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President Obama’s New Immigration Executive Order – Its Terms and Injunction Against It

In Uncategorized on February 24, 2015 at 11:31 AM


President Obama recently announced that he will take executive action to shield millions of illegal immigrants from deportation. While President Obama’s executive order will not grant illegal immigrants legal permanent residence (green cards) or citizenship, as only Congress can make that change with legislation, it may prevent up to 5 million immigrants from being deported.

Under this executive order, eligible immigrants will have the opportunity to request temporary relief from deportation if they file an application, and pass criminal and national security background checks and pay a fee. They will also be eligible for work authorization, and must also begin paying taxes.

Here are the some of the most important changes to the nation’s immigration system through this executive order that you need to be aware of.

1. It Removes the Age Cap for “Dreamers.”

Deferred Action for Childhood Arrivals (DACA), the group informally known as “Dreamers,” will be expanded under President Obama’s new executive order. This is the program that allows individuals who meet certain requirements to be deferred from deportation and allowed to work and travel in the U.S.

The current DACA rules require someone to be under the age of 31 on June 5, 2012. Also, eligability under the current DACA program is limited only to those individuals born after June 15, 1981. However, under the new executive order, this birthdate limitation has been lifted, and now anybody who was brought to the U.S. before the age of 16 will be able to apply for DACA as long as they meet the other requirements. The physical presence date has also been advanced to January 1, 2010, and applicants can now qualify for DACA if they were in the U.S. by that date, instead of June 15, 2007, under the current DACA rules.

DACA is also being expanded to three year increments. This change will apply to all first-time applications, as well as all applications for renewal, effective November 24, 2014. Work permits will be valid for three years now as well. USCIS is also considering extending previously issued two-year work permit renewals for the new three year period; however no decision has been made on this yet.

USCIS is advising that they expect these changes to take effect in late February of 2015.

2. It Shields Immigrants’ Parents from Deportation.

One of the biggest changes that will be made by the President’s executive order is the creation of a similar deferred action program for illegal immigrant parents of citizens or green-card holders. This protection will be available regardless of the age of the child. The Deferred Action for Parental Accountability (DAPA) will allow eligible parents to avoid deportation if they have been present in the U.S. since January 1, 2010, and have five years of total presence in the U.S.

Applicants must also not have a lawful immigration status on November 20, 2014, must have been present in the U.S. on November 20, 2014, and at the time of making the request for deferred action. Applicants will be subject to background checks and must not be in an enforcement priority category. Like DACA, deferred action will be granted for a period of three years. DAPA applications should start being accepted in late May of 2015.

Also, if someone is arrested by ICE, CBP or USCIS, they are to be identified as potentially eligible for DAPA, and officers are to seek administrative closure or termination of the case. DHS will review cases currently in removal proceedings to see who might be eligible for relief and those cases will be closed. The estimated population benefit will be 4.4 million under this new program.

3. Waivers.

In January of 2013, the U.S. Department of Homeland Security (DHS) published a regulation setting up a process to allow some people to file I-601A waivers for unlawful presence of the three and ten year overstay/unlawful status bars before leaving the U.S. and potentially facing a 3 or 10 year bar on returning to the U.S. The current rule only applies to spouses and children of U.S. citizens. However, the rule will now be extended to cover all statutorily eligible classes of relatives for whom an immigrant visa is immediately available, including spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents.

It’s important to remember that USCIS is advising that these changes will not take effect until new guidelines and regulations are issued, and it has not provided a timeline for when these new guidelines and regulation are to be issued.

4. Recent Border Crossers will be a Priority for Deportation.

You must have been in the United States for at least five years to qualify for any of these new programs. These executive actions will not benefit immigrants who recently crossed the border, who may cross the border in the future, or who help those who cross in the future. It’s intended to only benefit immigrants who have been living in the United States for many years. By refocusing on border security, the President’s actions have increased the chances that anyone attempting to cross the border illegally now will be caught and then sent back to their home countries.

5. Enforcement Priorities.

Both the DACA and DAPA initiatives may not be available to those who have committed felonies or who have significant misdemeanors (such as DUIs or convictions for domestic violence) on their criminal record. Those eligible for DAPA and DACA must pass a background check, and those who have felony or significant misdemeanors on their record may be deported.

6. You will not be Able to Apply for Several Months.

USCIS will not begin accepting applications until early to mid-2015, depending on the program. But while the government is not accepting applications now, if you believe you are eligible for one or more of the initiatives, you can prepare now by gathering documents that establish your identity, your relationship to a U.S. citizen or lawful permanent resident (if applying on that basis), and that establish you have continuously lived in the United States for at least five years.

Once again, according to U.S. Citizenship and Immigration Services (USCIS), the changes made by the President’s executive order will not go into effect at least until 2015. Specifically:

• DACA changes are projected to take effect in late February 2015;

• DAPA applications should start being accepted in late May 2015; and

• USCIS is advising that the changes on I-601A waivers for unlawful presence will not take effect until new guidelines and regulations are issued, however it has not provided a timeline for when these new guidelines and regulation are to be issued.

7. Fraud.

As with other immigration requests, knowingly misrepresenting or failing to disclose facts will subject applicants to potential criminal prosecution or removal from the United States, so it is critical to provide truthful and accurate information and documentation. USCIS will carefully review each case and if you commit immigration fraud, you will not qualify for any benefits under the new executive order.

8. Be Aware of Scammers.

Once again, these changes have not yet been implemented, so beware of scammers offering to help submit these applications now. Instead, speak to a legitimate immigration attorney about what you can do while waiting for President Obama’s executive immigration order to take effect

9. Stay Informed.

Make sure you remain informed and know when the application process starts. As always, http://www.uscis.gov will be the authoritative source of information about eligibility and you can subscribe to get updates at http://www.uscis.gov/immigrationaction.

10. Legal Challenges to the Executive Order.

Members of Congress and 26 states, including Texas, have challenged President Obama’s executive order, claiming that his actions violate his constitutional duty to faithfully execute the current laws of the United States, and laws previously passed by Congress and prior Presidents, regarding immigration authority. In essence, they argue that President Obama does not have the legal authority to allow illegal immigrants the right to a work permit as only Congress can make that change in the law. They also argue that President Obama should not attempt to confer benefits upon immigration law breakers, and that he should actively enforce immigration law by deporting illegal immigrants eligible for deportation.

The Executive Order was successfully challenged in the United States District Court for the Southern District of Texas, and Judge Andrew Hanen in Texas v. United States issued an injunction against implementation of the Executive Order on February 16, 2015. The Obama Administration plans on appealing the injunction to the Fifth Circuit Court of Appeals. If that court affirms, it is easy to see how the Supreme Court may soon review the case.

Special Immigrant Juvenile Status

In Immigration on July 15, 2014 at 3:46 PM

2014.07.15 image for Special Immigrant Juvenile Status

Recent actions of the Obama administration in the last two years had the effect of encouraging the parents of tens of thousands of minors to send their children across the United States’ borders illegally. There is great debate about how to stop this flow of illegal immigration, and what to do with those minors now present in the United States. These unaccompanied juveniles, many of whom have been either orphaned, abandoned, suffered domestic violence, or even have been the targets of gang violence or organized crime, are especially vulnerable. Most of these children are also ineligible to receive assistance from their countries of origin, and thus have been sent to the United States for greener pastures, where instead many of them end up being apprehended by local law enforcement or Immigration Customs Enforcement (ICE) who holds them with an immigration detainer in anticipation of removal (deportation) proceedings.

This is a process for these same juveniles who have been neglected, abused, or abandoned by their parents to potentially obtain Permanent Resident status (obtaining a “green card”) through a federal law known as Special Immigrant Juvenile Status (SIJS) wherein the Immigration and Nationality Act (INA) § 203(b)(4) allocates a percentage of immigrant visas to individuals considered “special immigrant juveniles.” This is indeed a relatively quick route to a green card for children who qualify, however, the process IS very complicated and should be done with the assistance of an immigration experienced attorney.

Because the application process must be started while the child is still a juvenile, or minor under state law (18 in most jurisdictions), it is important for people such as teachers, counselors and other people who regularly work with youth to identify potential youth who may qualify for this status, before they reach an age where they are too old to benefit from this special law.


A child is eligible for SIJS only if a court in the state where he lives finds the child to be neglected, abused, or abandoned by one of both parents, and that it is not in the child’s best interest to return to his or her home country. The court must either make the child a ward of the state (court dependent) or place the child in the custody of a guardian, state agency, or family member dependent on a juvenile, family, a similar state court or other institution. Court terms, procedures, and legal standards will vary from state to state, as well as which kinds of courts can make such a determination. Also, the legal standard for abuse, neglect, or abandonment is a question of state law and thus differs from state to state. This is just one of many reasons why it is imperative to find an experienced immigration attorney to assist in this process.


Once a court has found that the child, who is not in removal proceedings, was either abused, neglected, or abandoned, and that it is not in his or her best interest to return to his or her home country, the child may file Form I-360 ( Petition for Ameraisian, Widow(er), or Special Immigrant) with USCIS requesting Special Immigrant Juvenile Status. It is also important to note that the child must file the petition while the court order is still in effect. In many cases, this means that the child must file the petition before turning 18 years old.

USCIS will review the I-360 and the other evidence to determine whether the child qualifies for Special Immigrant Juvenile Status. If USCIS believes that more evidence is needed, it may issue a “request for evidence.” The officer reviewing the file should accept the findings of the judge as to whether the child was abused, neglected, or abandoned. However, the officer may decline to grant SIJS status based on a belief that the court order was obtained only for the purpose of immigration. USCIS is required to make a decision on the petition within 180 days from the time it was submitted.


Once the juvenile has an approved I-360, they can proceed with an Adjustment of Status application. The Form I-485 (Application to Register Permanent Residence or Adjust Status) may be submitted at the same time as the I-360 Petition, if it is ready at the time. However, USCIS will not make a decision on the I-485 unless and until it grants Special Immigrant Juvenile Status to the child.

Special Immigrant Juveniles may also ask USCIS to waive the application fee. This is done by using form I-912, Request for Fee Waiver. Otherwise, the green card process is similar to the process for family-based adjustment of status cases.

Once the Form I-485 is filed, the juvenile may also apply for employment authorization pursuant to the pending adjustment of status application. Juveniles who adjust status as a result of an SIJ classification enjoy all benefits of lawful permanent residence, including eligibility to naturalize after five years. However, they may not seek to confer an immigration benefit to their natural or prior adoptive parents under this law.

The Heritage, Conception, Life, and Death of Arizona’s S.B. 1062. And Why It’s Important

In Constitutional Law, Federal Law, First Amendment on April 23, 2014 at 9:57 AM


On February 19, 2014, Arizona’s two houses of legislature passed S.B. 1062. Though the bill does not explicitly mention homosexuality or Christianity, it became both a lightning rod and a rally flag, depending on which side of the culture war onlookers identified themselves. Facing intense pressure from businesses, professional sports organizations, and national politicos, Governor Jan Brewer vetoed the bill.

Objective observers of S.B. 1062 would probably agree that the dialogue surrounding the bill generated more heat than light. One need only glance at the “comments” section of almost any article covering the bill to see the belligerents calling each other names and impugning each other’s motives. For example, one commentator on a Powerline article suggested those opposed to S.B. 1062 were “agents of intolerance, hatred and darkness.” http://www.powerlineblog.com/archives/2014/02/no-this-is-not-jim-crow-for-gays-understanding-arizona-s-b-1062.php.

On the other side of the debate, one well respected news reporter let his anger cloud his logic so much that he blatantly contradicted himself in less than a minute’s time. In a news piece titled “Keeping Them Honest,” CNN’s Anderson Cooper first accused one of the interest groups that helped draft the bill of acting strange for not coming on his show since “they were not keeping [their role] secret” and then, less than a minute later in his monologue ominously suggested that what was wrong with the groups’ activity was not their activism but that they were keeping their role a secret. See http://mediamatters.org/blog/2014/02/28/cnn-and-msnbc-expose-the-anti-gay-group-behind/198280, first posted clip at 1:30 to the end.

Another gay-rights activist described the controversial bill as “a wretched, conceived-in-hate piece of trash.” http://americablog.com/2014/03/arizonas-sb-1062-egregiously-misrepresented-critics.html. Actually, instead of “hate,” the controversial bill’s conception is intertwined with First Amendment jurisprudence and historical legislative (both federal and state) reactions to that jurisprudence.

The First Amendment

Ratified in 1791, the First Amendment forbids Congress from prohibiting the free exercise of religion. Since that time, courts have struggled to find a correct balance between an individual’s freedom of religion and society’s demands of each individual. For example, at one extreme, although a worshipper of Moloch might feel religiously compelled to offer her child as a burnt sacrifice to the ancient Ammonite god, Texas Penal Code §19.03 defines such conduct as capital murder, punishable by death or life imprisonment without parole. Does Texas Penal Code § 19.03, therefore, “prohibit[] the free exercise of” religion? The answer is easy, and must be an emphatic “no.” Otherwise, the First Amendment “would . . . make the professed doctrines of religious belief superior to the law of the land, and, in effect . . . permit every citizen to become a law unto himself.” Reynolds v. United States, 98 U.S. 145, 167 (1878). President Lincoln (though not in reference to freedom of religion but as justification for firing on Fort Sumpter) framed the dilemma as follows: “Must a government, of necessity, be too strong for the liberties  of its own people, or too weak to maintain its own existence?” See Minersville School Dist. v. Gobitis, 310 U.S. 586, 596 (1940).

As history attests, drawing the line of demarcation using clear legal standards that adequately balance both the individual’s First Amendment interests and society’s demands of each individual, can be challenging.

Where To Draw the Line?

Early Supreme Court decisions, lacking the balancing tools of the later-promulgated levels-of-scrutiny constitutional jurisprudence, drew a severe line, limiting religious freedom’s scope to protecting belief but not action. For example, the Reynolds Court, when faced with the issue of whether a law prohibiting plural marriage violated a 19th-century polygamous Mormon’s First Amendment rights, ruled that “Congress [is] deprived of all legislative power over mere opinion, but [is] left free to reach actions.” Id. at 164 (emphasis added). In other words, because Mr. Reynolds’ sentence to two years’ hard labor was based on his actually marrying a second wife instead of merely holding the opinion that doing so would be morally right, the Court found his First Amendment rights to remain intact despite the sentence. The same Court, however (likely fearing a Pandora’s box that would lead to anarchy, especially if the Court granted a First Amendment right to participate in what “has always been odious among the northern and western nations of Europe”) ignored the thorny fact that the First Amendment protects “free exercise of religion,” not mere opinion. Id.; U.S. Const. amend. I.

The Reynolds bright line began to blur in 1943 with West Virginia State Board of Education v. Barnette, in which the Court ruled that a state could not compel a Jehovah’s Witness school child to pledge allegiance to the flag. 319 U.S. 624. Though the Court packaged the ruling with a consciousness of the Reynolds language (claiming that making a symbol and stating a vow was intimately linked with belief) the holding nonetheless undoubtedly weakened Reynolds’ assertion that “legislative power . . . [is] left free to reach actions.” Reynolds, 164.

In 1968, that line blurred to breaking, when the Court addressed the issue of whether a Seventh-Day Adventist could be required to accept work on Saturdays to receive unemployment benefits. Sherbert v. Verner, 374 U.S. 398. The Court ruled in favor of the Seventh-Day Adventist. The Court wholly discarded the Reynolds bright line rule and instead analyzed the issue through the constitutional “levels of judicial scrutiny,” created by United States v. Carolene Products Company, 304 U.S. 134 (1938). The Court examined the law with strict scrutiny, further stating that “only the gravest abuses [of religious exercise] give occasion for permissible limitation” by the state. Sherbert at 406.

 Religious Freedom Restoration Act

In 1990, with Employment Division v. Smith, the Supreme Court again demonstrated the precariousness of the balance between individual religious liberty and public safety, peace, and order. 494 U.S. 872. There, the Court decided whether a user of an illicit drug could seek First-Amendment refuge from criminal prosecution. In Smith, the Court returned to a more Reynolds-like position, expressly rejecting the compelling interest requirement for government actions that burdened the exercise of religion. Id. at 888-889. The Court held that if the religious conduct burdened (in this case, smoking peyote) is prohibited by law (whereas in Sherbert observing a Saturday Sabbath was not prohibited by law, a distinction the Court was careful to note), then no heightened scrutiny applies. The only question for reviewing courts in such situations is whether the law is “generally applicable” (the inverse being whether the State is specifically targeting or exempting a religion) and whether the law in question has a rational basis.

It is perhaps no coincidence that the three decades preceding Smith saw not only a rising crime rate but also a rising drug-related crime rate. Thus, it is quite possible that the Court’s sudden jerking back of the religious freedom reins was informed by the same fear that informed Reynolds: “every citizen . . . a law unto himself.”

Although it is only arguable that Smith was a reaction to three decades of increasing lawlessness, there is no question that the Religious Freedom Restoration Act was passed in reaction to Smith. See City of Boerne v. Flores, 521 U.S. 507, 513 (U.S. 1997). In effect, Congress said to the Court, “if you will not find stronger protections of religious exercise in the Constitution, we will craft our own statutory protections.” In 1993, the Democrat-controlled House and Senate passed (with only three total dissenting votes) and President Clinton signed, the Religious Freedom Restoration Act (“RFRA”). Among other things, RFRA restored strict scrutiny as the lens through which Courts must evaluate religion-burdening state actions. The Court, however, soon made clear that RFRA had not once and for all settled the balance.

Supreme Court Strikes Down RFRA As To States

In 1997, in City of Boerne v. Flores, the Supreme Court struck down much of RFRA, holding that the Constitution did not grant Congress the authority to impose RFRA’s requirements on the states, though RFRA’s restrictions continued to apply to the federal government. 521 U.S. 507.

In response, many states passed their own version of RFRA. One of those states was Arizona. Arizona’s RFRA was a precursor to S.B. 1062. Events in other states led Arizona legislators to believe that additional RFRA protections and an expansion of the Arizona RFRA were required.

In 2013, the Supreme Court of New Mexico upheld a fine imposed on a photographer by the New Mexico Human Rights Commission (NMHRS) for refusing to photograph a gay “commitment ceremony.” Elane Photography, LLC v. Willock, 2013-NMSC-040, 8 (N.M. 2013). The NMHRS based its fine on the New Mexico Human Rights Act of 2007, which prohibits public accommodations from discriminating against people based on their sexual orientation. That same year, bakeries in Oregon and Colorado were subject to fines for refusing, on religious grounds, to bake a wedding cake for a gay couple. The Oregon bakery faces the possibility of hundreds of thousands of dollars in fines, and the state’s Labor Commissioner has spoken of a desire to “rehabilitate” the bakery.

In reaction to these cases, and to protect orthodox Christians from being forced to participate in activities contrary to their beliefs, many states moved to enact their own RFRA or broaden the RFRA they currently had. Arizona was one such state. Arizona’s S.B. 1062 attempted to broaden its RFRA so as to extend the Act’s protections to not only churches but also individuals and legal entities. S.B. 1062 would also have allowed use of the new RFRA in a lawsuit as a claim or defense regardless of whether the government was a party to the proceeding.

The rest is history. When both houses of legislature passed the bill, a media firestorm erupted, decrying the bill as something intended to legalize discrimination against homosexuals in places of public accommodation (something that was already legal in Arizona, by the way). Almost everyone in the public sphere had something to say about the bill—from the National Football League to two failed Republican presidential nominees—most weighing in against passage. In an unprecedented turn of events, three legislators who voted for the bill shortly thereafter publicly expressed regret for their vote.

Jan Brewer, whose own administration helped draft the legislation, exercised her veto, stating that she did not see how the bill was necessary.

The Troubling After-Taste of S.B. 1062

Reasonable people can disagree on whether S.B. 1062 was a “solution in search of a problem,” as one of the GOP legislators described the bill to justify his opposition thereto after voting to pass it. Reasonable people can also disagree on where, exactly, the balance ought to lie in protecting freedom of conscience, particularly within the developing corpus of gay rights. The troubling aspect of S.B. 1062’s life and death, however, is that instead of a principled discussion taking place regarding these issues, name-calling and outright deceit were used to attack those on the opposite side of the argument. Those supporting the bill should not be labeled hate-filled bigots by virtue of their support of the First Amendment, just as those opposed to it should not be vilified as anti-religious deviants.

Also troubling to people of faith is the question of where not only religious liberty but liberty in general stands in the wake of S.B. 1062’s demise. If such measures as S.B. 1062 become taboo, while measures like New Mexico’s NMHRA become commonplace, is there any space left for those opposed to participating in events that run contrary to their deeply held religious beliefs? If an orthodox Christian must choose between actively participating in a gay wedding and losing her livelihood, why not pass a statute forcing an Evangelical Christian to photograph a Latter-day Saint couple after a temple wedding? Why not pass a statute forcing a Muslim-owned food company to sell grape juice to a distillery whose sole function is to produce wine used at a Catholic Mass? Why not force a gay accountant to give tax advice to a Muslim mosque that teaches homosexual acts should be punished by death? The intended beneficiaries of such statutes would all belong to historically persecuted groups, and all could argue that they feel ashamed and discriminated against without these statutory protections.

But if such laws are passed and enforced, who decides who gets to force whom to do what? In other words, at one point does liberty—both of gay-rights activists as well as orthodox Christians—disappear, only to be replaced by the rule of the strong? When does a law that forces someone to choose between acting in accordance with their religious beliefs and providing for themselves and their families not “prohibit the free exercise of religion?”

Of course, as with the hypothetical child-sacrificing Moloch-worshipper discussed above, there must be some limitations to the free exercise clause. But no one would disagree that the state has a compelling interest in prohibiting child sacrifice. There is plenty of room for disagreement, however, as to whether the state has an interest strong enough to override First Amendment rights in protecting individuals from feelings of shame and embarrassment—however real those feelings might be for gay couples who are denied wedding services. Furthermore, if the state arrogates to itself the role of affirmation czar, why should it not be equally concerned with the feelings of the Christian couple who were forced to close their Oregon bakery? Surely the protests, death threats, and administrative proceedings instilled in them feelings of shame, embarrassment, and fear.

In answering these questions, we should remember religion’s great importance to America’s conception of liberty. “We have not government armed with power capable of contending with human passions unbridled by morality and religion . . . . Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” John Adams, letter, October 11, 1798. “Americans [have historically] combined the notions of [religion] and of liberty so intimately in their minds, that it is impossible . . . to conceive the one without the other.” Alexis de Tocqueville, Democracy in America, vol. 1, trans. Henry Reeve (New York: Geroge Dearborn and Co., 1838), 287. They “are intertwined, interlinked, and interlocked so tightly that when one of them . . . is cut, the other . . . will bleed.” Jeffrey R. Holland, “Faith Family and Religious Freedom,” Clark Memorandum, Fall 2013, 29.


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