Friday, June 19, 2020

The Supreme Court Keeps Dreams Alive



The Supreme Court Keeps Dreams Alive

By Chloe Tomlinson, Esq.

 

I.               Introduction

 

On Thursday June 18, 2020 the Supreme Court blocked the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (DACA). This decision addressed whether the Trump administration followed proper procedures in its’ decision to end DACA. In the Court’s Majority 5-4 decision written by Chief Justice Roberts, the Court found that the Trump administration’s decision to end the program was arbitrary and capricious. The Court ruled that the administration acted improperly in terminating the program. This decision provides temporary relief to over 650,000 DACA recipients.

 

II.            What is DACA, and who are The Recipients?

 

“Every great dream begins with a dreamer. Always remember, you have within you the strength, the patience, and the passion to reach for the stars to change the world.” Harriet Tubman. The DACA recipients, also known as Dreamers, consist of over 650,0000 recipients, who are positively changing our country. They are medical professionals, teachers, activists, students, and parents to name a few.

 

The DACA program was implemented on June 15, 2012 by the Obama administration. It was implemented through a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which established the program known as Deferred Action for Childhood Arrivals (“DACA”).

 

The 2012 memorandum stated that,

 

“[T]o prevent [these] low priority individuals from being removed from the United States,” the DACA Memorandum instructs Immigration and Customs Enforcement to “exercise prosecutorial discretion on an individual basis . . . by deferring action for a period of two years, subject to renewal.”[1]

 

This program protects undocumented immigrants who were brought to the United States as children but does not provide a path for legal citizenship. The program created a two-year grant of deportation relief and work authorization to eligible young unauthorized immigrants. DACA recipients may request work authorization and are eligible for Social Security and Medicare.

 

The requirements for DACA included:

 

·       being at least 15 years old;

·       having entered the United States before the age of 16;

·       having continuously resided in the United States since June 15, 2007;

·       being enrolled in school, having earned a high school diploma or its equivalent, or being an honorably discharged veteran; and

·       having not been convicted of a felony, significant misdemeanor, or three or more misdemeanors; or otherwise posing a threat to public safety or national security.

 

Over 1.3 million people met the above-mentioned criteria to apply under the DACA program. As of September 30, 2019, approximately 652,880 individuals had active DACA status, according to USCIS. Americans have been largely in favor of this policy. A Pew Research survey conducted in June 2020 found 74 percent of Americans favored granting permanent legal status to immigrants who came illegally to the United States when they were children, while 24 percent opposed.

 

III.          The Supreme Court Decision blocked the Trump Administration’s attempt to end (DACA).

 

In 2017, the Trump administration announced that it would end the program, which it believed had been illegal in the first place. [2] On September 4, 2017, the Attorney General sent a letter to the Department stating that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. [3] Therefore, on September 5, 2017, Acting Secretary Elaina Duke rescinded the June 15, 2012 memorandum. She stated that due to the complexities associated with this winding down program, there will be a window where certain DACA requests and applications may be adjudicated.

 

In June 2019 the Supreme Court agreed to hear all three cases regarding DACA, in which the lower courts agreed with the challengers. The challengers argued that the decision to rescind DACA violated the rights of DACA recipients and the Administrative Procedure Act (“APA”). The APA requires there to be an articulated, legitimate justification for an administrative action.

 

The issue decided by the Court was not whether DHS could rescind DACA, but rather, whether the agency followed proper procedures in deciding to end DACA. Justice Roberts focused on the Elaina Duke memorandum, in which, the former Acting Secretary stated that DACA was illegal and should be terminated because it made DACA recipients eligible for benefits such as Social Security, Medicare and the ability to work legally in the United States. [4]

In addressing whether the Agency complied with the procedural requirement that it provide a reasoned explanation for its action, the Court found it had not. Justice Roberts stated that,

“In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116 Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.” [5]

 

The Department failed to provide adequate reasons for ending the program. The decision did not focus on whether the terminating DACA was legal, but rather how the agency failed to comply with the procedural requirement, that it provide a reasoned explanation for its action. Justice Roberts said,

 

“Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”[6]

 

The three-circuit split in regard to DACA was ruled in favor of DACA recipients, and against the Trump administration. This decision provides temporary relief to the DACA recipients and allows them to continue to be protected from deportation. However, the Administration can attempt to provide a new justification for terminating the program. 

 

IV.          What Did the President Have to Say?

In response to this ruling, Trump tweeted,

“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices, or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”[7] 

While President Trump advocated for additional Justices in light of this monumental decision, former President Obama tweeted his enthusiasm. This program was implemented in 2012, under the Obama administration. Former President Obama tweeted,

“Eight years ago, this week, we protected young people who were raised as part of our American family from deportation.” “Today, I’m happy for them, their families, and all of us.”[8]

 

V.             Conclusion and What is Next?

This decision is monumental for DACA recipients. While the Court emphasized that this decision was based on procedural grounds, not the legality of DACA, the ruling allows temporary reliefs for hundreds of thousands of DACA recipients. It also sends the message that in this unprecedented time of chaos in our country, there remains some hope for our immigrant community.

 

 



[1] App. to Pet. for Cert. in No. 18–587, p. 97a (App. to Pet. for Cert.)

[2] See Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

[3] See Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

[4] Opinion analysis: Court rejects Trump administration’s effort to end DACA (Updated), June 18, 2020, https://www.scotusblog.com/2020/06/opinion-analysis-court-rejects-trump-administrations-effort-to-end-daca/

[5] 591 U.S. June 2018, 2020

[6] 591 U.S. June 2018, 2020

[7] President Trump’s tweet posed June 18, 2020 at 8:08 am.

[8] President Obama’s tweet posted June 18, 2020, https://twitter.com/BarackObama


Thursday, June 18, 2020

The Supreme Court DACA Decision: What Does It Mean for DACA holders and potentially for DAPA?




The Supreme Court DACA Decision: What Does It Mean for DACA holders and potentially for DAPA?  
By Christopher Kerosky
On July 18th, the Supreme Court ruled in favor of the DACA recipients and against the Trump Administration.  In short, it means immigrants with DACA can continue to renew their status and their work permits,and maintain their reprieve from deportation. 

And the decision might have even larger consequences for DAPA, the Obama Administration program that would have given 5 million immigrants with children born here a similar status, but was shut down by a lower court in 2015. 

The Decision.

The Supreme Court’s decision was 5-4, finding the Trump Administration’s termination of DACA “arbitrary and capricious”.  While this is not a final decision, it affirms the lower courts’ injunction requiring the administration to keep the program open for renewals. To read the decision: https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf

“We do not decide whether DACA or its rescission are sound policies,” the chief justice wrote. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” reads the opinion. 

Who can apply for DACA now?

For now, persons who already have DACA can continue filing renewals.  It is  recommended that applicants do so at least 150 days before their DACA expires.

Unfortunately, new applicants are still not eligible.  That means, young kids turning 15 who would have been eligible for this legal status, are now still subject to deportation.   

The legal battle over DACA continues.

On September 5, 2017, Donald Trump announced the rescission of the DACA program.  Those who have DACA status were to begin to lose their status on March 5, 2018, but a San Francisco District Court judge ordered the government to continue renewals.  While that case was pending, two other federal judges issued similar injunctions against Trump.

Earlier in 2018, the Administration asked the U.S. Supreme Court to expedite its review of these rulings but the Supreme Court refused.  In the meantime, the San Francisco judge’s decision was appealed to the Ninth Circuit Court of Appeals, which ruled against Trump. 

Two other circuit courts – in New York and the District of Columbia—have also ruled against the Trump Administration, issuing similar orders requiring the program to remain open. 
Technically what the Supreme Court has done is send back the case to the lower courts for further proceedings on the legality of DACA.  The Trump Administration does have a legal right to try again to justify the termination of DACA. 

In reality, the program’s fate will probably rest on the election and future legislation (See below). 

What about DACA legislation?

Last year, the House of Representatives passed the Dream and Promise Act, H.R. 6, by a vote of 237-187, pretty much along party lines. This bill, which would have given DACA recipients a path to residence, was never considered in the Senate.  Senate Majority Leader Mitch McConnell refused to let it come to a vote. 

Perhaps after the election, we will see a legislative solution for DACA recipients.

What about DAPA?
Interestingly, the Supreme Court’s decision could have implications for the termination of the DAPA program by a lower court in 2015.  DAPA would have allowed approximately 5 million parents of children born here to get status, a work permit and a reprieve from deportation.  While Trump is unlikely to revive DAPA, Joe Biden might now do so if he wins, and this Court decision might mean that it would survive court challenge – unlike the last time.

Wednesday, June 3, 2020

WHAT CAN YOUNG PEOPLE WITH DACA DO IF THE SUPREME COURT ALLOWS DACA TO END?




WHAT CAN YOUNG PEOPLE WITH DACA DO IF THE SUPREME COURT ALLOWS DACA TO END? 

This month, the Supreme Court will release its decision on whether the Trump Administration’s rescission of the DACA program was valid.  Hopefully the Court will do the right thing and DACA will survive. 

But what to do if DACA is struck down?  The following article contains some advice for current DACA holders.

Likely immediate impact for your DACA status:

If DACA ends, here’s how that would likely affect those who have DACA now:   

·       Current persons with DACA:  Previously issued work permits and DACA approvals would likely remain valid for their full validity period but then not be eligible for renewal.
·      Pending  DACA renewal applications:  Hopefully pending requests for renewal of DACA will be processed.
·      No new DACA renewal applications would be accepted.

Other Options for DACA holders.

There are not a lot of paths to permanent residence in our current broken immigration system, but here’s a few limited possibilities:

1.    Permanent Residence for DACA holders married to a US Citizen.
A 2013 Court decision opened a door for persons with DACA who marry a US citizen to adjust their status in the US.  This is limited to certain DACA holders without prior orders of deportation or other grounds for inadmissibility, and only after obtaining with permission to travel under DACA. 
Unfortunately, the Trump Administration stopped issuing the permits to travel in 2017.  But nonetheless, a lot of persons with DACA did get the travel permit (known as “advance parole”) during in the 5 years between 2012-2017.  If they are married to a US citizen, they can still get a green card through a process lasting only about six months, without a pardon, and without leaving the country. 
2.    Permanent Residence through the Pardon Process.
Even those persons with DACA who did not obtain a travel permit previously can still a green card if they marry a US citizen by applying for waiver known as an I601 pardon.  In March, 2013, the Obama Administration  implemented a rule that has benefitted many thousands of immigrants across the country.   The new regulation allowed spouses of US citizens to apply for their waivers of the 10-year penalty for unlawful presence inside the US.  In November of 2015, President Obama expanded it to spouses and children of permanent residents.  Before, undocumented spouses who came here without a visa risked being barred for 10 years from the US if their waiver was denied. 
Anyone eligible for an I601A waiver should apply now as this process may soon get more difficult or even be eliminated altogether by Trump. If you have DACA and you are otherwise eligible, consult a lawyer first to make sure there is no problem returning.


3.    Other applications through family or work.  
It is not common, but if there are existing petitions previously filed by close family members (e.g. U.S. citizen parents or siblings), there may be circumstances where these petitions can still be used to obtain permanent residence for the DACA holder, especially if DACA was obtained before the age of 18.  But check with a lawyer before you pursue this.

Likewise, in limited circumstances, an employer may be able to sponsor a DACA-holder for a green card through work, a process known as PERM.  But this would usually require that the DACA-recipient have no unlawful presence after age 18.  And the PERM process is not an easy one; it involves an established employer offering a market wage job requiring a college education and/or exceptional skills and then a recruitment process proving that no Americans want that job.  Especially difficult during a recession.   

4.    The U visa for crime victims
The U visa can be used by any victim of a crime to apply for status with the Immigration Service if they can show they were harmed by a crime occurring in the United States and cooperate with the U.S. authorities in trying to apprehend or prosecute the perpetrator.
To qualify for a U visa, a person must show that:

·       the person has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity in the United States;
·       the person … possesses information concerning criminal activity;
·       the person has been helpful to a Federal, State, or local law enforcement official, including police and/or a prosecutor investigating the crime.
The applicant must have suffered “substantial” harm as a result of the crime, although the crime can be emotional or physical. 



A solution for all DACA holders.

We should all support action in Congress to provide a legislative solution for those with DACA.  In June, 2019, the House of Representatives passed the American Dream and Promise Act of 2019. This bill cancels and prohibits removal proceedings against certain aliens and provides a path to permanent residence for DACA-eligible young immigrants. For more information or to sign a petition in support of a DREAM Act law, go to: https://action.unitedwedream.org/petitions/keep-the-deferred-action-for-childhood-arrivals-daca-program

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law for over 25 years and has been recognized as one of the top immigration lawyers in Northern California for 10 years by “Super Lawyers”.  https://profiles.superlawyers.com/california-northern/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html. He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.
Aplicación pendiente de DACA: Quienes aplicaron por primera vez por el DACA y su permiso de trabajo continua en proceso podrán obtener status. Sin embargo, CIS no aceptara nuevas aplicaciones a partir de hoy.
Aplicación pendiente de DACA: Quienes aplicaron por primera vez por el DACA y su permiso de trabajo continua en proceso podrán obtener status. Sin embargo, CIS no aceptara nuevas aplicaciones a partir de hoy.
• Renovaciones pendientes de DACA: Las aplicaciones pendientes serán procesadas.
• Nuevas renovaciones de DACA: Los beneficiarios DACA que tienen permisos de trabajo con fecha de expiración entre el 5 de septiembre del 2017 y marzo 5 del 2018 podrán renovarlo por ultima vez. Las renovaciones deberán ser aceptadas por DHS antes del 5 de Octubre de 2017. Todavía no se sabe si el DHS otorgará renovaciones por el período completo de dos años o un período más corto.

• Aplicación pendiente de DACA: Quienes aplicaron por primera vez por el DACA y su permiso de trabajo continua en proceso podrán obtener status. Sin embargo, CIS no aceptara nuevas aplicaciones a partir de hoy.
• Renovaciones pendientes de DACA: Las aplicaciones pendientes serán procesadas.
• Nuevas renovaciones de DACA: Los beneficiarios DACA que tienen permisos de trabajo con fecha de expiración entre el 5 de septiembre del 2017 y marzo 5 del 2018 podrán renovarlo por ultima vez. Las renovaciones deberán ser aceptadas por DHS antes del 5 de Octubre de 2017. Todavía no se sabe si el DHS otorgará renovaciones por el período completo de dos años o un período más corto.
• Aplicaciones para permisos de viaje: No se aprobaran aplicaciones de permisos de viaje (Advance Parole) para quienes tienen status DACA. Todas las aplicaciones pendientes serán cerradas administrativamente y se devolverá el dinero abonado.
• Permisos de viaje aprobados: Aquellos permiso de viaje previamente aprobados generalmente serán honrados, aunque DHS conserva la autoridad para negar la admisión y/o revocarlos cuando lo considere apropiado.
El memo publicado por DHS lo puede encontrar en: https://www.dhs.gov/ne…/2017/…/05/memorandum-rescission-daca.
Debemos entre todos apoyar al congreso a que pasar una solución legislativa permanente para beneficiarios DACA. La mejor de estas propuestas es el Dream Act de 2017. Para mayor información visite:





Friday, May 29, 2020

IMMIGRATION COURT POSTPONES ALL NON-CUSTODY HEARINGS UNTIL JUNE 26, 2020.





IMMIGRATION COURT POSTPONES ALL NON-CUSTODY HEARINGS UNTIL JUNE 26, 2020.  

it was just announced that Hearings in non-detained cases at other immigration courts are postponed through, and including, Friday, June 26, 2020.

Individuals with hearing dates before that date will receive notice of rescheduling of their hearings.

Thursday, May 21, 2020

RENEW YOUR DACA NOW




RENEW YOUR DACA NOW

By Liliana Gallelli, Esq.

I urge you to renew DACA while it is still possible.

United States Citizenship and Immigration Services (USCIS) is still accepting DACA renewal applications. BUT we are bracing for the US Supreme Court Decision which will be rendered no later than June 2020. US Supreme Court Decisions are published every Monday.

As a result of the Trump Administration’s decision to terminate DACA, there were various cases filed against the termination of DACA, including Regents of the University of California, et al. v. Dept. of Homeland Security (DHS), Batalla Vidal v. Nielsen, and NAACP v. Trump.

The Supreme Court heard oral arguments in November 12, 2019 and will soon issue its decision, possibly as early as next week.

There are several potential outcomes of the Supreme Court’s review of these DACA cases:

• “The Supreme Court concludes that courts may not review the Trump administration’s decision to terminate DACA.” The Trump administration could then proceed to terminate DACA, and decide what to do with DACA applications. However, a future administration could reinstate DACA without challenge from any courts based on this preceding case.

• “The court concludes that it may review the administration’s decision to terminate DACA and rules that the termination is unlawful. This would be a win for DACA recipients.” DACA would revert back to its pre-September 2017 state. However, there is no certainty as to how the Trump administration would react to this decision. There could be other attempts to end DACA based on different legal reasoning.

• “The Court concludes that it may review the decision, and it decides that the Trump administration’s termination of DACA is lawful.” Thus, the Trump administration will determine how DACA is dealt with, particularly with renewal applications, work permit expirations, etc.

Sunday, May 17, 2020

ONE IMMIGRANT AMONG MANY SERVING OUR SICK IN THE AGE OF COVID-19



ONE IMMIGRANT AMONG MANY SERVING OUR SICK
IN THE AGE OF COVID-19

By Christopher Kerosky

Immigrants are among the many now fighting on the front lines of the corona virus epidemic: in hospital emergency rooms and ICUs, nursing homes and acute-care facilities, and emergency medical teams across the country. More than 3 million immigrants work in the U.S. health care system, accounting for about 1 in 4 workers in that field, according to research by Harvard Medical School.  Approximately 29% of all doctors are foreign-born and 23% of all nurses and nurse’s assistants, according to the American Medical Association.

One of these immigrants is Leonor Carreno—a certified nurse’s assistant (CNA) in Sonoma County.  Leonor has had a particularly difficult immigrant path – including being jailed and almost deported -- simply for getting a CNA license without having a green card.  After years of fighting deportation, she gained her legal status.  And now like many other immigrants across our country, Leonor is caring for elderly and sick Americans-- those most at risk from the deadly corona virus.

Here’s her story.

Leonor’s immigrant journey

Leonor is a native of Oaxaca, a beautiful but impoverished part of southern Mexico with a large indigenous population.  She made the long perilous journey to the United States with her three-year-old son in 1998. They crossed the border near Calexico without papers, at a time when our borders were easier to pass through.  The two joined her husband in Petaluma, where she still lives today.

Leonor went to work on a farm at first, working long hours at low wages to help her family survive.  At nights she learned English and studied for the CNA exam, which she took and passed in 2002.  Leonor began to work at a post-acute care facility and worked a second job on nights and weekends as a caregiver in private homes. 

A second son was born two years later.  Her life was demanding, with two children and two jobs, but the future looked bright.

Arrest and Deportation Court.

Then, in 2011, her happy life fell apart suddenly and unexpectedly.  A disgruntled employee reported her and six other undocumented nurses working at the facility.  All seven women were arrested and held without bail.  Leonor was incarcerated for 21 days.  When she was finally released by law enforcement authorities, ICE agents took her into custody and began deportation proceedings. 

Leonor’s only crime: obtaining a certified nursing assistant’s license as an undocumented immigrant.

The deportation case against her lasted 8 years, languishing in the immigration court in San Francisco while she and her family awaited her fate. Finally, last year, an immigration judge approved her application for cancellation of deportation, finding that she had “good moral character” and that her U.S.-born son would suffer exceptional hardship if she would be deported to Mexico.

Faith, Family and Work.

Like so many immigrants, Leonor’s life has been centered on her family, her faith and her work.  Throughout her ordeal, Leonor’s faith in God has sustained her.  She is very active in her church, the Iglesia Pentecostal Unida, a Spanish-language Christian church in Petaluma.  Leonor assists the pastor with services and volunteers her time to the religious community. “I feel so blessed by God for granting me the right to stay in this country.”

Her family is another pillar of her life.  Leonor is very close to her two sons, David, 24, and Ovid Josue, 18. Both sons appreciate the sacrifices their mother has made to provide them a life in this country.  David and Ovid have both followed in their mother’s footsteps, pursuing their own careers in the medical field.

Leonor continues to work two jobs, caring for sick and the elderly.  When she regained her right-to-work, Leonor went back to work full-time at her post-acute care facility.  And she still works a second job as a private care-giver. 

Immigrants on the front lines.

Her story is not completely unique.  Our nation’s hospitals and other health care facilities have long relied on immigrants to fill the role of doctors, nurses, EMT workers, and medical technicians.  Now they are serving their adopted country when it is a particularly dangerous time to be caring for our sick.  As of April 2nd, the CDC has reported that 9,282 health care workers have contracted COVID-19, 723 have been hospitalized and 27 have died.  Surely those numbers will continue to climb. Still they serve.

“It has always been such a special blessing for me to work caring for the sick and elderly,” says Leonor.  “and now I feel particularly fortunate to be able to contribute to this country in this difficult moment for all of us.” 

In fact, Leonor, the good fortune is ours.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law more than 25 years and has been recognized as one of the top immigration lawyers in Northern California for 10 years by“Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and six other locations in California. 

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.


WHO CAN APPLY FOR DACA NOW, AND WHO CAN TRAVEL OUTSIDE THE U.S. AND HOW?

  WHO CAN APPLY FOR DACA NOW, AND WHO CAN TRAVEL OUTSIDE THE U.S. AND HOW? New DHS Policy On Initial DACA Applications, Advance Parole (Ri...