University of California and Janet Napolitano COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

https://www.scribd.com/document/358389280/UC-DACA-Complaint

This was the Conclusion of the District Court in killing the DAPA program, and expansion of the DACA program.

Texas v United States, TXSD Brownsville Div., 1:14-cv-00254 (16 Feb 2015), Andrew S. Hanen, U.S. District Judge

At page 110-111:

In stark contrast to a policy statement that "does not impose any rights and obligations" and that "genuinely leaves the agency and its decision makers free to exercise discretion," the DAPA Memorandum confers the right to be legally present in the United States and enables its beneficiaries to receive other benefits as laid out above. The Court finds that DAPA's disclaimer that the "memorandum confers no substantive right, immigration status, or pathway to citizenship" may make these rights revocable, but not less valuable. While DAPA does not provide legal permanent residency, it certainly provides a legal benefit in the form of legal presence (plus all that it entails)—a benefit not otherwise available in immigration laws. The DAPA Memorandum additionally imposes specific, detailed and immediate obligations upon DHS personnel—both in its substantive instructions and in the manner in which those instructions are carried out. Nothing about DAPA "genuinely leaves the agency and its [employees] free to exercise discretion." In this case, actions speak louder than words.

(3) Substantive Change in Existing Law

Another consideration in determining a rule's substantive character is whether it is essentially a "legislative rule." A rule is "legislative" if it "supplements a statute, adopts a new position inconsistent with existing regulations, or otherwise effects a substantive change in existing law or policy." Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir. 2014) (citations omitted).

The DAPA program clearly represents a substantive change in immigration policy. It is a program instituted to give a certain, newly-adopted class of 4.3 million illegal immigrants not only "legal presence" in the United States, but also the right to work legally and the right to receive a myriad of governmental benefits to which they would not otherwise be entitled.¹⁰² It does more than "supplement" the statute; if anything, it contradicts the INA. It is, in effect, a new law. DAPA turns its beneficiaries' illegal status (whether resulting from an illegal entry or from illegally overstaying a lawful entry) into a legal presence. It represents a massive change in immigration practice, and will have a significant effect on, not only illegally-present immigrants, but also the nation's entire immigration scheme and the states who must bear the lion's share of its consequences. See Shalala, 56 F.3d at 597 (concluding the agency's policy guidance was not a binding norm largely because it did "not represent a change in [agency] policy and [did] not have a significant effect on [the subjects regulated]"). In the instant case, the President, himself, described it as a change.

Far from being mere advice or guidance, this Court finds that DAPA confers benefits and imposes discrete obligations (based on detailed criteria) upon those charged with enforcing it. Most importantly, it "severely restricts" agency discretion.¹⁰³

At page 123:

VI. CONCLUSION

This Court, for the reasons discussed above, hereby grants the Plaintiff States' request for a preliminary injunction. It hereby finds that at least Texas has satisfied the necessary standing requirements that the Defendants have clearly legislated a substantive rule without complying with the procedural requirements under the Administration Procedure Act. The Injunction is contained in a separate order. Nonetheless, for the sake of clarity, this temporary injunction enjoins the implementation of the DAPA program that awards legal presence and additional benefits to the four million or more individuals potentially covered by the DAPA Memorandum and to the three expansions/additions to the DACA program also contained in the same DAPA Memorandum.¹¹¹ It does not enjoin or impair the Secretary's ability to marshal his assets or deploy the resources of the DHS. It does not enjoin the Secretary's ability to set priorities for the DHS. It does not enjoin the previously instituted 2012 DACA program except for the expansions created in the November 20, 2014 DAPA Memorandum.

Signed this 16th day of February, 2015.
Andrew S. Hanen
United States District Judge

¹¹¹ While this Court's opinion concentrates on the DAPA program, the same reasoning applies, and the facts and the law compel the same result, to the expansions of DACA contained in the DAPA Directive.

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At the end, Judge Hanen Ordered the government attorneys to attend ethics classes.

http://www.washingtontimes.com/news/2016/may/19/judge-orders-doj-lawyers-remedial-ethics-classes/

‘Intentionally deceptive’ Justice Dept. lawyers ordered to take ethics classes

By Stephen Dinan - The Washington Times - Thursday, May 19, 2016

A federal judge ordered the Justice Department to send its lawyers back to remedial ethics classes Thursday after finding that the administration repeatedly misled the court in the high-profile challenge to President Obama’s deportation amnesty.

Judge Andrew S. Hanen said the lawyers knew the administration was approving amnesty applications but actively hid that information both from him and from the 26 states that had sued to stop the amnesty.

Worse yet, even after the court ordered a halt to the whole amnesty, the Department of Homeland Security approved several thousand more applications, in defiance of the court’s strict admonition, Judge Hanen said, counting at least four separate times the government’s attorneys misled him.

[...]

[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:

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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.

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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.

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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

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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

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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

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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

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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

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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,

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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.

...

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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

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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

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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

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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

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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.

...

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At 64-66: [footnotes omitted]

...

DAPA is far from interstitial: Congress

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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

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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

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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

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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

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“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.

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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).

This is the one-line Supreme Court opinion that let the 5th Circuit opinion stand. The per curiam opinion does not reveal who voted how, but a good guess is it was Roberts CJ, Thomas, Alito and Kennedy, JJ v. Ginsburg, Breyer, Sotomayor and Kagan, JJ.

https://www.supremecourt.gov/opinions/15pdf/15-674_jhlo.pdf

(Slip Opinion) Cite as: 579 U. S. ____ (2016)

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash­ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 15–674

UNITED STATES, ET AL., PETITIONERS v. TEXAS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

[June 23, 2016]

PER CURIAM. The judgment is affirmed by an equally divided Court.

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

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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

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- - - - - - - - - -

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-

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.

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- - - - - - - - - -

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

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- - - - - - - - - -

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.

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.

http://law.justia.com/codes/us/2015/title-8/chapter-12/subchapter-i/sec.-1101/

http://statecodesfiles.justia.com/us/2015/title-8/chapter-12/subchapter-i/sec.-1101/sec.-1101.pdf

8 U.S.C. 1101

Comment pdf pg. 61, signed by William J. Clinton (pg. 62)

C. Visa Overstay Deterrence

Nearly half of this country’s illegal immigrants come into the country legally and then stay after they are required by law to depart, often using fraudulent documentation. No Administration has ever made a serious effort to identify and deport these individuals. This Administration is committed to curtailing this form of illegal immigration.

Therefore, relevant departments and agencies are directed to review their policies and practices to identify necessary reforms to curtail visa overstayers and to enhance investigations and prosecution of those who fraudulently produce or misuse passports, visas, and other travel related documents. Recommendations for administrative initiatives and legislative reform shall be presented to the White House Interagency Working Group on Immigration by June 30, 1995.

- - - - - - - - - -

DETENTION AND REMOVAL OF DEPORTABLE ILLEGAL ALIENS

The Administration’s deterrence strategy includes strengthening the country’s detention and deportation capability. No longer will criminals and other high risk deportable aliens be released back into communities because of a shortage of detention space and ineffective deportation procedures.

A. Comprehensive Deportation Process Reform

The Department of Justice, in consultation with other relevant agencies, shall develop a streamlined, fair, and effective procedure to expedite removal of deportable aliens. As necessary, additional legislative authority will be sought in this area. In addition, the Department of Justice shall increase its capacity to staff deportation and exclusion hearings to support these objectives.

B. National Detention and Removal Plan

To address the shortage of local detention space for illegal aliens, the Administration shall devise a National Detention, Transportation, and Removal Policy that will permit use of detention space across the United States and improve the ability to remove individuals with orders of deportation. The Department of Justice, in consultation with other agencies as appropriate and working under the auspices of the White House Interagency Working Group on Immigration, shall finalize this plan by April 30, 1995. The Administration will seek support and funding from the Congress for this plan and for our efforts to double the removal of illegal aliens with final orders of deportation.

C. Identification and Removal of Criminal Aliens

The Institutional Hearing Program is successfully expediting deportation of incarcerated criminal aliens after they serve their sentences. To further expedite removal of criminal aliens from this country and reduce costs to Federal and State governments, the Department of Justice is directed to develop an expanded program of verification of the immigration status of criminal aliens within our country’s prisons. In developing this program, the viability of expanding the work of the Law Enforcement Support Center should be assessed and all necessary steps taken to increase coordination and cooperative efforts with State, and local law enforcement officers in identification of criminal aliens.

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104–208; 110 Stat. 3009–546)

Subtitle B — Criminal Alien Provisions

SEC. 326. CRIMINAL ALIEN IDENTIFICATION SYSTEM.

Subsection (a) of section 130002 of the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-322), as amended by section 432 of Public Law 104-132, is amended to read as follows:

"(a) OPERATION AND PURPOSE. — The Commissioner of Immigration and Naturalization shall, under the authority of section 242(a)(3)(A) of the Immigration and Nationality Act operate a criminal alien identification system . The criminal alien identification system shall be used to assist Federal, State, and local law enforcement agencies in identifying and locating aliens who may be subject to removal by reason of their conviction of aggravated felonies, subject to prosecution under section 275 of such Act, not lawfully present in the United States, or otherwise removable. Such system shall include providing for recording of fingerprint records of aliens who have been previously arrested and removed into appropriate automated fingerprint identification systems .".

- - - - - - - - - -

SEC. 334. ENHANCED PENALTIES FOR FAILURE TO DEPART, ILLEGAL REENTRY, AND PASSPORT AND VISA FRAUD.

(a) FAILING TO DEPART. — The United States Sentencing Commission shall promptly promulgate, pursuant to section 994 of title 28, United States Code, amendments to the sentencing guidelines to make appropriate increases in the base offense level for offenses under section 242(e) and 276(b) of the Immigration and Nationality Act (8 U.S.C. 1252(e) and 1326(b)) to reflect the amendments made by section 130001 of the Violent Crime Control and Law Enforcement Act of 1994.

(b) PASSPORT AND VISA OFFENSES. — The United States Sentencing Commission shall promptly promulgate, pursuant to section 994 of title 28, United States Code, amendments to the sentencing guidelines to make appropriate increases in the base offense level for offenses under chapter 75 of title 18, United States Code to reflect the amendments made by section 130009 of the Violent Crime Control and Law Enforcement Act of 1994.

http://law.justia.com/codes/us/2015/title-2/chapter-17a/subchapter-ii/part-b/sec.-658/

2015 US Code
Title 2 - The Congress (Sections 1 - 6654)
Chapter 17A - Congressional Budget and Fiscal Operations (Sections 621 - 665e)
Subchapter II - Fiscal Procedures (Sections 651 - 658g)
Part B - Federal Mandates (Sections 658 - 658g)
Sec. 658 - Definitions

2 U.S.C. § 658 (2015)

§658. Definitions,

(5) Federal intergovernmental mandate

The term "Federal intergovernmental mandate" means—

(A) any provision in legislation, statute, or regulation that—

(i) would impose an enforceable duty upon State, local, or tribal governments, except—

(I) a condition of Federal assistance; or

(II) a duty arising from participation in a voluntary Federal program, except as provided in subparagraph (B); or

(ii) would reduce or eliminate the amount of authorization of appropriations for—

(I) Federal financial assistance that would be provided to State, local, or tribal governments for the purpose of complying with any such previously imposed duty unless such duty is reduced or eliminated by a corresponding amount; or

(II) the control of borders by the Federal Government; or reimbursement to State, local, or tribal governments for the net cost associated with illegal, deportable, and excludable aliens, including court-mandated expenses related to emergency health care, education or criminal justice; when such a reduction or elimination would result in increased net costs to State, local, or tribal governments in providing education or emergency health care to, or incarceration of, illegal aliens; except that this subclause shall not be in effect with respect to a State, local, or tribal government, to the extent that such government has not fully cooperated in the efforts of the Federal Government to locate, apprehend, and deport illegal aliens;

http://law.justia.com/codes/us/2015/title-8/chapter-12/subchapter-ii/part-v/sec.-1254a/

2015 US Code
Title 8 - Aliens and Nationality (Sections 1 - 1778)
Chapter 12 - Immigration and Nationality (Sections 1101 - 1537)
Subchapter II - Immigration (Sections 1151 - 1381)
Part V - Adjustment and Change of Status (Sections 1251 - 1260)
Sec. 1254a - Temporary protected status

8 U.S.C. § 1254a (2015)

§1254a. Temporary protected status

(a) Granting of status

(1) In general

In the case of an alien who is a national of a foreign state designated under subsection (b) (or in the case of an alien having no nationality, is a person who last habitually resided in such designated state) and who meets the requirements of subsection (c), the Attorney General, in accordance with this section—

(A) may grant the alien temporary protected status in the United States and shall not remove the alien from the United States during the period in which such status is in effect, and

(B) shall authorize the alien to engage in employment in the United States and provide the alien with an "employment authorized" endorsement or other appropriate work permit.

(2) Duration of work authorization

Work authorization provided under this section shall be effective throughout the period the alien is in temporary protected status under this section.

(3) Notice

(A) Upon the granting of temporary protected status under this section, the Attorney General shall provide the alien with information concerning such status under this section.

(B) If, at the time of initiation of a removal proceeding against an alien, the foreign state (of which the alien is a national) is designated under subsection (b), the Attorney General shall promptly notify the alien of the temporary protected status that may be available under this section.

(C) If, at the time of designation of a foreign state under subsection (b), an alien (who is a national of such state) is in a removal proceeding under this subchapter, the Attorney General shall promptly notify the alien of the temporary protected status that may be available under this section.

(D) Notices under this paragraph shall be provided in a form and language that the alien can understand.

(4) Temporary treatment for eligible aliens

(A) In the case of an alien who can establish a prima facie case of eligibility for benefits under paragraph (1), but for the fact that the period of registration under subsection (c)(1)(A)(iv) has not begun, until the alien has had a reasonable opportunity to register during the first 30 days of such period, the Attorney General shall provide for the benefits of paragraph (1).

(B) In the case of an alien who establishes a prima facie case of eligibility for benefits under paragraph (1), until a final determination with respect to the alien's eligibility for such benefits under paragraph (1) has been made, the alien shall be provided such benefits.

(5) Clarification

Nothing in this section shall be construed as authorizing the Attorney General to deny temporary protected status to an alien based on the alien's immigration status or to require any alien, as a condition of being granted such status, either to relinquish nonimmigrant or other status the alien may have or to execute any waiver of other rights under this chapter. The granting of temporary protected status under this section shall not be considered to be inconsistent with the granting of nonimmigrant status under this chapter.

(b) Designations

(1) In general

The Attorney General, after consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if—

(A) the Attorney General finds that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;

(B) the Attorney General finds that—

(i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected,

(ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and

(iii) the foreign state officially has requested designation under this subparagraph; or

(C) the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.

A designation of a foreign state (or part of such foreign state) under this paragraph shall not become effective unless notice of the designation (including a statement of the findings under this paragraph and the effective date of the designation) is published in the Federal Register. In such notice, the Attorney General shall also state an estimate of the number of nationals of the foreign state designated who are (or within the effective period of the designation are likely to become) eligible for temporary protected status under this section and their immigration status in the United States.

(2) Effective period of designation for foreign states

The designation of a foreign state (or part of such foreign state) under paragraph (1) shall—

(A) take effect upon the date of publication of the designation under such paragraph, or such later date as the Attorney General may specify in the notice published under such paragraph, and

(B) shall remain in effect until the effective date of the termination of the designation under paragraph (3)(B).

For purposes of this section, the initial period of designation of a foreign state (or part thereof) under paragraph (1) is the period, specified by the Attorney General, of not less than 6 months and not more than 18 months.

(3) Periodic review, terminations, and extensions of designations

(A) Periodic review

At least 60 days before end of the initial period of designation, and any extended period of designation, of a foreign state (or part thereof) under this section the Attorney General, after consultation with appropriate agencies of the Government, shall review the conditions in the foreign state (or part of such foreign state) for which a designation is in effect under this subsection and shall determine whether the conditions for such designation under this subsection continue to be met. The Attorney General shall provide on a timely basis for the publication of notice of each such determination (including the basis for the determination, and, in the case of an affirmative determination, the period of extension of designation under subparagraph (C)) in the Federal Register.

(B) Termination of designation

If the Attorney General determines under subparagraph (A) that a foreign state (or part of such foreign state) no longer continues to meet the conditions for designation under paragraph (1), the Attorney General shall terminate the designation by publishing notice in the Federal Register of the determination under this subparagraph (including the basis for the determination). Such termination is effective in accordance with subsection (d)(3), but shall not be effective earlier than 60 days after the date the notice is published or, if later, the expiration of the most recent previous extension under subparagraph (C). (C) Extension of designation

If the Attorney General does not determine under subparagraph (A) that a foreign state (or part of such foreign state) no longer meets the conditions for designation under paragraph (1), the period of designation of the foreign state is extended for an additional period of 6 months (or, in the discretion of the Attorney General, a period of 12 or 18 months).

[...]

http://law.justia.com/codes/us/2015/title-8/chapter-12/subchapter-ii/part-v/sec.-1255/

2015 US Code
Title 8 - Aliens and Nationality (Sections 1 - 1778)
Chapter 12 - Immigration and Nationality (Sections 1101 - 1537)
Subchapter II - Immigration (Sections 1151 - 1381)
Part V - Adjustment and Change of Status (Sections 1251 - 1260)

Sec. 1255 - Adjustment of status of nonimmigrant to that of person admitted for permanent residence

(c) Alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa

Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 1182(d)(4)(C) of this title; (4) an alien (other than an immediate relative as defined in section 1151(b) of this title) who was admitted as a nonimmigrant visitor without a visa under section 1182(l) of this title or section 1187 of this title; (5) an alien who was admitted as a nonimmigrant described in section 1101(a)(15)(S) of this title,1 (6) an alien who is deportable under section 1227(a)(4)(B) of this title; (7) any alien who seeks adjustment of status to that of an immigrant under section 1153(b) of this title and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title, or who has otherwise violated the terms of a nonimmigrant visa.

[...]

(i) Adjustment in status of certain aliens physically present in United States

(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States—

(A) who—

(i) entered the United States without inspection; or

(ii) is within one of the classes enumerated in subsection (c) of this section;

(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 1153(d) of this title) of—

(i) a petition for classification under section 1154 of this title that was filed with the Attorney General on or before April 30, 2001; or

(ii) an application for a labor certification under section 1182(a)(5)(A) of this title that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and

(C) who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on December 21, 2000;

may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equaling $1,000 as of the date of receipt of the application, but such sum shall not be required from a child under the age of seventeen, or an alien who is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under section 1160 or 1255a of this title or section 202 of the Immigration Reform and Control Act of 1986 at any date, who—

(i) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 1160 or 1255a of this title or section 202 of the Immigration Reform and Control Act of 1986;

(ii) entered the United States before May 5, 1988, resided in the United States on May 5, 1988, and is not a lawful permanent resident; and

(iii) applied for benefits under section 301(a) of the Immigration Act of 1990. The sum specified herein shall be in addition to the fee normally required for the processing of an application under this section.

(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if—

(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and

(B) an immigrant visa is immediately available to the alien at the time the application is filed.

(3)(A) The portion of each application fee (not to exceed $200) that the Attorney General determines is required to process an application under this section and is remitted to the Attorney General pursuant to paragraphs (1) and (2) of this subsection shall be disposed of by the Attorney General as provided in subsections (m), (n), and (o) of section 1356 of this title.

(B) Any remaining portion of such fees remitted under such paragraphs shall be deposited by the Attorney General into the Breached Bond/Detention Fund established under section 1356(r) of this title, except that in the case of fees attributable to applications for a beneficiary with respect to whom a petition for classification, or an application for labor certification, described in paragraph (1)(B) was filed after January 14, 1998, one-half of such remaining portion shall be deposited by the Attorney General into the Immigration Examinations Fee Account established under section 1356(m) of this title.

I gather that DACA is now suspended with no new applications or renewals being issued for at least six months. DAPA is dead, killed by the states and courts. The expansion of DACA is equally dead since it was a backdoor amnesty.

I notice you seem to be emphasizing the need for illegal aliens to leave the country before they can ever be considered for any kind of green card (resident alien) or citizenship status. U.S. statutes seem inflexible on any grant of a pathway to citizenship or a (resident alien) green card as long as the illegal alien is unlawfully present in the States or its territorial possessions.

Anyway, you are obviously pursuing some larger point. Maybe you should just tell us what that is.     : )

I notice you seem to be emphasizing the need for illegal aliens to leave the country before they can ever be considered for any kind of green card (resident alien) or citizenship status. U.S. statutes seem inflexible on any grant of a pathway to citizenship or a (resident alien) green card as long as the illegal alien is unlawfully present in the States or its territorial possessions.

Anyway, you are obviously pursuing some larger point. Maybe you should just tell us what that is.

The law seems pretty clear and the DAPA courts did not mince any words about it. I believe the Court will annihilate DACA. With Gorsuch, there will be no 4-4 tie.

I just put the info out for those who want to look at it, or to use it as a future reference as events unfurl.

The law seems pretty clear and the DAPA courts did not mince any words about it. I believe the Court will annihilate DACA. With Gorsuch, there will be no 4-4 tie.

Yeah but didn't the states, led by Texas, back off on their DACA challenge on September 1 after Trump gave himself a six-month extension of it (without renewals or new applications)?

So I'm not aware that the multistate lawsuit against DACA is still active. Perhaps you have other info?

Anyway, I wasn't complaining about your posts and recognized the work you were putting into them. I just wanted to have some idea of why you were going to that much work for what seems to me to be a mostly-dead issue of the states going after DACA with the Court.

Personally, I'd like the states to carry through against DACA as they threatened. Trump didn't do anything substantive about it so they should act. It would likely take months for them to get any action anyway.

So I'm not aware that the multistate lawsuit against DACA is still active. Perhaps you have other info?

That something is coming through the pipeline may be gauged by the volume and pitch of the liberal squeal, and the intensity of filing what is reminiscent of birther lawsuits. Only there, they have the wildly liberal left coast courts to pass this junk up to SCOTUS.

The case brought by Hawaii resulted in a nationwide injunction against Trump's Executive Orders. Trump had to wait for Gorsuch to be seated. The pipeline is jammed with Dem lawsuits. The SCOTUS killing of the injunction did not end the case. On October 10th, the U.S. Supreme Court is scheduled to hear the case on the merits.

Note that on April 10, fourteen states and the Governor of Mississippi entered appearance in the Ninth Circuit as amici curiae. On June 26, the Supreme Court agreed to hear this case and consolidated it with IRAP v. Trump, the analogous case from the District of Maryland. And 165 members of Congress filed amici appearances. I have posted a history of the case below.

It is really about presidential power over immigration. These cases, and DACA/DAPA, are interrelated.

Congress hates to make decisions and be responsible for them. They are happy to make the Executive responsible. The breadth of power given to the President, over immigration and alien entry, is little short of plenary.

http://law.justia.com/codes/us/2015/title-8/chapter-12/subchapter-ii/part-ii/sec.-1182/

2015 US Code
Title 8 - Aliens and Nationality (Sections 1 - 1778)
Chapter 12 - Immigration and Nationality (Sections 1101 - 1537)
Subchapter II - Immigration (Sections 1151 - 1381)
Part II - Admission Qualifications for Aliens; Travel Control of Citizens and Aliens (Sections 1181 - 1189)

Sec. 1182 - Inadmissible aliens

8 U.S.C. 1182(f)

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

If the President has the power to restrict entry by Syrians for such period as he deems necessary, for whatever reason he deems necessary, then he equally has the power to restrict the entry of Mexicans, or South and Central Americans, as he deems necessary.

He does not need to establish the principle against Mexico, he can establish it against the worst of the worst. The statute makes the President the sole judge of a necessity, his discretionary power extends to all aliens or any class of aliens, and the nature of the restrictions are at his discretion.

http://cdn.ca9.uscourts.gov/datastore/general/2017/03/30/17-15589%203-29%20DC%20order.pdf

Hawaii v. Trump, HIDC 17-cv-00050, Doc 270, 29 Mar 2017

CONCLUSION

Based on the foregoing, Plaintiffs’ Motion to Convert Temporary Restraining Order to A Preliminary Injunction is hereby GRANTED.

PRELIMINARY INJUNCTION

It is hereby ADJUDGED, ORDERED, and DECREED that:

Defendants and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court. No security bond is required under Federal Rule of Civil Procedure 65(c). The Court declines to stay this ruling or hold it in abeyance should an appeal of this order be filed.

The 9th Circuit filed a per curiam opinion.

http://cdn.ca9.uscourts.gov/datastore/uploads/general/cases_of_interest/17-15589%20per%20curiam%20opinion.pdf

OPINION¹

PER CURIAM:

We are asked to delineate the statutory and constitutional limits to the President’s power to control immigration in this appeal of the district court’s order preliminarily enjoining two sections of Executive Order 13780 (“EO2” or “the Order”), “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show. The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.” Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order preliminarily enjoining Sections 2 and 6 of the Executive Order.

SCOTUS DOCKET:

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17a275.html

SCOTUS just stepped in and squashed the 9th Circuit mandate:

Sep 12, 2017

The application for stay of mandate presented to Justice Kennedy and by him referred to the Court is granted, and the issuance of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 17-16426 is stayed with respect to refugees covered by a formal assurance, pending further order of this Court.

SCOTUS buried the pre-appeal hearing mandate of the 9th Circuit. The hearing before SCOTUS remains on schedule. The probability is that it will drive a dagger through the heart of the resistance campaign.

https://www.clearinghouse.net/detail.php?id=15626

State of Hawaii v. Trump — IM-HI-0004
Docket / Court — 1:17-cv-00050 ( D. Haw. ) State/Territory — Hawaii
Case Type(s) — Immigration
Presidential Authority
Special Collection — Civil Rights Challenges to Trump Refugee/Visa Order
Attorney Organization — American Immigration Council's Legal Action Center
National Immigration Law Center
Northwest Immigrant Rights Project (NWIRP)
Southern Poverty Law Center

Case Summary

Hawaii Attorney General Douglas S. Chin filed this lawsuit on Feb. 3, 2017 against President Trump’s Jan. 27, 2017 Executive Order barring legal immigrants, visitors, and refugees from seven majority-Muslim countries from entering the US and barring Syrian refugees indefinitely. The State filed a concurrent complaint and motion for a temporary restraining order in the U.S. District Court for the District of Hawaii.

The complaint argued that Hawaii has an interest in protecting “its residents, its employers, its educational institutions, and its sovereignty against illegal actions of President Donald J. Trump.” The complaint noted that Hawaii is the nation’s most ethnically-diverse state, and that the Executive Order is tearing apart families and wounding Hawaii’s economic institutions. The complaint alleged that the EO violates the First Amendment Establishment Clause, Fifth Amendment equal protection and due process rights, the Administrative Procedure Act, and the Immigration and Nationality Act.

Hawaii sought declaratory and injunctive relief; it asked the court to enjoin defendants nationwide from barring entry into the U.S. of immigrants and nonimmigrants pursuant to the executive order.

The case was assigned to Judge Derrick K. Watson. A hearing on the temporary restraining order motion was set for Feb. 8, 2017. However, on Feb. 6, the federal government filed an emergency motion to stay all deadlines pending resolution of the appellate proceedings regarding the nationwide injunction against the Executive Order previously entered in another case, Washington v. Trump. That same day, Hawaii filed a memorandum in opposition to the federal government's emergency motion to stay. On Feb. 7, the court granted the federal government's motion in part: all pending deadlines and the hearing set for Feb. 8 were vacated, and the matter was stayed as long as the Washington v. Trump TRO remained in place. All further requested relief was denied; a written order setting forth the Court's reasoning was entered Feb. 9.

On Feb. 8, Hawaii sought permission to file an amended complaint notwithstanding the stay of proceedings; on Feb. 13, Judge Watson granted that motion, and on Feb. 14, the state filed an amended complaint.

On Feb. 15, the court lifted the stay for the limited purpose of allowing parties to file Motions to Appear Pro Hac Vice, Notices of Appearance, and Applications to Practice. The court granted a number of these motions on Feb. 23. The stay order otherwise remained in place.

On Mar. 6, prompted by adverse developments in the Washington v. Trump case in the 9th Circuit, the President rescinded the Jan. 27 Executive Order and replaced it with a narrower one, Executive Order 13780. On the same day, the federal government filed notice in this case of the new EO. The new EO covered all the same countries, except Iraq, but left out lawful permanent residents and existing visa holders. For others would-be travelers and immigrants, it banned entry into the United States but set up a case-by-case waiver process.

On Mar. 7, the plaintiffs in this case filed a motion to resume litigation, and to file a Second Amended Complaint. The plaintiffs attached a copy of their proposed Second Amended Complaint and proposed motion seeking a temporary restraining order (TRO) as exhibits. The State of Hawaii's Second Amended Complaint alleged that "the second Executive Order is infected with the same legal problems as the first Order," namely, that it violated the First and Fifth Amendments along with the INA and APA. Hawaii also argued that the new EO violated the Religious Freedom Restoration Act. Hawaii's proposed TRO requested that the court enjoin sections 2 (suspension of entry for nationals of the six Muslim-majority countries) and 6 (suspension of the U.S. Refugee Admissions Program) of the new EO.

On Mar. 8, the court allowed litigation to resume and gave the plaintiffs permission to file the Second Amended Complaint and motion for TRO. The court then issued a notice of hearing for the plaintiffs' TRO, set for Mar. 15. The defendants' Opposition brief was to be due Mar. 13 and the plaintiffs' Reply by Mar. 14.

On Mar. 10, a number of parties, including many civil rights advocacy groups, filed their appearance in the suit. A number of parties also filed amici briefs and appearances. Additionally on Mar. 10, Magistrate Judge Kenneth J. Mansfield recused himself. The case was reassigned to Magistrate Judge Kevin S.C. Chang.

On Mar. 13, the U.S. filed a memorandum in opposition to the TRO. The federal government's memorandum argued that Hawaii's claims were nonjusticiable because their alleged injuries were speculative and no individual they sought to protect was in imminent danger of being denied entry. The federal government also argued that the changes to the Executive Order foreclosed Hawaii's claims on the merits and eliminated any occasion to consider emergency relief.

From Mar. 10 to Mar. 15, the court granted permission for a number of organizations to file amicus briefs, and to many news organizations to cover the Mar. 15 TRO hearing.

On Mar. 15, the District Court heard oral argument on the plaintiffs' motion for a temporary restraining order. The court granted the motion on the same day, enjoining the defendants nationwide from enforcing or implementing Sections 2 and 6 of the new Executive Order. Specifically, the court found that the plaintiffs had met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief.

This was the first nationwide injunction of the new Executive Order.

On Mar. 17, the federal government moved for a clarification of the TRO. The federal government noted that the court had enjoined Sections 2 and 6 in their entirety, even though many of the provisions within those sections were not specifically addressed by the plaintiffs' motion. The court denied this motion on Mar. 19, noting that in asking whether the court intended to apply a TRO to Sections 2 and 6 in their entirety, the DOJ "asks the Court to make a distinction that the Federal Defendants' previous briefs and arguments never did...there is nothing unclear about the scope of the Court's order."

On Mar. 21, the plaintiffs filed a motion, along with accompanying declarations, to convert the temporary restraining order into a preliminary injunction. The plaintiffs argued that the standards for a preliminary injunction and a TRO are "substantially identical," and that the Court has already held that the plaintiffs satisfied each of the grounds for issuance of a preliminary injunction. The DOJ filed a memorandum in opposition to this conversion on Mar. 24, arguing that, should any injunctive relief be granted at all, that relief should be limited to Section 2(c) (the 90-day suspension-of-entry provision) of the new EO, because the plaintiffs' alleged injury stemmed only from Section 2(c). The DOJ further argued that the plaintiffs did not even have standing to challenge Sections 6(a) or 6(b), as they could not show a concrete and particularized injury stemming from the provisions within those sections. On Mar. 25, the plaintiff filed its response to the DOJ's memo.

On Mar. 28, the court approved a number of news organizations for media coverage of the TRO conversion motion.

On Mar. 29, the court heard oral arguments on the plaintiffs' motion to convert the TRO into a preliminary injunction. On the same day, the court granted the motion and enjoined Sections 2 and 6 of the Executive Order across the nation. On Mar. 30, the DOJ filed notice of appeal.

On Apr. 3, the parties filed a joint motion to suspend district court proceedings pending resolution of the DOJ's appeal. The court granted this motion on the same day, and ordered the parties to submit, within fourteen days of the final disposition of appellate proceedings, a joint status report proposing the schedule for any further proceedings in the matter.

The matter thus moved entirely to the Ninth Circuit. On Apr. 3, the Ninth Circuit granted the DOJ's motion to expedite the briefing and consideration of the merits of the preliminary injunction appeal, and set the hearing for May 15.

On Apr. 6, the Ali v. Trump plaintiffs filed a motion to intervene in the appellate proceedings for this case.

On Apr. 7, the DOJ moved in the Ninth Circuit for a stay of the district court's injunction pending the Ninth Circuit appeal.

On Apr. 10, fourteen states and the Governor of Mississippi entered appearance in the Ninth Circuit as amici curiae.

On Apr. 11, the States sought an initial hearing en banc (rather than before an ordinary three-judge panel) in light of the "exceptional importance" of the issues at stake, and in light of the Fourth Circuit having just granted initial en banc review in International Refugee Assistant Project v. Trump, which considers a similar challenge to the same Executive Order.

On Apr. 12, the DOJ filed a response opposing the Ali v. Trump petitioners' Apr. 6 motion to intervene in the appellate proceedings.

On Apr. 14, the plaintiffs from Doe v. Trump filed a motion to intervene. The government opposed this motion on Apr. 19.

From Apr. 19 - May 10, a number of amici curiae filed their appearances, including 165 members of Congress.

On Apr. 21, the court rejected the request for initial en banc proceedings; the case would be decided, first, by a three-judge panel. (One judge had requested a vote on whether to hear the initial hearing en banc before a limited en banc court, and another judge had requested a vote on whether to hear the initial hearing en banc before the full court.)

Also on Apr. 21, the court denied the Ali and Doe plaintiffs' motions to intervene, finding that their interests could be adequately pursued through their respective cases, Ali v. Trump and Doe v. Trump. The court noted that the Ali and Doe plaintiffs could still file briefs as amici curiae in this case.

On Apr. 28, the DOJ filed its reply brief reasserting that the nationwide injunction was improper. The DOJ requested that, at minimum, the court grant a partial stay of the injunction insofar is it extends beyond particular individuals as to whom the plaintiffs have made a showing of cognizable and irreparable injury.

On May 15, a three-judge panel consisting of Judges Michael Hawkins, Ronald Gould, and Richard Paez heard oral argument on the district court's nationwide preliminary injunction enjoining enforcement of Sections 2 and 6 of the second Executive Order.

On May 24, the court gave the plaintiffs leave to supplement the appellate record with an additional declaration from the University of Hawaii. Hawaii's declaration provided further details regarding the specific number of prospective students whose ability to obtain visas and matriculate at the university will be impeded as a result of the Executive Order. On May 25, the defendants responded to the plaintiffs' motion to supplement. In the response, defendants argued that the plaintiffs continued to lack standing, and that Hawaii's updated information still failed to identify any non-speculative injury that existed at the time of the complaint.

On June 1, with the 9th Circuit panel's opinion not yet issued, the Department of Justice filed an application in the Supreme Court seeking a stay of the district court's injunction. (Simultaneously, the DOJ sought a similar stay in IRAP v. Trump, the analogous case in the District of Maryland, and also sought certiorari review of the IRAP case, in which the 4th Circuit had on May 25 upheld the district court's preliminary injunction.) The plaintiffs responded, opposing the stay, on June 12.

That same day, the 9th Circuit issued its opinion upholding the district court's preliminary injunction in major part. In an 86-page per curiam opinion by Judges Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, the Court of Appeals addressed only the issues of justiciability and the statutory claims, finding the matter justiciable and holding that the Immigration and Nationality Act forbids nationality discrimination in visa-issuance (and therefore in categorical rules governing entry) and also forbids summary changes to the number of refugees admissible in a given year. The Court of Appeals narrowed the preliminary injunction to remove its direct applicability to President Trump (while affirming its coverage of the governmental actors who would carry out the Executive Order) and to allow the interagency consultation required by the Executive Order to proceed unimpeded.

On June 13, the federal government filed a consent motion requesting that the 9th Circuit immediately issue its mandate vacating the district court's preliminary injunction in part, and instructing the district court to reissue without enjoining the EO's internal revenue procedures. On June 19, the circuit court granted this request and issued the mandate. That day, the district court amended and reissued the preliminary injunction to conform with the 9th Circuit's mandate.

On June 26, the Supreme Court agreed to hear this case and consolidated it with IRAP v. Trump, the analogous case from the District of Maryland. In addition to the issues identified in the petitions, SCOTUS directed the parties to address the following question: "Whether the challenges to §2(c) [the part of the EO that suspended entry to nationals from Iran, Libya, Somalia, Sudan, and Yemen for ninety days] became moot on June 14, 2017." The Supreme Court declined to stay most of the preliminary injunction, but did reverse that injunction's application to "foreign nationals who lack any bona fide relationship with a person or entity in the United States." SCOTUS noted that foreign nationals who do not have a close family tie or a formal, documented relationship with an entity (such as a school or employer) may have §2(c) enforced against them.

The Supreme Court will hear the cases in October 2017, but in the meantime, it remained for the District Court to adjudicate disputes over what remains of the preliminary injunction. On June 29, the Department of State and the Department of Homeland Security issued several public documents explaining that the administration was interpreting the "bona fide relationship" line to exclude many relatives -- fiances, grandparents/grandchildren, brothers and sisters in law, and others. In addition, the government explained its view that the relationship between a refugee and a sponsoring resettlement agency "is not sufficient in and of itself to establish a qualifying relationship for that refugee" under the bona fide relationship test. Hawaii immediately objected, filing an emergency motion seeking clarification from Judge Watson, at the District Court, on the scope of the preliminary injunction. The federal government filed a memorandum in opposition to the motion on July 3, asking that the court either deny Hawaii's motion or stay any relief pending the Supreme Court's clarification of its ruling. Hawaii replied on July 5.

On July 6, Judge Watson denied the plaintiffs' emergency motion to clarify the scope of the preliminary injunction. The District Court noted that the parties disagreed about the wording of the Supreme Court's injunction, not about anything issued by the District Court, and therefore any clarification is more appropriately sought in the Supreme Court. Hawaii appealed the District Court's denial that same day, but the Ninth Circuit dismissed the appeal for lack of jurisdiction. In its dismissal, the Ninth Circuit noted that, while the District Court may not have the authority to "clarify" an order of the Supreme Court, it does possess the authority to interpret the Supreme Court's order and enforce the injunction.

On July 7, Hawaii filed an emergency motion requesting that the District Court partially lift its Apr. 3 Order staying all proceedings for the limited purpose of issuing an Order enforcing or, in the alternative, modifying the scope of the June 19 amended preliminary injunction. Specifically, Hawaii requested that the Court issue an Order enforcing or modifying its preliminary injunction to reflect that: 1) the injunction bars the federal government from implementing the EO against grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the US; 2) the injunction prohibits the federal government from applying sections 6(a) and 6(b) to exclude refugees who: i) have a formal assurance from a resettlement agency within the United States, ii) have a bona fide client relationship with a US legal services organization, or iii) are in the US Refugee Admissions Program through the Iraqi Direct Access Program for "US-affiliated Iraqis," the Central American Minors Program, or the Lautenberg Program; 3) the injunction bars defendants from suspending any part of the refugee admissions process, including any part of the "Advanced Booking" process, for individuals with a bona fide relationship with a US person or entity; and 4) the preliminary injunction prohibits the federal government from applying a presumption that an applicant lacks "a bona fide relationship with a person or entity in the United States."

On July 11, the federal government filed its memorandum in opposition to the plaintiff's July 7 motion. Hawaii responded on July 12.

On July 13, Judge Watson granted Hawaii's motion in part, finding that the Government's definition of individuals with a "close familial relationship" was too narrow. Accordingly, Judge Watson prohibited the federal government from applying the EO to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the US. Additionally, the District Court held that the federal government could not exclude refugees covered by a formal assurance between the Dept. of State and a US Refugee Resettlement Agency. Judge Watson denied Hawaii's request that he forbid the federal government from excluding refugees who have a bona fide relationship with a US legal services organization, noting that refugee relationships with legal services organization vary, and as such a categorical exemption would run afoul of SCOTUS' order. Judge Watson also denied Hawaii's request that the Direct Access Program for U.S.-affiliated Iraqis and the Central American Minors Program be categorically exempt from the EO. Judge Watson granted the motion as to the Lautenberg Program, however, because all participants admitted through the Lautenberg Program must have a "close familial relationship" as used in SCOTUS' order (and as clarified in this Order), so categorial relief was appropriate. Finally, Judge Watson disagreed with Hawaii that the federal government could not apply a presumption that an appellant lacks the requisite bona fide relationship identified by SCOTUS.

On July 13, the federal government appealed Judge Watson's decision to the Ninth Circuit.

While that appeal was pending, the government filed a motion in the Supreme Court seeking clarification of the Court's June 26 order. On July 19, the Supreme Court responded: "The Government's motion seeking clarification of our order of June 26, 2017, is denied. The District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government's appeal to the Court of Appeals for the Ninth Circuit." Thus the government's appeal of Judge Watson's July 13 enforcement order proceeded in the 9th Circuit, but while it was underway, the District Court's decision exempting a broader swathe of family members from the EO remained operative. The District Court's approach to refugee resettlement was stayed, but the matter remained open for the 9th Circuit to decide.

On July 24, the Ninth Circuit agreed to hear the federal government's July 13 appeal, and granted the parties' joint motion for an expedited briefing schedule; briefing concluded on Aug. 9.

On July 28, the Ninth Circuit received an Emergency Motion to Intervene. The federal government opposed this motion on Aug. 2, and the court denied it on Aug. 3.

Back in the Supreme Court, the federal government on July 26 requested permission to file a consolidated petitioners' brief on the merits of this case and also IRAP v. Trump. On Aug. 10, the government submitted a consolidated merits brief to the Supreme Court. In it, the government put forth five main arguments: (1) challenges to the order are not justiciable and the plaintiffs cannot establish any violation of their own constitutional rights; (2) section 2(c) did not become moot on June 14; (3) the EO does not violate the INA; (4) the EO does not violate the Establishment clause; and (5) the global injunctions are not impermissibly overbroad.

Back in the Ninth Circuit, the court heard oral argument on the appeal of Judge Watson's July 13 enforcement order on Aug. 28 in Seattle.

On Aug. 29, the court's July 7 dismissal order took effect.

Meanwhile, in the Supreme Court, from Aug. 3 onward, a number of organizations continue to file amicus briefs. On Aug. 8, Hawaii moved to add a third plaintiff, John Doe, as a party to the suit. The federal government opposed this motion on Aug. 17, and on Aug. 24 SCOTUS deferred further consideration of the motion to the hearing of the case on the merits.

Back in the Ninth Circuit, the court on Sep. 7 issued a per curium opinion affirming, in its entirety, the district court's July 13 modification of its preliminary injunction. The Ninth Circuit found that the district court "carefully and correctly balanced the hardships and the equitable considerations as directed by the Supreme Court in IRAP v. Trump" in enjoining the federal government from enforcing the EO against 1) grandparents, grandchildren, siblings-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the US; and 2) refugees who have formal assurances from resettlement agencies or are in USRAP through the Lautenberg Amendment. Further, the Ninth Circuit noted that "[b]ecause this case is governed by equitable principles, and because many refugees without the benefit of the injunction are gravely imperiled," the court's mandate will issue five days after filing the opinion.

On Sep. 11, the federal government moved to stay the Ninth Circuit's order, arguing that the Ninth Circuit's decision renders SCOTUS June 26 stay "functionally inoperative" in that it will "disrupt the status quo and frustrate orderly implementation of the [Executive Order's] refugee provisions that [SCOTUS] made clear months ago could take effect." That same day, the Supreme Court issued the following order: "It is ordered that the mandate of the United States Court of Appeals for the Ninth Circuit, case No. 17-16426, is hereby stayed with respect to refugees covered by a formal assurance, pending receipt of a response, due on or before Tuesday, September 12, 2017, by 12p.m., and further order of the undersigned or of the Court."

On September 12, Hawaii responded, arguing that the Ninth Circuit had faithfully applied both of the Supreme Court's prior directives: 1) by determining what constituted a "bona fide" relationship with a U.S. entity; and 2) by clarifying whether the injunction applied to refugees who have received a formal assurance from a refugee resettlement agency (when the Supreme Court declined to do so on July 19). As such, Hawaii requested that SCOTUS deny the federal government's motion and allow the lower courts' decisions to remain unchanged until the Supreme Court hears this case on the merits. The federal government replied that same day, and shortly thereafter, the Supreme Court upheld its earlier stay of the Ninth Circuit's mandate with respect to refugees covered by a formal assurance.

On Oct. 10, the Supreme Court is set to hear this case on the merits.

Jamie Kessler - 02/14/2017
Julie Aust - 09/13/2017
- 06/12/2017

That something is coming through the pipeline may be gauged by the volume and pitch of the liberal squeal, and the intensity of filing what is reminiscent of birther lawsuits. Only there, they have the wildly liberal left coast courts to pass this junk up to SCOTUS.

Well, sure. I notice that TN dropped out of the anti-DACA lawsuit. That leaves Texas and 8-9 other states. I still don't know what their plans are or if they are prepared to file anything.

I do appreciate your summary and research but DACA really is very different overall than a fight over an EO that temporarily suspended visas and refugee resettlement from six Muslim-majority countries around the world.

Trump himself seems to tweet out yet another different and contradictory position on DACA every couple of hours.

I notice that TN dropped out of the anti-DACA lawsuit. That leaves Texas and 8-9 other states. I still don't know what their plans are or if they are prepared to file anything.

DACA is dead. It was rescinded.

Technically, DACA was created by a 15 June 2012 DHS Memo of Janet Napolitano, and that DHS Memo was rescinded by the below 5 September 2017 DHS Memo of Acting United States Secretary of Homeland Security Elaine C. Duke.

https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA)

Release Date: September 5, 2017

MEMORANDUM FOR:

James W. McCament
Acting Director
U.S. Citizenship and Immigration Services

Thomas D. Homan
Acting Director
U.S. Immigration and Customs Enforcement

Kevin K. McAleenan
Acting Commissioner
U.S. Customs and Border Protection

Joseph B. Maher
Acting General Counsel

Ambassador James D. Nealon
Assistant Secretary, International Engagement

Julie M. Kirchner
Citizenship and Immigration Services Ombudsman

FROM:

Elaine C. Duke
Acting Secretary

SUBJECT:

Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”

This memorandum rescinds the June 15, 2012 memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which established the program known as Deferred Action for Childhood Arrivals (“DACA”). For the reasons and in the manner outlined below, Department of Homeland Security personnel shall take all appropriate actions to execute a wind-down of the program, consistent with the parameters established in this memorandum.

Background

The Department of Homeland Security established DACA through the issuance of a memorandum on June 15, 2012. The program purported to use deferred action—an act of prosecutorial discretion meant to be applied only on an individualized case-by-case basis—to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.[1] Specifically, DACA provided certain illegal aliens who entered the United States before the age of sixteen a period of deferred action and eligibility to request employment authorization.

On November 20, 2014, the Department issued a new memorandum, expanding the parameters of DACA and creating a new policy called Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). Among other things—such as the expansion of the coverage criteria under the 2012 DACA policy to encompass aliens with a wider range of ages and arrival dates, and lengthening the period of deferred action and work authorization from two years to three—the November 20, 2014 memorandum directed 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 certain aliens who have “a son or daughter who is a U.S. citizen or lawful permanent resident.”

Prior to the implementation of DAPA, twenty-six states—led by Texas—challenged the policies announced in the November 20, 2014 memorandum in the U.S. District Court for the Southern District of Texas. In an order issued on February 16, 2015, the district court preliminarily enjoined the policies nationwide.[2] The district court held that the plaintiff states were likely to succeed on their claim that the DAPA program did not comply with relevant authorities.

The United States Court of Appeals for the Fifth Circuit affirmed, holding that Texas and the other states had demonstrated a substantial likelihood of success on the merits and satisfied the other requirements for a preliminary injunction.[3] The Fifth Circuit concluded that the Department’s DAPA policy conflicted with the discretion authorized by Congress. In considering the DAPA program, the court noted that the Immigration and Nationality Act “flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.” According to the court, “DAPA is foreclosed by Congress’s careful plan; the program is ‘manifestly contrary to the statute’ and therefore was properly enjoined.”

Although the original DACA policy was not challenged in the lawsuit, both the district and appellate court decisions relied on factual findings about the implementation of the 2012 DACA memorandum. The Fifth Circuit agreed with the lower court that DACA decisions were not truly discretionary,[4] and that DAPA and expanded DACA would be substantially similar in execution. Both the district court and the Fifth Circuit concluded that implementation of the program did not comply with the Administrative Procedure Act because the Department did not implement it through notice-and-comment rulemaking.

The Supreme Court affirmed the Fifth Circuit’s ruling by equally divided vote (4-4).[5] The evenly divided ruling resulted in the Fifth Circuit order being affirmed. The preliminary injunction therefore remains in place today. In October 2016, the Supreme Court denied a request from DHS to rehear the case upon the appointment of a new Justice. After the 2016 election, both parties agreed to a stay in litigation to allow the new administration to review these issues.

On January 25, 2017, President Trump issued Executive Order No. 13,768, “Enhancing Public Safety in the Interior of the United States.” In that Order, the President directed federal agencies to “[e]nsure the faithful execution of the immigration laws . . . against all removable aliens,” and established new immigration enforcement priorities. On February 20, 2017, then Secretary of Homeland Security John F. Kelly issued an implementing memorandum, stating “the Department no longer will exempt classes or categories of removable aliens from potential enforcement,” except as provided in the Department’s June 15, 2012 memorandum establishing DACA,[6] and the November 20, 2014 memorandum establishing DAPA and expanding DACA.[7]

On June 15, 2017, after consulting with the Attorney General, and considering the likelihood of success on the merits of the ongoing litigation, then Secretary John F. Kelly issued a memorandum rescinding DAPA and the expansion of DACA—but temporarily left in place the June 15, 2012 memorandum that initially created the DACA program.

Then, on June 29, 2017, Texas, along with several other states, sent a letter to Attorney General Sessions asserting that the original 2012 DACA memorandum is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA.

The Attorney General sent a letter to the Department on September 4, 2017, articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” The letter further stated that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Nevertheless, in light of the administrative complexities associated with ending the program, he recommended that the Department wind it down in an efficient and orderly fashion, and his office has reviewed the terms on which our Department will do so.

Rescission of the June 15, 2012 DACA Memorandum

Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below,

Recognizing the complexities associated with winding down the program, the Department will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters specified below. Accordingly, effective immediately, the Department:

• Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.

• Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.

• Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.

• Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.

• Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.

• Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.

• Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.

• Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

This document is not intended to, does 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. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.

[1] Significantly, while the DACA denial notice indicates the decision to deny is made in the unreviewable discretion of USCIS, USCIS has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as outlined in the June 15, 2012 memorandum, but still had his or her application denied based solely upon discretion.

[2] Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

[3] Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

[4] Id.

[5] United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).

[6] Memorandum from Janet Napolitano, Secretary, DHS to David Aguilar, Acting Comm’r, CBP, et al., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (June 15, 2012).

[7] Memorandum from Jeh Johnson, Secretary, DHS, to Leon Rodriguez, Dir., USCIS, et al., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents” (Nov. 20, 2014).

Topics: Border Security, Deferred Action

Keywords: DACA, Deferred Action for Childhood Arrivals

Last Published Date: September 5, 2017

I do appreciate your summary and research but DACA really is very different overall than a fight over an EO that temporarily suspended visas and refugee resettlement from six Muslim-majority countries around the world.

No, a thousands times no, and it matters. While the media, and the legal arguments, regurgitate trivia about visas, especially 8 U.S.C. 1152(a)(1); the Executive Order is about authorizing or denying entry. Entry authorization is not to be conflated with granting of visas.

Visas are covered by the language of 8 U.S.C. 1152(a)(1), language not applicable to entry authorizations.

http://law.justia.com/codes/us/2015/title-8/chapter-12/subchapter-ii/part-i/sec.-1152/

2015 US Code
Title 8 - Aliens and Nationality (Sections 1 - 1778)
Chapter 12 - Immigration and Nationality (Sections 1101 - 1537)
Subchapter II - Immigration (Sections 1151 - 1381)
Part I - Selection System (Sections 1151 - 1161)
Sec. 1152 - Numerical limitations on individual foreign states

§1152. Numerical limitations on individual foreign states

(a) Per country level

(1) Nondiscrimination

(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.

(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

An entry authorization is not an immigrant visa application or issuance. 8 U.S.C. 1152 falls within the section on the visa Selection system, and Numerical Limits.

8 U.S.C. 1182(f), under Inadmissible Aliens, is the grant of authority to the President for the suspension of entry or imposition of restrictions on entry authorization.

Note the intentionally vast grant of discretionary authority given by Congress to the President by the statutory language applicable to entry authorizations.

http://law.justia.com/codes/us/2015/title-8/chapter-12/subchapter-ii/part-ii/sec.-1182/

2015 US Code
Title 8 - Aliens and Nationality (Sections 1 - 1778)
Chapter 12 - Immigration and Nationality (Sections 1101 - 1537)
Subchapter II - Immigration (Sections 1151 - 1381)
Part II - Admission Qualifications for Aliens; Travel Control of Citizens and Aliens (Sections 1181 - 1189)
Sec. 1182 - Inadmissible aliens

8 U.S.C. 1182(f) - Suspension of entry or imposition of restrictions by President

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

Note that 8 U.S.C. 1182(f) pertains to suspension of entry. It is not about visa policy to which the resistance tries to conflate it. The oft-cited 8 U.S.C. 1152(a) irrelevantly applies to discrimination based on nationality in issuing visas. One may be granted a visa in Moscow. Granting of actual entry, and granting of visas, are two very different things. All aliens enjoy an equal right to entry into the United States, i.e., no right at all. An alien has no legal right to enter, that is a privilege for the U.S. to grant or withhold. An alien with a visa will almost always be admitted, but enjoys no legal right to admittance, and may be denied admission.

As for any Executive Order, policy or regulation created by the Obama administration, such cannot be binding on the Trump administration.

DACA and the entry suspension cases are interrelated. If the Judicial branch affirms yet one more time that the President was specifically and explicitly granted the power to suspend entry, at his sole discretion, of any alien or class of aliens, when he, in his discretion decides it is in the national interest, what possible legal argument would be left to his determining that invading hordes crossing the southern border is not in the national interest? He could decide, at his discretion, what class of aliens should be denied entry authorization.

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http://law.justia.com/cases/federal/appellate-courts/F2/953/1498/223208/

Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507, 1510 (11th Cir. 1992)

8 U.S.C. § 1182(f) clearly grants the President broad discretionary authority to control the entry of aliens into the United States. Section 1182(f) grants the President the discretion to act to exclude aliens “as he deems necessary.” Pursuant to this power, President Reagan issued Executive Order 12324 authorizing the interdiction of illegal aliens at sea. HRC concedes that the President’s order is not reviewable under the APA. They argue that the President’s subordinates are not carrying out his directive and that their failure to do so is subject to judicial review⁵

[...]

B. Plaintiffs' Claim under the Executive Order

Congress has committed to the President broad authority to control the entry of aliens or of any class of aliens when he determines that it would be detrimental to the interests of the United States. 8 U.S.C. § 1182(f). The President may suspend or restrict the entry of aliens for the period he deems necessary and impose the restrictions he deems appropriate. Id. Pursuant to this broad grant of authority, President Reagan issued Executive Order 12324.

The plaintiffs assert that the Executive Order provides a basis for a private cause of action that may be enforced by the district court pursuant to its federal question jurisdiction. Plaintiffs contend that the Executive Order embodies, and on its own terms sets forth, the law against forced return of political refugees. Specifically, the plaintiffs rely on the language in the Executive Order that says "no person who is a refugee will be returned without his consent."

Assuming that the district court has jurisdiction to review a claim based on the Executive Order, plaintiffs still must state a cause of action on which relief can be granted. See Farkas v. Texas Instrument, Inc., 375 F.2d 629 (5th Cir.), cert. denied 389 U.S. 977, 88 S. Ct. 480, 19 L. Ed. 2d 471 (1967). We hold that the Executive Order does not give rise to a private cause of action.

The Executive Order was issued specifically to establish a procedure for interdiction of Haitian migrants on the high seas. The program was intended as an emergency measure to deal with a situation that the President determined to be detrimental to the interests of the United States. By its terms, the Executive Order envisioned a procedure taking place entirely on the high seas. It contemplated a procedure that could quickly screen those on board interdicted boats and determine who had potential claims of persecution that would prevent repatriation. Because of the nature of the screening process and the fact that it was to take place on the high seas, it could not have been the intention of the President to allow the interdictees to initiate judicial review of their cases in the district courts of the United States. A private civil action was not contemplated under Executive Order 12324 and the plaintiffs' claim based on this order does not state a claim upon which relief can be granted.

C. Plaintiffs' Claim under the INS Guidelines

Plaintiffs also contend that they have substantive rights under the INS Guidelines which are being violated by the defendants' actions in this case. We disagree. The INS Guidelines, as discussed above, create no substantive rights that can be judicially enforced. The guidelines are more akin to internal operating instructions as opposed to regulations. As such, they do not have the force and effect of law. Pasquini v. Morris, 700 F.2d 658 (11th Cir. 1983); Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir. 1981).

In Pasquini, this court analyzed an internal operating instruction of the INS, O.I. 103.1(a) (1) (ii), and determined that the INS's internal operating instructions came within the exception to the APA's procedure for publication in the Federal Register of all proposed rulemaking by administrative agencies.

Section 553(b) of the APA provides, with certain exceptions not applicable here, that the publication procedures do not apply "to interpretive rules, general statements of policy, or rules of agency organization, procedure or practice ..." 5 U.S.C. § 553(b). The court concluded that internal operating instructions fell within this category "since the INS considers such instructions to be internal directives, not having the force and effect of law as do regulations." Pasquini, 700 F.2d at 662 (citing Dong Sik Kwon, 646 F.2d at 918) (internal quotes omitted). Finally, the court held that " [t]he internal operating procedures of the INS are for the administrative convenience of the INS only." Id.

We hold that the INS Guidelines in this case are internal guidelines for employees of the INS. These Guidelines were sent in the form of a memorandum to INS employees assigned to duties relating to the interdiction program. They were not intended to grant substantive rights but were only intended to give guidance to those INS employees involved in the interdiction program. The district court correctly denied injunctive relief based on this claim.

The plaintiffs also claim that customary international law, or international common law, creates enforceable rights. This claim is meritless and does not warrant discussion.

One of the grounds relied upon by the district court in issuing the December 3, 1991 preliminary injunction against repatriation of the interdicted Haitians was HRC's claimed First Amendment right of access to those Haitians.6 This court vacated that preliminary injunction on December 17, 1991. At that time we did not address HRC's First Amendment claim on the merits. Rather, this court held that HRC's purported First Amendment right of access to the Haitians could not support the preliminary injunction because the injunction merely barred repatriation and did not grant the access sought.

The injunctive relief granted by the district court does not require the defendants to allow HRC access to the Haitian interdictees, it enjoins the defendants from repatriating them. Because the relief granted does not address the right of access asserted by HRC, the First Amendment claim cannot support the injunction.

Haitian Refugee Center v. Baker, 949 F.2d 1109, 1111 (11th Cir. 1991).

On remand, the district court reiterated its conclusion that HRC has a First Amendment right of access to the interdicted Haitians. The court found that, with respect to Guantanamo Bay Naval Station, HRC sought access to portions of the installation which were being used for the non-military purpose of detaining refugees. Dec. 20, 1991 Order at 9. The district court also found that HRC lacked alternative means of exercising its First Amendment right other than direct access to the interdicted Haitians in United States custody. Id. The court then issued the following injunctive relief:

[F]or the reasons described in section III, plaintiffs' request for an injunction ordering defendants to grant plaintiffs' access to the interdicted class members is GRANTED as follows: defendants shall grant plaintiffs' counsel meaningful access to its interdicted class members, before repatriation, subject to reasonable, content-neutral, time, place and manner restriction....

Id. at 11.

On appeal, the United States argues that HRC has no First Amendment right whatsoever to communicate with aliens being held outside the United States. The government also maintains that the district court's preliminary injunction is overly broad and imposes affirmative obligations on the United States. HRC, on the other hand, claims that " [t]he denial of access to the emigrees [sic] on Coast Guard cutters and at Guantanamo Bay Naval Station violates the rights of the HRC, whose organizational purpose has been thwarted in that it has been unable effectively to provide assistance to the refugees including legal assistance and information concerning their legal rights."⁷ HRC also argues that the issue of whether the preliminary injunction requires access to Coast Guard ships is not ripe for review since the district court has not resolved this question. Because we can find no support for its claim in the laws or Constitution of the United States, we hold that HRC has failed to state a claim upon which relief can be granted.

The cases that the district court relies upon to justify its conclusion that HRC is likely to prevail in its First Amendment claim--NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963), and In re Primus, 436 U.S. 412, 98 S. Ct. 1893, 56 L. Ed. 2d 417 (1978)—do not recognize a right of access to persons properly in government custody.

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https://supreme.justia.com/cases/federal/us/509/155/case.html

Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 187–88 (1993)

It is perfectly clear that 8 U. S. C. § 1182(f), see n. 27, supra, grants the President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores. Whether the President's chosen method of preventing the "attempted mass migration" of thousands of Haitians—to use the Dutch delegate's phrase—poses a greater risk of harm to Haitians who might otherwise face a long and dangerous return voyage is irrelevant to the scope of his authority to take action that neither the Convention nor the statute clearly prohibits. As we have already noted, Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested. That presumption has special force when we are construing treaty and statutory provisions that may involve foreign and military affairs for which the President has unique responsibility. Cf. United States v. Curtiss-Wright Export Corp., 299 U. S. 304 (1936). We therefore find ourselves in agreement with the conclusion expressed in Judge Edwards' concurring opinion in Gracey, 257 U. S. App. D. C., at 414, 809 F. 2d, at 841:

"This case presents a painfully common situation in which desperate people, convinced that they can no longer remain in their homeland, take desperate measures to escape. Although the human crisis is compelling, there is no solution to be found in a judicial remedy."

The judgment of the Court of Appeals is reversed.

It is so ordered.

http://law.justia.com/cases/federal/appellate-courts/F2/727/957/390257/

Jean v. Nelson, 727 F.2d 957, 987 (11th Cir. 1984), aff’d, 472 U.S. 846, 105 S. Ct. 2992, 86 L. Ed. 2d 664 (1985) (Kravitch, C.J. dissenting from denial of rehearing).

The Attorney General may be permitted the greatest degree of discretion under the INA, but other executive officials also benefit from extremely broad delegations. In the event of war or some other national emergency, the President, upon a finding that additional restrictions beyond those supplied in the statute are necessary, may issue a proclamation making it unlawful "for any alien to depart from or enter ... the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe...." Id. Sec. 1185(a) (1).9 Section 1182(f) of the INA goes even further. It empowers the President, upon a finding that "the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States," to "suspend the entry of all aliens or any class of aliens ... or to impose on the entry of aliens any restrictions he may deem to be appropriate" for as long as he considers necessary. Id. Sec. 1182(f).¹⁰

Despite these broad grants of authority, executive officials "function as agents of Congress in enforcing the law.... If such officers depart from the zone of authority charted in the statute they act illegally and their actions can be corrected in the courts." 1 C. Gordon & H. Rosenfield, supra, at Sec. 2.2b; see also, e.g., Lloyd Sabaudo Societa Anonima Per Azioni v. Elting, 287 U.S. 329, 335, 53 S. Ct. 167, 170, 77 L. Ed. 341 (1932) (courts may review executive action in immigration field to ensure compliance with grant of statutory authority); Mahler v. Eby, 264 U.S. 32, 44, 44 S. Ct. 283, 288, 68 L. Ed. 549 (1924) (warrants of deportation could not issue until executive officials made individualized findings that aliens were undesirable residents); Gegiow v. Uhl, 239 U.S. 3, 9, 36 S. Ct. 2, 3, 60 L. Ed. 114 (1915) (" [W]hen the record shows that a commissioner of immigration is exceeding his power, the alien may demand his release upon habeas corpus.").¹¹ In practice, however, the vague and sweeping language employed by Congress in these provisions permits wide flexibility in decision-making on the part of the executive officials involved, and the courts are generally reluctant to interfere. See Saxbe v. Bustos, 419 U.S. 65, 74, 95 S. Ct. 272, 278, 42 L. Ed. 2d 431 (1974); Knauff, 338 U.S. at 543-44, 70 S. Ct. at 312-13.

Thus, as a result of the existence of inherent executive power over immigration and the broad delegations of discretionary authority in the INA, the separation-of-powers doctrine places few restrictions on executive officials in dealing with aliens who come to this country in search of admission or asylum. The authority of a companion branch, however, is not the only source of restraint upon executive action. We must also consider whether the Haitian plaintiffs in this case have any rights under the Constitution that can permit them to challenge the Executive's refusal to grant them parole.

[...]

The Haitian plaintiffs contend that such a reason was lacking in this case, submitting that they were the victims of national origin discrimination. Plaintiffs and the district court both stressed that the challenged actions here were those of executive officials rather than Congress, apparently believing that the Executive is clearly prohibited from adopting policies on its own motion that discriminate on the basis of national origin in the immigration field while Congress is just as clearly permitted to do so. Because the government has contended throughout this case that its new detention policy does not discriminate on the basis of national origin, resolution of this question is not essential to our holding; however, we believe that responsible executive officials such as the President or Attorney General possess this authority under the INA.³⁰ Nevertheless, since the discretion of lower-level immigration officials is circumscribed not only by legislative enactments but also by the instructions of their superiors in the executive branch, our conclusion that the Executive's policy is consistent with the power delegated by Congress does not end the process of judicial inquiry here. The district court must still determine whether the actions of lower-level officials in the field conform to the policy statements of their superiors in Washington. For as the second circuit correctly noted in Bertrand:

[T]he constitutional authority of the political branches of the federal government to adopt immigration policies based on criteria that are not acceptable elsewhere in our public life would not permit an immigration official, in the absence of such policies, to "apply neutral regulations to discriminate on [the basis of race and national origin]."

684 F.2d at 212 n. 12 (quoting Vigile v. Sava, 535 F. Supp. 1002, 1016 (S.D.N.Y. 1982)).

[...]

The provisions of 8 U.S.C. § 1182(d) (5) grant the Attorney General the discretion to parole "under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest." The grant of discretionary power, therefore, is facially neutral on the basis of the statute's language. Likewise, the legislative history of the provision centers on non-discriminatory factors, such as reuniting families and medical reasons. That the statute is facially neutral is further evidenced by other statutes in which Congress has given the Executive the power to discriminate on the basis of national origin. For example, in contrast to the parole statute, which contemplates individual consideration based on non-discriminatory factors, 8 U.S.C. § 1182(f) gives the Executive the power to bar entry of "any class of aliens" when "the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental...."³ Congress thus has shown that it knows how to grant the Executive the authority to discriminate based on national origin where it deems necessary, but no such grant can be found from the language of section 1182(d) (5).

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The deportable status of illegal aliens is clear.

https://www.gpo.gov/fdsys/pkg/USCODE-2011-title8/pdf/USCODE-2011-title8-chap12-subchapII-partII-sec1182.pdf

8 U.S.C. § 1182(a)(6).

(6) Illegal entrants and immigration violators

(A) Aliens present without admission or parole

(i) In general

An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.

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8 U.S.C. § 1182(a)(7).

(7) Documentation requirements

(A) Immigrants

(i) In general

Except as otherwise specifically provided in this chapter, any immigrant at the time of application for admission—

(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 1181(a) of this title, or

(II) whose visa has been issued without compliance with the provisions of section 1153 of this title, is inadmissible.

(ii) Waiver authorized

For provision authorizing waiver of clause (i), see subsection (k).

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(k) Attorney General’s discretion to admit otherwise inadmissible aliens who possess immigrant visas

Any alien, inadmissible from the United States under paragraph (5)(A) or (7)(A)(i) of subsection (a), who is in possession of an immigrant visa may, if otherwise admissible, be admitted in the discretion of the Attorney General if the Attorney General is satisfied that inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant’s application for admission.

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President Trump Executive Order 123450

http://www.presidency.ucsb.edu/ws/index.php?pid=123450

Donald J. Trump

158 - Executive Order 13780—Protecting the Nation From Foreign Terrorist Entry Into the United States

March 6, 2017

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United States, it is hereby ordered as follows:

Section 1. Policy and Purpose. (a) It is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals. The screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program (USRAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States. It is therefore the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP.

(b) On January 27, 2017, to implement this policy, I issued Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States).

(i) Among other actions, Executive Order 13769 suspended for 90 days the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. These are countries that had already been identified as presenting heightened concerns about terrorism and travel to the United States. Specifically, the suspension applied to countries referred to in, or designated under, section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), in which Congress restricted use of the Visa Waiver Program for nationals of, and aliens recently present in, (A) Iraq or Syria, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence. In 2016, the Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern for travel purposes, based on consideration of three statutory factors related to terrorism and national security: "(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States; (II) whether a foreign terrorist organization has a significant presence in the country or area; and (III) whether the country or area is a safe haven for terrorists." 8 U.S.C. 1187(a)(12)(D)(ii). Additionally, Members of Congress have expressed concerns about screening and vetting procedures following recent terrorist attacks in this country and in Europe.

(ii) In ordering the temporary suspension of entry described in subsection (b)(i) of this section, I exercised my authority under Article II of the Constitution and under section 212(f) of the INA, which provides in relevant part: "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." 8 U.S.C. 1182(f). Under these authorities, I determined that, for a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into the United States of certain aliens from the seven identified countries—each afflicted by terrorism in a manner that compromised the ability of the United States to rely on normal decision-making procedures about travel to the United States—would be detrimental to the interests of the United States. Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to grant case-by-case waivers when they determined that it was in the national interest to do so.

(iii) Executive Order 13769 also suspended the USRAP for 120 days. Terrorist groups have sought to infiltrate several nations through refugee programs. Accordingly, I temporarily suspended the USRAP pending a review of our procedures for screening and vetting refugees. Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to jointly grant case-by-case waivers when they determined that it was in the national interest to do so.

(iv) Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities—whoever they are and wherever they reside—to avail themselves of the USRAP in light of their particular challenges and circumstances.

(c) The implementation of Executive Order 13769 has been delayed by litigation. Most significantly, enforcement of critical provisions of that order has been temporarily halted by court orders that apply nationwide and extend even to foreign nationals with no prior or substantial connection to the United States. On February 9, 2017, the United States Court of Appeals for the Ninth Circuit declined to stay or narrow one such order pending the outcome of further judicial proceedings, while noting that the "political branches are far better equipped to make appropriate distinctions" about who should be covered by a suspension of entry or of refugee admissions.

(d) Nationals from the countries previously identified under section 217(a)(12) of the INA warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats. Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States. Finally, once foreign nationals from these countries are admitted to the United States, it is often difficult to remove them, because many of these countries typically delay issuing, or refuse to issue, travel documents.

(e) The following are brief descriptions, taken in part from the Department of State's Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:

(i) Iran. Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa'ida and has permitted al-Qa'ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in counterterrorism efforts.

(ii) Libya. Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals. In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States' counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters. The United States Embassy in Libya suspended its operations in 2014.

(iii) Somalia. Portions of Somalia have been terrorist safe havens. Al-Shabaab, an al-Qa'ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.

(iv) Sudan. Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa'ida and other terrorist groups to meet and train. Although Sudan's support to al-Qa'ida has ceased and it provides some cooperation with the United States' counterterrorism efforts, elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country.

(v) Syria. Syria has been designated as a state sponsor of terrorism since 1979. The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country. At the same time, Syria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States. The United States Embassy in Syria suspended its operations in 2012. Syria does not cooperate with the United States' counterterrorism efforts.

(vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, al-Qa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen's porous borders are used to finance AQAP and other terrorist activities. In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country. Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts.

(f) In light of the conditions in these six countries, until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high. Accordingly, while that assessment is ongoing, I am imposing a temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers, as described in section 3 of this order.

(g) Iraq presents a special case. Portions of Iraq remain active combat zones. Since 2014, ISIS has had dominant influence over significant territory in northern and central Iraq. Although that influence has been significantly reduced due to the efforts and sacrifices of the Iraqi government and armed forces, working along with a United States-led coalition, the ongoing conflict has impacted the Iraqi government's capacity to secure its borders and to identify fraudulent travel documents. Nevertheless, the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq's commitment to combat ISIS justify different treatment for Iraq. In particular, those Iraqi government forces that have fought to regain more than half of the territory previously dominated by ISIS have shown steadfast determination and earned enduring respect as they battle an armed group that is the common enemy of Iraq and the United States. In addition, since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal. Decisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.

(h) Recent history shows that some of those who have entered the United States through our immigration system have proved to be threats to our national security. Since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States. They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees. For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses. And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction as part of a plot to detonate a bomb at a crowded Christmas-tree-lighting ceremony in Portland, Oregon. The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.

(i) Given the foregoing, the entry into the United States of foreign nationals who may commit, aid, or support acts of terrorism remains a matter of grave concern. In light of the Ninth Circuit's observation that the political branches are better suited to determine the appropriate scope of any suspensions than are the courts, and in order to avoid spending additional time pursuing litigation, I am revoking Executive Order 13769 and replacing it with this order, which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.

Sec. 2. Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.

(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence. (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.

(d) Upon submission of the report described in subsection (b) of this section regarding the information needed from each country for adjudications, the Secretary of State shall request that all foreign governments that do not supply such information regarding their nationals begin providing it within 50 days of notification.

(e) After the period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means. The Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.

(f) At any point after the submission of the list described in subsection (e) of this section, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment, as well as the names of any countries that they recommend should be removed from the scope of a proclamation described in subsection (e) of this section.

(g) The Secretary of State and the Secretary of Homeland Security shall submit to the President a joint report on the progress in implementing this order within 60 days of the effective date of this order, a second report within 90 days of the effective date of this order, a third report within 120 days of the effective date of this order, and a fourth report within 150 days of the effective date of this order.

Sec. 3. Scope and Implementation of Suspension.

(a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspension of entry pursuant to section 2 of this order shall apply only to foreign nationals of the designated countries who:

(i) are outside the United States on the effective date of this order;

(ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and

(iii) do not have a valid visa on the effective date of this order.

(b) Exceptions. The suspension of entry pursuant to section 2 of this order shall not apply to:

(i) any lawful permanent resident of the United States; (ii) any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;

(iii) any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;

(iv) any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;

(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or

(vi) any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

(c) Waivers. Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner's delegee, may, in the consular officer's or the CBP official's discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer's satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest. Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa issuance process will be effective both for the issuance of a visa and any subsequent entry on that visa, but will leave all other requirements for admission or entry unchanged. Case-by-case waivers could be appropriate in circumstances such as the following:

(i) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity;

(ii) the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;

(iii) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;

(iv) the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;

(v) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;

(vi) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;

(vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;

(viii) the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or

(ix) the foreign national is traveling as a United States Government-sponsored exchange visitor.

Sec. 4. Additional Inquiries Related to Nationals of Iraq. An application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review, including, as appropriate, consultation with a designee of the Secretary of Defense and use of the additional information that has been obtained in the context of the close U.S.-Iraqi security partnership, since Executive Order 13769 was issued, concerning individuals suspected of ties to ISIS or other terrorist organizations and individuals coming from territories controlled or formerly controlled by ISIS. Such review shall include consideration of whether the applicant has connections with ISIS or other terrorist organizations or with territory that is or has been under the dominant influence of ISIS, as well as any other information bearing on whether the applicant may be a threat to commit acts of terrorism or otherwise threaten the national security or public safety of the United States.

Sec. 5. Implementing Uniform Screening and Vetting Standards for All Immigration Programs. (a) The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence shall implement a program, as part of the process for adjudications, to identify individuals who seek to enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry. This program shall include the development of a uniform baseline for screening and vetting standards and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States; and any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.

(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Director of National Intelligence, shall submit to the President an initial report on the progress of the program described in subsection (a) of this section within 60 days of the effective date of this order, a second report within 100 days of the effective date of this order, and a third report within 200 days of the effective date of this order.

Sec. 6. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication processes to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. The suspension described in this subsection shall not apply to refugee applicants who, before the effective date of this order, have been formally scheduled for transit by the Department of State. The Secretary of State shall resume travel of refugees into the United States under the USRAP 120 days after the effective date of this order, and the Secretary of Homeland Security shall resume making decisions on applications for refugee status only for stateless persons and nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that the additional procedures implemented pursuant to this subsection are adequate to ensure the security and welfare of the United States.

(b) Pursuant to section 212(f) of the INA, I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any entries in excess of that number until such time as I determine that additional entries would be in the national interest.

(c) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretary of State and the Secretary of Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States, including in circumstances such as the following: the individual's entry would enable the United States to conform its conduct to a preexisting international agreement or arrangement, or the denial of entry would cause undue hardship.

(d) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of State shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.

Sec. 7. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretary of State and the Secretary of Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority permitted by section 212(d)(3)(B) of the INA, 8 U.S.C. 1182(d)(3)(B), relating to the terrorism grounds of inadmissibility, as well as any related implementing directives or guidance.

Sec. 8. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for in-scope travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.

(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive set forth in subsection (a) of this section. The initial report shall be submitted within 100 days of the effective date of this order, a second report shall be submitted within 200 days of the effective date of this order, and a third report shall be submitted within 365 days of the effective date of this order. The Secretary of Homeland Security shall submit further reports every 180 days thereafter until the system is fully deployed and operational. Sec. 9. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions. This suspension shall not apply to any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; traveling for purposes related to an international organization designated under the IOIA; or traveling for purposes of conducting meetings or business with the United States Government.

(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that nonimmigrant visa-interview wait times are not unduly affected.

Sec. 10. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If another country does not treat United States nationals seeking nonimmigrant visas in a truly reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by that foreign country, to the extent practicable.

Sec. 11. Transparency and Data Collection. (a) To be more transparent with the American people and to implement more effectively policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available the following information:

(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation with or provision of material support to a terrorism-related organization, or any other national-security-related reasons;

(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States;

(iii) information regarding the number and types of acts of gender-based violence against women, including so-called "honor killings," in the United States by foreign nationals; and

(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.

(b) The Secretary of Homeland Security shall release the initial report under subsection (a) of this section within 180 days of the effective date of this order and shall include information for the period from September 11, 2001, until the date of the initial report. Subsequent reports shall be issued every 180 days thereafter and reflect the period since the previous report.

Sec. 12. Enforcement. (a) The Secretary of State and the Secretary of Homeland Security shall consult with appropriate domestic and international partners, including countries and organizations, to ensure efficient, effective, and appropriate implementation of the actions directed in this order.

(b) In implementing this order, the Secretary of State and the Secretary of Homeland Security shall comply with all applicable laws and regulations, including, as appropriate, those providing an opportunity for individuals to claim a fear of persecution or torture, such as the credible fear determination for aliens covered by section 235(b)(1)(A) of the INA, 8 U.S.C. 1225(b)(1)(A).

(c) No immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.

(d) Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.

(e) This order shall not apply to an individual who has been granted asylum, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.

Sec. 13. Revocation. Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.

Sec. 14. Effective Date. This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017.

Sec. 15. Severability. (a) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other persons or circumstances shall not be affected thereby.

(b) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements.

Sec. 16. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

/s/
_________________
DONALD J. TRUMP

The White House, March 6, 2017.

NOTE: This Executive order was published in the Federal Register on March 9. Citation: Donald J. Trump: "Executive Order 13780—Protecting the Nation From Foreign Terrorist Entry Into the United States," March 6, 2017. Online by Gerhard Peters and John T. Woolley, The American Presidency Project.

http://www.presidency.ucsb.edu/ws/?pid=123450.

http://coop.ca4.uscourts.gov/171351.P.pdf

[205 pp.] [Opinion of the Court, 79 pp.]

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-1351

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban Justice Center, Inc., on behalf of itself and its clients; HIAS, INC., on behalf of itself and its clients; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA, INC., on behalf of itself and its members; MUHAMMED METEAB; PAUL HARRISON; IBRAHIM AHMED MOHOMED; JOHN DOES #1 & 3; JANE DOE #2,
Plaintiffs - Appellees,

v.

DONALD J. TRUMP, in his official capacity as President of the United States; DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; REX W. TILLERSON, in his official capacity as Secretary of State; DANIEL R. COATS, in his official capacity as Director of National Intelligence,
Defendants - Appellants.

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[multi-page listing amici omitted]

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Appeal from the United States District Court for the
District of Maryland, at Greenbelt.

Theodore D. Chuang, District Judge. (8:17-cv-00361-TDC)

Argued: May 8, 2017
Decided: May 25, 2017
Amended: June 15, 2017

Before GREGORY, Chief Judge, and NIEMEYER, MOTZ, TRAXLER, KING, SHEDD, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS,
Circuit Judges.

Affirmed in part, vacated in part by published opinion.

Chief Judge Gregory wrote the opinion, in which Judges Motz, King, Wynn, Diaz, Floyd, and Harris joined in full.

Judge Traxler wrote an opinion concurring in the judgment.

Judge Keenan wrote an opinion concurring in part and concurring in the judgment, in which Judge Thacker joined except as to Part II.A.i.

Judge Wynn wrote a concurring opinion.

Judge Thacker wrote a concurring opinion.

Judge Niemeyer wrote a dissenting opinion, in which Judges Shedd and Agee joined.

Judge Shedd wrote a dissenting opinion, in which Judges Niemeyer and Agee joined.

Judge Agee wrote a dissenting opinion, in which Judges Niemeyer and Shedd joined

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[multi-page list of attorneys omitted]

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-12-

GREGORY, Chief Judge¹:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.

__________
¹ Judges Motz, King, Wynn, Diaz, Floyd, and Harris join this opinion in full, Judge Traxler concurs in the judgment, and Judges Keenan and Thacker concur in substantial part and concur in the judgment.

What the Court has chosen to ignore is that the Executive Order contains no mention of religion, that all persons directly affected by the order are aliens outside the country who, therefore, enjoy no U.S. Constitutional rights, and any constitutional rights of the plaintiffs do not apply to the affected aliens.

The Executive Order did not establish any religion. Neither did it favor one religion over another. Nutbags are coming from specific geographic regions and threatening U.S. national security and commiting violent mass killings of Americans. The Order applies to those geographic regions. The U.S. does not have the means to screen out the nutbags from the others. The U.S. does not have the means to determine the religion of the nutbags or others.

Milligan never applied to aliens outside the United States. Milligan is an 1866 post-Civil War case where SCOTUS ruled that the trial of a civilian by a military tribunal, while the regular courts were open and operating, was unconstitutional.