Attorney Randall Drew talks about new immigration action by President Obama in this month's NH Bar News
Bar News - December 17, 2014
Opinion: A NH Immigration Lawyer’s Perspective on Executive Action
By: Randall Drew
Perhaps you have heard that President Barack Obama recently declared himself King and tore up the Constitution to thwart the rule of law regarding immigration. Well, that’s not exactly true. The president did give a speech and published two presidential memoranda on immigration. Those two memos, however, were both rather vague and announced some pretty uncontroversial ideas, such as “…streamline and improve the legal immigration system…” and “...modernize the information technology infrastructure underlying the visa processing system…”
The controversial policy changes have been left to the cabinet members of the relevant agencies; particularly Homeland Security and Labor. There are several changes coming to the inner workings of the immigration system – things that should improve the efficiency and customer service aspects of the bureaucracy quite a lot. But nobody cares about that, unless they are trying to hire an immigrant worker, petition for a family member, or work on immigration cases, as I do.
The really big news about the executive action is the shift of enforcement resources away from “wide net” interior sweep toward a targeted approach against dangerous criminals and recent arrivals, and concentrating on the Southwestern border. As part of this kinder/gentler approach, the secretary of Homeland Security (at the president’s direction) has expanded the Deferred Action for Childhood Arrivals program (DACA) and created an additional class of persons eligible for deferred action: parents of US citizen or lawful permanent resident children. This new program is called the Deferred Action for Parental Accountability (DAPA).
Is this executive amnesty? Not really. Amnesty implies forgiveness of a violation of immigration law (e.g. illegal entry or visa overstay) and a path to permanent status or citizenship. DACA and DAPA provide only a temporary formal deferral of a person’s removal from the United States. It does not end the threat that eventually, even a DACA or DAPA beneficiary will face deportation. What DACA and DAPA have done and will do is allow some people who have been living here without documents to come out of the shadows; get temporary permission to work, obtain a legitimate social security number, file a proper tax return, and get a legal driver’s license. It allows people to stop breaking the law out of necessity.
If you are in the self-deportation camp (the philosophy that we should make living here such an awful and treacherous experience that undocumented people will voluntarily choose to leave) you are not going to like these measures. I really can’t help with that. I would only point out that we are talking about persons who entered the United States when they were children and/or are parents of US citizen children and who have resided in the country since 2009. I personally am not interested in discovering how spiteful, horrid, petty and mean we can be to these folks – but maybe that’s just me.
Sure, I am biased; this will be good for my business. In truth, I also am hoping that these program changes will last long enough to see a comprehensive immigration reform act pass through Congress. But, biased or not, I also have likely met more immigrants (legal or otherwise) than many Bar News readers, in my close to 20 years as an immigration lawyer. That is how I know that many of them will flourish when given this chance.
Having even a temporary status can allow them to seek a better job for higher wages, pursue higher education (although without financial assistance), and have some stability to make financial decisions like renting a better apartment, registering a car, opening a bank account – things many of us take for granted. These are all positives for the previously undocumented and for the state’s economy and public safety in general.
I commented here back in May on a change to NH law for 2015 that will increase the penalty for first offense driving without a license from a violation to a misdemeanor, if the driver had never had a valid license. I suspect this change will mostly impact undocumented immigrants who are not eligible to receive a New Hampshire driver’s license. Yet they still have to get kids to school, bring home groceries from the store, and get to work and back – usually on a non-Uber-ready budget. For some, but by no means all, DACA and DAPA will change that, so they can stop looking over their shoulders and get on with living their lives.
Click to see the Story on NH Immigration Lawyer Blog
Beginning in December 2014, a parent lawfully present (that includes TPS) in the United States will be able to file Department of State form DS-7699 requesting a refugee resettlement interview for unmarried children under 21 in El Salvador, Guatemala, or Honduras. Under certain circumstances, if the second parent resides with the child in the home country and is currently married to the lawfully present parent in the United States, the second parent may be added to the child’s petition and considered for refugee status, and if denied refugee status, for parole. Form DS-7699 must be filed with the assistance of a designated resettlement agency that works with the U.S. Department of State’s Bureau of Population, Refugees, and Migration to help resettle refugees in the United States. The form will not be available on the Department of State website to the general public and cannot be completed without the assistance of a Department of State-funded resettlement agency. These resettlement agencies are located in more than 180 communities throughout the United States. When the program is launched, the Department of State will provide information on how to contact one of these agencies to initiate an application.
The real changes take shape in a series of companion memoranda issued by the Departments of Homeland Security and Labor detailing how the executive action is to be carried out.
Some of the changes represent a sharp break from past practices and might be litigated, overridden by Congress, or revoked by the next administration. Some of these changes, however, probably should have been made a long time ago and will likely remain in place for years to come.
Perhaps the biggest and most controversial parts of the plan involve changes to enforcement policies toward undocumented immigrants. The executive action provides three key changes in that sphere:
• The Deferred Action for Childhood Arrivals (DACA) program is being expanded. The program will defer the removal of and allow employment authorization (for three years) for persons who entered the United States prior to their 16th birthday. The cutoff date for arrival in the United States has been moved from 2007 to Jan. 1, 2010, and the upper age limit (31) for applicants has been removed. The changes are supposed to take effect within 90 days.
• A new Deferred Action for Parental Accountability (DAPA) program will also grant deferral of removal and employment authorization to parents of U.S. citizen or lawful permanent resident children born on or before Nov. 20, 2014. The parent must prove continuous residence in the U.S. since Jan. 1, 2010, to qualify, and cannot qualify if he or she is considered to be in a specific “enforcement priority group.” This aspect should take effect in 180 days.
• The Department of Homeland Security has been instructed to adjust its enforcement priorities away from interior enforcement against persons with no criminal record or minor criminal records and to devote more resources to border enforcement and interior enforcement against violent criminals, gang activity, terrorists or other national security threats. The administration is calling this a “felons not families” policy.
The effects of these changes on New Hampshire will likely be modest, given its relatively low foreign-born population. Still, for people who have been living in the shadows for many years, the opportunity to have employment authorization and a driver’s license can mean increased job mobility, better utilization of their skills, higher wages, and increased consumer spending.
New Hampshire recently made driving without a license a class B Misdemeanor (effective Jan. 1, 2015) so this is timely for many persons who previously were not legally able to obtain a driver’s license.
Another set of reforms are aimed directly at improving business immigration.
Only Congress can increase the number of employment visas available in a given year. However, a few adjustments have been made through executive action to make it easier to attract and retain well educated and high skilled workers:
• In the past, dependents of H-1B skilled workers (H-4 visas) have not been authorized to work. That will be changed in January 2015. That should have a positive economic impact right away.
• The waiting times for employment-based green cards are very long (often many years), so people sometimes run into problems while waiting. They may run out of time on their temporary visas, others may get a promotion or have to take a new job (if a company closes or changes hands), and this has sometimes been grounds for denying their green card application. Potential fixes for these issues are being considered by the Department of Homeland Security, although no timeline has been announced for implementation.
• Other areas of improvement in the business immigration arena include broadening and extending the Optional Practical Training (OPT) programs for students, especially in a STEM program; making user-friendly improvements to the
Program Electronic Review Management (PERM) labor certification program, which underlies the employment-based permanent resident process; and liberalizing the immigration rules for highly capitalized immigrant investors and for persons with exceptional abilities and advanced degrees.
Additional initiatives in various areas that needed attention were also included, such as: creating an interagency workgroup on worksite immigration enforcement; reorganizing the joint agency operations on the southern border and reviewing the personnel composition and compensation at Immigration and Customs Enforcement; making naturalization (U.S. citizenship) more affordable; and easing the path for immigrant families of military enlistees.
All of these announced measures are temporary in nature and can only soften the edges of our broken immigration system rather than repair it. There are still many additional reforms needed to make the immigration system work efficiently, humanely and to the highest benefit of the United States. Comprehensive reform will have to wait for a legislative fix from Congress.
Randall A. Drew, principal of Drew Office, Bedford, has been practicing immigration law in New Hampshire since 1998. He can be reached at 603-644-3739 or email@example.com.
On Thursday, President Barack Obama will do the same thing, but three of the broadcasters, ABC, NBC, and CBS have signaled that they won't be carrying it.
From the New York Times
WASHINGTON — President Obama will ignore angry protests from Republicans and announce as soon as next week a broad overhaul of the nation’s immigration enforcement system that will protect up to five million unauthorized immigrants from the threat of deportation and provide many of them with work permits, according to administration officials who have direct knowledge of the plan.
Asserting his authority as president to enforce the nation’s laws with discretion, Mr. Obama intends to order changes that will significantly refocus the activities of the government’s 12,000 immigration agents. One key piece of the order, officials said, will allow many parents of children who are American citizens or legal residents to obtain legal work documents and no longer worry about being discovered, separated from their families and sent away.
That part of Mr. Obama’s plan alone could affect as many as 3.3 million people who have been living in the United States illegally for at least five years, according to an analysis by the Migration Policy Institute, an immigration research organization in Washington. But the White House is also considering a stricter policy that would limit the benefits to people who have lived in the country for at least 10 years, or about 2.5 million people.
To read the rest of the story click the link below...
NY TImes Article
MAVNI stands for Military Accessions Vital to the National Interest. The program allows persons who have medical or language skills needed by the US Military to enlist even if they are not US citizens. People who have TPS, or Asylum/Refugee status can apply as well as persons in many types of valid non-immigrant status. Now persons who have been granted DACA (Deferred Action for Childhood Arrivals) can also qualify for the program. Keep in mind, Spanish is NOT one of the languages that is needed for the MAVNI program. Persons who serve in the US military can later become US citizens on a special accelerated schedule. To see the details click here:
WASHINGTON—Starting in early 2015, the Department of Homeland Security (DHS) will begin implementation of a Haitian Family Reunification Parole (HFRP) Program to expedite family reunification for certain eligible Haitian family members of U.S. citizens and lawful permanent residents of the U.S. and to promote safe, legal and orderly migration from Haiti to the United States.
Under this program U.S. Citizenship and Immigration Services (USCIS) will offer certain eligible Haitian beneficiaries of already approved family-based immigrant visa petitions, who are currently in Haiti, an opportunity to come to the United States up to approximately two years before their immigrant visa priority dates become current.
“The rebuilding and development of a safe and economically strong Haiti is a priority for the United States. The Haitian Family Reunification Parole program promotes a fundamental underlying goal of our immigration system – family reunification. It also supports broader U.S. goals for Haiti’s reconstruction and development by providing the opportunity for certain eligible Haitians to safely and legally immigrate sooner to the United States,” said Deputy Secretary of Homeland Security Alejandro Mayorkas. “The United States strongly discourages individuals in Haiti from undertaking life-threatening and illegal maritime journeys to the United States. Such individuals will not qualify for the HFRP program and if located at sea may be returned to Haiti.”
Legal authority for the HFRP program is provided under the Immigration and Nationality Act which authorizes the Secretary of Homeland Security to parole into the United States certain individuals, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit. This is the same legal authority used to establish the Cuban Family Reunification Parole program in 2007.
USCIS is not currently accepting HFRP program applications, and potential beneficiaries should not take any action at this time. USCIS will provide full program details before the end of this calendar year and stakeholder engagements will take place shortly thereafter. In early 2015, the Department of State National Visa Center (NVC) will begin contacting certain U.S. citizens or lawful permanent residents with approved petitions for Haitian family members, offer them the opportunity to apply to the program, and provide instructions on how to apply. Only individuals who receive a written notice of program eligibility from NVC will be eligible to apply.
Under the Haitian Family Reunification Parole program, Haitians authorized parole will be allowed to enter the United States and apply for work permits but will not receive permanent resident status any earlier.
The states in green below allow people without legal immigration status to obtain driver licenses. Those driver licenses are not REAL ID compliant and cannot be used for Federal ID purposes. California is one of the largest and most recent states to enact a separate driver license policy. Some of the commentators on the California law said that they believed that it would help reduce the number of hit and run accidents -- because one of the primary reasons for that occurring was the fact that drivers were unlicensed and subject to arrest, thereby possibly being turned over to Immigration & Customs Enforcement. New Hampshire has been going in the other direction - recently passing a law making driving without a license a misdemeanor necessitating arrest. Also the police have also been asking for identification from passengers who they suspect might be undocumented (otherwise known as racial profiling -- ACLU are you listening?) and then turning those individuals over to ICE.
I understand that the United States can't take responsibility for every child in danger everywhere in the world. Allowing all of the children to remain in the USA with legal status would encourage more to make the very dangerous journey. However, the answer cannot be to simply send them all back on principle; or as some in Congress are now proposing -- to streamline the process to expedite proceedings. These children and families made a perilous journey and their claims should be heard. Many, perhaps even most, will be turned back -- but they deserve due process in the hearing of their cases. If we cheat them with some sort of cattle call court procedure, we will be debasing ourselves as much as them.
You can see, from the snapshot chart on the website linked above, that there are about 8,600 people with refugee status or pending asylum claims with UNHCR. That sounds interesting, but when you check the Department of State Reports on Refugee Admissions from Latin America and the Caribbean guess what? Honduras, El Salvador and Guatemala are not even on the list. Refugees from the region come almost exclusively from Cuba, with a few from Colombia or Venezuela. http://www.state.gov/j/prm/releases/statistics/206319.htm So nobody is apparently getting to safety by taking the "appropriate" procedures. Coming to the US/Mexico border is their only practical hope of escaping the violence in Central America.
If you believe what some Conservative politicians and pundits are saying -- that we are a Nation of laws and that these children have to follow the law, then consider this. Turning yourself in at the border and applying for asylum is following the law. It is one of the procedures by which asylum is generally granted. Another is to apply abroad for refugee status and then wait to be admitted. That is what many would prefer to happen here; wouldn't that be great! But wait, let's take a look at what the US Embassy in Tegucigalpa, Honduras has to say about that:
If you have been watching the news at all over the past couple of weeks you will have heard about the dramatic increase in the numbers of children and families fleeing the violence and poverty of Central American countries such as Honduras, El Salvador, and Guatemala. Some press reports estimate that 50-60 thousand children have turned themselves in to authorities at the southern US border seeking a way to stay here.This is an upsetting circumstance to be sure -- but coming to the US border and applying for political asylum (refugee status) is really the only practical answer for the children and families who feel they are in danger in their home countries. Southwestern communities are rightfully concerned that -- if these children and families are allowed to remain in the USA -- they will bear the economic burden of housing, educating, and supporting these children until they get on their feet. The US government cannot allow that to happen; but that doesn't mean that all the children and families need to be summarily removed from the country and sent back to the place and the life that they were trying to get away from.
The Honduran Office does not accept refugee resettlement applications directly. People interested in being considered for the U.S. Refugee Program should contact the United Nations High Commissioner for Refugees (UNHCR). UNHCR is located at Colonia Palmira, Avenida Republica de Panama, Edificio Casa de las Naciones Unidas, Tegucigalpa, Honduras. For more information please go to the UNHCR webpage at http://www.unhcr.org or contact the United Nations in Tegucigalpa at (504) 2220-1100 or (504) 2231-0102."So, no help there. How about the UNHCR website? Well, the office that oversees the Central American countries in question isn't actually in any of those countries -- but rather, it is in Panama. http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e492686&submit=GO#
Is it much of a hope though? The USA granted about 1,035 asylum claims to Hondurans from FY 2003 to 2012. Those were people already here, legally or otherwise who have been granted protection over the past ten years. At that rate, if only 20% of the children's claims are deemed sufficient to grant asylum -- those kids can look forward to getting status by the time they are 120 years old.