Suspension of DACA Would Pose Legal Challenges for DREAMers

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Last Friday, Daniel Ramirez, who had been granted deferred action and work authorization pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program, was seized by Immigration and Customs Enforcement (ICE) agents, who raided his house to arrest Ramirez's father.  Ramirez's work authorization was still valid.  But this did not deter ICE agents from seizing him, as ICE contends that Ramirez admitted to being associated with a gang.  Ramirez claims he has no gang association, and that he was pressured by ICE to make such statements.

Ramirez has now initiated suit against the Untied States' Government. But his arrest and detention should serve as a warning to the thousands of young people who have applied for, and received, protection pursuant to DACA.

DACA is simply a promise made by President Obama that his Administration would not seek the removal of young people who were brought to the United States by their parents when they were children.  The President did this by granting deferred action.  Once the President grants deferred action, the recipient is entitled to apply for legal authorization to work in the United States.  But deferred action is not a legal status.  It is simply a promise from the Government not to seek removal.

DACA was not authorized by statute.  In fact, President Obama only created DACA when Congress failed to pass the DREAM Act, which would have created a path to legal residency and possibly citizenship for the young people who were brought to this country as children, but grew up knowing America as their home.  The people who would have qualified for status under the DREAM Act are affectionately known as DREAMers.

But because DACA is not a creature of statute, it is a very fragile promise.  The President is under no obligation to extend protection pursuant to DACA once the current protection expires.  Moreover, because it is a matter of executive discretion, an applicant is unable to challenge the denial of DACA protection in U.S. courts.

But once a DREAMer has been granted DACA protection, that person has an expectation to continue to receive protection from removal until the program expires.

This is the expectation that ICE violated when it took Ramirez into custody.  Ramirez, who has no other legal immigrant status, will now face proceedings in Immigration Court where the United States will seek his removal.

In many instances, Immigration Court can grant relief from removal.  There are some programs, such as asylum or cancellation of removal, which the Immigration Court by law can grant after a hearing.  However, because DACA is not a legal program, but an exercise of executive discretion, the Immigration Courts have no power to issue a ruling on whether DACA protection was improperly suspended for any individual.

This does not leave DREAMers without a remedy.  Because DACA recipients have an expectation of a governmental benefit, that benefit cannot be rescinded arbitrarily or capriciously.  That is, DACA recipients have a due process right to have their protection honored until the expiration of the program.  But to enforce this right, DACA recipients may need to go to federal district court.

That is, if ICE arrests a person who has been granted DACA protection, and seeks that person's removal, the DACA recipient will need to file a lawsuit in a U.S. District Court alleging constitutional violations, such as due process.  Such a lawsuit is expensive and can become complicated.  In Ramirez's case, he will have to address ICE's claims that Ramirez admitted to being associated with street gangs.  There will be discover and a hearing.

The availability of such a process may not be comforting news to other DACA recipients.  Many are not in a position to spend thousands of dollars on legal expenses to fight over weak legal promise which will expire anyway in a little more than a year.  Indeed, the current Administration could be counting on that level of vulnerability to pick off DACA recipients one by one, making tenuous claims of gang association, knowing that they are forcing the DACA recipients into an expensive legal battle.  In that way, the Administration can claim that it is merely going after the "bad hombres" and highlighting its argument that President Obama overstepped his authority when he instituted DACA.  This is a position that would play well with many of President Trump's supporters.

DACA recipients need to be prepared to defend their rights.  All immigrants should know that ICE cannot issue warrants to itself that allow entry into a dwelling.  Only a judge can issue such a warrant.  Before letting ICE into your house, make sure everyone knows that they need to ask to see the warrant, and to check whether it is judge-issued.  All residents of your home should also know that they are under no obligation to answer any question posed by ICE agents, except their name.  If asked anything by ICE agents, demand your right to consult a lawyer.  Sign nothing without consulting a lawyer.  Do not be intimidated by ICE.  Spread the word.

By: William J. Kovatch, Jr.
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Do Democrats Have an Incentive to Sabotage Immigration Reform?

In the wake of the November presidential election, there has been much discussion of whether it is time for the Republican party to embrace immigration reform.  The conventional wisdom has been that since President Obama won over 70% of the Latino vote, the GOP has to make some changes in its platform and image in order to attract Latino voters.

This conversation, however, is built on the assumption that both major political parties, Democrats and Republicans alike, approach comprehensive immigration reform in good faith.  In this article, Ruben Navarette, Jr. argues that the Democrats have every incentive to sabotage the move to adopt comprehensive immigration reform.

Navarette's argues that the Democrats really do not want to be known as the part of amnesty or open borders in later elections.  In particular, he notes that this would not enhance the party's stance with Caucasians and African Americans.

So long as immigration reform is not passed, the Democrats will continue to have an issue to use against the Republicans.  Thus, there is no incentive to actually settle the issue.  Rather, by sabotaging the issue, the Democrats can continue to make Republicans look like the bad guys to the Latino voters.

One main constituency of the Democrats is the labor movement.  Labor unions do not want the added competition of a guest worker program.  Therefore, passing immigration reform runs the risk of alienating a key constituency.

Having worked in the Federal Government myself, I must admit to a certain degree of cynicism when it comes to national politics.  There is merit, particularly in Navarette's argument that reaching a compromise would rob the Democrats of an issue to use against the Republicans.  Also, it is a mistake to think of the Democrats as a single party joined together by a unified ideology.  Quite the contrary, the modern Democratic Party is more of a collection of minority interests who find it mutually convenient to ally themselves in pursuit of their own agendas.  Thus, there is a precarious balancing act among the party leaders to try to keep such diverse constituencies as labor unions and liberal activists satisfied.  In this regard, if labor unions were to find their members' jobs threatened by a guest worker program, then it would make sense that the party leaders would develop a strategy to make it appear as though they are serious about immigration reform, but never agree to a compromise, instead blaming Republicans as obstructionists, in order to keep some of their constituents happy while having a bad guy to campaign against.

This, and the fact that the Republicans are not themselves unified on the issue of immigration reform, must be taken into consideration in analyzing whether immigration reform will indeed pass the next Congress.  Those expecting fast movement may find themselves disappointed.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

No Republican Uniformity on Immigration Reform

After Romney's presidential election defeat last week, many prominent Republicans began advocating for a change in the party's stand on immigration reform.  Pointing to the overwhelming majority of Latino voters who sided with President Obama, these Republicans saw a softening on the party's stance on immigration as one way that the party could appeal to this demographic group.

However, there does not appear to be uniformity within the Republican ranks on this issue.  Some have argued that changing the party's stance on immigration would amount to nothing more than pandering, and would not guarantee that Latinos would be more attracted to Republican candidates.

A strategy that hoisted all hope on immigration reform may not work to attract more Latino voters to the Republican party.  Such a strategy assumes that Latinos are single-issue voters, leaning heavily on immigration policy to guide their choice.  This, however, appears to be a false assumption.  Indeed, to consider the Latino vote to be a homogenous group itself is something of a fallacy.  Cuban Americans living in Florida, for example, are not the same as Mexican Americans living in California.

 The argument has been made that changing the party's stand on immigration reform could be the first step to changing the GOP's image on diversity in general. Business Insider has pointed out that Romney lost among Asian voters in a slightly larger margin than he did among Latino voters.  This is despite the fact that Romney generally won the vote among Americans with incomes of greater than $100,000 per year, and that on average Asians earn more than caucasians.  The argument here is that the Republicans' stand on immigration issues gives the appearance that the party is not so very tolerant of ethnic minorities.  But, immigration reform alone would not be enough to sway minority voters.

Francis Wilkinson of Bloomberg argues that Republicans place too much emphasis on Christian values, which can alienate Buddhists and Hindus.  Jennifer Rubin in the Washington Post wrote that among the thing Republicans need to consider is running ads in languages other than English, and Democrats do.  A similar thing can be said about campaigns aimed at legislating English as the official language, either of the federal or state governments.  Such actions are insensitive to the diverse population of the United States, and communicate a lack of tolerance to minority groups.

Immigration reform itself may not be a panacea for the Republican party.  But, it can be the first step to changing the party's image provided that harsh-toned rhetoric that appears intolerant of anyone who isn't an English-speaker of European descent is also eliminated.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Is Immigration Reform Around the Corner?

One of the emerging themes from the aftermath of the 2012 presidential election is the notion that the Republican Party must evolve to appeal to demographics other than caucasians.  More specifically, analysts say that Romney lost the Latino vote by a margin of 70% to 30%.  This is the widest margin since Bob Dole lost the White House in 1996.  Latinos are the largest growing ethnic group.  With the changing American electorate, many are saying that the Republicans must attract more Latino voters to be competitive in future elections.

The first step, according to conservative talk show host Sean Hannity, is "to get rid of the immigration issue altogether."Hannity surprised many in his audience by announcing that he has "evolved" on the issue of immigration reform.  Hannity urged that securing the borders had to be the top priority, but that there ought to be a "pathway to citizenship" for those who are already here and who do not have a criminal record.

Hannity is not the only conservative voicing a willingness to address immigration reform.  Speaker of the House of Representatives , John Boehner, stated, "A comprehensive approach is long overdue, and I'm confident that the president, myself, others can find the common ground to take care of this issue once and for all."

On the campaign trail, Republican Florida Senator, Marco Rubio, addressing the issue of young people brought to this country as children, stated that the United States need to find a solution, more permanent than the President's Deferred Action for Childhood Arrivals program, that was "humanitarian," and "that solves their problem but that doesn’t encourage illegal immigration in the future."

Given these statements by leading conservatives, there appears to be a possibility that immigration reform will be on the agenda for the next Congress.  The big question is what that reform will look like.

In one of the rare instances where Republican candidate Mitt Romney addressed immigration during the Fall campaign, he stated that graduates with degrees in math and science should "get a green card stapled to their diploma."  In September, a bill written by the Chairman of the House Judiciary Committee Lamar Smith, came up for a vote.  The bill would have increased the number of visas made available for graduates with advanced degrees in science and technology, but would have also eliminated the diversity visa program.  Representative Michael McCaul from Texas likewise mentions ending the diversity lottery while increasing the number of visas for graduates with advanced math and science degrees when discussing immigration reform.

The time may very well be right for comprehensive immigration reform.  But exactly what shape that reform will take, and whether it will include a pathway to citizenship for the undocumented aliens currently in the United States remains to be seen.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com