Understanding the End of Wet-Foot/Dry-Foot

Posted on January 14, 2017 by AttorneyLana

cubanamericanflagOn January 12, 2017, President Obama announced the immediate end of the so-called “wet-foot/dry-foot” policy on Cuban immigration. The repeal is part of an agreement between the governments of the United States and Cuba, as memorialized in a Joint Statement.[1] Here’s what you need to know to understand the Cuban Adjustment Act, the wet-foot/dry-foot policy, and how repeal of the policy will impact our immigration system.

 

(I) The Cuban Adjustment Act: a Brief Explanation

There are multitudes of different of visas one might use to visit or immigrate to the U.S., but all of these visas fall into one of two categories: immigrant or non-immigrant visas.   Immigrant visas provide a path to lawful permanent residency (a “green card”). Non-immigrant visas allow a foreign national to visit the U.S. for a temporary and specified period of time. With few exceptions, both immigrant and non-immigrant visas are available only as a result of an applicant’s relationship with a sponsoring U.S. employer or U.S. citizen/resident family member.[2] In other words, the United States has a “closed” immigration system, and a foreign national cannot obtain a visa simply because he wants one. A notable and controversial exception to this rule applies to Cuban nationals.

In 1966, aiming to stop the spread of communism in the western hemisphere, Congress passed the Cuban Adjustment Act (“CAA”).[3] Under the CAA, any Cuban national may apply for lawful permanent residence (a “green card”) one year after inspection and admission,[4] or parole[5] into the U.S.. The CAA exempts Cubans from the usual requirement of proving a relationship with an employer or family-member sponsor, as well as the requirement that they “wait in line” for a visa.[6] In so doing, the CAA essentially provides per se political asylum to Cuban nationals, so long as applicants are otherwise admissible, without the usual requirement an individual to prove he would be subject to persecution upon returning to his country of origin. “This is a privilege afforded to no other nationality and has been understood ‘by generations of Cuban-Americans and many politicians to be an open-ended entitlement to permanent residence for all Cubans….”[7] Indeed, there has been a steady increase in immigration from Cuba. In 2015, approximately 40,000 Cubans were paroled into the U.S.. In 2016, we accepted 54,000 Cubans under parole.[8]

(II) The Wet-Foot/Dry-Foot Policy: a Brief Explanation

Since 1993, INS (now DHS) has employed the “wet-foot/dry-foot” policy. Wet-foot/dry-foot, while often used interchangeably with the CAA, is not part of the CAA. In fact, the wet-foot/dry-foot policy is not a law at all, and is outside the scope of congressional authority. Rather, it is an executive policy developed over a series of executive orders and INS (now DHS) memoranda.[9]

These executive orders and memoranda do not change the provisions of the CAA. Instead, they instruct immigration officials, border patrol, and immigration courts on how the CAA should be executed and applied. Taken as a whole, the group of executive orders and policy memoranda known collectively as the wet-foot/dry-foot policy have the following effects: (1) Any Cuban national interdicted at sea will be been returned to Cuba.[10] (2) Any Cuban national who sets foot on U.S. soil is automatically paroled into the U.S. (3) Once paroled, Cubans can apply for lawful permanent residence under the CAA even if they entered the U.S. illegally.

(III) How the End of Wet-Foot/Dry-Foot Impacts Intending Immigrants from Cuba

The end of wet-foot/dry-foot simply means that Cubans must now enter the U.S. lawfully if they wish to seek permanent resident status under the CAA.  Deputy National Security Advisor Ben Rhodes and Secretary of the Department of Homeland Security Jeh Johnson revealed that, in ending wet-foot/dry-foot, the aim is “to treat Cuban migrants in a manner consistent with migrants who come here illegally from other countries.”[11] DHS will no longer grant automatic “parole to people who arrive here illegally by land or by sea.”[12]

As part of the same Joint Statement on wet-foot/dry-foot, DHS announced the end of the Cuban Medical Professional Parole, which previously allowed Cuban medical professionals conscripted to study or work in a third country under the direction of the Cuban government to defect and enter the U.S. with parole. With the end of this program, Cuban medical professionals must now enter the U.S. through normal lawful channels before applying for benefits under the CAA.

(A) This does NOT prevent Cuban nationals from seeking resident status pursuant to the CAA. The CAA states that “any inspection and admission… regardless of the classification of admission” satisfies the requirement that a Cuban national be either paroled or inspected and admitted to qualify for CAA.[13] Cuban nationals who arrive in the U.S. and are inspected and admitted, or granted parole on a case-by-case basis, may still apply for residency under the CAA.

Moreover, Cuban nationals will continue to benefit from other specialized immigration policies. The U.S. will allow the immigration of at least 20,000 Cuban nationals each year pursuant to the so-called Cuban Lottery program.[14] If selected for the Cuban Lottery, a Cuban national is eligible to immigrate to the U.S. without an employer or immediate relative sponsor. Under the Cuban Family Reunification Program, Cubans who have applied for family-based immigrant visas which are not immediately available (i.e., there is a “line” to wait in before the visa can be approved) may be paroled into the U.S. while they wait for the visa to become current (i.e., they may be paroled in the U.S. to wait in the “line” here, as opposed to remaining abroad).

(B) The policy change does NOT affect the parole status of Cuban nationals who are already present in the U.S..

Cuban nationals who have already been paroled into the U.S. will not lose their parole status. Similarly, pending residency applications filed by Cuban nationals present in the U.S. pursuant to the CAA will not be impacted by the policy change.

(C) Cubans who arrive in the U.S. illegally, or violate immigration or criminal law in the U.S., are now subject to removal.

In negotiating an end to wet-foot/dry-foot, President Obama obtained a significant concession from the Cuban government: Cuban nationals are now subject to meaningful removal. Few people (outside of Miami) realize that our tense relationship with Cuba has prevented the U.S. government from executing orders of removal (“deportation”) for Cuban nationals. For more than fifty years, the Cuban government has refused to accept the return of Cuban immigrants ordered removed from the U.S.. Accordingly, if an immigration judge ordered the removal of Cuban national, the individual could remain at liberty in the U.S., despite the order of removal.[15] This was true even where a Cuban national was ordered removed as a result of a serious or violent crime.[16] Now, pursuant to the Joint Statement, Cuba will accept some deportees from the U.S..

Cuba has agreed to accept Cuban nationals who have been ordered removed from the U.S. if: (1) at the time DHS commences removal proceedings, less than four years have passed from the date the Cuban national left Cuba, or (2) the deportee is one of the 2,746 Cuban nationals who immigrated to the U.S. as part of the “Mariel boat lift” in 1980, or (3) when the Cuban government agrees, on a case-by-case basis, to accept the return of a Cuban national who is ordered removed from the U.S..

(IV) Cuban National Living in the U.S. with an Order of Removal? What You Should Know

If you spent four years or more inside the U.S. before an immigration judge entered your Order of Removal, this policy change will not affect you. However, DHS has made it clear that they hope to revisit and expand on the agreement with Cuba. Take advantage of your head start and consider applying for any and all relief, including but not limited to the filing of a Motion to Reopen, Motion to Vacate any criminal convictions, and/or an application for Withholding of Removal.

If you spent less than four years inside the U.S. before an immigration judge entered your Order of Removal, speak with your lawyer immediately. The language of Joint Statement leaves room for your lawyer to argue that it is not retroactive, and can only be applied to Cuban nationals ordered removed after January 12, 2017. Additionally, NOW is the time to seek any and all relief. If you believe you will be persecuted if you are returned to Cuba, you may wish to file an application for Withholding of Removal. If you entered a guilty plea upon advice from counsel that the U.S. government could not deport you as a result of your Cuban nationality, consider filing a Motion to Vacate. You may find relief under Padilla v. Kentucky, 559 U.S. 356 (2010). Similarly, if you accepted an Order of Removal because immigration counsel advised that you could not be deported, consider filing a Motion to Reopen.

(V) Donald Trump Will Likely Adhere to the Repeal of Wet-Foot/Dry-Foot

As noted supra, the wet-foot/dry-foot policy comes from memoranda and executive orders (not congress), so the decision to sign off on the Joint Statement to end the policy is squarely within President Obama’s powers as the head of the Executive Branch. Under international and U.S. constitutional law, the Joint Statement does not hold the same weight as a treaty, and is not formally binding. That said, it could be politically disastrous for an incoming president to backtrack on a significant agreement. Moreover, and probably of greater concern to the incoming president at issue, the Joint Statement that ends the wet-foot/dry-foot policy provides us with a significant benefits. To that end, back-tracking on the agreement is unlikely.[17]

[1] You can access the Joint Statement here: https://www.dhs.gov/sites/default/files/publications/Joint%20Statement%20FINAL%20-%20US%20alt.pdf

[2] Some visas, like tourist visas, or visas for individuals with extraordinary abilities, allow for self-petitioning, and allow a foreign national to apply without establishing her relationship to a family member or employer in the U.S..

[3] PL 8-732, 80 Stat. 1161 (1966); reprinted in 1996 U.S.C.C.A.N. 3792. See AFM 23.11 for a breakdown of the elements of the CAA.

For a political history of the passage of the CAA, and the development of the wet-foot/dry-foot policy, see Irreconcilable Regulations: Why the Sun Has Set on the Cuban Adjustment Act in Florida, Fl. L. Rev., Vol. 63, Issue 4, 1020 (2013) http://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1099&context=flr

[4] This term refers to “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” INA §101(a)(13)(A).

[5] An individual who is granted parole is allowed to enter the U.S. but is not granted the legal benefits associated with a formal admission. As part of the wet-foot/dry-foot policy, Cubans have been granted per se parole pursuant to the humanitarian reasons ground set forth in § 212(d)(5).

[6] The lengthy wait times for many types of immigrant visas are well known, yet few understand why these waiting periods exist. Any visa which does not derive from a foreign national’s relationship with an immediate relative has a numerical cap. (Congress, in order to prevent an unsustainable influx of immigrants, limits the number of visas which will be issued each year.) If more persons apply for a particular type of visa than the number of visas that may be issued under the numerical cap, a lag in the approval of visa applications will occur, and visas are approved on a first-come-first-served basis. (For example, unmarried sons and daughters of U.S. citizens are currently subject to a seven year wait after they apply for lawful permanent residence.) An individual’s visa application is said to be “current” when she has waited out this lag, a process often referred to as “waiting in line”, though no physical line exists.

Wait times for visa applications are published each month by the Department of State in a Visa Bulletin. You can access current and past Visa Bulletins here: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

[7] Irreconcilable Regulations: Why the Sun Has Set on the Cuban Adjustment Act in Florida, Fl. L. Rev., Vol. 63, Issue 4, 1020 (2013) (citing The Cuban Adjustment Act of 1996: Mirando por los Ojos de Don Quijote o Sancho Panza?, 114 Harv. L. Rev., 902, 903-04 (2001)).

[8] Deputy National Security Advisor Ben Rhodes, speaking at the On-the-Record Press Call on Cuba Policy Announcement on January 12, 2017. https://www.whitehouse.gov/the-press-office/2017/01/12/record-press-call-cuba-policy-announcement

[9] If you’re curious about the political history surrounding the development of the wet-foot/dry-foot policy, see Irreconcilable Regulations: Why the Sun Has Set on the Cuban Adjustment Act in Florida, Fl. L. Rev., Vol. 63, Issue 4 (2013), available here: http://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1099&context=flr

[10] See DOJ Office of Legal Counsel, “Immigration Consequences of Undocumented Aliens Arrival in United States Territorial Waters” (1993), available at https://www.justice.gov/sites/default/files/olc/opinions/1993/10/31/op-olc-v017-p0077.pdf

[11] Secretary of the Department of Homeland Security Jeh Johnson, speaking at the On-the-Record Press Call on Cuba Policy Announcement on January 12, 2017. A transcript of the call is available here: https://www.whitehouse.gov/the-press-office/2017/01/12/record-press-call-cuba-policy-announcement

[12] Deputy National Security Advisor Ben Rhodes, speaking at the On-the-Record Press Call on Cuba Policy Announcement on January 12, 2017. https://www.whitehouse.gov/the-press-office/2017/01/12/record-press-call-cuba-policy-announcement

[13] See AFM 23.11(b)(2), relying on Matter of Alvarez-Riera, 12 I&N Dec. 112 (BIA 1967).

[14] Joint Statement, paragraph 3. https://www.dhs.gov/sites/default/files/publications/Joint%20Statement%20FINAL%20-%20US%20alt.pdf

[15] Cubans living in the U.S. following an order of removal were placed under an “Order of Supervision”, and released. The Order of Supervision simply required the individual to report to DHS from time-to-time, usually once every six months, year, or two years.

[16] According to the Miami Herald, more than 2,000 convicted murders have been allowed to remain in the U.S., despite having been ordered removed, as a result of their Cuban nationality. http://www.miamiherald.com/news/politics-government/article64863992.html

[17] While Donald Trump has not spoken extensively on wet-foot/dry-foot, he did indicate, in a February 2016 interview with the Tampa Bay Times, that he does not view the policy as one which is fair. The interview is available here: http://www.tampabay.com/news/politics/stateroundup/exclusive-interview-donald-trump-talks-cuba-oil-drilling-and-badly-hurt/2265296

Posted in Immigration Law | Tagged , , , , | Leave a comment

An Open Letter on the Importance of Teaching Our Children to Vote

Posted on March 14, 2016 by AttorneyLana
Pro Choice March in DC-1991-2

Me and Mom in D.C., 1991

Some of my most vivid childhood memories are set against an unusual backdrop- the Mount Washington Post Office. I recall with great clarity the 50s era signage on the brick exterior, the off-white marble steps and brass handrails of the interior, and the back room where volunteers set up cubicles with thick velveteen curtains on Voting Day.

The Post Office was the polling place assigned to my childhood home, and I remember it in such great detail because my mother took me there to watch her vote. In those days before early voting, she signed me out of daycare, preschool, or elementary school on Voting Day. I was given special dispensation to join her in the cubicle. She took care to show me the layout of the ballot, how to use it, and who or what was on it. Afterwards, we’d walk to the playground across the street, and she’d talk while I loped across the wooden plank bridge and barreled back and forth in the tire swing. She summarized the issues of the day in an age-appropriate manner. She explained what mattered to her, and how she’d voted. Most importantly, she told me time and again that lives were lost for our right to vote and that we, especially as women, had a duty to exercise that right.

I don’t always see the issues the same way as my mother- we couldn’t have more disparate opinions on the death penalty, and we chose different candidates in contested primaries this year and in 2008. But as I cast my ballot today, as is always the case when I enter a voting cubicle, I smile at the thought of the Mount Washington Post Office. My mother tells me she brought me to the polls because she wanted me to believe that my vote mattered- “one person, one vote”, she reminds. As a kid, I was just happy to steal a day off from school, to have an entire playground to myself. Sure, I got the vague sense that voting was important, but didn’t realize how the repetition of that message was affecting me. Even my mother never imagined how my watching her cast her vote, year after year, would profoundly shape my world view.

In the ordinary task of speaking to our children about voting, we ask them to do two things of extraordinary consequence: (1) to think critically, and (2) to engage the world outside their immediate family. The lessons that flow from these undertakings are innumerable and invaluable. For me, watching my mother vote sparked my sense of civic duty and responsibility to my community.  Watching my mother vote encouraged me to feel empathy. Watching my mother vote forced me to rationalize my opinions. Watching my mother vote emboldened me to speak truth to power. Watching my mother vote strengthened the political muscle that carried me to rallies and marches. Watching my mother vote was the well-spring of my interest in advocacy and social justice. Watching my mother vote gave me a profession that is a calling, not a job.

Maybe your daughter considers a fracking bill and discovers a passion for environmental science. Maybe your son is called to teach after evaluating a candidate’s position on increased funding for public schools. Maybe, like me, your child’s deliberation of civil rights sparks an interest in law.  Or maybe your child’s investment in the issues of the day pays off with the greatest dividends of all: he or she becomes more confident, more aware, more awake.  Wherever you are on the spectrum of the thousands of issues we face as Americans, please teach your children to vote. Do it the same way you taught them to walk, speak, or hold a fork. Teach by example. Take your children to watch you vote. Champion the message of “one person, one vote” which affirms the political power innate to every one of us. Empower them. Inspire them in ways you could never imagine.

#TeachOurKidsToVote #TeachKidsToVote

Posted in Voting | 1 Comment

Five Things Mitch McConnell Doesn’t Understand About Deferred Action

Posted on November 24, 2014 by AttorneyLana

Senate Republicans Address The Press After Weekly Policy LuncheonOn November 20, 2014, President Obama announced his intent to defer removal of certain undocumented immigrants. Minutes before the address, Senate Minority Leader Mitch McConnell (R-Kentucky) spoke from the Senate floor in opposition to the President’s plan. The public has responded with unabating confusion about deferred action. This isn’t surprising, given that (though immigration is a popular issue for debate) immigration law isn’t taught in American schools and universities. Even most law schools pump out our future legislators and judges without a requisite course in immigration law. Senator McConnell’s commentary shows just how confounding our immigration laws can be since even he, our soon-to-be Senate Majority Leader, doesn’t understand deferred action.

  1. Only the Executive has Authority to Defer Removal

Senator McConnell began with a quote from the April 29, 2011 Commencement Address at Miami Dade College where President Obama said “democracy is hard…. changing our laws means doing the hard work of changing minds and changing votes one by one…. I know that some wish that I could just bypass Congress and change the law myself, but that’s not how democracy works.” The Senator relied on the reference as evidence the President is overstepping his values, his word, and the authority vested in the executive branch. If President Obama wanted to unilaterally change our immigration code, Senator McConnell would be right. But the plan to expand deferred action does not reflect an attempt to change the law. Rather, it is an exercise of the authority vested in the executive branch since the late 1800’s. (The following explanation is about a page long, but if you can stay tuned you’ll have a firm grasp on the basics of deferred action.)

While the Constitution grants Congress the authority to regulate commerce with foreign nations and establish a uniform rule of naturalization, it is silent on which branch should regulate the immigration of foreign persons.[1] The Supreme Court has wrestled with this lack of enumeration since the end of the 19th century. Until then, immigration matters had been left to the States without incident. But when the first major wave of immigration began, the Court had to decide whether the Federal government had any authority to regulate the incoming flow of immigrants. It wasn’t until the Head Money Cases in 1884 that the Court first considered whether and held that Congress indeed had the power to regulate immigration.[2] The Head Money ruling paved the way for Congress to draft our modern immigration code, the Immigration and Nationality Act (INA).

Immigration law is now almost entirely federal in nature, and Congress has near plenary power to regulate immigration. What Congress does not have is the power to enforce its immigration laws. Through the INA, Congress vested a majority of the enforcement responsibilities in the executive branch. A number of executive agencies have administered the INA over the years, but the best known of these was the Immigration and Naturalization Service (INS). The INS no longer exists, as it was disbanded during the massive post-9/11 restructuring of all federal agencies related to national security. Via the Homeland Security Act of 2002 (HSA), Congress brought those agencies under the umbrella of the newly created Department of Homeland Security (DHS). Since then, DHS has used three agencies to enforce our immigration laws: the Bureau of Immigration and Customs Enforcement (ICE), the Bureau of Customs and Border Patrol (CBP), and U.S. Citizenship and Immigration Services (USCIS). Here’s a (very simplified) account of their respective roles: USCIS is responsible for processing petitions for visas, asylum, and naturalization. CBP is tasked with securing our borders and enforcing trade regulations; it’s the largest law enforcement agency in the country. ICE is DHS’ prosecutorial arm, responsible for investigating and trying violations of our national security and immigration laws.

Where an alien is alleged to have violated an immigration law, be it through accrual of unlawful presence or commission of a crime, he may be prosecuted through removal (“deportation”) proceedings. Removal proceedings are administrative proceedings through which an Immigration Judge determines whether an alien has violated the INA, and whether he or she should be removed (“deported”) as a consequence. Naturally, the attorneys who prosecute aliens in removal proceedings are representatives of ICE. However, you may be surprised by the fact that our Immigration Judges, Board of Immigration Appeals, and Executive Office for Immigration Review[3] are also part of the executive (not the judicial) branch. By now, the depth of executive authority in the realm of immigration should be evident. Let’s turn to how that authority can be lent to deferred action.

Just as an arrest will not always lead to the filing of charges against an arrestee, an alleged immigration violation will not always lead to an alien’s being placed in removal proceedings. An ICE attorney might decide that mitigating circumstances justify administrative closure of the proceedings against a particular alien. Such a decision is an isolated exercise of the prosecutorial discretion vested in ICE attorneys. Deferred action uses the same authority to cast a wider net and impact a certain class of persons as a whole. The Attorney General instructs the ICE agents and attorneys under his wing to decline to prosecute individuals that meet specified criteria. In other words, deferred action is a decision that the government will not seek to remove a certain class of aliens.

Deferred action is not, as Senator McConnell suggests, a change to our immigration law. It does not grant specified aliens the privileges of residency or rights of citizenship. It does not grant access to Medicare, Medicaid, Affordable Healthcare, Federal student aid, or the right to travel freely outside of the U.S.. Rather, it is an acknowledgement that aliens who conform with a set of specified criterion will not be targeted for removal. It is an incentive for undocumented aliens to make themselves known and fully contribute to our society. It is an exercise of the executive power consistently recognized, strengthened, and expanded by Congress, and upheld by the Supreme Court. Just like Presidents Clinton, G.W. Bush, G.H.W. Bush, Reagan, and Roosevelt,[4] President Obama is clearly within the confines of his authority when he allocates limited prosecutorial resources to the removal of aliens who pose the greatest risk to our security.

 

  1. Deferred Action Does Not Create an Incentive for Unlawful Immigration

Senator McConnell says that deferred action will encourage immigrants to enter without inspection, and says “[w]e’ve already seen the consequences of Deferred Action for Childhood Arrivals…. It was a factor in encouraging young people to risk their lives on a perilous journey some would never complete.”

We’ll never know for sure how many undocumented immigrants are living in the U.S.. (If the government had the resources to monitor visa overstays and unlawful entries that closely, we probably wouldn’t be debating deferred action.) We do, however, have estimates of the number of undocumented immigrants living in this country. In 2014, even after a wave of child immigrants entered without inspection to escape growing violence in Central America, illegal immigration was at a 40 year low. It would seem that the consequences of Deferred Action for Childhood Arrivals (DACA) are not as the Senator suggests.

This is unsurprising, since President Obama’s DACA program is available only to immigrants who have continually resided in the U.S. since June of 2007. A similar length-of-residence requirement will apply to President Obama’s expansion of deferred action, which will only be available to those who have lived in the U.S. for 5 years (or 3 years, in the case of those who are parents of a lawful permanent resident or U.S. citizen). In other words, there is no incentive for those living abroad to “flood the gates”, as they will be ineligible for deferred action.

 

  1. Deferred Action Does Not Allow Undocumented Immigrants to Cut in Line

Senator McConnell asks: “[w]hat does the President have to say to the countless aspiring immigrants who’ve spent years waiting patiently in line? To the people who’ve played by all the rules?” I suspect the President would tell them their patience will be rewarded when they, unlike those who stand to benefit from deferred action, become lawful permanent residents. Immigrants who wait in line will receive all the privileges of residency that deferred action beneficiaries cannot, such as freedom of travel, access to Affordable Healthcare and Federal student aid, and a path to citizenship. If Senator McConnell is truly concerned about the lengthy wait for these privileges, he shouldn’t be grumbling about deferred action. Instead, he should be rallying his fellow legislators to expand access to immigrant visas (“green cards”).

When an alien applies for an immigrant visa, he will usually face a lengthy wait before that visa becomes available. This is because USCIS receives far more applications than there are visas available each year (demand exceeds supply). Congress sets a limit on the quantity of immigrant visas which may be issued in a calendar year. (For example, in 2014, USCIS was authorized to approve a minimum limit of 226,000 family-sponsored visas.) The day an alien files an application for a visa is known as his “priority date”. A priority date helps keep track of where an alien stands in the line for a visa. (You might compare this priority date to the number on a ticket at a deli line. When your ticket number is called, it’s time for you to step up to the proverbial counter.) Each month USCIS publishes a Visa Bulletin announcing the priority dates of the applications which are ready to receive service. A quick glace at the Visa Bulletin will show you just how long many immigrants have to wait for a visa. The July 2014 Visa Bulletin reflects service on applications with priority dates as far back as May of 1991. If Senator McConnell is genuinely worried about the people waiting in line, he should focus his concern on the unrealistic numerical limits on immigrant visas.

 

  1. Deferred Action Does Not Exacerbate Unemployment, but Probably DOES Create Jobs

Senator McConnell asks “[w]hat does the President have to say to the millions of Americans who still can’t find work in this economy? The President can’t reach across the aisle to secure a serious jobs plan for them, but he’s willing to put everything he’s got into this one executive action?”

There are two overt inaccuracies here. First, Senator McConnell overlooks President Obama’s record on unemployment.[5] The Senator’s comments come during the 56th straight month of private sector growth; Obama’s administration has over-performed President Reagan’s when it comes to job creation. Second, Senator McConnell suggests the President is using a great deal of his finite resources on a single executive action. Obviously, resources will be used to implement the expansion of deferred action. But to claim the President is putting “everything he’s got” into this plan is to exaggerate to the point of absurdity.

Most important, however, is a third, covert inaccuracy. Senator McConnell’s mention of unemployment is classic dog-whistle politics, a coded message that immigrants “steal” jobs from Americans. Senator McConnell, if you’re going to say something, come out and say it. Also, you might try basing your criticism on something that’s true. A great number of studies undercut the Senator’s implicit message, and find no statistical relationship between unemployment rates and the presence of substantial immigrant populations (undocumented or otherwise). Deferred action would allow immigrants to work lawfully; the ability to work lawfully means undocumented laborers need not accept menial wages that undercut American workers. Lawful employment also means more taxable income for the state and federal governments. Finally, it means job creation, since immigrants are twice as likely as natives to start new businesses.

 

  1. Deferred Action is Necessary Because Congress Refuses to Act

Senator McConnell says: “The American people sent a message. They said they want to see us working together. They said they want to see more serious ideas pass through Congress. What they didn’t say they wanted to see was the President sidestepping the very representatives they just elected.”

It’s not possible for President Obama to “sidestep” representatives (that aren’t in office yet) by acting within the scope of authority designated to the executive branch. But here’s the real problem with this indictment of deferred action: the only reason President Obama has to act alone is because Congress is unwilling to unable or unwilling to work together on immigration reform. Congress hasn’t made significant changes to our immigration code since the 1980’s.

Congress can’t even come to a consensus on one of the least controversial of our immigration problems- the presence of undocumented immigrants brought to the U.S. as children. This is not to say that a few of our Congress members haven’t tried, as the DREAM Act (Development, Relief, and Education for Alien Minors Act), a bipartisan bill, has been a topic of congressional debate for fifteen years. The DREAM Act was first introduced in the Senate in 2001. (Notably, one of the bill’s co-sponsors was Orrin Grant Hatch, R-Utah, the Senate’s longest-serving Republican.) The bill would provide a path to permanent residency for undocumented immigrants that (1) arrived in the U.S. before turning sixteen, (2) graduate from a U.S. high school, (3) lived in the U.S. during the five years preceding the bill’s enactment, and (4) can demonstrate good moral character. A six year grant of conditional residency would be contingent upon two years of study at a College or University. Those that ultimately obtain a degree or serve at least two years in the armed services would be eligible for permanent residency. The DREAM Act has been voted down, filibustered, or left to die on the Senate floor in 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, and 2011.[6]

This, despite the fact the DREAM Act has received bipartisan support from stake-holders in every facet of education, business, and government. A few notable messages of support came from: the National Education Association; the National Parent Teacher Association; the American Federation of Teachers; Microsoft; Macy’s Chairman, President, and CEO, Terry Lundgren; Chairman and CEO of New Corporation, Rupert Murdock; General Colin Powell; Secretary of the U.S. Department of Defense Robert Gates; and Secretary of the Department of Homeland Security, Janet Napolitano. Perhaps even more compelling than this impressive showing is the irrefutable support the DREAM Act has received from the people.

While Congress delayed and denied, fifteen states passed their own versions of the DREAM Act. Thanks to Texas, California, Illinois, Utah, Nebraska, Kansas, New Mexico, New Jersey, New York, Washington, Wisconsin, Massachusetts, Maryland, Minnesota, and Oregon, 46.91% of the population lives in a state covered by DREAM legislation. Or, to speak Senator McConnell’s language, 238 electoral college votes (just 33 votes shy of the number needed to clinch the 2000 Presidential election) reside with states that support the DREAM Act. Senator McConnell, the people have sent a message. You’re simply choosing to ignore it.

 

[1] See U.S. Const., art. I § 8.

[2] Head Money Cases, 112 U.S. 580 (1884),

[3] The Attorney General’s authority over the EOIR, previously memorialized in centuries of administrative laws, was codified by Congress in the HSA.

[4] You can read more about prior uses of executive action on immigration here: http://www.msnbc.com/rachel-maddow-show/unprecedented-except-all-the-other-times

[5] You can read more about President Obama’s successes in encouraging private sector growth here: http://www.forbes.com/sites/adamhartung/2014/09/05/obama-outperforms-reagan-on-jobs-growth-and-investing/

[6] In 2012, in response to years of delays, President Obama extended DACA to the immigrants contemplated by the DREAM Act. The bill remains a topic of debate, however, since DACA beneficiaries have no path to residency without it.

Posted in Immigration Law | Tagged , , , , , , | Leave a comment

Finally! Immigration Equality for GLBT Couples

Posted on July 14, 2013 by AttorneyLana

LibertyRainbow

On June 26, 2013, the Supreme Court of the United States struck down section 3 of the Defense of Marriage Act (DOMA).*  United States v. Windsor, 570 U.S. ___ (2013).  In so ruling, the Court held that it is unconstitutional for the federal government to deprive married same-sex couples of the rights and privileges it grants to married opposite-sex couples.

The decision puts an end to a long history of discriminatory treatment of GLBT persons by USCIS, DHS, and immigration courts around the country.  As early as 1952, the U.S. Congress made homosexuality a ground for exclusion.  (See Act of June 27, 1952, §212(a)(4); 66 Stat. 163, 182.)  Initially, homosexuals were excludable as those “afflicted with psychopathic personality… or mental defect.”  (As noted in Boutilier v. INS,  387 U.S. 118, 120 (1967), Congress intended these terms to encompass homosexuality.)  In 1965, to explicate its intent, Congress amended §212(a)(4) to exclude those exhibiting “sexual deviation”.  The ban on homosexual non-citizens remained until 1980, when Congress amended INA §212(a).  This initiative initially sparked hope that same-sex couples would soon receive equal treatment in their family-based visa petitions.  Just six years later, however, President Clinton signed DOMA into law.

The Windsor decision is a significant victory for equal protection, and its impact is particularly obvious in the immigration context.  After almost 70 years of discriminatory treatment, GLBT persons will be treated fairly by our immigration system.   U.S. citizens or lawful permanent residents in same-sex marriages can petition for a spouse’s “green card”, employment authorization document, and other immigration benefits.  As a long-time activist for marriage equality, I look forward to representing married couples in the GLBT community as they embark on their visa journeys.

*Contrary to popular belief, the Court did not strike down DOMA in its entirety.  Rather, the Court only invalidated the portion of the Act pertaining to the federal government.  Still good law is the portion of DOMA that allows state governments to discriminate against couples in same-sex marriages.  Section 2 of DOMA allows states to ignore the “full faith and credit clause” of the Constitution as it relates to same-sex marriages.  Accordingly, even if a same-sex couple marries in a state that recognizes marriage equality, another state need not treat the couple as legally married.  Challenges to what remains of DOMA are already in the works- the ACLU has filed suits on behalf of couples in Pennsylvania, North Carolina, and Illinois in the hopes that the Supreme Court will review the constitutionality of Section 2.

Posted in Immigration Law | Tagged , , , , , | Leave a comment