the DHS under President Donald Trump rescinded the DAPA memorandum, including its provisions expanding DACA benefits.

The second event was the election of President Trump.  During the campaign, President Trump stated his opposition to DACA while simultaneously signaling his openness to a more permanent solution for beneficiaries of the program.  Since taking office, the Trump Administration has continued to implement DACA.

However, after succeeding in its challenge to DAPA, Texas (joined by several other states) informed the Trump Administration that it would challenge the legality of DACA if the Trump Administration does not cease issuing new DACA permits by September 5, 2017.  It is important to note that Texas is not insisting that the Trump Administration rescind DACA permits already in effect or prioritize the removal of those eligible for benefits under the current DACA memorandum.  However, Texas is seeking the end of the DACA program going forward.

Thus far, the Trump Administration has not given a definitive answer to the question of whether it will take steps to end the DACA program or instead opt to defend its legality in court.  The DHS has indicated that it has doubts as to whether the program would be upheld in court, notwithstanding support for the policy from the Secretary of Homeland Security.  To be sure, it is quite possible that, given their similar structures, DACA would be susceptible to some of the same challenges that ultimately prevented the broader DAPA program from taking effect.

In response, Senators Lindsey Graham and Dick Durbin have introduced “Dream Act” legislation to provide for a statutory solution for many of the individuals benefitting from DACA.

It remains to be seen whether the Trump Administration will defend DACA and whether legislative efforts in congress will gain traction.

Conclusion

DACA provides important but also limited benefits to those who are eligible.  DACA allows a limited class of individuals who are in the United States without legal authorization to work legally and not be targeted for removal.  However, DACA does not confer an immigration status, and it does not provide any benefits besides work authorization, the ability to travel on advance parole, and limited protection from immigration enforcement.

Because DACA was implemented by memorandum rather than by statute or even regulation, the program faces great uncertainty.  Firstly, it is unclear whether the Trump Administration will maintain it going forward.  Secondly, if the Trump Administration decides to continue implementing the program, it will likely face difficult prospects in federal courts.

Those who are currently on DACA or who are considering applying for DACA should consult with an experienced immigration attorney for 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.

Resources and materials:

Alexander J Segal - "Archived Article on Eligibility Requirements for Deferred Action for Childhood", "Texas Attorney General Threatens to Amend DAPA Lawsuit to Include DACA"

Lawyer website: http://myattorneyusa.com