Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in later on. It is possible, says the gatekeeper, but not now. Franz Kafka, Before the Law Immigration in the Age of Trump Course Leaders: Hans Meyer & Aaron Hall
In the News Shutdown of border (shifting demands) If Mexico doesn t stop all migration from their southern border If Central American countries don t do more to stop migrants from leaving If Congress doesn t pass laws to make it easier to detain kids for longterm and facilitate quicker deportations
Due Process
Closing Border Really means shutting down ports of entry preventing people and goods from legally entering the country. $1.5 billion in commerce along U.S.-Mexico border every day. Nearly half a million people cross the border legally every day through Texas ports alone. Closing border doesn t address his concern People he is concerned with are either waiting at ports of entry or crossing illegally to turn selves in. Closing border can t prevent illegal crossings for self turn-ins.
Illustration
Removal Proceedings (Immigration Court)
Non-Detained
Detained
Rights in Removal Proceedings Opportunity to cross-examine government witnesses and inspect evidence. 8 USC 1229a(b)(4)(B) Representation by counsel at no expense to government. 8 USC 1229a(b)(4)(A)
Burdens of Proof On ICE to prove that person is deportable by clear and convincing evidence. 8 USC 1229a(c)(3) If deportable, immigrant has the burden of proof to establish: Statutory eligibility for relief, and That relief deserved as a matter of discretion REAL ID
Relief from Removal Adjustment of Status to LPR Asylum/Withholding of Removal/Convention Against Torture VAWA, U, and T Citizenship (derived and acquired) Cancellation of Removal for LPRs Cancellation of Removal for Non-LPRs
Violence Against Women Act (VAWA) Abused Spouse of U.S. Citizen or LPR Battery or extreme cruelty Good Faith Marriage Physically Resided with Spouse Good Moral Character
U Visa Victims of Certain Crimes Including: Murder, Manslaughter, Perjury, Incest, Kidnapping, Domestic Violence, Felony Assault. Must help with investigation/prosecution of crime Must get law enforcement certification 10K per year cap, long waitlist Immigration court continuances? If granted, U visa status for 4 years. After 3 years, can apply to become lawful permanent resident status.
Cancellation of Removal for LPRs Deportable LPRs Must have had LPR status for 5 years 7 years total in U.S. after any admission No Aggravated Felonies Discretion If granted, they are allowed to stay with their LPR status Can only be granted one time
Cancellation of Removal for non-lprs Deportable but without LPR status 10 years physical presence Person of Good Moral Character No disqualifying Convictions (Drugs, Crimes Involving Moral Turpitude, etc.) Exceptional and Extremely Unusual Hardship To spouse, minor child, or parent Discretion
Appeals Board of Immigration Appeals in Falls Church, VA Currently 15 Permanent Members, Appointed by the Attorney General Published Decisions binding on Immigration Judges Immigration Judge decision not final if appealed Immigrant stays in U.S. during appeal to BIA Appeals of BIA decisions go to circuit courts
Circuit Court Map
Deferred Action for Childhood Arrivals (DACA) Form of Prosecutorial Discretion to put an individual into Deferred Action DACA announced June 2012 by President Obama
DACA Eligibility Requirements At least 15 years old at time of filing Under the age of 31 as of 6/15/2012 Entered U.S. before 16 th Birthday Continuously resided in U.S. since before 6/15/2007 Physically present in U.S. on 6/15/2012 In school or high school grad or GED No convictions for felonies, significant misdemeanors, or 3 other misdemeanors
Johana Since childhood, I have pledged allegiance to the Flag, sang the National Anthem, and have called this country my own. I was at the top of my high school graduating class, was a competitive athlete, and a classical musician- I felt like I was doing everything I needed to do to prepare for the university because my parents made it very clear that education was of the utmost importance. After my parents visas expired, our lives changed. We became fearful. I was ashamed of who I was, what I looked like, and where I came from. Guilt, fear, frustration, and anger were daily emotions in my life. Being undocumented was my limiting factor, and many times in my life, a defining factor.
Johana After graduating from the University of Colorado at Boulder in 2011, with a double major in Molecular and Cellular Biology and Psychology-Neuroscience, my path came to a halt, once again. Medical schools were not openly accepting undocumented students. While graduating from the university was an exciting time for most, it was one of the scariest times for me. I didn t know where to go from here. However, my parents, as always, encouraged me to continue to volunteer, work hard, have patience, and most importantly, faith in this country and so I did.
Johana In June of 2012, our lives changed. Deferred Action for Childhood Arrivals, enacted by President Barack Obama, opened my doors to opportunity. I was now able to continue to pursue my dreams of becoming a physician. I applied to medical schools and was part of the first medical school class to openly accept DACA students at Loyola Stritch School of Medicine in 2014. I had the privilege of speaking on national television of what this journey as an undocumented, successful individual had been like. I knew I deserved to be in medical school. I was as qualified as my other classmates. The only difference was a sheet of paper that defined my status, but not who I was as an individual.
Johana Four years later, as I prepare to graduate from medical school and venture into residency, its hard for me not to fear what lies ahead for the many that call this country their home- For the many that respect, admire, and deeply love the values and opportunities that this country can provide. I love this country, despite the immense limitations throughout my life. To believe in this country means to believe in every individual that makes this country so unique and beautiful- we deserve to be part of this nation. I ask this country to please have faith in us, just like we have had faith in it.
Deferred Action for Parents of Americans (DAPA) Another prosecutorial discretion program announced 11/20/2014 DAPA Open to Individuals Who: Have USC children as of 11/20/2014 Resided in U.S. since at least 1/1/2010 Not an enforcement priority due to convictions or gang involvement Expanded DACA Eliminated age ceiling and made DACA open to those who d been in U.S. since before 1/1/2010 (rather than 6/15/2007) Grants would be for 3 years at a time rather than two.
DAPA enjoined Texas and 25 other states filed lawsuit in Texas seeking to block implementation. Judge Hanen enjoined implementation. Gov t appealed, and Fifth Circuit upheld injunction by 2-1 vote. Appeal to U.S. Supreme Court Supreme Court s Full Decision and Analysis on Next Slide
DAPA Injunction DAPA enjoined and never allowed to go into effect after 6/23/2016 Supreme Court Decision 3/11/2016: Senator Hatch: "The President told me several times he is going to name a moderate, but I do not believe him.... [Obama] could easily name Merrick Garland, who is a fine man. He probably will not do that because this appointment is about the election. So I am pretty sure he will name someone the [liberal Democratic base] wants. 3/16/2016: President Obama nominates Merrick Garland Never allowed to have hearings by Republican controlled Senate
Termination of DACA
Termination of DACA Termination of DACA announced 9/5/2017 by AG Sessions All initial applications to be rejected immediately. All renewal applications to be rejected starting 10/5/2017 Flurry of lawsuits filed and various injunctions in place. Bottom line: Those who already have DACA can continue to renew but no new applications allowed. Case will likely be decided by Supreme Court in next term If DACA ruled unconstitutional, grantees subject to deportation.
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