It has been a whirlwind month for immigration as this country continues on its indecisive course on immigration law and policy. We try to make sense of the goings-on: What is the status of Judge Hanen’s ruling? As you recall, on February 16, 2015, Judge Andrew Hanen of the U.S. District Court of Brownsville, Texas issued a nationwide injunction stopping the Obama administration from implementing executive action reforms, DAPA and expanded DACA.
The Texas judge’s decision to enjoin the government from implementing DAPA and extended DACA has brought the administration’s executive action program to a screeching halt just as thousands were getting ready to file for extended DACA today, February 18, 2015. Instead, people are trying to unearth the procedures for seeking a “stay of the stay” at the Fifth Circuit. Media reports have already surfaced that the administration will not seek emergency review of the stay, raising the specter that the entire executive action program will be on hold for many months.
First thing to know about the decision of the Texas judge who decided that DAPA and expanded DACA were illegal- DON’T PANIC! Keep collecting documents. This is a bump in the road, but is by no means final. What happened yesterday? A Texas judge granted a preliminary injunction to 26 states who sued the Obama administration over the executive action program. This has the effect of temporarily suspending the government’s implementation of DAPA and expanded DACA.
Just before Thanksgiving, we filed suit in federal district court against U.S. Citizenship and Immigration Services (USCIS) on behalf of a hospital staffing services company. Our lawsuit challenged the agency’s denial of an H-1B specialty occupation visa to a foreign physician whom the company sought to employ to care for patients in a low-income, medically underserved area. This is a story of why litigation matters, and why suing the government is sometimes the only way to achieve a just outcome.
On October 6, 2014, the U.S. Court of Appeals for the First Circuit issued a decision in Castañeda v. Souza that greatly limits the ability of Immigration & Customs Enforcement to subject individuals to mandatory detention during their removal proceedings. In Castañeda, the First Circuit interpreted the not very confusing language “when the alien is released” and rejected the Board of Immigration Appeals’ formulation, articulated in Matter of Rojas that the “when released” means “any time after release.
In a major victory for immigrants, the Board of Immigration Appeals ruled yesterday that women who are unable to leave domestic violence caused by their husbands may qualify as a particular social group for asylum purposes. This decision brings to an end a lengthy period of uncertainty regarding the viability of claims to asylum by women fleeing domestic violence. The Board’s decision in Matter of A-R-C-G-, 26 I.&N.
The House of Representatives passed the Enforce Act yesterday. This piece of legislation, which is never going to become law, provides a cause of action to Members of Congress to sue the President for failure to enforce the laws as they see fit. The Enforce Act is aimed squarely at the President’s Deferred Action for Childhood Arrivals program, which has given hope to so many young undocumented immigrants.
On this President’s Day, we wish to add a historical perspective to the robust exercise of executive authority. The President routinely tells audiences that he does not have the power to act unilaterally on immigration reform. Frustration and anger have mounted as the toll from deportations rises, and the lost opportunities due to the lack of immigration reform are compiled. The President’s claim of impotency is in direct conflict with how the right wing of the GOP (is there another wing?) sees the President.
We have written on this page before about the absurd over-inclusiveness of the ground of inadmissibility for “material support” for terrorism. This net barred Nelson Mandela from entering the U.S. without a waiver until 2008 and still bars 3000 refugees from the Iranian regime whose lives are at risk in Camp Liberty in Iraq from being resettled in the U.S. as promised by the U.S. government. Moreover, hundreds, if not thousands, of others have had their applications for asylum, adjustment of status, or refugee admission placed on hold for allegations that they provided material support for terrorism by engaging in minor activities, such as distributing political leaflets, cooking food or distributing water, which the government has deemed to constitute material support of terrorism.
Last week, we wrote about the Fourth Circuit’s decision in Martinez v. Holder, in which the 4th Circuit held that “former gang members” can qualify as a particular social group for the purpose of establishing eligibility for asylum. Martinez is one of the two cases we wrote about in October in the hope that the 4th Circuit would bring some clarity and reason to the jurisprudence on the meaning of “particular social group” as a basis for asylum eligibility.