Musings on Immigration

           Earlier today, June 15, 2017,  I presented arguments on behalf of DACA recipients in Georgia the Georgia Court of Appeals, seeking to sustain the decision of the Fulton County Superior Court Chief Judge (Judge Tusan), in ordering the Georgia Board of Regents to consider all DACA recipients eligible for in-state tuition, if they otherwise meet the tuition requirements.  Here is my presentation: May it Please the Court: I am Charles Kuck. I represent the appellees Rigo Rivera, Josafat Santillan, and the other young women and men behind me, all of whom hold valid DACA approvals. On June 15, 1982 the Supreme Court of the United States issued its landmark decision in Plyer v. Doe in which they guaranteed equal access to public education for all children, regardless of immigration status. On June 15, 2012, President Obama created a program of deferral of deportation for “Dreamers," for young women and men who came to the U....

President Donald Trump signed an executive order on January 25, 2017, outlining a series of actions he directs the DHS, DOJ and related agencies to take in regards to internal enforcement of U.S. immigration law and to border security.  Many of these actions are already part of federal law, but many others will require congressional approval and appropriation of funds to carry out.   Much of what President Trump did today in this specific Executive Order (not the one on visa processing and refugees), will have an immediate impact on people's lives, but will not do anything to solve the problem of a broken immigration system. Here is what this Order does: 1.  Calls for planning, designing and constructing a wall on our international border with Mexico. This will require extensive funding from Congress (e.g. the American Taxpayer) for the immediate cost of about $25 Billion Dollars (give or take a few billion).   He also called for maintaining the wall (more billi...

On Friday, January 6, 2017, the Board of Regents filed an appeal to the Court of Appeals (under a new law change that directs Mandamus appeals (like this one) to the Court of Appeals instead of the Supreme Court (as of January 1, 2017).  This appeal does NOT stay the judge's Final Order compelling the Board of Regents to permit DACA recipients to pay in-state tuition. Also on Friday, January 6, 2017, the Board of Regents filed a "Application for Supersedeas, " which means they acknowledge their is no automatic stay and they are asking the Court to put the Final Order on hold during the time the appeal is pending (which will take months). Within three hours of receiving it, I have filed an Opposition and Response to that Application, but as many of you know, the Court's are now closed because of the winter storm.  I expect, however, that the judge will rule on the Application, either granting it or denying it, on either Monday or Tuesday. If the judge does not ru...

On December 30, 2016, Judge Gail S. Tusan, Chief Judge of the Fulton County Superior Court ordrered the Georgia Board of Regents : to perform their duty in applying the federal definition of lawful presence as it relates to students who are DACA Recipients and to grant them in-state tuition status. This is the Court's final order in this matter . . . . There are thousands of students in Georgia affected by this Order and they all want to know what this order means. Generally speaking, under Georgia law, a trial court judgment is automatically stayed for 10 days after its entry and, during this 10 day period, enforcement of the judgment is prohibited. What this might normally mean,  is that students cannot seek in-state tuition under this order until January 10, 2017, pursuant to Ga Code 9-11-62(a) . However, this section has typically been read to apply only to monetary judgments, not to orders like this case, which is an order of action to a state agency in a mandamus case....

El Tribunal Supremo de Georgia escuchará los argumentos orales en el caso de matrícula DACA-en el estado el 16 de octubre, 2015 a las 10:00 am, en el tribunal del condado de Gilmer en Elijay, Georgia. 1. La Junta de Regentes. La Junta de Regentes del Sistema Universitario de Georgia es el órgano de gobierno de las 35 instituciones de educación superior en el estado de Georgia. Se compone de 19 miembros nombrados por el gobernador, la Junta tiene la tarea de promulgar las normas y políticas que rigen estas instituciones. La Junta tiene la autoridad bajo la Constitución del estado de Georgia para promulgar y anunciar sus políticas. 2. La política en cuestión. La Junta de Regentes estados manuales de políticas, "Una persona que no está legalmente en los Estados Unidos no serán elegibles para la admisión a cualquier institución del Sistema Universitario. . . "La Junta de Regentes ha establecido un requisito de que los individuos deben estar legalmente en los Estados ...

The Supreme Court of Georgia will hear oral arguments in the DACA in-state tuition case on October 16, 2015 at 10:00 am, at the Gilmer County Courthouse in Elijay, Georgia. 1.       The Board of Regents. The Board of Regents of the University System of Georgia is the governing body of the 35 institutions of higher learning in the state of Georgia. Comprised of 19 members appointed by the governor, the Board is tasked with promulgating the rules and policies that govern these institutions. The Board has the authority under the Georgia state constitution to enact and announce its policies. 2.       The Policy at Issue. The Board of Regents policy manual states, “ A person who is not lawfully present in the United States shall not be eligible for admission to any University System institution . . . ” The Board of Regents has set a requirement that individuals must be lawfully present in the United States to qualify for in-state tuit...

Generally, Yes! At Kuck Immigration Partners we have been helping our DACA clients obtain a travel permit, also known as Advance Parole, for several years now. If you have DACA and have not taken the opportunity to travel abroad, we’ll briefly explain how it works. First of all, simply having DACA does not mean you can leave the U.S.; the travel permit needs to be approved before any trip can take place. There are three reasons to request Advance Parole: 1 Humanitarian – to attend funeral services for family members, visit family members who are ill, or to seek medical treatment Educational – to pursue a study abroad program or academic research Employment – to attend trainings, conferences, business meetings, or other foreign assignments Advance Parole is a great opportunity to visit family abroad, but it can also provide a significant benefit in obtaining permanent residence in the U.S. In 2012, a case decided by the Board of Immigration Appeals allowed...

With Donald Trump's wild rantings of the superior negotiating skills of the Mexican government, and his idea that all undocumented immigrants are criminals (neither of which has any basis in fact, but hey, its a presidential campaign, facts are not relevant), there has been a lot of attention paid to the Obama Administration's DACA and DAPA programs.  The DACA program has been an unqualified success for those 50% or so of eligible people who have signed up for it , has created opportunity for those individuals, and has even filled government coffers at the local, state and federal level.  The DAPA program is only hold  because 26 GOP controlled states decided they did not want undocumented parents of U.S. citizens to have work permits and to be safe from deportation for two years (not including, of course, the millions who do not qualify for the program). From a politically conservative point of view, it is an untenable position for at least three reasons. The defi...

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...

Despite the relief that Deferred Action for Childhood Arrivals, or DACA, brought to thousands of young American immigrants in 2012, some 11 million immigrants in the United States remain undocumented today due to gaps and inconsistencies in our immigration system. They live in fear each day that immigration officials will deport them due only to their lack of status and take them their families and lives in the United States. On August 20, 2014, 11 of these undocumented American immigrants presented their cases to Immigration and Customs Enforcement requesting “deferred action.” Deferred action refers to the power of the government to defer action on one’s case and grant him or her temporary legal status. A grant of deferred action would allow these immigrants to have temporary protection from deportation and the ability to work and drive in the United States. The 11 undocumented immigrants that presented their cases are from all over the world:  Mexico, Sen...

DUI is a common crime that could tank your chances at lawful immigration status. When it comes to immigration and criminal offenses, many people think that violent crimes, drug offenses, and gun crimes will harm your chances of getting lawful status the most. But one crime that has been creeping up as a major road block to achieving lawful status is the DUI (driving under the influence of alcohol or drugs). DUIs and DACA Previously, immigration typically only considered DUIs as a negative factor when evaluating the case as a whole. A conviction for DUI wouldn’t automatically and definitively prevent someone from getting lawful status. However, in 2012, when the Department of Homeland Security announced Deferred Action for Childhood Arrivals (DACA, the “Dream Act,” or “accion deferida”), many were surprised to see that DUIs were included on the list of “significant misdemeanors” that would definitively and permanently bar someone from receiving DACA. The guidelines stat...

Immigration Court can be a very tricky proceeding, made even more complicated when an individual is detained.   Typically when someone is detained, in order to obtain a bond from a judge, move forward in court, or have a case reopened, a detainee must be eligible to file an application seeking a green card, asylum, or some other permanent form of relief.   There have been countless requests made to judges in Atlanta where the person is eligible to file for Deferred Action for Childhood Arrivals (DACA) or to pursue the provisional waiver program (applications not reviewed in court), but a judge denies the request and only allows for voluntary departure or an order of removal.   The situation is compounded further because detainees are simultaneously denied bond as well. The argument has been made before immigration judges that DACA or eligibility to apply for a provisional waiver is a form of relief and eligibility to apply should warrant a continuation of proceedin...