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  1. AILA Welcomes Confirmation of New Homeland Security Chief

    by , 12-18-2013 at 09:45 AM (Matthew Kolken on Deportation And Removal)
    The following press release was posted on AILA InfoNet, on December 17, 2013 (Doc. No. 12120666).

    FOR IMMEDIATE RELEASE
    Tuesday, December 17, 2013

    CONTACTS:
    George Tzamaras or Belle Woods
    202-507-7649 - 202-507-7675
    gtzamaras@aila.org - bwoods@aila.org
    WASHINGTON, DC - The American Immigration Lawyers Association (AILA) applauds the United States Senate for confirming a new Secretary for the Department of Homeland Security (DHS), Jeh Johnson.

    "Secretary Johnson takes the reins of DHS at a crucial time in the department's history -a time when no issue is more important than modernizing our immigration laws. Our nation is on the cusp of immigration reform, and we look forward to working with the Secretary to find a way to meet our national security needs while affirming the fundamental values and rights on which our country was founded," said AILA President Doug Stump.

    Mr. Stump remarked, "Over the past few years, AILA has seen DHS move forward in a positive way on some immigration issues, such as the announcement last year of Deferred Action for Childhood Arrivals (DACA) and the quick implementation of that policy. AILA and its members welcomed that change and worked hard to ensure that eligible applicants were made aware of the opportunity that DACA affords. However, in other areas DHS has pursued objectionable policies, such as its aggressive push for unprecedented removal numbers that have torn families and communities apart."


    Mr. Johnson brings to the office of Secretary extensive experience as a trial lawyer and has answered the call to serve the United States on several occasions, most recently as General Counsel for the Department of Defense (DoD).


    "Transitioning to DHS from DoD will probably require some time for adjustment, but we hope one of his first acts as Secretary will be to carefully reexamine DHS's current enforcement practices, and truly prioritize enforcement for serious criminal offenders who pose threats to our communities. That would make far more sense than going after people who pose no such threats, have lived here for years, contribute to the economy, and just want a chance to raise their families in peace," concluded Mr. Stump.


    ###
    The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

    Updated 12-18-2013 at 10:24 AM by MKolken

  2. Johnson Confirmed by Senate; Mayorkas up Next

    by , 12-17-2013 at 03:45 PM (Greg Siskind on Immigration Law and Policy)
    Jeh Johnson was confirmed by the Senate 78-16 to be the new head of the Department of Homeland Security. This is the latest in a string of Senate confirmations of presidential appointees since Senate Democrats voted to change the rules and make it more difficult to filibuster. The Senate is expected to consider tomorrow the nomination of Alejandro Mayorkas, the current head of USCIS, to be a deputy DHS Secretary.
    Tags: -1' Add / Edit Tags
  3. Obamacare: Another Fake Excuse For Blocking Immigration Reform? By Roger Algase


    The list of fake excuses for holding up immigration reform in Congress is growing even longer and faster than Pinocchio's nose. First we had all the Border Security (BS). Obama couldn't be trusted to stop more brown-skinned people from coming over in Mexico - ergo, legalizing 11 million immigrants who were already here would never work.

    That argument disappeared pretty fast when the Senate voted to throw away $46.3 billion on a high tech border boondoggle for well heeled defense contractors in its CIR bill.

    Next was Boston - Obama couldn't be trusted to catch terrorists, so legalizing 11 million immigrants would never work.

    Then we had Benghazi - Obama couldn't be trusted to protect US consulates overseas, so legalizing 11 million immigrants would never work.

    After that, we had the government shutdown and reopening. Obama couldn't be trusted to negotiate with the Republicans in a way that would satisfy Ted Cruz and his Tea Party radicals - so legalizing 11 million immigrants would never work.

    Get the picture? And those are only a few of the excuses that have been bandied about for the House's refusal to take on the right wing bigots in the GOP and allow a vote on CIR.

    Did I leave anything out? Oh yes, Syria - I almost forgot.

    Now comes the latest addition to the FEFKR (Fake Excuses For Killing Reform) list: Obamacare. Politico, which has top immigration reporters and should know better, is running a December 17 article called Immigration's next hurdle: Obamacare

    dyn.politico.com/printstory.cfm?uuid=9E4221E7-D3A8-4D3C-8BC8-522019995CBD

    Writing about the initially failed Affordable Care Act website rollout, Politico says:

    "That the public may be more skeptical of the federal government's capacity to run big programs effectively and efficiently is something that conservatives will surely hold up as a reason not to expand the government's footprint well into the future - setting up another hurdle for reform advocates to clear."


    Never mind that immigration reform supporters are trying to put an end to, or at least drastically reduce, one of the biggest, most expensive, damaging, inefficient, destructive and morally indefensible US big government programs of all time - Obama's deportations approaching two million people in only five years of his presidency so far.

    If Obama couldn't get his act together well enough to save four American lives at Benghazi, why should we allow him to kick 11 million people out of the country?

    Funny, but I have never heard any right wing, "small government" supporters, who claim to be against "tyranny through executive power" make that argument. I wonder why not.





    Updated 12-17-2013 at 03:05 PM by ImmigrationLawBlogs

  4. Nancy Pelosi Speaks Out Against Obama's Deportations. By Roger Algase


    Politico's top immigration reporter, Seung Min Kim, writes in a December 16 article that House Minority Leader Nancy Pelosi (D-CA) is speaking out against the current pace of deportations. According to the article, Pelosi told Telemundo that the Obama administration should exercise some discretion about who is being deported, and that she had seen deportations that were "totally unjustified" in her home town of San Francisco.

    See Nancy Pelosi pushes Obama on deportations

    dyn.politico.com/printstory.cfm?uuid=8FBFDFAB-F385-47DA-90F3-E6051623A85F

    According to Kim's article, Pelosi said:

    "Our view of the law is, if someone is here without sufficient documentation, that is not reason for deportation...If someone has broken the law or committed a felony or something, that is a different story."

    Purely as a matter of law, even the strongest immigration advocates may have some serious questions about how accurate Pelosi's interpretation is, since being present in the US without legal status is indeed a ground for deportation, in and of itself.

    However, if Pelosi's statement is taken as meaning that not every deportable person should actually be deported, based on exercise of administrative discretion, it is hard to argue with her.

    But this puts Pelosi on a collision course with her fellow Democrat, President Barack Obama.

    Kim writes:

    "Still, the comments [by Pelosi] could raise the profile of an issue that has become an uncomfortable source of conflict between the Obama administration and immigrant-rights activists."

    She also writes:

    "But as reform languishes on Capitol Hill, attention has been turning toward the administration."

    It would not be surprising if reform does a lot more languishing in the House in the upcoming 2014 election year, and a good deal more attention turns to the question of just how long the president can continue to get away politically with deporting over 1,000 people a day, since he has never had any moral or human rights justification for his policy of mass deportations.

    Updated 12-17-2013 at 10:49 AM by ImmigrationLawBlogs

  5. CSPA Oral Arguments Before the Supreme Court

    http://shusterman.com/images/CSPA-Oral-Arguments-Supreme-Court.jpg
    On December 10, 2013, the Supreme Court of the United States heard oral arguments concerning who benefits from the “Retention of Priority Date” clause of the Child Status Protection Act (CSPA).

    Hopefully, in the next few months, this matter will be settled once and for all, and sons and daughters of parents who immigrated years ago will, at last, be permitted to rejoin their families in the U.S.


    Government’s Argument

    The government, having lost in the Court of Appeals, first addressed the Court:

    The Board of Immigration Appeals reasonably interpreted Section 1153(h)(3) when it ruled that creation of a new petition by a new petitioner did not qualify as automatic conversion of an existing petition to an appropriate family-sponsored category…”

    However, various Justices let the government know that they were not persuaded:

    Justice Ginsburg: “What about all the time this one child has been waiting? It gets no credit for that?”

    Justice Alito: “…your reading of this statute gives (h)(3) a very, very narrow scope.”

    Justice Breyer: “…it's just unlikely that Congress meant (3) to apply to a…little molecule when there's the whole ocean.”

    Justice Sotomayor: “It would have been much, much simpler to say this is limited to F2A beneficiaries than to write it the way they did and say this is to everybody who ages out.”

    Justice Kagan: “…it seems as though you shouldn't be entitled to Chevron deference on that question, given what Wang said about it.”

    The government attempted to counter each of the above statements. It argued that the Court recognized that “deference is particularly appropriate in immigration contexts.”

    The government expressed concern about delays to persons waiting in the F2B line, but when questioned by Justice Breyer, it revealed that it was impossible to calculate how much of a delay that these persons would experience if the respondent’s prevailed in this lawsuit.


    Chevron Test

    The issue in this case is whether the Court must give “Chevron deference” to an administrative decision interpreting a law, in this case, the Board of Immigration Appeals (BIA) decision in Matter of Wang. Here, the Court uses the following two-step test:

    Step 1"First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress."

    Step 2 – [I]“f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).


    Respondent’s Argument

    http://www.wilmerhale.com/uploadedImages/Shared_Content/Images/People/Attorney/Fleming_Mark_lo.jpgWhen it was his turn to address the Court, Mark Fleming, the attorney arguing the matter on behalf of the immigrant families, stated:

    “The government began at Step 2 of Chevron, but I would submit that this case can and should be resolved at Step 1. The government is asking this Court to read the statute in a highly disfavored way such that it is not harmonious but at war with itself, and nothing in the language requires that...”

    “…provision (h)(3) consists of one sentence, and that sentence consists of two parts separated by a comma. Before the comma, the language sets forth one and only one eligibility criterion. After the comma, the language sets forth two things that shall be done if the eligibility criterion is satisfied. Now, importantly, the government does not contend that there is any ambiguity in the language before the comma. Everyone agrees that it contemplates and includes all derivative beneficiaries. There's no dispute about that. And a bedrock rule at the Step 1 inquiry is that the Court reads the statute as a harmonious whole. That goes double when we're talking about a single sentence. So if there is a possible reading of this sentence that is harmonious with the clear opening clause that applies to all derivative beneficiaries under Step 1 of Chevron, that is the reading the Court gives to the statute.”

    _____________________________________________________________________________________

    Section 203(h)(3) - RETENTION OF PRIORITY DATE - If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.
    ____________________________________________________________________________________

    Justices Kennedy and Scalia questioned how “automatic conversion” would operate. Justice Scalia was concerned that respondent’s interpretation of the clause would permit an adult son or daughter to immigrate to the U.S. over his or her parent’s objections.

    Mr. Fleming explained that in the highly unlikely event that the parent did not want his son or daughter to join him in the U.S., he could refuse to sign an affidavit of support and they would not be able to immigrate.

    Justice Kagan: “Based on -- another understanding of Chevron is sometimes Congress writes confusing statutes that point in two different directions at once, and then there's a choice. Does the Court make the best of it or does the agency make the best of it? And the agency knows a lot about the subject matter, and especially this agency, and so irrespective of whether Congress meant to delegate something in some very self-conscious way, this is a confusing statute, it's a kind of the muddle. The agency gets to do it.”

    Mr. Fleming responded that it was clear that (h)(3) applies to all derivative beneficiaries, and that it was very possible for the agency to interpret the words “retention” and “automatic conversion” in a matter which would implement the intent of Congress. Furthermore, “retention” and “automatic conversion” are deemed separate and distinct benefits by the statute. Even if the agency decided that automatic conversion was not possible in selected cases, the son or daughter would still be able to “retain” the priority date of the original F3 or F4 petition.

    Justice Scalia: “Well, this is all upside down. I thought it's the agency that we deferred to. If it can be read in the way the agency wants, we affirm the agency's position.”

    In response to a comment by Justice Scalia that the two benefits, retention and automatic conversion, were conjunctive, not disjunctive, Mr. Fleming revealed that the government had, despite its arguments, been denying automatic conversion, but not retention, to F2A derivative beneficiaries from the date that CSPA was enacted (August 6, 2002) until 6 days before the government submitted its reply brief. This, he said, demonstrated that retention and automatic conversion can, and have been, implemented as separate benefits.

    Justice Scalia remained unpersuaded.

    Mr. Fleming ended his argument by declaring that even under Step 2 of Chevron, the BIA decision failed to draw a rational line between 2B beneficiaries, treating those with familial relationships with permanent residents more favorably than those with relationships with both U.S. citizens and permanent residents.


    Government’s Reply

    “The Respondents were trying to put far too heavy a burden on the government in the Chevron deference case. So long as the agency has arrived at a reasonable reading of this very complicated statute, the agency is entitled to deference here.”

    “The government also expresses its concern with the possibility that a derivative beneficiary could “have a priority date somehow in their pocket that they could walk around with and use 20 years later when somebody filed a different petition on their behalf, an employment petition…”

    Chief Justice Roberts: “Well, it's not so odd to say they've got a priority date in their pocket when the statute says the original priority date - they'll retain the original priority date.”


    Conclusion

    While it is impossible to predict the final outcome of a case based solely on the oral arguments, I remain cautiously optimistic that the Supreme Court will ultimately agree with both the 5th and the 9th Circuit Courts of Appeals that the statute is unambiguous and that there is no need to defer to the flawed BIA decision in Matter of Wang. A decision may be forthcoming as early as February or March.

    As recognized by many of the Justices, the government is arguing for a very restrictive reading of CSPA. Yes, the DOJ instead portrays itself as the defender of those in the F2B line and categorizes our clients as “line-jumpers”.

    What the DOJ conveniently overlooks is that CSPA created (h)(1) to allow all qualifying derivative beneficiaries who would, in the past, have “aged-out” and lost their place in line to immigrate together with their parents in a particular preference category. Under the government’s reasoning, why are they are not “line-jumpers”? Congress simply made a policy decision to give sons and daughters who have waited for years in line for permanent residence together with their parents credit for their wait, and not send them to the back of the line. If is clear that (h)(3) extends this same credit to unmarried sons and daughters of permanent residents.

    Could it be that the DOJ simply disagrees with these policy decisions?

    If so, they should lobby Congress, not the Supreme Court, to change the law.

    Updated 12-20-2013 at 02:45 PM by CShusterman

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