My Opinion — Page 7

Some Thoughts on Arizona v. United States

June 26, 2012 by Matthew

On June 25, 2012, the U.S. Supreme Court decided Arizona v. United States. The decision struck down 3 out of 4 provisions of Arizona’s SB 1070. The 3 provisions that were struck down involved:

1. A requirement that non-citizens carry identification and subjected them to criminal penalties for failure to comply.

2. A penalty for non-citizens that work without authorization to work in the United States.

3. Authorization of state and local police to make warrantless arrests of individuals who were believed to be removable.

These provisions were struck down because they deemed to be “preempted” by federal law. Certain areas of law, like immigration, are deemed to be the sole responsibility of the federal government, so that the states may not legislate them.

The fourth provision involved authorization of the police to request papers of individuals that they believe to be undocumented. This has been referred to as the “show me your papers” provision.” Arizona Governor Jan Brewer has been claiming victory because this provision was not struck down. I don’t view the Supreme Court’s decision as a victory for Governor Brewer. The Supreme Court’s decision did not expressly uphold this provision. The decision merely concluded that it was too early to determine whether this provision is proper because to do so would require a factual determination as to how the provision is applied. To me, this is not a victory for the State of Arizona. The Supreme Court merely left the battle for another day.

If there was any debate as to who won this battle, it was settled after the Supreme Court’s decision when the Department of Homeland Security announced that it was cancelling Arizona’s participation in the 287(g) program. 287(g) refers to a provision in the Immigration and Nationality Act that provides that the federal government can literally deputize state and local law enforcement officials to enforce immigration laws. One of the benefits of 287(g) is that state participants have access to federal immigration databases. By kicking Arizona out of 287(g), it no longer has direct access to the federal government’s immigration databases. As a result, when Arizona law enforcement officials arrest a suspected undocumented alien, they do not have the ability to check the federal immigration database on their own. Instead, they must call the Immigration and Custom Enforcement and will be at their whim.

Will Romney Burst the DREAMers Bubble?

June 21, 2012 by Matthew

President Obama’s new policy to spare from deportation certain undocumented non-citizens that came to the United States when they were young is not a permanent solution. He is only offering them something called deferred action. Deferred action is an act of prosecutorial discretion. It is not a formal immigration benefit like adjustment of status or naturalization. It is simply a decision that the Government will not deport someone. Because it is not a formal immigration benefit, it can be taken away at any time.

The election in November could have a tremendous impact upon these individuals. This is because Mitt Romney does not appear to support President Obama’s policy. In discussing whether or not he would continue President Obama’s policy, if elected, Mr. Romney has been quoted as saying, “I will put in place my own long-term solution that will replace and supersede the president’s temporary measure.” However, he has not stated any details about what this long-term solution would be.

Mr. Romney’s campaign website has a page on immigration. His website indicates that he will take a “strong stand against illegal immigration.” It further explains that he will “secure the border,” “turn off the magnets” that attract undocumented alients, “enforce the law,” and “oppose amnesty.” Based upon Mr. Romney’s website, it would appear that if he is elected president, anyone who applies for deferred action under President Obama’s plan will face deportation. While Mr. Romney has yet to actually state this, it’s hard to read what his campaign website says about immigration and not believe that he will not only discontinue President Obama’s policy, but seek to deport the people who have applied for deferred action pursuant to his policy. I still stand by my view that anyone not already in removal proceedings or facing deportation should wait until after the election to apply for deferred action under President Obama’s new policy.

I Am Going to Wait to Celebrate

June 19, 2012 by Matthew

Now that I’m back from the AILA National Conference, I thought I would comment about President Obama’s announcement that the Department of Homeland Security (DHS) will be granting deferred action to certain non-citizens that would fall under the DREAM Act. It was really amazing to be at the AILA National Conference when the announcement was made. Being around so many immigration lawyers as the news was announced made it seem like there was electricity in the air. Everyone around me was excited and happy. Now I’m going to be the spoiled sport who complains . . .

For people who are in removal proceedings and have final orders of removal that qualify for deferred action, this will be good. For people who are not yet in proceedings, I am skeptical. It has been announced that they do not yet have a procedure for these people to apply for deferred action. It has been said that it will take 60 days for a procedure to be created. On April 2, 2012, it was announced that Citizenship Immigration Service (CIS) was going to accept waivers of unlawful presence from within the United States. Soon after, it was announced that CIS was not yet accepting these waivers and that they would not be accepted until regulations were promulgated. We’re still waiting for the regulations. About a year ago, it was announced that ICE would review files of removal cases for administrative closure as part of efforts to exercise prosecutorial discretion and focus on removing criminal aliens and aliens that pose a danger to the national security of the United States. Recently, it was announced that of 288,361 cases reviewed, only 4,403 cases had received administrative closure.

I have another reason to be skeptical. June is almost over. If DHS takes 60 days to create rules on accepting deferred actions requests for DREAMers, that means that they won’t be accepting these applications until about August 15, 2012. The election is November 8, 2012. If Obama is not re-elected, it does not appear that Romney will continue with this program. If Romney is elected president, then all of the people that are not currently in removal proceedings who apply for this new program will be bringing themselves to the attention of the Government. My advice for anyone who is not yet in removal proceedings that would benefit from this new policy is to wait until after the election to apply.