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Even Though There Are Legal Threats to DACA, There Is Reason to Be Hopeful

Even Though There Are Legal Threats to DACA, There Is Reason to Be Hopeful

By NILC staff
August 4, 2017

Several legal threats to the Deferred Action for Childhood Arrivals (DACA) program have its beneficiaries and prospective applicants understandably worried, but it’s important to remember that there haven’t been any major changes to the program and that, because there’s broad bipartisan support for keeping it, there’s also reason to be hopeful.

The bad news first: There are some legal threats against DACA. One is a threat by ten state attorneys general and one governor, sent in a letter to U.S. Attorney General Jeff Sessions, to amend the U.S. v. Texas lawsuit that challenged the DAPA (Deferred Action for Parents of Americans) and expanded DACA (DACA+) programs to also legally challenge the original DACA program. (The Obama administration created DACA in 2012 and announced DAPA and DACA+ in 2014.) The letter says that this threat will be carried out if the federal government doesn’t agree by Sept. 5, 2017, to do away with the 2012 DACA program. Below are some potential scenarios related to this threat.

The federal government decides by September 5, 2017, to rescind the June 15, 2012, DACA memorandum

If the federal government decides to end the DACA program, it would likely be on the terms laid out in the letter to Sessions from the state attorneys general. In that case, after the program is ended, U.S. Citizenship and Immigration Services (USCIS) would issue no new grants or renewals of DACA, and existing grants of DACA and accompanying work permits would expire on their current expiration dates.

The federal government does not rescind the June 15, 2012, DACA memorandum

In their letter to Sessions, the ten state attorneys general said that if the federal government does not agree by Sept. 5, 2017, to rescind the June 15, 2012, memorandum that initiated the DACA program, they will seek to amend their complaint in U.S. v. Texas to add a legal challenge to DACA. It’s possible that they may also seek to have the DACA program preliminarily enjoined (halted) while their case makes its way through the courts.

Texas federal judge Andrew Hanen previously granted Texas’s requested preliminary injunction against the DAPA and DACA+ programs, so he may be willing to do so again with respect to the 2012 DACA program.

We don’t know how long it would take for the court to hear and rule on such a request. It also isn’t certain that Judge Hanen would issue an injunction against DACA as he did with DAPA and DACA+

The U.S. v. Texas court rules on MALDEF’s request that the case be dismissed

On July 28, 2017, the Mexican American Legal Defense and Educational Fund (MALDEF) asked Judge Hanen to dismiss the U.S. v. Texas case. MALDEF argues that, because former Secretary of Homeland Security John Kelly issued, on June 15 of this year, a memo that largely rescinds the 2014 memos that created the DAPA and DACA+ programs, there are no issues left to litigate in U.S. v. Texas. If the court were to dismiss the case, that would of course affect any attempt by the ten state attorneys general to carry out their threat against DACA.

Briefing on MALDEF’s request continues. There’s no way to know when the court will rule on MALDEF’s motion or whether the court will deny the motion and allow Texas and its partner states to add to U.S. v. Texas a legal challenge to the original DACA program.

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Developments in another case—Arizona Dream Act Coalition (ADAC) v. Brewer—may pose another legal threat to DACA.

This case was filed just after the DACA program was announced, when the then governor of Arizona issued an order whose effect was to make DACA recipients ineligible for driver’s licenses. In January 2015, a federal district court in Arizona permanently blocked Arizona’s policy, and that decision was later upheld by the Ninth Circuit Court of Appeals. Thus, DACA recipients can get drivers licenses in Arizona.

Arizona has now appealed the case to the Supreme Court and is arguing that DACA is unconstitutional. On June 26, 2017, the Court issued an order calling for the views of the U.S. solicitor general as to whether the Court should hear the case. The Court didn’t set a deadline for the solicitor general’s brief, but on average it takes around four months for the solicitor general to file such a brief. Here are some possible scenarios.

The solicitor general recommends that the Supreme Court not take the case

Although DACA was created by the Obama administration, the current solicitor general may choose to continue with the federal government’s previous opinions and tell the Court there’s no need to disturb the Ninth District’s ruling.

However, the solicitor general could recommend, a few months from now, that the Court not take the case because the government has ended the DACA program voluntarily or because the solicitor general knows that the program will soon be terminated.

The solicitor general recommends that the Supreme Court take the case

The solicitor general may recommend that the Supreme Court take the case to resolve once and for all the legal issues about DACA’s constitutionality. Last year the Court was unable to reach a majority decision on whether the DAPA and DACA+ programs were constitutional, and it’s impossible to know now how it might rule if asked to decide about the original DACA program. Last year when it was considering the DAPA and DACA+ case, the Court had only eight justices, but since then Justice Neil Gorsuch has joined the Court. So it’s much more likely that there would be a majority decision in ADAC, if the court decides to hear it.

Even if the Court does decide to hear ADAC, it may reach a decision without ruling on DACA’s constitutionality, since it could base its decision on other legal principles.

You can read more about these different legal scenarios here.

While these legal threats to DACA raise concerns, there is also plenty of reason to be hopeful. For one thing, several bipartisan bills have recently been introduced to provide a permanent legislative solution for DACA recipients. In truth, they aren’t likely to pass and, if they did, they would probably come with unwanted changes to immigration enforcement policy. However, they do show that there’s broad bipartisan support for DACA recipients, which means that any decision to end DACA would be very politically unpopular.

Stay tuned for updates on DACA and DACA-related legislation. We’ll also be celebrating DACA’s five-year anniversary on Aug. 15 and will continue to highlight all the positive effects DACA has in people’s lives and communities.

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From Japanese-American Internment Camps to the Muslim Ban: The Terrible Consequences of Discriminatory Executive Orders

From Japanese-American Internment Camps to the Muslim Ban: The Terrible Consequences of Discriminatory Executive Orders

By John Yuasa, guest blogger
July 27, 2017

“An Executive Order put my family in a Concentration Camp.” That was the sign I carried as I joined thousands of other people at Los Angeles International Airport to protest the executive order of Jan. 27, 2017, that initiated the Trump administration’s Muslim ban.

Let me explain. In February 1942, President Franklin Roosevelt issued Executive Order 9066, which authorized the removal and incarceration of 120,000 people of Japanese ancestry living on the West Coast. People had just a few days to prepare and were permitted to bring only what they could carry. Many families suffered crushing economic losses as they hurriedly sold their farms, homes, and businesses.

At that time, my California-born U.S. citizen parents were expecting their first child—me. My parents, who lived in Oakland, were sent to the Tanforan Assembly Center, a converted racetrack that had about 180 barracks, located just south of San Francisco. Twenty-six of the buildings were converted horse stalls, with cardboard installed in the upper portion of the walls between the stalls. There was no privacy between the families that were living in each stall. The barracks were filthy and fetid—filled with horse flies, fleas, and dried manure and urine smells. Tanforan was surrounded by a barbed wire fence, with armed military police on guard.

Once I was born and able to travel, we were taken by train to the Topaz “Relocation Center,” more accurately described as a prison camp. Topaz held more than 8,000 people in approximately one square mile of land. It was located about 100 miles southwest of Salt Lake City, in an arid desert that varied from over 100 degrees in the summer to below zero in the winter. Strong winds blew sand everywhere, including into the living quarters and everyone’s food. The crudely constructed barracks provided little protection against the extreme weather. The camp was patrolled by 85 to 150 soldiers and was also surrounded by a barbed wire fence. Manned watchtowers with searchlights were placed every quarter mile around the perimeter of the camp.

I had never been back to that site of my infant incarceration, but the recent grand opening of the Topaz Museum, in Delta, Utah, offered me a reason to return. The ceremonies that took place reminded all of us what it is to be free and how hatred, prejudice, and discrimination can enable a government to incarcerate people who have committed no crimes, without any opportunity for legal due process.

In 1942, the government’s position was that national security required this policy on internment. However, in 1982, the Commission on Wartime Relocation and Internment of Civilians issued its report, which documented a far different reason. In its specific findings and recommendations, it states that the broad historical causes were “race prejudice, war hysteria and a failure of political leadership.”

Now, for no other reasons than prejudice, national security hysteria, and a failure of political leadership, the president has decided that people attempting to escape persecution by coming to the United States present a national security risk—solely for being Muslim. We cannot allow this unconstitutional order to stand. Please join me in being an active participant in our democratic process to ensure that our laws and regulations against discrimination are enforced and, where necessary, strengthened.

John Yuasa is a former Peace Corps volunteer, deputy director of the Office of Federal Contract Compliance in the Department of Labor, and nonprofit executive.

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While We’re Watching the Trumpcare Train Wreck, Let’s Not Allow Our Dollars to Fund Trump’s Wall and Deportation Machine

While We’re Watching the Trumpcare Train Wreck, Let’s Not Allow Our Dollars to Fund Trump’s Wall and Deportation Machine

By Jackie Vimo, economic justice policy analyst
July 21, 2017

It has been another eventful week in Washington, DC, under the Trump administration. Congress continues to dominate headlines with its failing efforts to repeal Obamacare and leave millions without health care; threats to the Deferred Action for Childhood Arrivals (DACA) may put 800,000 youth at risk of deportation; and yesterday the bipartisan Durban-Graham DREAM Act was introduced.

Meanwhile, the battle over the federal budget continues behind the scenes, and it looks like we are about to be hit by a “minibus” next week that would fund President Trump’s $1.6 billion wall and mass deportation machine. Trump needs our tax dollars to pay for his anti-immigrant agenda, and Congress must approve the federal budget. Now it is up to taxpayers to get the word out to their representatives in Congress that they refuse to fund hate and fear at the expense of vital social programs.

Remember when Mexico was going to pay for the border wall? Now Trump wants you as a taxpayer to foot the bill by trading jobs, health care, the environment, and education for his divisive monument to xenophobia at the southern border.

Back in May, Trump released his Fiscal Year 2018 budget, asking Congress to pour $23 billion of your tax dollars into the boots, walls, and detention facilities that make up his out-of-control deportation machine. Trump’s budget pays for this “deportation force” by giving tax cuts to the rich and slashing crucial programs such as Medicaid, Social Security, and education. The House of Representatives has responded with a proposed budget that gives Trump almost all of what he asked for. Last Tuesday, the House Appropriations Committee, chaired by Rodney Frelinghuysen (R-NJ-11), marked up and approved an appropriation bill that funds key elements of President Trump’s proposed immigration budget. Some of the “lowlights” include:

  • full funding of $1.6 billion for Trump’s “border wall”
  • $185 million to hire additional U.S. Immigration and Customs Enforcement (ICE) and Border Patrol officers
  • $4.4 billion for detention and removal programs, including funding to expand by more than 4,600 the capacity of detention camps that house children and families

Congress has until the end of September to pass its budget; but with Trump saying that Congress shouldn’t leave for its August recess unless it makes progress on his administration’s agenda, the budget presents an opportunity to sneak in a victory for the white nationalists among his base amidst the ashes of efforts to repeal and replace Obamacare.

However, with Congress sharply divided and dissent rankling the GOP from within, passing a twelve-bill omnibus budget is no simple task.

Enter the “minibus.” It’s a package of spending bills that Congress wants to push through next week (the last week of July). It includes four bills to fund the Defense Department, military construction and Veterans Affairs, energy and water programs, and the federal government’s legislative branch. House Majority Leader Kevin McCarthy has also stated that the minibus will include $1.6 billion for Trump’s border wall. McCarthy and other members of Congress are hoping that they can drive this minibus through a vote quietly. It’s up to us to block its path.

The proposed Trump budget, the House’s Trump copycat budget, and the “minibus” are all examples of out-of-control spending for unnecessary immigration enforcement that does nothing but tear families apart at the expense of urgently needed programs. With the price of the $185.6 million Trump and Congress are seeking to hire 1,000 additional ICE officers and 606 support staff, we could replace 37,000 lead water pipes, like the ones that poisoned families in Flint, Michigan. Instead of spending $100 million to hire 500 new Border Patrol agents, we could give 12,000 toddlers access to quality early education through Head Start. And $1.6 billion for the construction of Trump’s border wall could provide health care coverage for 1 million uninsured children through the Children’s Health Insurance Program (CHIP). We should be funding bridges, not walls.

The time is now to get the word out to our representatives that the minibus must not pass, and neither must any spending bill that cuts social programs and writes more blank checks to Trump’s anti-immigrant agenda. It is our taxpayer dollars that would fuel the minibus or any increases to funding for immigration enforcement in the federal budget. We have an obligation to let our representatives know that we refuse to fund hate and fear and to foot the bill for Trump’s deportation force.

Congress can try to sneak through the “minibus,” but we can stop them if we keep watching and cut off their supply of taxpayer dollars. Our taxpayer dollars should reflect our priorities and values by funding stronger families and communities, not fear. We need to send a strong message to Congress: #DefundHate by rejecting the Trump budget, so we can #FundFamiliesNotFear.

To get involved in the campaign to #DefundHate and stand up against Trump’s attack on immigrants, sign up at http://standup.indivisibleguide.com/.

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What Does it Mean That the Supreme Court Asked for the Solicitor General’s View on the Arizona DACA Driver’s License Case?

What Does it Mean That the Supreme Court Asked for the Solicitor General’s View on the Arizona DACA Driver’s License Case?

By Hannah Coleman, NILC intern
July 17, 2017

On June 26, 2017, the Supreme Court issued an invitation for the United States solicitor general to file a brief expressing the federal government’s view of our case Brewer v. Arizona Dream Act Coalition.

Arizona requested the Court take up the case after an appeals court affirmed the state could not discriminate against DACA beneficiaries in issuing driver’s licenses. The Court in turn requested the view of the solicitor general. Though the request to the Solicitor General’s Office is not unusual, some were left wondering whether that held any implications for the DACA program overall.

Here is some information on this common practice:

Who is the solicitor general and what does he do?

The solicitor general is the Department of Justice’s officer responsible for representing the federal government of the United States before the Supreme Court. Additionally, the Court can ask for the solicitor general’s view through what is called a “Call for the Views of the Solicitor General” or a “CVSG.”  The solicitor general then submits a legal brief to the Court in which he offers his opinions on whether the Court should hear the case. Jeffrey Wall is the current acting solicitor general.

What is the process for CVSGs?

The most common types of cases that receive CVSGs are cases implicating the interests of the federal government, cases with the potential to shape an important area of law, and cases involving complex regulatory or statutory schemes.

Even though CVSGs are described as “invitations,” the Solicitor General’s Office views them as orders, and the solicitor general responds to every invitation it receives from the Supreme Court. During the 2016 term, the solicitor general filed 20 CVSG briefs, and in the 2015 term the solicitor general filed 15 briefs.

Before drafting its brief, the Solicitor General’s Office frequently meets with counsel in the case to better understand the legal issues, litigation history, and record, and consults with interested departments and agencies in the federal government.

Even though the Court is seeking the views of the solicitor general to determine whether the Court should hear the case, the solicitor general often makes additional recommendations as to how the Court should rule on the merits of a case.  However, a data set of CVSGs from 2001-2004 reveals that “[t]he Court’s ultimate decision on the merits is not highly correlated to the Solicitor General’s merits recommendation in his invitation brief.”

How long will it take for the solicitor general to file a brief for Brewer v. Arizona Dream Act Coalition?

The Supreme Court did not impose a filing deadline for the solicitor general’s brief in this case, and this is not surprising given the Court usually does not impose a deadline on the solicitor general. Therefore, we do not know exactly when the solicitor general will file his brief.  A data set from 2001-2004 reveals that the solicitor general takes, on average, over four months to file the brief.

We surveyed all CVSG briefs filed by the solicitor general between May 20, 2016, and May 23, 2017 (27 total) and found that the average filing time is still over four months. However, we note that the timing is unpredictable. For example, the shortest response time was just over two months, while the longest response time was over eight months.

We also found that for invitations, like the one in Brewer v. ADAC, that were received in late spring or early summer, the solicitor general typically files the briefs between August and December.

What are the different recommendations that the solicitor general can make?

The two most common recommendations are for the Court to agree to hear the case (accept certiorari) or to decline to hear the case (deny certiorari).  There are instances where the solicitor general has made other recommendations (for example, that the Court hold the case pending the outcome of a different case, or grant a recommendation to a companion case), but these are less common.

From May 20, 2016, to May 23, 2017, the solicitor general recommended the Court deny certiorari in 17 instances (63 percent); accept certiorari in 9 instances (33.3 percent), and wait for the resolution of a related case in one instance (3.7 percent). These percentages are similar to the data from 2001-2004.

Does the Supreme Court typically follow the solicitor general’s recommendation?

Yes, but only with respect to whether it hears the case. Out of the 27 CVSGs filed between May 20, 2016, and May 23, 2017, the Supreme Court followed the solicitor general’s recommendation in 23 cases (or 85 percent).  This is consistent with the 2001-2004 study, which finds that the Court followed the recommendation of the solicitor general in 79.6 percent of the cases surveyed.  However, as discussed above, if the Supreme Court does take the case, there is not the same kind of strong connection between what the solicitor general recommends on how the Supreme Court should rule and what the Court actually ends up deciding.

What happens next and what, if anything, does it mean for the DACA program overall?

Once the solicitor general submits his brief, the Supreme Court will then decide whether to take the case. If the Court decides not to take the case, then the Ninth Circuit decision, permanently blocking Arizona’s DACA driver’s license ban, will remain the final word on the case. If the Court decides to take the case, the case will then move forward to be briefed, argued, and eventually decided by the Supreme Court.

We do not know what position the solicitor general will take, if any, with regards to the continuing validity of the DACA program, especially since it is not a guarantee that this issue will be addressed by the Court in this case. However, it is ultimately the president who must affirm his support for DACA and the over 800,000 individuals and their communities who stand to lose so much if the program were eliminated.

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Increasing the Number of Uninsured Would Hurt Everyone

Increasing the Number of Uninsured Would Hurt Everyone

By Gabrielle Lessard, senior policy attorney
July 6, 2017

Congressional efforts to “repeal and replace” the Affordable Care Act (ACA) would dramatically increase the number of uninsured people in the U.S., and that would be bad for everyone.

The Congressional Budget Office (CBO) estimates that implementation of the Senate’s proposed Better Care Reconciliation Act (BCRA) would increase the number of uninsured people to 49 million by 2026. The BCRA’s burdens would fall disproportionately on low-income consumers, children and seniors, with Medicaid spending cut by 26 percent by 2026 and by 35 percent by 2036.

Immigrants would be directly impacted if the BCRA became law because under the current Affordable Care Act lawfully present immigrants (with the exception of DACA recipients) are eligible to obtain health plans and income-based subsidies through the health care exchanges. The BCRA would strip eligibility from all but the subset of lawfully present immigrants deemed “qualified” under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.  Many immigrants with humanitarian statuses or circumstances, applicants for lawful permanent resident status with approved visa petitions, and others would lose eligibility under the bill.

A policy that increases the number of uninsured people is bad for everyone because the lack of access to health insurance produces adverse physical and economic consequences for individuals, families and communities.

Being uninsured has been correlated with poorer quality of health care, lower rates of preventive care, and greater probability of death. Many uninsured people avoid seeking medical care unless they are faced with an emergency, or delay care until their symptoms become intolerable. As a result, the uninsured are less likely to receive a diagnosis in the early stages of a disease and are more likely to suffer complications from aggravated medical conditions. They are at particular risk from diseases that are asymptomatic or produce only minor symptoms, such as high blood pressure and diabetes.

Health insurance also plays a major role in managing financial risk for individuals and families. Families with even one uninsured member face stigma, anxiety and the potential for financial catastrophe. Uninsured individuals who become hospitalized experience a host of financial setbacks over the next four years, including reduced access to credit, a 170 percent increase in unpaid medical bills, and a significantly higher likelihood of filing for bankruptcy.

The economic consequences of poor health extend beyond individuals and families.

People without insurance are often in poor health, which results in multiple dimensions of lost economic productivity: adults whose health status prevents them from working, workers who miss time from their jobs because of health problems, and workers who are working but less productive because of their health conditions or worries about a family member. Health-related productivity losses are estimated to reduce U.S. economic output by $260 billion a year.

Importantly, providing healthcare creates jobs and drives economic activity. A Commonwealth Fund analysis of the House “repeal and replace” bill, which is similar to BCRA, found that implementation of the bill would result in the loss of 924,000 jobs and a $148 billion decrease in business output by 2026.

The presence of a high concentration of uninsured individuals compromises access to health care for entire communities. Health systems prefer to invest in affluent areas that have higher rates of insurance. Physicians generally prefer working in newer, more up-to-date facilities over under-resourced health centers in low-income communities. Hospitals in areas with high rates of uninsured struggle with recruiting on-call specialists, resulting in longer wait times for emergency room visitors – regardless of their health insurance status. Lower rates of insurance within a community result in a decrease in availability of primary, preventive, specialty, and hospital-based care services, and may result in the closure or privatization of local community hospitals.

When many members of a community are uninsured, all members of the community are affected. Both the insured and the uninsured benefit physically and financially when every person in a community has access to affordable health coverage. It is in everyone’s interest to promote access to health care for all. Congressional health care proposals that would add millions to the number of uninsured are shortsighted and self-destructive.

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What Does the DAPA Rescission Mean and What Implications Does It Have for DACA?

What Does the DAPA Rescission Mean and What Implications Does It Have for DACA?

By Ignacia Rodriguez, NILC immigration policy advocate
June 23, 2017

On June 15, the Department of Homeland Security (DHS) Secretary John Kelly signed a memo rescinding the Obama administration’s November 2014 memorandum that announced a deferred action program for parents of citizens and lawful permanent residents (DAPA),  as well as expansions of  DACA. The DACA expansion would have covered more people who came to the  U.S. as children and provided all DACA recipients protection from deportation and work permits for three years instead of the current two.

The Department of Homeland Security (DHS) issued a press release and a set of frequently asked questions, along with the memo.

So what does the rescission of the DAPA memo mean for DAPA and the expansion of DACA?

  • DAPA, a program never implemented due to a court order, will never be implemented unless a new memorandum re-announcing the program is issued and that’s impractical to expect from this administration.
  • The rescission of the memo also ends the expansions of DACA, which would have greatly improved the lives of those previously excluded from the 2012 DACA program due to the age requirement and/or the continuous presence in the U.S. since 2007 requirement.
  • DHS emphasized that people who have secured three-year work permits (obtained between November 2014 and February 2015) don’t have to return their work permits and can thus wait to renew their DACA and work permits until closer to the expirations dates. Some have interpreted that to mean that DACA will still be available until at least February 2018 because if you received your three-year work permit in February 2015 it expires in February 2018. However, as we’ve learned over the last six months, nothing is certain with this administration, and things could change at any time.
  • In terminating DAPA, the Trump administration intends to end the Texas v. U.S. However, they have asked for an extension until June 29 to file their status report. It is to be determined if the court will grant an extension or what would happen after that, but the case continues until the judge orders otherwise.

What does the rescission of the DAPA memo mean for the 2012 DACA program?

  • By the morning of June 16, rumors were circulating in the media that the memo and accompanying materials signaled that DACA was safe indefinitely. However, these were only rumors. The memo and related materials only state that the decision does NOT affect DACA and that people can continue to apply and renew their DACA. There was no affirmative promise by the administration to keep DACA indefinitely. The White House quickly clarified that the president has not made a final determination about whether to continue or discontinue DACA in the future. TheNew York Times subsequently republished its original article on the topic, clarifying that the DACA program is still under review.
  • June 15 also marked the fifthanniversary of the DACA announcement. Some people wondered why DHS chose June 15 to make a decision on DAPA. Was it to remind us of the vulnerability of DACA? Was it to minimize our celebration of this victory? Or was it just that they had a court deadline of June 15 and inadvertently made the decision on the same day as the DACA anniversary? Given the court deadline, we can’t read too much into why they chose this date to make a decision.

We will continue to monitor and report on developments going forward, especially because it’s not at all clear what the future holds for DACA. Even with the 2012 DACA memorandum in place, we’ve seen the Trump administration targeting DACA recipients, such as Daniel Ramirez, Juan Manuel Montes, Dany Vargas, and others, and the hateful rhetoric spewed by government officials has emboldened some immigration agents to arbitrarily target immigrant communities, including peoplewith DACA.

We also will be keeping an eye on the processing of DACA applications. The high number of DACA approvals since January (over 107,000 renewal approvals and 17,000 initial approvals), were surprising, and some assumed they all happened under the Trump administration.  However, these numbers don’t really signal how the current administration will treat DACA cases going forward, given that those statistics captured a period that overlapped with President Obama’s last few weeks in office. The high number could have resulted from DACA renewal applicants applying early out of concern that Trump would end DACA immediately upon entering office, or it could be part of the cyclical nature of DACA renewals. It also may have been a combination of both. We’ll have a better sense of the Trump administration’s processing of DACA applications when the next set of USCIS data (covering April through June) is released.

In the meantime, please refer back regularly to our Frequently Asked Questions page for the most up to date information and recommendations for applicants and DACA recipients.

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Plyler v. Doe Decision Must Be Honored and Protected

On Plyler v. Doe’s 35th Anniversary, This Landmark Supreme Court Decision Must Be Honored and Protected

By Ignacia Rodriguez, NILC immigration policy advocate
June 15, 2017

Today marks the 35th anniversary of Plyler v. Doe, the landmark case in which the U.S. Supreme Court held that it is unconstitutional for a state to deny students access to public elementary or secondary education based on their immigration status.

As someone who was undocumented for 19 years and who benefited greatly from a public education, I’ve benefited tremendously from the decision in Plyler. I’ll be forever grateful to those who defended my right to an education and am proud to be among those who will continue fighting to maintain this right for others.

Despite Plyler’s long history, some people in this country continue to want to eliminate immigrant children’s access to a basic education. In 1994, California voters approved Proposition 187, which in part would have prohibited undocumented children from accessing public K–12 schools. Prop 187 also would have required schools to notify federal immigration authorities of students they believed to be undocumented. These provisions were never implemented, however, because the courts struck down virtually all of Prop 187’s provisions.

In 1998, then–California governor Pete Wilson came to El Rincon Elementary School, where I was in fifth grade. Parents were notified, because the governor’s choice to visit our school was assumed to be very exciting. But for some of us it was mostly scary. My mom, when she heard about Wilson’s impending visit, told me to stay as far away from him as I could. I remembered having seen him on Univision news and in commercials. On the day he visited, lots of my fellow students were having their pictures taken with him, but I stayed as far back in the auditorium as I could. I felt like I was in danger, but I was too young at the time to articulate why. I wasn’t actually conscious of the fact that he was trying to get me kicked out of elementary school because of my immigration status.

I relate my own experience simply to show that despite their young age, children are aware at some level of what’s going on in the broader culture, and they internalize it even if they don’t have the words to describe it. I’m turning 30 this year, and I still remember viscerally how I felt when Wilson visited my elementary school.

That’s why it’s important to create a safe space for all students in schools. At NILC, we are ready and willing to push back against any attempts to hinder the effects of Plyler and also to work with partners to create a safe space for all students, regardless of their immigration status, race, gender, sexual orientation, economic status, or religion.

If you’d like to join us, here are some materials on how you can help make schools safe spaces:

– Check out Jess Hanson’s recent blog post, “School Settings are Sensitive Locations that Should Be Off-Limits to Immigration Enforcement,” to learn more about why schools should actually be regarded as sensitive locations, as well as the current state of law, guidance, and on-the-ground practice of immigration enforcement related to school settings.

– Encourage your school to become a sanctuary school/campus safe zone. It’s up to your school to define what that means, but the idea is, if possible, to work with students, parents, school board members, teachers, and school staff to identify ways that the school can create an environment that fosters learning without anyone on campus having to fear what would happen if immigration agents were to show up. For model resolution language, see www.nilc.org/campus-safe-zones-language-k-12/.

– Check out E4FC’s recent publication “Understanding the Sanctuary School and Safe Zone Movement: A Quick Guide for Educators.”

– The Immigrant Legal Resource Center also has a guide for how schools can support immigrant families: “Help for Immigrant Families: Guidance for Schools.”

– Be on the lookout for a practice advisory on the extent to which both K–12 schools and colleges can legally protect their students from immigration enforcement on campus. It will likely be published and available on NILC’s website in late June or July.

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Muslim Ban 2.0: What Happens Next?

Muslim Ban 2.0: What Happens Next?

The Supreme Court’s action of
June 26, 2017, is explained HERE.
By Esther Sung, NILC staff attorney
June 9, 2017

Wondering what happens next in our Muslim ban case, IRAP v. Trump? Here’s everything you need to know, from the recent decision by the Fourth Circuit Court of Appeals, to the Trump administration’s appeal of that decision, and what the Supreme Court could do next.

This is a case brought by HIAS and the International Refugee Assistance Project, who are represented by NILC, the ACLU’s Immigrants’ Rights Project, and the ACLU of Maryland.

What happened at the Fourth Circuit?

The Fourth Circuit is the first federal appeals court to hear and issue a decision on a lawsuit brought against President Trump’s second Muslim-ban executive order, the one he signed on March 6, 2017. The Fourth Circuit heard arguments in IRAP v. Trump in an initial en banc hearing. This means that instead of a panel of just three judges hearing and deciding the case immediately after it was appealed from the federal district court in Maryland, all the judges in the Fourth Circuit, minus two who recused themselves, heard the case.

Of the thirteen judges who heard the case, ten voted to affirm the district court’s preliminary injunction, and three dissented from the majority opinion.

The ten judges who voted to affirm found that the March 6 executive order violates the U.S. Constitution—and that it “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” Three judges, in concurring opinions, provided several reasons why the executive order also violates the Immigration and Nationality Act.

The judges who dissented, on the other hand, argued that the court should show deference to the national security justifications the administration made for having issued the executive order.

Now what is the Trump administration asking the Supreme Court to do?

Late on the night of June 1, 2017, the administration filed papers asking the Supreme Court to “stay” the injunction issued by the federal court in Maryland and another injunction that was issued by a federal court in Hawaii—in other words, to lift both injunctions and allow the Muslim-ban executive order to go into full effect. The Maryland court’s injunction currently prevents section 2(c) of the executive order—the section that creates the Muslim ban (also known as the “travel ban”)—from taking effect.

The Hawaii court’s injunction is broader and currently prevents sections 2 and 6—which include the executive order’s refugee ban and reduction in refugee admissions for FY 2017 from 110,000 to 50,000—from taking effect. The administration’s request regarding the Hawaii injunction is unusual because the Ninth Circuit Court of Appeals, which has jurisdiction over the Hawaii district, has not yet issued an opinion on its validity.

In a separate filing, the administration also asked the Supreme Court to grant a writ of certiorari in the Maryland case, which would enable the Court to review the Fourth Circuit’s decision upholding the injunction of section 2(c) of the executive order. Section 2(c) bans for 90 days the entry into the U.S. of nationals of six designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen.

The Trump administration has asked the Supreme Court to allow expedited briefing on both these requests because it wants the Court to decide them before it takes its summer recess at the end of June.

What happens next at the Supreme Court?

The Supreme Court has already allowed for expedited briefing on the administration’s requests and has ordered the plaintiffs/appellees to respond to the administration’s filings by 3 p.m. ET, Monday, June 12.

To grant the administration’s request for a stay of the Maryland and Hawaii injunctions and allow the executive order to go into full effect, five justices would need to vote in favor of a stay. The justices can issue their decision on the administration’s stay application at any time after the plaintiffs/appellees file their response on June 12.

To grant the administration’s request for a writ of certiorari, only four justices would need to vote in favor of granting certiorari. The justices will likely decide the request during one of several remaining previously scheduled conferences in June and issue a decision after that, likely at the same time it releases opinions in other cases on the Court’s docket.

No Muslim ban ever!

The Fourth Circuit, like several other courts across the country, found that the executive order unconstitutionally disfavors Muslims and is clearly motivated by unconstitutional discriminatory intent. The majority opinion and concurrences were a victory for the American public and our democracy, and a reminder that no one—not even the president—is above the Constitution. NILC stands ready to continue the fight against the president and his politics of hate in the highest court in the land.

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A Simple Way to Resist the Trump Anti-Immigrant Agenda? Refuse to Pay for It

A Simple Way to Resist the Trump Anti-Immigrant Agenda? Refuse to Pay for It

By Jackie Vimo, NILC economic justice policy analyst
June 1, 2017

With so much news coming out of the White House since late January, it can be challenging to keep track of all the ways the Trump administration is attacking immigrants and working families. However, it’s crucial that we pay close attention to one of the greatest threats to the health and safety of American families that this nation has ever faced: the devastating cuts the president’s proposed budget contains that are intended to pay for tax cuts for the wealthy and to fund a massive deportation force that will tear families apart and spread fear across communities nationwide.

The federal budget process may seem overwhelming and unintelligible to many people outside Washington, DC, but it is more important than ever that taxpayers speak out to let Congress know that we will not allow our tax dollars to be used to fund Trump’s anti-immigrant agenda at the expense of Americans struggling to make ends meet. Congress controls the purse strings for the funds that the president requires to enact his agenda, and our best hope to defeat his proposals lies in telling Congress to deny him our tax dollars. Instead of building walls and spreading fear, Congress should be funding programs to create jobs, build a strong health care system, and educate our next generation.

Trump’s proposed Fiscal Year 2018 budget, released last Tuesday, threatens to decimate crucial economic supports for low- and middle-income families. The proposed budget slashes funding for Medicaid by nearly half over the next ten years, cuts food stamps by nearly 30 percent, breaks his promise to protect programs for the disabled because it cuts $72 billion from Social Security programs, cuts Environmental Protection Agency funding by a third, ends all federal funding for Planned Parenthood, and eliminates programs to help kids afford college.

Trump’s budget uses these cuts to pay for his anti-immigrant agenda, including increased funding for the U.S. Department of Homeland Security (DHS), which is currently under fire for fiscal mismanagement and allegations of agent misconduct. This budget is a “Robin Hood in reverse” that steals money from the nation’s vulnerable communities to fill the pockets of millionaires and corporations. It promotes policies that will scapegoat immigrants and terrorize communities by flooding neighborhoods with immigration agents operating under inadequate government oversight.

The Trump budget asks taxpayers to allocate $4.5 billion on top of the $19 billion we already spend on immigration enforcement to fund the president’s plans to build an ineffective and xenophobic wall and to deport millions of immigrants, tearing apart families and communities. Most of this funding would go to hire 1,000 new U.S. Immigration and Customs Enforcement (ICE) agents and 500 hundred new Border Patrol officers, and to build 74 miles of wall on the southern border.

DHS is already struggling to hire agents that the agency already has funding for, partly because two out of every three applicants for Border Patrol positions fail the required polygraph test. In response, U.S. Customs and Border Protection, the Border Patrol’s mother agency within DHS, has suggested that it may loosen testing requirements, thereby putting badges and guns into the hands of people who can’t even pass a lie detector test.

More militarized immigration agents on our streets will only make our communities less safe and increase the levels of terror that already exist. In just the first few months of the Trump presidency, his policies’ chilling effects have led to a decline in the number of women reporting sexual assault and domestic violence and to an increased generalized fear of the police among Latinos. Furthermore, the Trump budget encourages increased collaboration between DHS and local law enforcement. Our communities are safer when all residents can feel safe interacting with their local police officers.

In addition to flooding our streets with immigration agents, the Trump budget would also swell our immigrant detention system by funding an additional 51,379 detention beds, an increase of almost 20,000 beds over last year’s 34,000-bed funding level. As Trump calls for increased detention of immigrants, his budget also proposes to eliminate protections currently provided by ICE detention standards and increase the average number of days that immigrants, including asylum-seekers fleeing horrific conditions and children, are detained.

In addition, the budget calls for making E-Verify, the federal government’s Web-based employment eligibility verification system, mandatory—an expensive mandate that would hurt employers, increase unemployment, and harm our economy. Finally, the Trump budget proposes restricting eligibility for the Child Tax Credit (CTC) and the Earned Income Tax Credit (EITC) to only people who have Social Security numbers (SSNs). While the EITC already requires that the filer provide an SSN, this budget would require that both the taxpayer parent as well as the qualifying child have an SSN to receive the EITC or the CTC. This policy would primarily harm working-class taxpayers and millions of U.S. citizen children who live in mixed–immigration status families.

Budget negotiations can be complicated, but resisting the dangerous proposals in Trump’s proposed budget is simple.  We need to tell Congress that it cannot be complicit in Trump’s build-up of a deportation army at the expense of cuts to crucial social programs. In fact, Congress should be decreasing the funding for the bloated DHS enforcement and detention system that fails to adequately manage tax dollars and violates the rights of immigrants and native-born U.S. citizens. Instead of building walls and funding fear to divide us, we should use our taxpayer dollars to build a stronger economy and healthier communities.

Resisting Trump’s agenda is as simple as denying the White House our tax dollars. You don’t need to be a budget expert to know that military boots and border walls don’t pay for themselves—we can stop the Trump agenda by refusing to pay for it.

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Lawyers for First Known Deported DACA Recipient Ask the Court to Bring Juan Home

FOR IMMEDIATE RELEASE
May 22, 2017

CONTACT
Juan Gastelum, media@nilc.org, 213-375-3149
Hayley Burgess, media@nilc.org, 202-384-1279

Lawyers for First Known Deported DACA Recipient Ask the Court to Bring Juan Home

Amended complaint makes new allegations against the federal government

LOS ANGELES — Lawyers for Juan Manuel Montes Bojorquez, a 23-year-old DACA recipient, filed an amended complaint in federal district court today alleging their client was unlawfully expelled from the United States in violation of the Constitution and federal law and requesting that he be returned to this country, which is his home.

The original lawsuit against U.S. immigration authorities, filed on April 18, 2017, sought only additional documentation to explain why Montes was removed from the country. This amended complaint challenges the unlawful nature of Montes’s removal. It comes after the federal government initially and erroneously denied that Montes had DACA and provided some limited documentation concerning Montes’s removal.

“We initially sought an answer to one simple question: What happened to Juan Manuel?” said Mónica Ramírez Almadani, an attorney with Covington & Burling LLP in Los Angeles. “The government’s response to date has been woefully inadequate. Their minimal responses have made only one thing clear: that Juan Manuel should never have been taken from his home in this manner.”

Before he was removed from the country, Montes worked in area agricultural fields and was pursuing a welding degree at his local community college.

The amended complaint alleges that Montes was stopped and questioned by a Border Patrol agent while he was walking to find a taxi near the Calexico port of entry. He was detained by the Border Patrol agent and, a few hours later,  was expelled from the country.

Montes was a recipient of Deferred Action for Childhood Arrivals, a program that allows immigrant youth to apply for temporary work authorization and deferral from deportation for two years, subject to renewal for another two years. Though the federal government initially denied that Montes had DACA when he was removed from the U.S., it later acknowledged that Montes did have DACA at the time he was removed and that it was not set to expire until 2018.

“The federal government made a promise to Mr. Montes,” said Karen Tumlin, legal director of the National Immigration Law Center. “He came forward, paid a fee, subjected himself to a background and biometric check. In return, he was promised that he would be protected from deportation. The federal government broke its promise without providing due process and by violating federal laws and regulations.”

For more information about Montes Bojorquez v. USCBP, visit www.nilc.org/issues/litigation/montes-v-uscbp/.

A copy of the complaint filed today is available at www.nilc.org/wp-content/uploads/2017/05/Juan-Manuel-Montes-Bojorquez-Amended-Complaint.pdf

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