Tag: DAPA

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Global Pinoy

Prosecutorial discretion as an option for the undocumented

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Ten years after arriving in the United States, Eva seems to have lost her hope of legalizing her stay. She was petitioned by her U.S. citizen fiancé, but after a few weeks of living together as a couple, her petitioner abandoned her. Her U.S. citizen fiancé never married her. She now has a child who was born in the United States from a subsequent relationship, but the father also refuses to acknowledge the child; and, neither is he marrying Eva.

In 2014 when President Obama announced the Executive Actions for parents of U.S. citizens (DAPA), Eva became hopeful that she would have an opportunity to stay and work legally. After an adverse ruling was rendered on June 23, 2016 by the U.S. Supreme Court upholding the injunction on the DACA+ and DAPA, Eva became fearful that this setback would have the effect of immediate removal/deportation from the United States for the millions of immigrants who were prospective beneficiaries of the DAPA and DACA+.

Secretary of the U.S. Department of Homeland Security Jeh Johnson, made a public statement that the enforcement priorities will be focused on those who have criminal convictions, threats to public safety and national security and border security. New immigration violators or those who just arrived and are now in unlawful status are second in priority for enforcement. Last in priority of enforcement are those with other immigration violations or those who are in the country in unauthorized status. This last category of immigrants is considered non-priority.

Despite these categories of enforcement priorities, there are recent cases where the DHS still placed in removal proceedings individuals who are in a non-priority category. This is quite troubling for those who are already in authorized stay. While there is no increase in the apprehension of undocumented immigrants, it is important to understand that if there is no immediate relief available, prosecutorial discretion may still be requested.

This prosecutorial discretion refers to different actions by the DHS to avoid removal, placing an individual in removal proceedings, dismissing an action, deciding to release a detained individual or whether to grant deferred action or parole. There is a broader deferred action policy that may be asserted in requesting for prosecutorial discretion.

There are different factors taken into account in order to warrant a favorable exercise of discretion from DHS. It may include, among others, the following: length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.

Eva may take still have the option of requesting for prosecutorial discretion if she ever finds herself in immigration court for removal proceedings. Whether or not she will be granted favorable exercise of discretion will depend on the circumstances of her case.

Absent comprehensive immigration reform as well as the DACA and DAPA programs, prosecutorial discretion remains good policy and may always be requested especially in humanitarian cases where removal will affect families with U.S. citizens or lawful permanent residents.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)

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Global Pinoy

US high court’s one-line ruling only a temporary defeat for DACA+

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“The judgment is affirmed by an equally divided Court,” this is the one-line ruling of the highest court of the land in the much awaited decision on Obama’s Executive Action on DACA extension and DAPA program. After more than two years of waiting for the injunction to be lifted on the programs and looking forward to a decision on the merits, immigrant rights supporters were disappointed when the Supreme Court laid out its ruling in a deadlock vote of 4-4. But it’s only a temporary defeat; there are still legal ways to move forward with the executive action.

Jose Antonio Vargas, a Filipino national, is the most outspoken advocate of the DREAM Act and the Deferred Action for Childhood Arrivals (DACA). In 2012 when President Obama announced the DACA program for the first time, he was not included on the list of those qualified to apply even if he was only 12 years old at the time of his arrival in the US. The first DACA program in 2012 included a requirement that the applicant must be below 31 years old at the time of the application for deferred action under DACA. Jose just turned 31 years old in 2012 and lost the opportunity to apply for DACA.

His hope of getting temporary relief under DACA was revived when in 2014, President Obama announced the DACA+ and the DAPA executive actions. For the DACA+ program, the age ceiling of 31 years old was eliminated, maintaining only the minimum age requirement of 15 and below at the time of entry into the United States. Jose would have qualified, but the anti immigrants would not allow the DACA+ and the DAPA program to push through. Conservative states filed a lawsuit against the Obama administration, and a 5th District Court Judge issued an injunction against its implementation.

The litigation reached the Supreme Court, and there was a hearing on the merits. Unfortunately, on June 23, 2016, the Supreme Court did not issue a decision, but rather announced a per curiam ruling stating that the court was divided and that the judgment of the lower district court is affirmed.

The arguments in favor of the DACA+/DAPA Executive Actions seemed to make more legal sense during the hearing. It obviously did not turn out that way. The split in the evenly divided Supreme Court shows the sharp ideological divide between the factions in it. The feeling is that it is a politicized court with an ultra-conservative right and a liberal left-wing faction.

Had Justice Scalia not passed away recently, the conservatives would have had a clear victory. On the other hand, had Congress done its job and voted on President Obama’s replacement for Justice Scalia’s seat in the Supreme Court, it would not be inconceivable that the DACA+/DAPA Executive Actions would have been upheld.

To put this in perspective, this is only a temporary defeat for the immigrants. There are still legal ways to move forward with Executive Action as no decision on the merits was issued. But to initiate a new action would take time, which the current president no longer has. Come November 7, a new president will be elected. Whoever is elected as the next president gets to nominate the next Justice for the Supreme Court vacancy. That single appointment can tip the balance of the Supreme Court’s ideological divide to the left (or to the right) for years and years to come; hence, the importance of voting for the right president in the coming November election.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com , facebook.com/tancincolaw, or through her website tancinco.weareph.com/old)

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Will Obama’s immigration executive actions prevail?

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More than 4,000 immigrants and advocates gathered outside the highest court of the United States while the justices heard the case of United.States. v. Texas. Among those who were present were immigrant families who are undocumented and who have a stake in the result of the litigation.

Certainly, there were Filipino Americans advocates and families who also joined the rally and were very vocal about their support for the programs. The 4 million individuals who have a stake in this litigation include numerous Filipino families who will benefit from the Obama’s executive actions. The most pressing question after the hearing is, What is the likelihood of a decision in favor of the Obama’s DACA/DAPA executive actions?

United States v. Texas is a lawsuit initiated by 26 States questioning the legality of Obama’s Executive Actions on DAPA and the DACA extension. DAPA refers to Deferred Action for Parental Accountability where deferred action will be granted to undocumented parents of U.S citizens.

The DACA expanded program will allow more undocumented children to apply for deferred action. If deferred action is granted, employment authorizations will be issued to qualified applicants while it does not confer any other immigration benefit such as a pathway to legal resident status.

An estimated 4 million individuals who are currently undocumented are expected to benefit from these DACA and DAPA programs. Implementation of these programs were stalled by court injunction. The case ultimately reached the U.S. Supreme Court and legal arguments were heard by the justices on April 18, 2016.

The issues on standing and the merits of the executive actions were argued well by the U.S. Solicitor General Donald B. Verrilli, Jr. in favor of the DACA/DAPA programs. Verrilli emphasized that the States do not have the standing or legal capacity to bring the lawsuit.

The nature of the controversy was more of a political disagreement with the Federal government rather than a legal dispute. Considering that it is it a political disagreement on federal enforcement, to render a decision in favor of standing will open a floodgate of cases where states may, at anytime, sue the federal government for any political disagreement.

Most of the legal arguments centered on the issue of standing. As to the merits of the DACA/DAPA, the lawyer for the Respondent States, Texas Solicitor General Scott A. Keller wrongly argued that these executive actions confer legal status. This argument was met by the Verrilli’s rebuttal that deferred action does not confer legal status but rather a tolerated presence by the U.S. Department of Homeland Security.

The decision will be rendered sometime in June 2016. With very compelling and convincing arguments raised during the hearing by Verrilli, a favorable outcome in favor the DAPA/DACA Executive Actions, with at least a 5-3 vote, is hoped for by thousands of families who will be affected by the Supreme Court decision. Unfortunately, with one vacancy in the U.S. Supreme Court, there are only 8 justices. If the justices are divided 4-4, then the injunctions on the executive actions will remain.

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Global Pinoy

Predicament of American daughter: Family separation

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Sonia was born and raised in San Jose, California. From the outside, Sonia seemed like your typical happy-go-lucky senior in high school getting ready to go college, but at home, Sonia lives a different reality.

Her parents, Edgar and Rowena, are from the Philippines. They came to the United States when Rowena was pregnant with Sonia and decided to overstay their tourist visa.

Refused to leave

When Sonia was very young, her parents were arrested by the Immigration Service and were to be deported. Edgar and Rowena, however, refused to leave the US and decided to stay. For years, they hid their status and tirelessly worked several under-the-table jobs so Sonia could study in the best schools and participate in after-school activities.

Illegal status

It was only recently that Sonia found out about her parents’ illegal status in the United States when she wanted to apply for private student loans for college. Since finding out the truth about her parents’ illegal status, Sonia has been worried that her parents can be taken anytime from her and she’s scared of what will happen when she leaves for college. She relies on her parents for everything, emotional and financial needs. In two weeks, Sonia will be turning 18 years old and instead of the usual birthday debut celebration, she told her parents not to prepare anything special.

Instead, she wanted to take steps to help her parents. Is there anything that Sonia can legally do for her parents?

Deferred action

More than a year ago, US President Barack Obama released two immigration executive actions that will provide immigration relief to undocumented parents of US citizens (called DAPA or Deferred Action for Parents of Americans); and, an expansion of the Deferred Action for Childhood Arrivals (DACA) for undocumented young immigrants.

The DAPA and DACA will affect more than 4 million undocumented immigrants.

Instead of the implementation of these reliefs, however, a lawsuit was filed by 26 states. Currently, the implementation of Dapa, the program which was supposed to allow undocumented parents with US citizen children to obtain an employment authorization document and be deferred from removal, is still suspended until the US Supreme Court decides on this case.

It is expected a decision will be reached by June 2016. Until then, parents with US citizen children will have to avail of alternative options.

US citizen children may only petition their parents after they turn 21 years old. Until Sonia reaches this age, there is really nothing much she can do affirmatively to help her parents with their immigration status. Even assuming that she turns 21 years old, there is a bigger hurdle that she has to overcome before she can file a petition for her parents.

The deportation order may be enforced anytime by the Department of Homeland Security (DHS) against her parents if they are found to be still present in the United States. Fortunately, there is “prosecutorial discretion” request that may be filed with the DHS to prevent this from happening.

Sonia’s case is very sympathetic and her desperation to help her parents is understandable considering that her parents are her only means of support. She represents many young immigrants who are in the same situation and who were afforded the opportunity to be integrated into the American system just to be threatened with family separation with no relief available.

Hopefully, the DAPA litigation will result in a favorable judgment for the Obama administration and her parents will be given temporary relief.

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Global Pinoy

Fear of deportation arises over court-issued injunction

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A day before the US Citizenship and Immigration Services was scheduled to receive applications for Obama’s program known as Deferred Action on Childhood Arrivals (DACA) expansion, District Judge Andrew Hanen issued a temporary injunction. This ruling will temporarily put a hold on the implementation of Obama’s immigration programs.

Joseph was looking forward to filing his application for his employment authorization document. Having entered the United States when he was 10 years old, his parents never took necessary steps to legalize his stay.

On Nov. 20, 2014, when President Barack Obama announced his executive actions expanding the Daca, he became hopeful about getting a temporary work permit. Joseph completed his degree in computer science from a state university but could not get a better job because he does not possess a work permit.

When he heard about the temporary injunction on Obama’s executive actions, Joseph was disheartened and is now apprehensive again about his situation.

States’ lawsuit
In the case of Texas v. United States of America, a lawsuit was filed by 26 states against Obama’s executive actions. The plaintiffs questioned the constitutionality of the executive actions as it bypassed the US Congress on an immigration matter. This case is pending before Federal District Judge Andrew Hanen of Brownsville, Texas.

Judge Hanen was a nominee of George W. Bush, assigned to the United States District Court for the Southern District of Texas. He is a known conservative who has been a critic of Obama’s immigration policies. So when the decision to suspend the implementation of the program that will offer work permits and offer a three-year reprieve from deportation was issued on Nov. 16, 2014, immigrant advocates were not surprised.

The Obama administration has already announced that they are filing an appeal to a higher court on this decision.

In the meantime, thousands of undocumented Filipinos, potentially eligible for the Dapa (Deferred Action for Parental Accountability) and Daca programs of the executive actions in question and who are similarly situated as Joseph, are anxious about the effect of this injunction. The excitement about filing for benefits under the executive actions was suddenly cut short by this temporary injunction. It was an affirmation of the uncertainty of the executive actions, which validates the skepticism of many on Obama’s Daca and Dapa programs.

There is always the concern whether coming out of the shadows means risking one’s fate to becoming vulnerable and risk being sent back home to the Philippines after the three-year deportation reprieve is over. There are some who are placed in a situation of accepting any type of odd job just to earn and be able to send money to their families back home.

The fear of the consequences of the unknown may deter many from filing. Yet, there are also many who are hopeful as this may just be a one-time opportunity to obtain work permits. Thus, to some this may be a poisoned apple. To others, this is an apple that is already ripe and should be picked before it rots and falls to the ground.

Many experts agree that the Nov. 16, 2014 district court judge’s injunction is only a temporary hold and that full implementation of Obama’s executive actions will just be a matter of time.