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Sorry, CNN, We're Not Going to Stop Talking About the Russian Collusion Hoax "No Autopsy Can Restore the Democratic Party’s Viability" RIP Ozzy "Trump floats 'restriction' for Commanders if they fail to ditch nickname in favor of Redskins return" "Virginia Governor’s Race Heats Up As Republican Winsome Sears Does a Hard Reboot of Her Campaign" "We Hate Communism!!" "Mamdani and the Democratic Schism" "The 2nd Impeachment: Trump’s Popularity Still Scares Them to Death" "President Badass" "Jasmine Crockett's Train Wreck Interview Was a Disaster" "How Israel Used Spies, Smuggled Drones and AI to Stun and Hobble Iran" There hasn’T been ... a single updaTe To This siTe --- since I joined. "This Is Not What Authoritarianism Looks Like" America Erupts… ICE Raids Takeover The Streets AC/DC- Riff Raff + Go Down [VH1 Uncut, July 5, 1996] Why is Peter Schiff calling Bitcoin a ‘giant cult’ and how does this impact market sentiment? 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Did the Israelites Really Cross the Red Sea? Stunning Evidence of the Location of Red Sea Crossing! Are we experiencing a Triumph of Orthodoxy? Judge Napolitano with Konstantin Malofeev (Moscow, Russia) "Trump Administration Cancels Most USAID Programs, Folds Others into State Department" Introducing Manus: The General AI Agent "Chinese Spies in Our Military? Straight to Jail" Any suggestion that the USA and NATO are "Helping" or have ever helped Ukraine needs to be shot down instantly Status: Not Logged In; Sign In United States News See other United States News Articles Title: University of California, Janet Napolitano v DHS, DACA Complaint Source: [None] URL Source: [None] Published: Sep 14, 2017 Author: nolu chan Post Date: 2017-09-14 18:33:55 by nolu chan Keywords: None Views: 3031 Comments: 20 University of California, Janet Napolitano v DHS, DACA Complaint nolu chan September 14, 2017 http://universityofcalifornia.edu/sites/default/files/UC-DACA-Complaint.pdf University of California v. U.S. Department of Homeland Security, CAND 3-17-cv-05211, Doc 1, (8 Sep 2017), COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs are The Regents of the University of California, and Janet Napolitano, in her official capacity as President of the University of California. 1. This lawsuit, brought under the Due Process Clause of the Fifth Amendment to the United States Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, challenges Defendants’ unlawful decision to rescind the Deferred Action for Childhood Arrivals (“DACA”) program, which protected from deportation nearly 800,000 individuals brought to this country as children, known as Dreamers. Under DACA, the Dreamers, who came to the United States through no choice of their own, who have clean records, and who have lived continuously in the United States since 2007, were permitted to live, work, and study in this country without fear of deportation. The United States, and the University, have benefited enormously from the presence of the Dreamers, accomplished young men and women who are our students, and colleagues, and neighbors. They are Americans, a fact that Defendants’ precipitous decision cannot change. There are only two paths to American citizenship: a natural born citizen, one who becomes a citizen at birth. a naturalized citizen protected from deportation nearly 800,000 individuals brought to this country as children, known as Dreamers ILLEGAL ALIENS. There, fixed it. From the DACA implementing memorandum of June 15, 2012, by none other than then-DHS Secretary Janet Napolitano herself, This memorandum confers no substantive right, immigration status or pathway to citizenship. Only Congress, acting through its legislative authority, can confer these rights. All DACA-eligible persons were/are illegal aliens. None is a natural born citizen of the United States. Whether they evaded immigration officials altogether, or overstayed a lawful but time-limited visa, they are not lawfully present in the country. https://www.irs.gov/individuals/international-taxpayers/immigration-terms-and-definitions-involving-aliens Illegal Alien Also known as an "Undocumented Alien," is an alien who has entered the United States illegally and is deportable if apprehended, or an alien who entered the United States legally but who has fallen "out of status" and is deportable. Whether the illegal alien never had status, or has fallen out of status, the only legal path available to attain lawful status is to exit and return lawfully (or some special action by Congress to cange the law). Those who evaded immigration officials enjoy no municipal status. As a legal fiction, for immigration purposes, they are not considered to have entered the country. The only thing they can do to attain status is to leave the country and return legally. To be eligible for naturalization one must be: an alien lawfully present in the United States Persons not lawfully present in the United States are not eligible for naturalization. Normally, aliens lawfully present can petition for naturalization. In her DACA implementing memorandum, Ms. Napolitano recognized that it would take legislative authority to confer immigration status or a pathway to citizenship for these illegal aliens. It is because they are illegal aliens, and have no lawful status, that current law provides them no pathway to United States citizenship. As Ms. Napolitano documented with her DACA implementing memo. neither she nor the President of the United States had the authority to convert aliens, unlawfully present in the United States, into United States citizens, or to grant or regulate their immigration status. They are Americans, a fact that Defendants’ precipitous decision cannot change. They may be Americans in the generic sense of being citizens of someplace in North or South America other than the United States of America. The apparent, and deceptive nature of the statement to imply that these illegal aliens are of the United States of America, is but a lie. By the very terms of the DACA policy, they must be from a foreign country. RELATED: http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=52708 Trump Illegal Alien Executive Orders - Follow the Litigation Bouncing Ball Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 3. #3. To: All (#0) This is the 5th Circuit DAPA opinion, which affirmed the killing of DAPA and the expansion of DACA. SCOTUS tied 4-4 on this one while the Court only had eight justices. That result left this 5th Circuit opinion stand. The rationale seems applicable to DACA, and in several places, the Court said as much. Now Justice Gorsuch is at SCOTUS to break any 4-4 tie. [footnotes omitted] Texas et al v. U.S., 15-40238 (5th Cir. 9 Nov 2015, Rev. 28 Nov 2015) REVISED November 25, 2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT At 2: [*2] No. 15-40238 Before KING, SMITH, and ELROD, Circuit Judges. JERRY E. SMITH, Circuit Judge: The United States appeals a preliminary injunction, pending trial, forbidding implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”). Twenty-six states (the “states”) challenged DAPA under the Administrative Procedure Act (“APA”) and the Take Care Clause of the Constitution; in an impressive and thorough Memorandum Opinion and Order issued February 16, 2015, the district court enjoined the program on the ground that the states are likely to succeed on their claim that DAPA is subject to the APA’s procedural requirements. Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015). The government appealed and moved to stay the injunction pending resolution of the merits. After extensive briefing and more than two hours of oral argument, a motions panel denied the stay after determining that the appeal was unlikely to succeed on its merits. Texas v. United States, 787 F.3d 733, 743 (5th Cir. 2015). Reviewing the district court’s order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction. [*3] I. A. In June 2012, the Department of Homeland Security (“DHS”) implemented the Deferred Action for Childhood Arrivals program (“DACA”). In the DACA Memo to agency heads, the DHS Secretary “set[] forth how, in the exercise of . . . prosecutorial discretion, [DHS] should enforce the Nation’s immigration laws against certain young people” and listed five “criteria [that] should be satisfied before an individual is considered for an exercise of prosecutorial discretion.” The Secretary further instructed that “[n]o individual should receive deferred action . . . unless they [sic] first pass a background check and requests for relief . . . are to be decided on a case by case basis.” Although stating that “[f]or individuals who are granted deferred action . . . , [U.S. Citizenship and Immigration Services (“USCIS”)] shall accept applications to determine whether these individuals qualify for work authorization,” the DACA Memo purported to “confer[] no substantive right, immigration status or pathway to citizenship.” At least 1.2 million persons qualify for DACA, and approximately 636,000 applications were approved through 2014. [*4] Dist. Ct. Op., 86 F. Supp. 3d at 609. In November 2014, by what is termed the “DAPA Memo,” DHS expanded DACA by making millions more persons eligible for the program10 and extending “[t]he period for which DACA and the accompanying employment authorization is granted . . . to three-year increments, rather than the current two-year increments.” The Secretary also “direct[ed] USCIS to establish a process, similar to DACA,” known as DAPA, which applies to “individuals who . . . have, [as of November 20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident” and meet five additional criteria.12 The Secretary stated that, although “[d]eferred action does not confer any form of legal status in this country, much less citizenship[,] it [does] mean[] that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” Of the approximately 11.3 million illegal aliens in the United [*5] States, 4.3 million would be eligible for lawful presence pursuant to DAPA. Dist. Ct. Op., 86 F. Supp. 3d at 612 n.11, 670. “Lawful presence” is not an enforceable right to remain in the United States and can be revoked at any time, but that classification nevertheless has significant legal consequences. Unlawfully present aliens are generally not eligible to receive federal public benefits, see 8 U.S.C. § 1611, or state and local public benefits unless the state otherwise provides, see 8 U.S.C. § 1621.15 But as the government admits in its opening brief, persons granted lawful presence pursuant to DAPA are no longer “bar[red] . . . from receiving social security [*6] retirement benefits, social security disability benefits, or health insurance under Part A of the Medicare program.” 16 That follows from § 1611(b)(2)–(3), which provides that the exclusion of benefits in § 1611(a) “shall not apply to any benefit[s] payable under title[s] II [and XVIII] of the Social Security Act . . . to an alien who is lawfully present in the United States as determined by the Attorney General . . . .” (emphasis added). A lawfully present alien is still required to satisfy independent qualification criteria before receiving those benefits, but the grant of lawful presence removes the categorical bar and thereby makes otherwise ineligible persons eligible to qualify. “Each person who applies for deferred action pursuant to the [DAPA] criteria . . . shall also be eligible to apply for work authorization for the [renewable three-year] period of deferred action.” DAPA Memo at 4. The United States concedes that “[a]n alien with work authorization may obtain a Social Security Number,” “accrue quarters of covered employment,” and “correct wage records to add prior covered employment within approximately three years of the year in which the wages were earned or in limited circumstances there-after.”17 The district court determined―and the government does not dispute―“that DAPA recipients would be eligible for earned income tax credits once they received a Social Security number.”18 As for state benefits, although “[a] State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under [*7] subsection (a),” § 1621(d), Texas has chosen not to issue driver’s licenses to unlawfully present aliens.19 Texas maintains that documentation confirming lawful presence pursuant to DAPA would allow otherwise ineligible aliens to become eligible for state-subsidized driver’s licenses. Likewise, certain unemployment compensation “[benefits are not payable based on services performed by an alien unless the alien . . . was lawfully present for purposes of performing the services . . . .”20 Texas contends that DAPA recipients would also become eligible for unemployment insurance. B. The states sued to prevent DAPA’s implementation on three grounds. First, they asserted that DAPA violated the procedural requirements of the APA as a substantive rule that did not undergo the requisite notice-and-comment rulemaking. See 5 U.S.C. § 553. Second, the states claimed that DHS lacked the authority to implement the program even if it followed the correct rulemaking process, such that DAPA was substantively unlawful under the APA. See 5 U.S.C. § 706(2)(A)–(C). Third, the states urged that DAPA was an abrogation of the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3. At 47-50: [footnotes omitted] The DACA and DAPA Memos purport to grant discretion, but a rule can be binding if it is “applied by the agency in a way that indicates it is binding,”136 and there was evidence from DACA’s implementation that DAPA’s discretionary language was pretextual. For a number of reasons, any extrapolation from DACA must be done carefully.137 First, DACA involved issuing benefits to self-selecting applicants, and persons who expected to be denied relief would seem unlikely to apply. But the issue of self-selection is partially mitigated by the finding that “the [g]overnment has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action (absent extraordinary circumstances).” Dist. Ct. Op., 86 F. Supp. 3d at 663 (footnote omitted). Second, DACA and DAPA are not identical: Eligibility for DACA was -47- - - - - - - - - - - restricted to a younger and less numerous population,138 which suggests that DACA applicants are less likely to have backgrounds that would warrant a discretionary denial. Further, the DAPA Memo contains additional discretionary criteria: Applicants must not be “an enforcement priority as reflected in the [Prioritization Memo]; and [must] present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” DAPA Memo at 4. But despite those differences, there are important similarities: The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,” id. (emphasis added), and there was evidence that the DACA application process itself did not allow for discretion, regardless of the rates of approval and denial.139 Instead of relying solely on the lack of evidence that any DACA application had been denied for discretionary reasons, the district court found pretext for additional reasons. It observed that “the ‘Operating Procedures’ for implementation of DACA contains nearly 150 pages of specific instructions for granting or denying deferred action to applicants” and that “[d]enials are -48- - - - - - - - - - - recorded in a ‘check the box’ standardized form, for which USCIS personnel are provided templates. Certain denials of DAPA must be sent to a supervisor for approval[, and] there is no option for granting DAPA to an individual who does not meet each criterion.” Dist. Ct. Op., 86 F. Supp. 3d at 669 (footnotes omitted). The finding was also based on the declaration from Palinkas that, as with DACA, the DAPA application process itself would preclude discretion: “[R]outing DAPA applications through service centers instead of field offices . . . created an application process that bypasses traditional in-person investigatory interviews with trained USCIS adjudications officers” and “prevents officers from conducting case-by-case investigations, undermines officers’ abilities to detect fraud and national-security risks, and ensures that applications will be rubber-stamped.” See id. at 609–10 (citing that declaration). As the government points out, there was conflicting evidence on the degree to which DACA allowed for discretion. Donald Neufeld, the Associate Director for Service Center Operations for USCIS, declared that “deferred action under DACA is a . . . case-specific process” that “necessarily involves the exercise of the agency’s discretion,” and he purported to identify several instances of discretionary denials.140 Although Neufeld stated that approximately 200,000 requests for additional evidence had been made upon receipt of DACA applications, the government does not know the number, if any, that related to discretionary factors rather than the objective criteria. Similarly, -49- - - - - - - - - - - the government did not provide the number of cases that service-center officials referred to field offices for interviews.141 Although the district court did not make a formal credibility determination or hold an evidentiary hearing on the conflicting statements by Neufeld and Palinkas, the record indicates that it did not view the Neufeld declaration as creating a material factual dispute.142 Further, the government did not seek an evidentiary hearing, nor does it argue on appeal that it was error not to conduct such a hearing. Reviewing for clear error, we conclude that the states have established a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion. ... -50- At 56-60: [footnotes omitted] Congress has enacted an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status: In general, an applicant must (i) have a U.S. citizen child who is at least twenty-one years old, (ii) leave the United States, (iii) wait ten years, and then (iv) obtain one of the limited number of family-preference visas from a United States consulate.167 Although DAPA does not confer the full panoply of -56- - - - - - - - - - - benefits that a visa gives, DAPA would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration status without complying with any of the requirements, enumerated above, that Congress has deliberately imposed. DAPA requires only that prospective beneficiaries “have . . . a son or daughter who is a U.S. citizen or lawful permanent resident”—without regard to the age of the child—and there is no need to leave the United States or wait ten years168 or obtain a visa.169 Further, the INA does not contain a family-sponsorship process for parents of an LPR child,170 but DAPA allows a parent to derive lawful presence from his child’s LPR status. The INA authorizes cancellation of removal and adjustment of status if, inter alia, “the alien has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application” and if “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(A) (emphasis added). Although LPR status is more substantial than is lawful presence, § 1229b(b)(1) is the most specific delegation of authority to the Secretary to change the immigration classification of removable aliens that meet only the DAPA criteria and do not fit within the specific -57- - - - - - - - - - - categories set forth in § 1229b(b)(2)–(6). Instead of a ten-year physical-presence period, DAPA grants lawful presence to persons who “have continuously resided in the United States since before January 1, 2010,” and there is no requirement that removal would result in exceptional and extremely unusual hardship. DAPA Memo at 4. Although the Secretary has discretion to make immigration decisions based on humanitarian grounds, that discretion is conferred only for particular family relationships and specific forms of relief—none of which includes granting lawful presence, on the basis of a child’s immigration status, to the class of aliens that would be eligible for DAPA.171 The INA also specifies classes of aliens eligible172 and ineligible173 for work authorization, including those “eligible for work authorization and deferred action”―with no mention of the class of persons whom DAPA would make eligible for work authorization. Congress “‘forcefully’ made combating the employment of illegal aliens central to ‘[t]he policy of immigration law,’”174 in part by “establishing an extensive ‘employment verification system,’ designed to deny employment to aliens who . . . are not lawfully present in the -58- - - - - - - - - - - United States.”175 The INA’s careful employment-authorization scheme “protect[s] against the displacement of workers in the United States,”176 and a “primary purpose in restricting immigration is to preserve jobs for American workers.”177 DAPA would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country. DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and “we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.”178 DAPA undoubtedly implicates “question[s] of deep ‘economic and political significance’ that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.”179 But assuming arguendo that Chevron applies and that Congress has not directly addressed the precise -59- - - - - - - - - - - question at hand, we would still strike down DAPA as an unreasonable interpretation that is “manifestly contrary” to the INA. See Mayo Found., 562 U.S. at 53. ... -60- At 64-66: [footnotes omitted] ... DAPA is far from interstitial: Congress -64- - - - - - - - - - - has repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (“DREAM Act”),199 features of which closely resemble DACA and DAPA. Historical practice that is so far afield from the challenged program sheds no light on the Secretary’s authority to implement DAPA. Indeed, as the district court recognized, the President explicitly stated that “it was the failure of Congress to enact such a program that prompted him . . . to ‘change the law.’”200 At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes. And the dissent attempts to avoid the impact of the President’s statement by accusing the district court and this panel majority of “relying . . . on selected excerpts of the President’s public statements.” Dissent at 24, 33 n.41. The dissent repeatedly claims that congressional silence has conferred on DHS the power to act. E.g., Dissent at 46–47. To the contrary, any such inaction cannot create such power: “[D]eference is warranted only when Congress has left a gap for the agency to fill pursuant to an express or implied ‘delegation of authority to the agency.’” Chevron[,] 467 U.S. at 843–44[]. To suggest, as the [agency] effectively does, that Chevron step two is implicated at any -65- - - - - - - - - - - time a statute does not expressly negate the existence of a claimed administrative power . . . is both flatly unfaithful to the principles of administrative law . . . and refuted by precedent. . . . Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well. Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995). Through the INA’s specific and intricate provisions, “Congress has ‘directly addressed the precise question at issue.’” Mayo Found., 562 U.S. at 52. As we have indicated, the INA prescribes how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization. DAPA is foreclosed by Congress’s careful plan; the program is “manifestly contrary to the statute”201 and therefore was properly enjoined.202 At 67-70: [footnotes omitted] ... Finally, the government reasonably speculates that the injunction burdens DAPA beneficiaries and -67- - - - - - - - - - - their families and discourages them from cooperating with law-enforcement officers and paying taxes. But those are burdens that Congress knowingly created, and it is not our place to second-guess those decisions. The states have also sufficiently established that “an injunction will not disserve the public interest.” Sepulvado, 729 F.3d at 417 (quoting Byrum, 566 F.3d at 445). This factor overlaps considerably with the previous one, and most of the same analysis applies.204 The main difference is that, instead of relying on their financial interests, the states refer to the public interest in protecting separation of powers by curtailing unlawful executive action. Although the United States cites the public interest in maintaining separation of powers and federalism by avoiding judicial and state interference with a legitimate executive function, there is an obvious difference: The interest the government has identified can be effectively vindicated after a trial on the merits. The interest the states have identified cannot be, given the difficulty of restoring the status quo ante if DAPA were to be implemented.205 The public interest easily favors an injunction. IX. The government claims that the nationwide scope of the injunction is an abuse of discretion and requests that it be confined to Texas or the plaintiff -68- - - - - - - - - - - states. But the Constitution requires “an uniform Rule of Naturalization”;206 Congress has instructed that “the immigration laws of the United States should be enforced vigorously and uniformly”;207 and the Supreme Court has described immigration policy as “a comprehensive and unified system.”208 Partial implementation of DAPA would “detract[] from the ‘integrated scheme of regulation’ created by Congress,”209 and there is a substantial likelihood that a geographically-limited injunction would be ineffective because DAPA beneficiaries would be free to move among states. Furthermore, the Constitution vests the District Court with “the judicial Power of the United States.”210 That power is not limited to the district wherein the court sits but extends across the country. It is not beyond the power of a court, in appropriate circumstances, to issue a nationwide injunction.211 -69- “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Util. Air, 134 S. Ct. at 2444 (citation omitted). Agency announcements to the contrary are “greet[ed] . . . with a measure of skepticism.” Id. The district court did not err and most assuredly did not abuse its discretion. The order granting the preliminary injunction is AFFIRMED. -70- - - - - - - - - - - Footnote 14 at pp. 4-5 is noteworthy: Although “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States,” it is a civil offense. Arizona v. United States, 132 S. Ct. 2492, 2505 (2012); see 8 U.S.C. §§ 1182(a)(9)(B)(i), 1227(a)(1)(A)–(B). This opinion therefore refers to such persons as “illegal aliens”: The usual and preferable term in [American English] is illegal alien. The other forms have arisen as needless euphemisms, and should be avoided as near-gobbledygook. The problem with undocumented is that it is intended to mean, by those who use it in this phrase, “not having the requisite documents to enter or stay in a country legally.” But the word strongly suggests “unaccounted for” to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning. More than one writer has argued in favor of undocumented alien . . . [to] avoid[] the implication that one’s unauthorized presence in the United States is a crime . . . . Moreover, it is wrong to equate illegality with criminality, since many illegal acts are not criminal. Illegal alien is not an opprobrious epithet: it describes one present in a country in violation of the immigration laws (hence “illegal”). BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed. 2011) (citations omitted). And as the district court pointed out, “it is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law.” Dist. Ct. Op., 86 F. Supp. 3d at 605 n.2 (citing Arizona v. United States, 132 S. Ct. 2492, 2497 (2012)). “[I]legal alien has going for it both history and well-documented, generally accepted use.” Matthew Salzwedel, The Lawyer’s Struggle to Write, 16 SCRIBES JOURNAL OF LEGAL WRITING 69, 76 (2015). nolu chan  posted on  2017-09-14   18:37:28 ET  Reply   Untrace   Trace   Private Reply   Replies to Comment # 3. #5. To: All (#3) http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Leon Rodriguez, Dir., USCIS, et al. (Nov. 20, 2014) DAPA Memo At 3-5: [footnotes omitted] By this memorandum, I am now expanding certain parameters of DACA and issuing guidance for case-by-case use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities, as set forth in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum. The reality is that most individuals in the categories set forth below are hard-working people who have become integrated members of American society. Provided they do not commit serious crimes or otherwise become enforcement priorities, these people are extremely unlikely to be deported given this Department's limited enforcement resources-which must continue to be focused on those who represent threats to national security, public safety, and border security. Case-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation's security and economic interests and make common sense, because they encourage these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization (which by separate authority I may grant), and be counted. A. Expanding DACA DACA provides that those who were under the age of 31 on June 15, 2012, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria, are eligible for deferred action on a case-by-case basis. The initial DACA announcement of June 15, 20 12 provided deferred action for a period of two years. On June 5, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that DACA recipients could request to renew their deferred action for an additional two years. In order to further effectuate this program, I hereby direct USCIS to expand DACA as follows: Remove the age cap. DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i.e., those who were born before June 15, 1981). That restriction will no longer apply. Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work -3- - - - - - - - - - - authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years. Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010. USCIS should begin accepting applications under the new criteria from applicants no later than ninety (90) days from the date of this announcement. B. Expanding Deferred Action I hereby direct USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals who: have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident; have continuously resided in the United States since before January 1, 2010; are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS; have no lawful status on the date of this memorandum; are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate. Applicants must file the requisite applications for deferred action pursuant to the new criteria described above. Applicants must also submit biometrics for USCIS to conduct background checks similar to the background check that is required for DACA applicants. Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of -4- - - - - - - - - - - the Immigration and Nationality Act.4 Deferred action granted pursuant to the program shall be for a period of three years. Applicants will pay the work authorization and biometrics fees, which currently amount to $465. There will be no fee waivers and, like DACA, very limited fee exemptions. USCIS should begin accepting applications from eligible applicants no later than one hundred and eighty (180) days after the date of this announcement. As with DACA, the above criteria are to be considered for all individuals encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or USCIS, whether or not the individual is already in removal proceedings or subject to a final order of removal. Specifically: ICE and CBP are instructed to immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the above criteria and may thus be eligible for deferred action to prevent the further expenditure of enforcement resources with regard to these individuals. ICE is further instructed to review pending removal cases, and seek administrative closure or termination of the cases of individuals identified who meet the above criteria, and to refer such individuals to USCIS for case-by-case determinations. ICE should also establish a process to allow individuals in removal proceedings to identify themselves as candidates for deferred action. USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear. The USCIS process shall also be available to individuals subject to final orders of removal who otherwise meet the above criteria. Under any of the proposals outlined above, immigration officers will be provided with specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis. This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights. It remains within the authority of the Executive Branch, however, to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law. This memorandum is an exercise of that authority. 4 INA §274A(h)(3), 8 U.S.C. § 1324a(h)(3) ("As used in this section, the term 'unauthorized alien' means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (8) authorized to be so employed by this chapter or by the[Secretary]."); 8 C.F.R. § 274a. J2 (regulations establishing classes of aliens eligible for work authorization). -5- nolu chan  posted on  2017-09-14 18:45:48 ET  Reply   Untrace   Trace   Private Reply   #6. To: All (#3) https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Thomas S. Winkowski, Acting Dir., USCIS, et al. (Nov. 20, 2014) Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum At 4-6: [footnotes omitted] Priority 3 (other immigration violations) Priority 3 aliens are those who have been issued a final order of removal2 on or after January 1, 2014. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority. -4- - - - - - - - - - - B. Apprehension, Detention, and Removal of Other Aliens Unlawfully in the United States Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein. However, resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein, provided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest. C. Detention As a general rule, DHS detention resources should be used to support the enforcement priorities noted above or for aliens subject to mandatory detention by law. Absent extraordinary circumstances or the requirement of mandatory detention, field office directors should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest. To detain aliens in those categories who are not subject to mandatory detention, DHS officers or special agents must obtain approval from the ICE Field Office Director. If an alien falls within the above categories and is subject to mandatory detention, field office directors are encouraged to contact their local Office of Chief Counsel for guidance. D. Exercising Prosecutorial Discretion Section A, above, requires DHS personnel to exercise discretion based on individual circumstances. As noted above, aliens in Priority l must be prioritized for removal unless they qualify for asylum or other form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority. Likewise, aliens in Priority 2 should be removed unless they qualify for asylum or other forms of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority. Similarly, aliens in Priority 3 should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the -5- - - - - - - - - - - integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority. In making such judgments, DHS personnel should consider factors such as: extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; 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. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances. E. Implementation The revised guidance shall be effective on January 5, 2015. Implementing training and guidance will be provided to the workforce prior to the effective date. The revised guidance in this memorandum applies only to aliens encountered or apprehended on or after the effective date, and aliens detained, in removal proceedings, or subject to removal orders who have not been removed from the United States as of the effective date. Nothing in this guidance is intended to modify USCIS Notice to Appear policies, which remain in force and effect to the extent they are not inconsistent with this memorandum. F. Data By this memorandum I am directing the Office of Immigration Statistics to create the capability to collect, maintain, and report to the Secretary data reflecting the numbers of those apprehended, removed, returned, or otherwise repatriated by any component of DHS and to report that data in accordance with the priorities set forth above. I direct CBP, ICE, and USCIS to cooperate in this effort. I intend for this data to be part of the package of data released by DHS to the public annually. G. No Private Right Statement These guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. nolu chan  posted on  2017-09-14 18:46:36 ET  Reply   Untrace   Trace   Private Reply   #7. To: All (#3) https://www.supremecourt.gov/opinions/11pdf/11-182.pdf Arizona v. United States, 132 S. Ct. 2492 (2012). (Slip op.) At 5: (Opinion of the Court) Agencies in the Department of Homeland Security playa major role in enforcing the country’s immigration laws. United States Customs and Border Protection (CBP) is responsible for determining the admissibility of aliens and securing the country’s borders. See Dept. of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions: 2010, p. 1 (2011). In 2010, CBP’s Border Patrol apprehended almost half a million people. Id., at 3. Immigration and Customs Enforcement (ICE), a second agency, “conducts criminal investigations involving the enforcement of immigration-related statutes.” Id., at 2. ICE also operates the Law Enforcement Support Center. LESC, as the Center is known, provides immigration status information to federal, state, and local officials around the clock. See App. 91. ICE officers are responsible “for the identification, apprehension, and removal of illegal aliens from the United States.” Immigration Enforcement Actions, supra, at 2. Hundreds of thousands of aliens are removed by the Federal Government every year. See id., at 4 (reporting there were 387,242 removals, and 476,405 returns without a removal order, in 2010). The correct legal terminology is determined by the United States Supreme Court, not La Raza, or a bunch of dingbats in California, and certainly not by illegal aliens themselves. nolu chan  posted on  2017-09-14 18:47:25 ET  Reply   Untrace   Trace   Private Reply   End Trace Mode for Comment # 3. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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