Musings on Immigration

November 2014, after a stinging defeat at the polls, and with little left to lose in his political legacy, Obama announced a series of DHS policy memos that, when implemented, would rearrange his deportation priorities (after becoming the Deportation President with more than 2.5 million people deported), and create formalized system of Deferred Action to help long term resident undocumented people (the backbone of much of our service sector) to obtain work permits (DAPA).  Obama apparently preferred to do this policy changes by memo, arguing that they were not "substantive" changes to regulation, and thus did not need to go through the formal Administrative Procedures Act (APA) rulemaking processing (which takes about 6 months, or less, done properly). State Attorney Generals, led by Texas promptly brought suit, under a series of novel theories, arguing that this was no mere policy change, but rather a substantive fix with massive benefits and enormous costs to the states...

We found out this week that the "new" panel that will hear the actual DAPA appeal in the 5th Circuit Court of Appeals is actually the old panel.  Judges Smith and Elrod were the majority decision in motions panel which declined to lift the stay put in place by Judge Hanen from the Federal District Court in Texas.  Using polemics better suited for a political rally, Judge Hanen put a stop to DAPA and expanded DACA just as they were about to go into effect.  Judges Smith and Elrod, although less "dynamic" in their political tilt, made it clear that they were swayed by Judge Hanen and not by the rather lackluster lawyering of the Department of Justice, and refused to lift the stay. Most advocates for reasonable immigration reform (and quite of few active Republicans) were deflated when news broke on the makeup of the panel.  There had been much hope created when the panel earlier in June had asked for briefings from both sides on whether or not the appeals panel to h...

Its a sad day for immigrants who simply want a chance. DAPA falls,  Obama fails, and politics live. http://www.nytimes.com/…/fifth-circuit-court-of-appeals-rul… A federal appeals court on Tuesday denied the Obama administration’s request to lift a hold on the president’s executive actions on immigration, which would have granted protection from deportation as well as work permits to millions of immigrants in the country illegally. Two of three judges on a panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, left in place an injunction by a federal district judge in Brownsville, Tex. The ruling comes in a lawsuit by 26 states against actions President Obama took in November. Many of the initiatives were scheduled to take effect this month. The appeals court found that Texas and the other states did have sufficient legal grounds to bring the lawsuit and that the administration had not shown it would be harmed if the injunction remained in the place...

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 becomin...

Many people in the immigration field are familiar with the “policy” memorandum issued in January 2010, known as the “Neufeld Memo” on H-1Bs. The law firm of Greenburg Traurig recently sued USCIS over this outrageously inappropriate and legally irresponsible change in policy. In response, the USCIS has just filed a response arguing that a Preliminary Injunction against the Neufeld Memo should not be granted. You are going to love the reason why: Moreover, the guidance memorandum at issue in this case is not subject to the notice and comment rulemaking requirements of the APA. USCIS’s memorandum merely sets forth a general and flexible framework to guide agency adjudicators in the exercise of their discretion . The memorandum simply refines the contours of an already existing legal norm set forth in the agency’s regulation. Under these circumstances, the memorandum falls well within the contours of a policy statement or interpretive guidance, as defined by the D.C. Circuit, and is a...

Perhaps it has been too long since USCIS has truly been held accountable for its actions that it has become desensitized to the legal constraints under which it is permitted to operate. The USCIS is not given carte blanche to make whatever changes or interpretations it wants to long-standing immigration law, without first complying with the Administrative Procedure Act (”APA”). Yet, twice in the last two months the USCIS has issued “memos” that so dramatically change the framework under which these key programs operate, that it has clearly violated the APA. USCIS has taken ignoring Federal Law to a new level with its recent actions. Of course we all know that the USCIS has been illegally changing the rules as they apply to individual cases for the last several years by engaging in “rulemaking by RFE;” making ridiculous requests for evidence, not based on any legal requirement, but rather, based upon someone’s bizarre notion of what they think the law should be, not what it really is. N...