All Eyes on U.S. Federal Courts as Deferred Action Programs Halted

The ongoing battle over President Obama’s sweeping executive actions on immigration now appears to hang on the outcome of litigation playing out in the federal courts. Following political brinkmanship that almost saw the Department of Homeland Security (DHS) shut down amid efforts to roll back the executive actions, many Republican lawmakers appear to have set aside their efforts, at least temporarily. At the same time, the administration has been prevented from implementing the centerpiece of the immigration actions—directives to protect nearly 4 million unauthorized immigrants from deportation—by an injunction handed down by U.S. District Judge Andrew S. Hanen in a lawsuit brought by 26 states.

Effectively, both sides of the debate have been derailed in their efforts to address the directives, as all eyes are now focused on the developments in the federal courts. The Department of Justice (DOJ) on March 12 sought an emergency stay of the injunction from the Fifth U.S. Circuit Court of Appeals, following an analogous request to Judge Hanen filed on February 23. Fourteen states, including California and New York, also filed an amicus brief with the appeals court supporting the administration’s request. Judge Hanen has indicated that he will not rule on the stay request until after a hearing on March 19, which he scheduled to query DOJ lawyers about allegations that the government granted three-year reprieves from deportation and work authorization to 100,000 Deferred Action for Childhood Arrival (DACA) beneficiaries under the November 2014 actions. The administration acknowledges that the reprieves were granted, but contends these were renewals under the 2012 DACA program, which was not blocked by the injunction. The concern lies in that the 2012 program was intended to provide only two-year reprieves and work authorization.

Injunction Blocks Deferred Action Programs

On March 9, Judge Hanen declined to rule on the Obama administration’s February 23 request for an emergency stay of his preliminary injunction. The injunction blocked implementation of two of the most critical components of the president’s sweeping executive actions—the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, and expansion of the existing DACA program. DAPA would offer protection from deportation, and work authorization, to unauthorized immigrants who are parents of a U.S. citizen or lawful permanent resident (LPR) and have resided in the United States for five years or more. DACA is a similar program for unauthorized immigrants who entered the United States before the age of 16 and meet certain educational enrollment or attainment criteria; under the expansion, deportation relief and work authorization were extended from two to three years and the earlier age cap of 31 years was lifted. The Migration Policy Institute estimates the two programs combined could potentially shield up to 5.2 million unauthorized immigrants from deportation.

Judge Hanen issued the injunction late on February 16, less than two days before U.S. Citizenship and Immigration Services (USCIS) was to begin accepting applications for the expanded DACA program. Judge Hanen based the ruling on his finding that the directives failed to meet the “notice and comment rulemaking” process of the Administrative Procedures Act. While a 123-page memo accompanying the ruling revealed the judge’s deep doubts about the legality and constitutionality of the executive actions, he chose to rely on a narrow provision of administrative law for the order. In another key component, Judge Hanen found that the states—or at least Texas—had established standing to bring the lawsuit due to potential financial burdens created by the directives.

In response to the injunction, the Obama administration halted all plans to implement DAPA and the DACA expansion, while DOJ lawyers mount their appeal. In addition to the pending emergency stay requests, an appeal of the injunction was filed with the Fifth Circuit on February 23. A wide array of legal experts agrees that while the administration may ultimately prevail in the legal challenge, the request for an emergency stay is not likely to be granted by any court. For such a request to be met, DOJ must successfully demonstrate that failure to lift the injunction will cause “irreparable harm” to a set of beneficiaries, a difficult test to meet since the programs were halted before anyone could apply for or benefit from them. In its request to the Fifth Circuit, however, DOJ contends that keeping the stay in place will harm the government by interfering with immigration enforcement and national security, and will harm public interest by denying deportation relief to millions and impairing community relations with law enforcement. In the supporting brief, the states and District of Columbia argue that allowing the deferred action programs to continue would benefit them through increased tax revenue and stronger families. If the preliminary injunction is not lifted, the case will in all likelihood ultimately move up to the Supreme Court, with a final resolution delayed for months, if not longer. Thus, whether one of President Obama’s boldest moves bears fruit before his presidency ends remains to be seen.

The injunction has had a sprawling ripple effect on the ground. Deportation relief, briefly in sight for millions of unauthorized immigrants planning to apply for the new DAPA and DACA programs, has been postponed. The injunction has created significant confusion and anxiety surrounding the threat of deportation posed to unauthorized immigrants who would qualify for DAPA or DACA. According to some press reports—but contrary to several administration statements—Immigration and Customs Enforcement (ICE) is no longer taking prima facie eligibility for DAPA or expanded DACA programs into consideration when deciding whom to apprehend, detain, and place in removal proceedings.

For federal agencies, the injunction has disrupted their implementation management and planning process. USCIS has been forced to pause plans to hire and train 1,000 new employees and open an operating center in Arlington, Virginia. And, as an agency that is almost exclusively fee-funded, USCIS can no longer rely on an expected early revenue stream from DACA-expansion applicants. There is also concern that the uncertainty surrounding the programs will discourage potential applicants if and when they are implemented.

Other Actions: Enforcement Priorities and Immigrants’ Spouses

With the new DAPA and DACA programs in limbo, the administration is pressing ahead with other elements of the executive actions. Most significantly, under a November 2014 policy memorandum establishing new priorities for apprehension, detention, and removal, a large majority of unauthorized immigrants currently living in the United States will be shielded from deportation. The memo places top priority on those who are convicted felons, gang members, or recent border crossers, or pose national security threats. Those who have been convicted of significant or multiple misdemeanors, who entered the country unlawfully after January 1, 2014, or were ordered removed after January 2014 constitute lower priorities for enforcement. The revised policy also states that unauthorized immigrants who entered prior to January 2014, were issued a final order of removal before January 2014, or have not been convicted of a serious crime will not be priorities for removal.

Additionally, on February 26, DHS published a final rule allowing spouses of certain H-1B workers (those whose applications for a green card are being processed) to apply for work authorization. The change, set to go into effect in May 2015, is expected to affect 179,600 individuals in the first year and 55,000 in subsequent years. The administration has argued that the rule change will allow high-skilled spouses of immigrants to enter the labor market and contribute to the broader economy.

In the coming months, the Obama administration is expected to take further actions based on the November announcement. For example, anticipated changes to the I-601 waiver could benefit up to 1.5 million unauthorized immigrants in the country who are eligible to receive green cards through family sponsorship, which can only be obtained from abroad. Other future actions include creating or expanding opportunities for immigrants in science, technology, engineering, and mathematics (STEM) fields and immigrant entrepreneurs; streamlining the immigrant visa system; and promoting naturalization.

Congressional Funding Battles

While it may have suffered a legal setback, the administration scored a major political victory in March, when congressional Republicans conceded defeat in a months-long fight to thwart President Obama’s immigration actions through a must-pass appropriations bill to fund DHS past February 27.

The DHS funding battle highlighted major political divisions in the Republican-controlled Congress. In mid-January, the House of Representatives passed a DHS funding measure that included provisions to block DAPA, repeal DACA, and scale back other Obama administration immigration policies. However, the bill failed in the Senate, where it was filibustered four times by Democrats, and ultimately abandoned in favor of a DHS funding measure without policy riders, which passed by a vote of 68-31. Just hours before DHS funding ran out on February 27, the House attempted to pass a three-week funding extension, but failed because of Republican opposition. An emergency one-week extension was passed by both chambers of Congress and signed by the president minutes shy of the midnight deadline, averting a DHS shutdown. Days later, House Speaker John Boehner (R-OH) brought clean legislation to the House floor without the support of the majority of the Republican conference, and despite protests from many conservative members who wanted to continue using the budget measure to overturn President Obama’s executive actions. Earlier in the year, Boehner had promised to fight the immigration actions “tooth and nail.” Upon passage of the funding bill, Boehner said, “The good news is that the president’s executive action has been stopped, for now. This matter will continue to be litigated in the courts, where we have our best chance of winning this fight.” On the Senate side, Sen. Susan Collins (R-ME), who introduced stand-alone legislation to halt the president’ immigration actions as a compromise measure on DHS funding, said, “I think the issue of the president’s overreach with his executive order of last November is probably going to end up being decided by the courts. And that’s not a bad option.”

Legislative Prospects for Reform

In the aftermath of the DHS budget fight, consideration of immigration reform legislation by the Republican-controlled Congress in the near term looks highly unlikely. There is little appetite among GOP senators to take up further immigration legislation. On the other hand, intense political opposition to President Obama’s actions has already prompted some House lawmakers to introduce piecemeal bills aimed at strengthening immigration enforcement. In early March, the House Judiciary Committee began advancing four such measures: one aimed at expanding use of E-Verify, the federal system through which employers can verify the immigration status of newly hired workers; a second that increases interior enforcement and reverses the DAPA and DACA programs; and two additional bills that would tighten the asylum system and mandate stricter treatment of unaccompanied minors arriving at the U.S.-Mexico border. Democratic lawmakers and President Obama will all but certainly reject these bills, though some of their components may become important bargaining chips if congressional Republicans decide to revisit broader reforms to the immigration system later in the 114th Congress. Finally, as the 2016 presidential elections approach, many GOP lawmakers will come under increasing pressure to engage in immigration reform to appeal to Latino voters.

Thus, even though many Republicans now insist that President Obama’s executive actions have derailed any prospects for legislative reform, the legal fallout may have shifted the immigration debate and opened the door for legislative action. The end result is far from certain, but the next two years will hold lessons about bold actions taken by the executive branch—and whether they hinder or spur the legislative branch to act.

National Policy Beat in Brief

Federal Judge Blocks Policy of Detaining Women and Children Seeking Asylum. On February 20, a federal judge in Washington, DC temporarily enjoined the policy of detaining certain Central American mothers and children seeking asylum “for the purpose of deterring future immigration to the United States.” The judge found that the current Department of Homeland Security policy of considering deterrence as a factor in detention decisions is “likely unlawful.” He also found that detention causes irreparable harm to mothers and children seeking asylum “in myriad ways, and as various mental health experts have testified, it is particularly harmful to minor children.” Provisional class certification was also granted in the lawsuit, filed by a group of plaintiffs who allege that DHS detention policy violates the Fifth Amendment, the Immigration and Nationality Act, and the Administrative Procedures Act. A surge of 68,000 Central American families arriving at the U.S.-Mexico border in 2014 prompted the Obama administration to expand family detention and open a 2,400-bed detention center in south Texas. Administration officials have maintained that detention is crucial to deterring family arrivals, while immigrant-rights advocates criticize the practice as inhumane and inappropriate for young children and families who pose no threat to public safety. As of February 28, 2015, 11,133 family units have been apprehended so far this fiscal year at the U.S.-Mexico border.

• U.S. District Court injunction halting family detention
• Memorandum opinion on family detention in R.I. L-R, et al. v. Jeh Charles Johnson
• U.S. Customs and Border Protection (CBP) statistics on apprehension of families and unaccompanied children

Thousands of Children Ordered Removed in Absentia. Between October 2013 and January 2015, more than 7,000 unaccompanied children were ordered removed in absentia after failing to appear for their scheduled hearings in immigration court. It is unknown whether the children knowingly failed to appear at their hearings or were unaware of their court dates due to notification errors made by the immigration courts or because they had moved since last giving their address to the government. In response to a wave of unaccompanied minors arriving at the U.S.-Mexico border in spring and summer 2014, the Obama administration reprioritized immigration court dockets to schedule new arrivals for an initial appearance within 21 days of their apprehension—a policy shift that has been faulted for creating confusion in the court system. Of the children ordered removed, it is unknown how many have actually been removed from or otherwise departed the United States.

• Los Angeles Times article on the deportation of unaccompanied children
• Transactional Records Access Clearinghouse (TRAC) data on juveniles in immigration court

United States to Deport Hundreds of Bosnian War Criminals. U.S. Immigration and Customs Enforcement (ICE) will move to deport at least 150 Bosnians living in the United States believed to have committed war crimes during the Bosnian war in the 1990s. ICE’s Human Rights Violators and War Crimes Unit has identified 300 immigrants who may have concealed their role in wartime atrocities—particularly the 1995 genocide in Srebrenica, Bosnia and Herzegovina—when they arrived in the United States among a wave of Bosnian refugees fleeing the region, according to a New York Times report. Officials say their investigative effort, which began a decade ago and relies on Bosnian war crimes records, military rosters, witness accounts, and even government documents made public by WikiLeaks, may eventually lead to identifications of 600 subjects. Individuals who have committed war crimes, genocide, torture, or other forms of serious human-rights abuses are inadmissible and deportable under the Immigration and Nationality Act. Due to backlogs in the immigration court system, however, the suspects’ hearings will not take place until 2019.

• New York Times article on U.S. deportation of Bosnian war criminals

Jury Awards $14 Million to Indian Guest Workers in Trafficking Case. On February 18, a federal jury in New Orleans awarded $14 million in damages to five Indian nationals after finding that they were brought to the United States as part of a labor trafficking scheme. The jury found that Signal International LLC, a maritime construction company based in the U.S. Southeast, a U.S.-based immigration attorney, and an India-based labor recruiter engaged in labor trafficking, fraud, racketeering, and discrimination in bringing more than 500 individuals to Louisiana through the H-2B visa program to rebuild oil facilities in the wake of Hurricanes Katrina and Rita. According to the lawsuit, workers were promised green cards but were instead sponsored for temporary H-2B visas, and upon arrival, were forced to pay for on-site room and board in cramped and unsanitary conditions, in addition to paying $11,000-$25,000 in initial recruiting fees. The lawsuit, David et al. v. Signal International, LLC, represents one of the most significant human trafficking cases in U.S. history. An additional 200 claims are pending against Signal International.

• Complaint in David et al. v. Signal International, LLC

USCIS Temporarily Suspends H-2B Visa Adjudication Following Court Order. As of March 9, U.S. Citizenship and Immigration Services (USCIS) has suspended adjudication and premium processing of H-2B visa petitions in response to an order issued by the U.S. District Court for the Northern District of Florida. According to the order, the Department of Labor (DOL)—which is responsible for certain employment and wage functions in the H-2B visa program—lacks authority under the Immigration and Nationality Act to issue H-2B visa program regulations. Following the court order, DOL suspended its role in the H-2B program and USCIS discontinued processing of H-2B visa petitions until the agencies consider a response. The H-2B program allows U.S. employers to petition for foreign workers to fill short-term nonagricultural jobs on a temporary basis.

• USCIS information on the H-2B program

Study Finds Strong Employment Growth among Hispanics. Growth in the employment rate for Hispanics (5 percent) has outpaced that of other racial and ethnic groups (including 3.8 percent for blacks and 1.4 percent for whites), according to the Bureau of Labor Statistics as cited in the Economic Report of the President. Hispanics are also the only group that has rebounded to prerecession employment rates. The report attributed the trend to the growing strength of the construction industry and a sharp decline in illegal immigration in recent years. While the topline finding is being seen as driven by a recovering economy and successful immigration enforcement efforts, it is likely to inflame concerns about a perceived negative impact of immigration on U.S. workers, since approximately one-third of Hispanics in the United States are foreign born.

• Economic Report of the President 2015

State and Local Policy Beat in Brief

Colorado Senate Rejects Effort to Fund Driver’s License Program. On February 12, the Colorado Senate rejected a measure to undo a budget provision passed in January that limits Division of Motor Vehicles access to funds collected by a state program established to issue driver’s licenses to unauthorized immigrants. In 2013, Colorado passed a law that took effect in July 2014, opening eligibility for driver’s licenses and state IDs to unauthorized immigrants. Under that law, the program was authorized to be entirely self-funded by a special $50 application fee. Following the January measure, the state will have diminished access to the pool of funds collected by the program, and thus limited capacity to fully implement the driver’s license law. For example, the next available appointment to apply for a license under the program is in March 2016. An estimated 150,000 unauthorized immigrants are eligible for driver’s licenses in Colorado.

• Denver Post article on the February Colorado Senate measure
• Denver Post article on the January Colorado budget vote

New York School Districts Ordered to Stop Unlawful Enrollment Practices. Following a review conducted by the New York Attorney General’s office and Education Department, 20 school districts were found to have engaged in unlawful enrollment practices for immigrant children, and ordered to modify them. According to state officials, a number of schools across 14 counties in the state had effectively barred unauthorized immigrant children from enrolling by requiring their families to submit documentation about their immigration status. Such practices are in violation of the landmark Supreme Court case Plyler v. Doe, which guarantees children in the United States access to public education regardless of their immigration status. Illegal school enrollment policies have gained increased attention recently in the wake of the 2014 child migration surge, when almost 69,000 unaccompanied minors arrived at the U.S.-Mexico border. These children have since been resettled in communities across the United States as they await hearings in immigration court.

• New York Times article on unlawful enrollment practices in New York

National Guard Troops Indefinitely Deployed to the Texas-Mexico Border. Texas Lt. Gov. Dan Patrick announced that National Guard troops deployed to the Rio Grande Valley region of Texas last summer will stay indefinitely. In response to the 2014 child and family migration surge in south Texas, former Gov. Rick Perry stationed 1,000 National Guardsmen at the border, a number since reduced to 200 in anticipation of a complete withdrawal originally planned for March 2015. The decision to maintain the deployment comes even as Border Patrol apprehensions in the area have abated dramatically since last summer’s surge, suggesting that Texas officials are concerned that illegal border activity may increase again in the coming months.

• Associated Press article on Texas border deployment