Musings on Immigration

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Birthright Citizenship--Whack-a-Mole Starts All Over Again in the Senate

Like the proverbial Whack-A-Mole game of our youthful carnival weekends, the anti-immigration crowd once again trumpets this unicorn as a solution to America’s undocumented immigration problem. Most recently Louisiana Senator David Vitter (he of prostitute fame) seeks to eliminate what some call “birthright” citizenship.

 I have blogged on this before, because this issue pops up each year, usually with a politician facing a primary, as a way to gin up support from the margins of the GOP. "Birthright citizenship" is a derogatory way of saying the following: If you are born in the United States, you are a citizen by right of birth in the United States. This was not always the case in America, at least as it applied to African Americans or Native Americans. It took the Civil War, and the 14th Amendment, to ensure that anyone born in the United States “and subject to the jurisdiction thereof” is a United States Citizen.

Since at least 1994, when Congressman Bob Stump (R-AZ) filed H.R. 3862 calling for, among other things, an end to “birthright” citizenship, the anti-immigration crowd has been championing the idea that the 14th Amendment does not mean what it says. The “anti-birthers” argue that a U.S. born child who is born of a mother or a father who are NOT “legally” in the United States is therefore not a citizen because their parents are somehow “not subject to the jurisdiction” of the United States.

Some of these anti-birthers go so far as to claim that the Supreme Court has only on one occasion, and that in footnote, discussed the meaning of “subject to the jurisdiction thereof.” The problem with a lie (among other issues) is that if you tell it often enough some folks will believe it is the truth (such as, we never actually landed on the moon). 

Well to help you out (and possibly steer some of our Congressman and Senators from the precipice of irrationality on this issue) let’s look at what the “subject to the jurisdiction thereof” means in the context of the 14th Amendment to the United States Constitution.

First, a little history lesson. One of the first acts of Congress, after the adoption of the Constitution, was the passage and signing into law of the Naturalization Act of 1790, a copy of which is framed in my office lobby. As noted in Wikipedia: 
This law limited naturalization to immigrants who were “free white persons” of “good moral character”. It thus, left outindentured servants,slaves, free blacks, and later Asians. While women were included in the act, the right of citizenship did “not descend to persons whose fathers have never been resident in the United States….” Citizenship was inherited exclusively through the father.In order to address one’s “good moral character,” the law required two years of residence in the United States and one year in the state of residence, prior to applying for citizenship. When those requirements were met, an immigrant could file a Petition for Naturalization with “any common law court of record” having jurisdiction over his residence asking to be naturalized. Once convinced of the applicant’s good moral character, the court would administer an oath of allegiance to support the Constitution of the United States. The clerk of court was to make a record of these proceedings, and “thereupon such person shall be considered as a citizen of the United States.
The Act also establishes the United States citizenship of children of citizens, born abroad, without the need for naturalization, “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens. 
So, prior to the Civil War, white people of good moral character were considered citizens of the United States. Beyond that rules on U.S. citizenship were, at best, haphazard. 

Second, under universally accepted rules of statutory and constitutional construction, we must consider the “plain meaning” of the words used, when they were used. “[S]ubject to the jurisdiction thereof” meant, in 1866: 
to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,- children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,-both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin’s Case, 7 Coke, 1, 18b; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 155; 2 Kent, Comm. 39, 42. See, U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)(citing Elk v. Wilkins, 112 U.S. 94 , 5 Sup. Ct. 41 (1884, and a LONG line of subsequent cases).
Quite clearly, the phrase “subject to the jurisdiction thereof” has long worked to exclude only the children of diplomats and native Americans who were members of sovereign nations. Everyone else born in the United States is a U.S. citizen by birth. Period. 

Third, and finally, the Supreme Court clearly and definitively ruled on the full and entire meaning of the 14th Amendment in U.S. v. Wong Kim Ark in 1898, over 110 years ago! In that case, the court considered whether: 
a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). 
Mr. Ark, and the Supreme Court, have long ago resolved this question for us. Children born in the United States whose parents are not officially working on behalf of a foreign government are STILL United States Citizens. 

The proverbial “Rule of Law” standard espoused by the anti-birther movement would seem to stop these folks in their tracks. But, the anti-immigration, anti-birthe rmovement will not be stopped by law, logic or by fact. Nonetheless, besides being good public policy, it is good to know that the law is already crystal clear, and that no act of Congress is going to change what the Constitution says. As of yet, the anti-birther movement is still a small minority and does not have the power to adopt or pass the Constitutional Amendment necessary to strip citizenship away from U.S. born children. After all, and as noted by the Supreme Court in 1898, we fought a Civil War over this issue.

Why is USCIS Taking So Long to Renew DACA Work Permits?

If the calls to our office are any indicator, there are thousands of DACA recipients whose work permit applications were filed at least three months prior to expiration, who are still waiting for their renewed work permits.  Without renewed permits, these individuals lose the right to work legally, the right to drive, and may once again accrue unlawful presence.

The DHS published a notice in October 2014 advising DACA recipients that they could file their request for extension up to 150 days (5 months) prior to expiration.  As with all things government, very few of the DACA recipients, who tend not to frequent government websites, knew about the memo and many did not file so far before expiration perhaps thinking that extending a work permit was a like extending a drivers license, its is done in a few minutes.  As an experienced immigration lawyer will tell you, the USCIS does nothing quickly, and certainly does not worry that a person may lose their job or their driver's license just because they cannot efficiently print a new card after a background check.

Perhaps responding to the increasing number of panicked calls to their service centers (and from immigration lawyers), USCIS issued another memo in January 2015 advising DACA beneficiaries to file in the window between 150 and 120 days prior to expiration.  USCIS also said that if the exension is pending more than 105 days, they can contact the USCIS online with a request for a status:
USCIS’ current goal is to process DACA renewal requests within 120 days. However, you may submit an inquiry about the status of your renewal request after it has been pending more than 105 days. To submit an inquiry, please visit egov.uscis.gov/e-request or call the National Customer Service Center at 1-800-375-5283 (TDD for the hearing impaired: 1-800-767-1833)
If your DACA renewal case has been pending for at least 105 days, we strongly encourage you to actively follow up with the USCIS directly at the website and phone number provided.

As to the first question?  Why is it taking so long to renew a DACA work permit after the applicant has paid $465 and taken their fingerprints?  The crushing number of cases?  Hardly.  Extensive background checks?  Not likely.  Bureaucratic intransigence and poor management of resources?  That sounds like a more likely answer.  Like all things with USCIS, getting answers takes time, but when that time directly impacts a person's ability to work and drive, it is time to get aggressive.

USCIS has uniformly refused to abide by a time in which it MUST issue these work permits (if all other criteria are met).  So the only solution for DACA recipients facing this type of problem is to call USCIS, and to also call their congressman or senator. Each of those offices have individuals whose job it is to inquire on behalf of constituents (including DACA recipients) as to why your case is taking longer than normal. Be aggressive in seeking a response to your application. You paid for "customer service," you deserve to get actual timely service.


DAPA and The Court: You Can't Get There From Here

There is that old story of a person stopping in a small town to ask directions outside an old general store.  An old man on the porch of that store, when asked how to get to the destination, says "you can't get there from here."   It seems that the District Court in Texas is having the same problem understanding the DHS's policy memos on DAPA and expanded DACA, as the old man on the porch had with understanding the road system.

Immigration law is complicated.  So complicated that at least one federal court judge has said: 
The statutory scheme defining and delimiting the rights of aliens is exceedingly complex. Courts and commentators have stated that the Immigration and Nationality Act resembles ‘King Mino’s labyrinth in ancient Crete,’ and is ‘second only to the Internal Revenue Code in complexity.'” Chan v. Reno, 1997 U.S. Dist. Lexis 3016, *5 (S.D.N.Y. 1997). 
The District Court Judge in the DAPA case was never an immigration lawyer prior to becoming a federal court judge.  And, we cannot fault the court for not understanding the nuances and complexities of immigration law, regulation, and policy.  But, the issues before the court are not really about immigration law.  The main issues are about general issues of standing and statutory construction.  Yet, even in these two areas the District Court in Texas has found itself unable to get there from here, even though a District Court judge in Washington, D.C. clearly understood these issues, and found DAPA and expanded DAPA fully within the executive branch's authority.

On March 9, 2015, the District Court in Texas issued a ruling refusing to rule on the government's Emergency Motion to Stay the Court's February order stopping implementation of DAPA, for the reason that the matters were too serious to rule quickly on the Motion. The Court also simultaneously asked for the government to explain the accusation from Texas that the USCIS has issued 100,000 three year (instead of two year) work permits to DACA recipients (individuals who are NOT covered by the District Court's ruling in February). Anyone who practices immigration law knows that our DACA clients have been getting three year work permits when renewing their DACA since late November 2014, when the Obama administration announced this change in policy, and simultaneously announced the expansion of DACA and DAPA.  

Secretary Jeh Johnson was quite clear that the three year work permit expansion would begin on November 24, 2014:
Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work 3 authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years. 
The District Court wants the government to explain that they did, in fact, do exactly what they said they would do. This type of query is an example of the District Court not understanding the difference between DACA, which is NOT part of the litigation before him, and DAPA and expanded DACA which he has currently stayed. It also appears that the District Court is simply looking for reasons to delay an appeal in this matter, rather than dealing with the factually erroneous finding that Texas is harmed by DAPA and expanded DACA (but not apparently by DACA), and that the administration had to comply with the APA in issuing DAPA and expanded DACA (although the Supreme Court recently gave extraordinary policy making authority to the executive branch, exempting policy changes from the APA). 

Hopefully, the Obama Administration will realize that the District Court has no intention of lifting its stay, and will file an expedited appeal to the 5th Circuit Court of Appeals, where at least 12 states are set to argue that they are harmed by NOT have DAPA and expanded DACA in place.

Undocumented Parents of U.S. Citizens keep asking us, "when will DAPA start?"  The answer, unfortunately, is that we do not know when it will begin.  Certainly not in the original time frame envisioned by Secretary Johnson.  But, we remain convinced that the Court of Appeals, and even the Supreme Court will both find that there is no real standing in this case for states to object, and that even if there were standing, Secretary Johnson's policy memos are will within the purview of the executive branch and that no compliance with the APA was necessary.