Recent upswing of detention of undocumented individuals in Omaha is the result of mixed messages from “guidance” on reform

Many immigrants in the Omaha community have recently felt the effects of an increase in the detention of undocumented individuals with minor criminal records, particularly those with past Driving Under the Influence, or DUI convictions. A large portion of those detained may have DUI convictions from a decade or more ago. Further, many undocumented individuals in the Omaha area that are on probation, attempting to make amends for their convictions, are being detained as well. These detentions can be largely attributed to a “re-prioritizing” done by ICE under directives by President Obama.

Last fall, when he announced his program, frequently referred to as “DAPA,” the President also presented a desire to focus on undocumented individuals with criminal records and those who arrived in the United States illegally recently. In response to that announcement, the Secretary of the Department of Homeland Security laid out removal priorities in a memo to the heads of ICE and other immigration agencies. These removals included a special focus on serious, and less serious, criminal offenders. While the memo largely deals with serious felony offenders, it specifically draws focus to those with DUI convictions. As such, with this being their guidance, ICE started prioritizing detaining those with DUI convictions.

In their zeal, ICE has detained many people who are not remotely a threat to the safety and security of the United States. Last month, a pastor in Iowa, who had spent much of his life in the United States, raising his family, was deported by ICE after being detained on a 17-year-old DUI conviction. The man had no other DUI convictions. The pastor’s story is not unique, unfortunately.

Defending someone with a DUI is never easy and hardly ever a popular position. Drunk drivers kill thousands of people every year. However, the problem with the recent focus on DUI’s by ICE is that it overlooks curative effects in the criminal justice system and creates even more hardship for immigration officials. No one should ever drive while intoxicated, but as a criminal defense attorney, let me tell you, it can happen to anyone. The criminal justice system in Nebraska, at least, takes in to consideration the fact that anyone can receive a first offense DUI conviction when it comes to sentences. For the most part, in the Omaha area, for a first offense DUI, you will liklely receive 6 months of probation along with being required to complete a chemical dependency evaluation and be ordered to complete recommended treatment. Again, this is in general, be sure to consult your attorney for the specifics of your case. The point of this particular sentence appears to be a recognition that a first-offense DUI does not make someone a hardened criminal while ensuring an appropriate punishment to deter future bad actions from happening.

The November memo makes no distinction between a first DUI and a third DUI, it only references DUI’s a broad category. It further does little to take in to consideration any curative steps taken by those with DUI convictions, such as probation or AA treatment. While the memo may conclude with references to individual case by case determinations, in reality, ICE isn’t discriminating. They are seeking out those with DUI convictions regardless of the individual’s particular circumstances. In doing so, ICE is exposing these people to harsh consequences well beyond anything considered in the criminal courts. The criminal justice system focuses, at least in part, on rehabilitation. The actions recently taken by ICE and other immigration authorities are ignoring any attempts at dealing with rehabilitation and instead, focusing on strict enforcement and terrible results.

Further, by focusing on those with DUI convictions, especially those in which the person actively participated in probation, ICE is encouraging others charged with DUI’s to become fugitives from teh law. What reason would someone have to follow along with a criminal process that could be in their best interest if ICE is going to ignore it and put them into custody anyways. A few months ago, the Douglas County Probation offices stopped referring their cases to ICE because it was obvious to everyone that such reporting encouraged undocumented individuals to ignore court orders and become fugitives form the law. It seems that ICE is ignoring these effects, however, and pushing forward with blind enforcement.

Finally, by focusing on those with very old convictions, ICE is placing a large number of people in proceedings that will be waiting years for some sort of resolution to their case. The longer an individual is present in the United States, the more likely they will become eligible for Cancellation of Removal. Cancellation for Non-permanent Residents is typically available for those with 10 years of presence in the United States with U.S. citizen family members who would experience hardship if their family member was removed from the U.S. A DUI conviction would necessarily make an immigrant ineligible to apply for this relief. The problem with placing large numbers of people into proceedings who are eligible  for this relief is that there are very few visa numbers available for people who receive cancellation. Its not uncommon for someone who is attempting to receive cancellation to wait years after they have presented their case before they ever become capable of receiving cancellation. By indiscriminately placing individuals with very old DUI’s into proceedings, ICE is creating a whole group of people who may be eligible for relief, but were already at  disadvantage prior to the pool of people applying for cancellation expanding exponentially. All this does is continue to compound the backlog of immigration cases currently pending.

ICE appears to have tunnel vision right now as it relates to DUI offenders. No one should drink and drive, but one bad mistake a lifetime ago should not be used to destroy the life of someone who has followed all the legally required steps to deal with their mistake. If your loved one was detained by ICE recently as a result of a DUI or any other conviction, remember they have rights. ICE seems intent to continue down this path, but that’s no reason to make their jobs easy for them.

DOJ files its Initial Brief with 5th Circuit Court of Appeals; Here is our Summary of the Arguments

Earlier this week, attorneys for the Department of Justice submitted their Appellate Brief to the 5^th Circuit Court of Appeals arguing for an end to the temporary injunction put into place by Judge Hanen in the District Court of Texas. The injunction places a national block on the implementation of the President’s proposed DACA and DAPA expansions.

The Brief is 60 pages long and lays out the Obama Administration’s arguments for why the president has the authority to executively order the programs he’s proposed. I’m not going to go through every page of the brief, but some of the points in it are very well offered. While I’ll be going over the highlights, if you wish to view the brief in its entirety, visit http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/30/immigration_ca5_-_us_pi_brief.pdf

I am a former competitive high school and collegiate debater, which probably explains a lot of why I became an attorney. In competitive debate, there is term called a “turn.” A turn is a short-hand way of taking your opponent’s arguments and making the outcome of them the exact opposite of what your opponent claims they are. You make their impacts strengthen you whole case. The first big chunk of the Government’s brief may as well say, “Turn, Turn, Turn” because the Government’s attorneys turn all of the State’s arguments on their heads. It may be because I’m a debate nerd, but it is quite fun to read.

The argument begins by the Government point out, rightfully so in my humble opinion, that the State’s arguments, and the District Court’ Judge’s injunction, violate the separation of powers clauses in the Constitution. Specifically, the Government argues that the States did not demonstrate the required elements of Article III standing. The States would have to present an injury that is (i) concrete, particularlized, and actual or imminent; (ii) fairly traceable to the challenged action; and (iii) redressable. Clapper v. Amnesty Int’l USA,133 S. Ct. 1138, 1147 (2013). To demonstrate this, the Government points out, in several different ways, the fact that there is no actual injury in this case, but instead, Turn, by allowing the Executive Orders, many benefits will be granted to the States and the Federal Government.

The Government also points out that there is substantial case law that says that the exercise of Prosecutorial Discretion is beyond the realm of judicial review. In the Justice system, there are limited resources that all prosecuting authorities have to work with in order to carry about their jobs. For example, all criminal prosecutors have to decide whether to bring a criminal action against some one because no prosecutor has the resources to criminal prosecute every criminal. Sometimes, lesser offense just get dropped because it would be an unwise use of resources to prosecute them. All these initiatives to is make clear who the Government should focus its limited resources on.

One of the interesting things that happened with the initial injunction, was that the Court on its own power furthered a theory called “abdication standing.” I say interesting because apparently the Peititoners didn’t ask the Court to decide anything on this, the Court just decided it was a good idea. Basically, the Court new what decision it wanted to make and filled in “legal theory” to support it. Abdication standing says that when the Federal Government claims to solely control an aspect of American life, but isn’t actually controlling it, then States have standing to sue the Government. While this novel idea is … cute, its not actually what is happening with these proposals. As the Government points out in this brief, with clear guidelines and a focus on dangerous people, the Government will actually be using the limited resources it has been given to deport the people that need deported and make the country safer. I generally agree with this idea, but recent focuses from ICE on people with minor criminal backgrounds, I am slightly concerned with their new focus. However, we’ll get to that at another point.

Another argument that the State of Texas made in attempting to get the injunction relates to drivers licenses. State’s incur costs by issuing driver’s licenses to people and Texas, and the District Court, believes that such costs give them standing to sue. However, the Government points out an overriding principal here that is important: Texas does not have to issue driver’s licenses to those granted the status. That’s state law, not federal law. The District Court focused on the decision in Arizona DREAM Act Coalition v. Brewer, 757 F.3d 1053 (9^th Cir 2014) and assumed that the decision in that case required State’s to issue driver’s licenses to “dreamers.” However, as the Government points out, the decision in ADAC simply applied established equal protection rights to the case. The ADAC decision simply stated that States could not give some people with work permits driver’s licenses and withhold them from others for no good reason. Finally, the State’s argument regarding costs fails as well because, Turn, the directives would actually increase a State’s tax-base and therefore its income. Basically, any costs the State incurs will be outweighed by the extra tax income it would receive from people with work permits.

After turning all of the State’s arguments, the Federal Government moved onto furthering their own arguments. Much of their argument surrounds the Administrative Procedures Act, or APA and the procedures required to bring a claim under it. The APA governs all actions taken by administrative organizations, like DHS or the Social Security Administration. The Texas District Court claimed that the Administration violated the Notice and Comment period required under the APA. Notice and Comment is required when an administrative agency offers new rules regarding their conduct, rules that bind the actions of its employees and agents. However, the Government points out correctly that notice and comment is only required when there is official rule-making, not on statements of policy. Statements of policy from an administrative agency do not make new rules, but simply offer guidance on pre-existing rules. In this case, the administration is clarifying removal priorities in a specific direction consistent with the economic realities of running an organization like DHS. Further, the work permits contemplated by the President’s executive orders are not newly authorized permits, but are instead authorized under 8 C.F.R. 274a.12(c)(14), a 1981 law.

Finally, the individuals that are eligible for this program are limited by presence, familial relationship and criminal record. This, as the Government points out, is a self-selecting, self-limiting group. People who do not meet the criteria are unlikely to report themselves in for this program, so it will not and cannot grow uncontrollably. Also, with more people registered, it will be more difficult for those who should be deported to be located. Again, I am slightly concerned about the hard and fast criminal rules for removal, but its some sort of plan at least.

On the whole, the Government attorneys put together a brief that lays out the legal arguments very clearly for an area of law that seemed pretty grey prior to the submission of the briefs. Its not perfect, but no legal argument is. Soon, the Plaintiffs in the case will submit their briefs, as will several third-party States and Organizations that have been cleared to submit amicus briefs. When those briefs become available, I will break their arguments down for you as well. And of course, when the 5^th Circuit submits their opinion, I’ll be bringing you information regarding that as well. I am spending a lot of time on this case because it is vitally important to the future of immigration reform in this country. Attorneys often bog things down in legal jargon and complexities that don’t help a lot of people without a law degree. Our philosophy at Khaleeq Law Firm, LLC is that you have a right to know what’s going on in your legal proceedings and we hope to bring this same level of understanding

5th Circuit Court of Appeals is moving full steam ahead

If you’ve ever been involved in a lawsuit, you probably know that they can seem to move at a snails pace. There is all sorts of interesting research out there regarding judicial backlog and its effects on the justice system. Ok, so interesting may be stretching it a bit unless you like to study the social ramifications of the law (which even many attorneys don’t) but our justice system is frequently criticized as being slow. Fortunately for those stuck in limbo awaiting news on President Obama’s proposed immigration changes, it appears as though their waiting may be shorter than expected. Today, in a 3 page order, the Clerk of the 5th Circuit Court of Appeals  set a briefing and Oral Argument schedule in State of Texas, et al. vs. The United States of America, et al. If you’re curious, et al is legal jargon for way too many names to list. In this case, though, it also means that everyone is trying to weigh in on the legality of the President’s proposals.

As a refresher, about a month ago, a Federal District Court Judge in Texas issued an injunction stopping the implementation of the President’s proposed expansions of DACA and what was loosely being called DAPA. Both programs would allow individuals who are illegally present in the U.S. to remain and work in the U.S. without fear of deportation for a period of time so long as certain conditions are met. A more full explanation of the requirements can be found in a previous post on this blog. The expanded DACA was scheduled to begin on February 28, 2015, but the Texas District Court’s injunction blocked Immigration officials from implementing the program. To this point, the Justice Department has followed along with the injunction while asking the Judge to reconsider as well as appealing his decision to the 5th Circuit Court of Appeals.

Generally, appeals to the Circuit Courts of Appeals are time-intensive and both parties are given ample opportunities to brief legal issues and respond to briefs from the other parties. As such, when the injunction from Texas started in February, most observers were certain it would be quite some time before any movement was made in the case. However, today, after only about a month, the 5th Circuit granted a request from Attorneys for the Obama Administration to have an expedited hearing regarding the injunction and their appeal. The Order lays out a briefing schedule and has informed both sides that they will have an hour a piece for oral arguments on April 17, 2015 starting at 10:00 a.m. in New Orleans.

This order can be interpreted multiple ways, and generally, I advise clients not to look to deeply into scheduling orders; however, there is no positive immigration news today for me to comment on. Seriously. I spent the past 45 minutes searching for something positive to write about because so much of the immigration news lately has been terrible and could not find anything. So instead, lets look a little bit into the Order and extrapolate some reasonable conclusions.

First, the expedited schedule on this really reflects how seriously the Courts are taking the issues presented in the appeal. Its not difficult to believe that the Court looked at how completely incapable The Hill and the Administration are being in dealing with substantive immigration reform and decided to step in. Its like Mommy and Daddy saying, “if you don’t cut it out right now, we’re going to turn this car around.” Say what you want about Judicial Activism, but I’m all about it … depending on the judge. The Court appears to realize that there are real world impacts to delaying the implementation of the program. For now, the injunction is blocking the implementation of the programs, so Republicans and Democrats can both say, “We’re doing something,” either blocking change or waiting for change. Those positions allow our elected officials to continue to sit idly instead of doing something. Hopefully the result of this appeal will force them to act one way or the other.

Second, the Order allows all parties involved to provide briefs in the briefing schedule, including amici curiae, or amicus briefs. Amicus briefs are briefs filled by non-party opponents who feel they have an interest in the outcome of the case or have valuable information to be considered by the Court in its decision. Given the number of such briefs, which total more than 20 at this point, its clear to see that the Court wants to ensure everyone has a chance to “speak” and that the Court has all the relevant information. The briefs, coupled with an hour a side for oral argument, will help ensure that the Court doesn’t miss anything in its decision.

Finally, the Court ends its order with, “Nothing in this Order is intended to affect or constitute a comment on any ongoing proceedings in the District Court.” This parting line refers to threats made by Texas District Court Judge Hanen to the DOJ attorneys regarding potential lies to him regarding the administrations implementation of programs. That controversy is a whole post in itself, but the line in the Order is clear: while we may say we’re not commenting, we are commenting. We’re involved now so slow down Judge Hanen. That’s my interpretation at least. Given all of the steps taken by the Circuit Court to ensure proper development of information in this case, even on an increased time table, its pretty clear that they are saying they are going to get to the bottom of all of this.

Overall, I like to think the steps taken by the Court in its Order are demonstrating that it will side with the Administration on this. Who knows though. We’ll find out sometime after April 17. I’ll be providing some argument analysis when the arguments for both sides get posted. Change is coming, it seems. Hopefully, the millions of people stuck in limbo during these proceedings will know something soon. And knowing is half the battle.

Work Visa debate: They took our Jobs ?

On March 18, 2015, there was a debate on the Hill regarding new proposals from Congress to dramatically increase the number of foreign guest worker visas that can be approved every year. Bills like the proposed I-Squared bill would increase the number of H-1B visas issued every year from 60,000 to 180,000. Needless to say, such a significant increase has raised some concerns on the Hill.

Presently, the three most popular ways businesses bring foreign guest workers to the United States to work is through three different visa programs: H-1B, L1, and E1 or E2. L1 visas are issued when a U.S. or Foreign company wishes to swap employees, typically executives, within its own company or a subsidiary. E1 and E2 visas are limited to a specific number of visas being issued for specific countries. The largest program, H-1B is used to bring skilled workers to the United States to fill, typically, tech related jobs.

Specifically, in order to be eligible to apply for a H-1B visa, the recipient of the visa must have a bachelors degree or higher in a “specialty occupation.” Generally, this applies to jobs in the STEM fields, or Science, Technology, Engineering, or Mathematics. The U.S. tech sectors employ many of the recipients of H-1B visas. In fact, of the 60,000 annually approved visas, the largest 1% of the tech companies receive 30% or more of the H-1B visas approved every year. For fiscal year 2013, the total year cap on H-1B visas reached its cap on the first day applications were accepted.

Clearly, there is a high demand for these kind of jobs. At that point, why not raise the arbitrary cap on the visa numbers available for H-1B applicants? Well, according to recent expert testimony provided to the Senate, the existing number of H-1B recipients already negatively affect American citizens looking for jobs and raising the number would only make matters worse. Their argument basically boils down to a numbers game. Presently, according to several studies, there are projected to be only 120,000 new STEM-sector related jobs created in the next fiscal year. By raising the visa cap to 180,000, the private sector could completely fill the new jobs with foreign workers and still have a surplus of 60,000 jobs left. Additionally, American citizens tend to be paid higher than their foreign worker counter parts, so why wouldn’t the company prefer to save money by hiring foreign workers instead? Even if they have to pay to apply for the workers, they still have a cost saving strategy by hiring foreign workers.

Unfortunately, there are plenty of empirical examples of businesses doing just that. Harley Davidson, Cargill, and even the Disney Corporation have fired large portions of their American employees and replaced them with H-1B recipients. The most recent big case regarding visa fraud with H-1B visas was against Infosys, which settled out of court with DHS and the Attorney General’s Office to the tune of about $29 million. Unfortunately, this amount of money is pretty minuscule compared to their annual profits.

So, what is the U.S. supposed to do? Clearly there is a bigger need for more of these visas to exist given how quickly they get filled every year. However, Congress has to protect American jobs as well. The best solution would seem to be a hybrid approach. Right now, supporters of I-squared want to dramatically increase the number while opponents of the bill want tougher regulation on the visas issued. Given the fact that presently, 1% of the tech companies in the U.S. receive almost a third of these visas, step one should be to create a numerical cap of visas a company can receive and scale it based on the size of the company. This cap and scale approach would help ensure that smaller tech firms could have access to more potential employees. If this works, more large companies will continue to attract STEM graduates seeking high paying jobs that the smaller companies may not be able to compete with. Increased access to H-1B visas could help these smaller employers find quality workers but still compete with larger companies, Further, for violators of the immigration laws for visas like Infosys, fines and penalties need to be higher to effectively deter larger companies from committing violations in the first place. Finally, a more modest increase in the H-1B numbers would allow more to be issued, which seems to be the desire, while also ensuring we welcome foreign workers who want a shot at a life here, even if it is a temporary one. Remember, recent actions from our “Representatives” to the world make it appear as though we don’t want to welcome foreigners to our country. That image is terrible for us. A positive image backed by proper enforcement of the rules sends the appropriate message that everyone can get behind. Sometimes I wonder why I’m not a politician, but then I remember I tend to focus on being reasonable, so I wouldn’t get in to that club very well.

What exactly is a secure boarder?

Recently, big wigs from the Republican party gathered at the Conservative Political Action Conference, or CPAC, to begin posturing for the upcoming election season. Lets ignore for the fact that the next election isn’t for a year and a half, and instead focus on some comments made by a particular speaker, Senator Marco Rubio. When speaking about immigration, he pointed out that, based on his experience, it does not do any good to talk about immigration reform in American without first making people believe that the board is secure. His comments boiled down to a belief that we can’t even talk about useful, substantive immigration reform without first securing our boarders. But what exactly does that mean, securing our boarders? Unfortunately, no one, including the U.S. government, seems to know.

A quick run down of activities by our government over the past few years would make you think that we are making one heck of a secure boarder. For example, in the past 10 years, the number of boarder patrol agents has grown to over 18,000 and the miles of fence along the U.S. Mexican boarder has increased to over 700 miles, growing 9 times larger than it was. Further, the government has taken great steps to increase interagency cooperation at the boarder. Specifically, Since 2012, there has been a growing number of Boarder Enforcement SEcurity Task Force, or BEST, units that have been set up. 35 BEST units have been set up in 16 states and have allowed more than 100 state and federal agencies to work together to try and secure the boarder. Additionally, half of the U.S.-Mexican boarder is now patrolled by aerial drones that can track where boarder crossing paths are created. On top of that, Congress has repeatedly approved millions upon millions of dollars for new funding for boarder enforcement, while it simultaneously blocks any other form of immigration reform.  The government is actually throwing everything it can think of at securing the boarder.

You know what the real kicker is? Even though we are spending dramatic amounts of resources and manpower on “securing” the boarder, 2/3 of Americans think the boarder is less secure than it was 10 years ago!

What has created this disconnect? Several reasons exist as to why it is our government can throw dollar signs at securing the boarder but the average American doesn’t believe enough is getting done. First and foremost, as with most things related to immigration, its political. “Politicians do a great job of playing on people’s fears. Weak boarders lead to increasing crime and incursions into our country.” These types of arguments are presuasive to people who are understandingly concerned about rising crime rates near the boarder, such as those in boarder states, regardless of whether there is any proof that such criminals are the ones actually entering into the U.S.

Outside of fear tactics, a legitimate reason many people feel the boarder is not secure is because we have no definable way to determine what “secure” means. Seriously, DHS has no uniformly accepted definition for what “secure” actually amounts to. Does it mean fewer people in total crossing the boarder illegally, or are we looking for a specific group of people to limit, like drug dealers? Does it mean we have a fence along the entire boarder and if so, how many people need to be patrolling each sector of it? Good questions, but its too bad there is no set idea as to what measure of success we are looking for. Without a good idea of what a “secure” boarder looks like, its impossible to tell American citizens how secure the boarder actually is. We have no bench marks for success. So far, we’ve been taken the throw the spaghetti at the wall approach to see what sticks, only we’re doing it to the tune of multiple millions of tax payer dollars. Until we have some idea of what we’re looking for in a “secure” boarder, we really have no way of knowing whether its secure or not.

Ultimately, its impossible to ensure that no one will every try to  or successfully illegally cross the boarder. Instead, we need to look at balancing factors like decreasing criminal crossings and human trafficking with appropriate enforcement priorities within DHS. More importantly though, we can’t just try and secure the boarder. The Immigration system i the United States is broken. As long as we continue to be a boarder security first and only country, we can’t ever actually fix anything else in the system. The last thing we need is such a narrow approach when so many people are having their rights damaged under the current system.

The Tangled Political Web of Funding DHS

Last week I referenced a looming political battle on Capitol Hill surrounding Immigration Reform. I don’t know if you knew this or not, but Immigration is a very polarizing political issue. In a country known as a “melting pot,” who’d have known. Unfortunately, because immigration issues in the United States are so polarizing, our elected officials frequently loose a sense of decorum and gear up for digging their heels into the mud about doing anything substantively useful with immigration reform. In fact, Congress had been so unwilling to do anything of substantive use with immigration reform for so long, that in November, 2014, President Obama proposed substantive immigration reform through the use of Executive Action, or unilateral declarations from the President to department officials in the Department of Homeland Security, or DHS regarding new immigration initiatives aimed ad re-prioritizing removal operations by ICE and CBP, as well as allowing certain undocumented individuals to have access to work permits. An estimated 4 million people would benefit from these proposed changes. Now, there are some questions regarding the constitutionality of the President’s Executive Orders, but we’ll save that discussion for when the Court’s take the matter up in Texas. (Refer to my previous post). At this point, we are going to be focusing on the looming political crisis developing in the wake of the President’s orders.

After his executive orders came out in November, both House of Congress found themselves in a tizzy. Virtually every Republican believed that the President was acting like a king and avoiding the proper legal channels to enact such monumental changes to the Immigration system. Most Democrats supported the President’s actions, though some questioned his reach. You see, some Democrats found their congressional seats threatened by Republicans and so-called “Red Stat Democrats” had to save some face to avoid loosing their seats in the next election. So, as per usual, our two-party system seemed to have a pretty clear dividing line between the Reds and Blues on what would become of the President’s executive orders for immigration.

In January, the House of Representatives, which is handily controlled by the Republicans after the 2014 midterm election, passed a bill regarding funding the DHS. In case you didn’t know, our Congress hasn’t passed an actual budget in 20+ years. In stead, they use a series of continuing resolutions and stop-gap funding measures to give the government money to run. One of their stop-gap measures relates to funding DHS and the current funding of DHS runs out on February 27, 2015. While the House’s bill would fund DHS, it was amended to include specific provisions that would not allow any funds to be used to pay for the President’s immigration initiatives. This bill easily made it out of the House because Republicans control the House and all that is required is a simple majority to move a bill like this up to the Senate.

Life’s not so sunny up in the Senate, however. The Republicans control the Senate as well, but their majority is not a super majority. Presently, there are 54 Republican Senators, 44 Democrat Senators, and believe it or not, 2 Independent Senators. In the Senate, in order to block a filibuster (just as insufferable as it sounds, a tactic used by Senators to indefinitely stall any passage of a bill) Republicans would need 60 votes and without them, the House’s bill cannot come to a Vote in the Senate. At this point, All 44 Democrats, the 2 Independents, and oddly enough, one Republican Senator have blocked all of the votes on the House’s proposed bill, meaning it, and therefore DHS funding, are dead in the water.

You may be asking yourself, “what would actually happen if DHS is not funded?” Great question. While all of the hubbub on this debate has been focused on the immigration issues, it is important to realize that DHS includes more than just immigration agencies. DHS also includes the Secret Service, TSA, the Coastguard, and FEMA. If DHS is not funded, 80% of the employees of these agencies will still be required to show up at work on monday … without pay! However, their jobs are deemed to be vital for security and they will be ordered to continue to perform their jobs. Once the deadlock on Capitol Hill is resolved, Congress can vote to go back and pay these people for the work performed, just as they did the last time our government embarrassed itself globally by shutting down, but there is no guarantee. Locally, many DHS attorneys will not be working starting Monday, as well as Court support staff. The Judges will continue to appear and some DHS attorneys will as well, but the next couple weeks of practical application of the immigration system could be interesting.

I guess this all leads us to what are we going to do? And by we, I mean the folks on the Hill. Several options exist at this point, each with its political strengths and weaknesses. Notice I point out the political strengths and weaknesses, because at this point, unless Congress passes a bill that allows DHS to be funded and does nothing to stop the implementation of the President’s initiatives, millions of people struggling to survive in this Country are going to loose one way or the other. And in case you were wondering, that includes undocumented individuals as well as American government employees who have to live daily with not knowing where their next paycheck comes from. For Republicans, the Senate will be unable to block a filibuster from Democrats on the House’s bill. They have been trying and failing, pretty epically. Senate Majority leader, pretty literally, just announced that he had convinced Senate Democrats to sign off on a “clean bill” that would fund DHS but would not have the House’s provisions regarding defunding the President’s immigration initiatives. This move will help save some face for both Democrats and Republicans because they are trying to fund agencies dedicated to national security while not having to take a firm stand on support or opposition to the President’s proposals at this point.

Now assuming the clean bill actually passes the Senate, which it appears as though it may, the House has to take up a vote on the Senate’s bill before it will be sent to the President. Again, politics, politics everywhere, and not a calm politician amongst them. House leaders have been saying for days that they would not support a clean bill because they are righteously against the proposals of King Obama. Obviously I’m paraphrasing there a bit, but not as much as I wish I were. House Democrats are stuck, they really have little they can do at this point to be of use. Its going to come down to what the House Republicans decide to do. Given all of their statements to this point, it doesn’t seem like they will be willing to pass a clean bill and they are under considerable pressure from their sponsors to stop any immigration action by the President. All eyes will be on the House to see what it does next.

It all comes down to politics. It always does. We are still a year and half away from the next election and article after article focuses on what the Congress members are worried about, who will be blamed for the shut down. Admittedly, the President’s immigration proposals are motivated on some level by politics. He made a campaign promise to do something about immigration and prior to his announcement in November, he really hadn’t. In fact, he waited until after the midterm elections to announce anything to try and help his party out. But at the end of the day, he became tired of waiting for Congress to do something other than ponder their political stability. He challenged them to do something about immigration reform by themselves nearly 3 months ago and they haven’t. I have said this before and will continue to write about it, I’m afraid, for sometime into the future, the Immigration System is broken. Its a shame our elected officials can’t seem to stop worrying about politics enough to care about people.

Ruling from Texas Federal Court halts progress on expanded applications for DACA and DAPA

Following on the footsteps of my post from earlier this week, a Federal Judge in Texas has issued a preliminary injunction against the implementation of DHS’s acceptance of new and renewed DACA applications. Judge Hanen of the District Court of Texas issued the preliminary injunction in a lawsuit filed by Texas and 25 other states claiming the proposed changes were a violation of the constitution.

The 123 page ruling outlines the Judge’s reasons for issuing the injunction. Upon reading it (good luck, its not really an immersive reading), the basis for the Judge’s decisions, both explicit and implicit can be found. Perhaps his most poignant legal argument is that the Obama Administration ignored the Administrative Procedures Act, or APA, by adopting the “policies” outlined in the President’s speech from November, 2014. I’ll give him credit for couching part of his decision at least in legal terms. Basically, the APA has provisions regarding public comment and its necessity  on proposed rule making versus when it is not necessary for something called statements of policy. Whenever and Administrative Agency, such as DHS attempts to further an actual rule, then it must allow the public to comment on that rule. For example, if an agency were to tell the members of the agency that they must process a specific form only on Tuesdays with no discretion as to when they may process the paperwork, that would be a rule and it would require public comment. However, if an Agency were to make a statement regarding general factors that can be considered in the approval of that form, then that policy statement does not require any sort of public comment.

The Court’s argument in this case is that because the President’s proposed changes would result in applications being granted, including work permit applications, with, according to the Court, virtually no discretion, then DHS has instituted a rule and without public comment, that rule cannot be enforced. This approach is novel, to say the least, but misses the mark on much of the changes proposed by the President and DHS. Reviewing officers literally have the discretion to approve or not approve each individual application. That authority is referenced multiple times in the explanatory memos from DHS. That discretion is why the proposed changes are policy and no rules and as such, the decision misses the mark it was aiming for.

Between the lines of the decision, though, the political motivations are pretty easily seen in the decision. The Honorable Judge was put on the federal Bench by former President bush and there are multiple people who think that Texas and the other 25 states specifically forum shopped for this Judge based on his past decisions. Further, by granting the injunction at this point, the Court is allowing those states additional time to develop their lawsuits and constitutional claims. At the end of the day, this situation is just plain coming down to politics.

What’s funny, though, is the disconnect developing around the lawsuits and the proposed changes. The Governor of Texas is one of the 26 total states developing these lawsuits and clearly, one federal Judge is on board with them. At the same time, 30 mayors, along with the U.S. Conference of Mayors, filed amicus briefs in the case in support of the Administration’s proposal. The mayors, the individuals who’s government officials most directly deal with the immigration populations on a daily basis mind you, believe that the proposal would do nothing more than help their communities. In fact, several mayors from Texas have signed on in support of the Administration. It seems our elected officials can’t seem to line up their views on the matter, leaving us with great promise for change, with no real effect being able to be felt at this point.

Now, the Obama Administration is going to challenge this ruling by Judge Hanen. In fact, today the media spokesman for the Administration said that they would be filing for injunctive relief in the 5th Circuit Court of Appeals as well as appealing the decision on its merits. In all likelihood, the administration can and should prevail, but in the mean time, we’re stuck dealing with a system that affects millions of people, but can’t get out of political mire to really be useful.

Substantive change needs to happen in immigration. Situations like what we’ve seen this week, though, make those changes seem nigh impossible. At this point, all we can do is attempt to provide the best services available to our clients in a system that seems bound and determined to fight against us. We look forward to the fight, though. At least until next week when Congress defunds DHS and we don’t have anyone to fight against. Things to look forward to I suppose.

Expanded Deferred Action for Childhood Arrivals, (DAC) begins Wednesday, February 18, 2015

Back in November, 2014, President Obama announced a wave of immigration reforms in response to a Congress that seemed incapable of passing any sort of substantive immigration legislation. Much attention has been paid to the President’s Deferred Action for adults meeting certain time requirements, but the President also proposed important changes for other deferred action as well.

Specifically, the President proposed expanding his Deferred Action for Childhood Arrivals, or DACA to include hundreds of thousands more. In 2012, the President first enacted executive orders creating the original DACA program. Under the program, applicants would have to provide evidence to prove several factors including:

• They entered the United States prior to their 16th birthday
• They were present in the United States on June 15, 2012 and that they had been present in the U.S. continuously since January 1st, 2007
• They were presently enrolled in school in the United States or that they had completed a high school equivalency program or high school diploma
• Finally, that they had limited to no criminal record with no felony or serious misdemeanor convictions.

Since the government first started accepting applications for DACA in 2012, 680,000 individuals have applied for DACA with more than 587,000 having been granted the status.While DACA does not create a “path to citizenship” for applicants, those who are granted DACA status are free from worrying about being deported during their DACA status and are eligible to receive work permits.

Starting Wednesday, February 18, 2015, USCIS will begin accepting applications for the President’s expanded DACA program. The expansion changes the initial entry date to those who were present in the United States to on or before January 1, 2010 and it removes the maximum age cap to apply. Hundreds of thousands of people are expected to benefit form this expansion.

Members of Congress have expressed concern over both the President’s original DACA program as well as its expansion. In fact, there is some well-founded speculation that Congress will attempt to block the expansion and other immigration Executive Orders by not passing additional funding for DHS. The current DHS funding bill runs out February 27. While it is nice to see Congress taking some action for a change, instead of stubbornly digging its heels in over nonsense, stopping these proposed changes is a dramatic move in the wrong direction. Not everyone who is in this country illegally had any control over their presence in the first place. Such as is the case for the vast majority of DACA recipients. Children cannot stop their parents from bringing them here as minors and have no other choice but to make a life for themselves in a new place. DACA is not enough, because there is no path to citizenship related to it, but its better than nothing. Perhaps instead of being irritated that the President decided to take action on behalf of people, many of whom can’t defend themselves, Congress should take a step forward. And by perhaps, I obviously mean, of course its time!

DHS Orders set up of new immigration hotlines

As an attorney who defends people in Immigration Proceedings, it often feels like once an individual is in proceedings, the odds are considerably stacked against them. Since Congress passed the Illegal Immigration Reform and Immigration Responsibility Act (IIRAIRA) in 1996, individuals in removal proceedings have consistently found themselves facing higher burdens of proof and decreased discretion from the Court to grant them relief sought. Over the past few years, through directives found in executive actions, DHS has increasingly exercised prosecutorial discretion guided through things like the Morton Memo. The ability to have decisions reviewed pursuant to such directives has been inconsistent at best.

Last fall, President Obama made announcements regarding sweeping executive action for immigration reform. As part of these reforms, DHS’s immigration enforcement arms, (ICE, CPB, etc.) were ordered to be more judicious in who they detain based on a new set of removal priorities. While DHS has been operating under these new guidelines since November, new memos have been reported by the Washington Times in which DHS officials have been ordered to create new Immigration Hotlines. The purpose of these hotlines is to allow people who feel that they have not been fairly treated pursuant to the new removal priorities to voice their concerns which will be reviewed by DHS officials. Obviously, certain officials with ICE and CPB are not happy with the hotline. Their concern appears to be that the hotline is a slap in the face of their agents, that its just another way to complain about people risking their lives in their jobs. Their concern makes sense to a certain extent, but at the end of the day, the card are so stacked against undocumented individuals that this hotline should be seen what it is: a layer of protection for people who are often stuck in a complex, confusing system. Accountability is not a bad thing. Given the general workings of the immigration system, its nice to see another layer of protection being added.

Khaleeq Law Firm, LLC New Office Location, Same Great Service

For those of you who did not receive our letter, our office has moved locations! For five years, we provided expert service at our location in South Omaha. However, we are growing our firm and as such, we needed to relocate to a new location that could serve not only our amazing clients in South Omaha, but would be accessible to the broader Omaha community. In order to accomplish this, we have moved to 7117 Farnam Street, Ste. 31, Omaha, Nebraska 68132. We are about a block south of 72nd Street and Dodge Street, the most widely traveled location in Omaha. With the increased visibility and access, we are confident that we can bring the service our clients have come to expect to even more people with trying legal needs. Come in today and see our new location.