Unlawful presence

July 25, 2016

Texas Settles Lawsuit Denying Undocumented Parents of U.S. Citizens Access to Children’s Birth Certificates

A new settlement reached against the state of Texas will make it easier for undocumented parents of U.S. Citizens to obtain birth certificates for their American born children. In 2013, Nancy Hernandez, a Mexican immigrant, gave birth to a baby girl in a Texas hospital, although she was unlawfully present in the United States. After the birth, she visited a Texas county office to obtain the child’s birth certificate. Much to her surprise her request was met with resistance when county officials notified her that without presentation of proper documents, she would not be able to obtain her child’s birth certificate proving the child’s U.S. Citizenship.

In response, Hernandez along with dozens of other immigrants, filed a lawsuit against the state of Texas alleging that the state was blocking them from obtaining their children’s birth certificates, a right that is protected by the Constitution. Texas officials had previously outlined specific documents that undocumented parents needed to present, in order to obtain their children’s birth certificates.

Last week, Texas settled the lawsuit promising that the state would expand the list of documents parents were required to present in order to obtain their children’s birth certificates. Under the settlement, Mexican immigrants will be able to present a Mexican voter identification card to obtain their children’s birth certificates. These voter identification cards can be obtained from Mexican consulates in the United States. Parents from El Salvador, Guatemala, and Honduras, will be able to present documents certified by their consulates in the United States.

June 23, 2016

Supreme Court Deadlocks on DACA and DAPA

by Jacob Sapochnick

Today the Supreme Court of the United States dealt a strong blow to President Barack Obama’s executive actions on immigration issuing a single one-line decision on the ruling “the judgment of the lower court is affirmed by an equally divided court.” Nearly two years ago, President Obama announced a series of executive actions on immigration after the Republican controlled House of Representatives refused to tackle the issue of comprehensive immigration reform. As part of his executive actions on immigration, President Obama announced the expansion of the Deferred Action for Childhood Arrivals (DACA) program, and introduced a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, (DAPA) designed to shield nearly five million undocumented immigrants from deportation. Following these initiatives, USCIS announced that applications for expanded DACA and the new DAPA program would begin to be accepted on February 18, 2015.

The DACA program would have expanded the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010, and extending the period of DACA and work authorization from two years to three years. The new DAPA program would have granted parents of U.S. Citizens and lawful permanent residents the opportunity to request deferred action and employment authorization for a three year period, on the condition that they have lived in the United States continuously since January 1, 2010 and pass required background checks.

On February 16, 2015 just two days before the programs were scheduled to go into effect, Texas along with 25 other states, filed a temporary court injunction ultimately suspending both programs from going into effect. This action prompted the Obama administration to intervene. For months, the federal government and the State of Texas battled one another in federal court. The court ultimately determined that Texas and at least 25 other status had sufficient ‘standing’ to challenge these programs. In response, the federal government filed an emergency motion to stay, however the motion was eventually denied by the court. This led the government to file a writ of certiorari before the Supreme Court. The fate of Obama’s executive actions grew all the more uncertain with the sudden death of conservative Supreme Court Justice Antonin Scalia on February 13^th. President Obama made desperate attempts to fill the vacated seat by nominating Merrick Garland to the Supreme Court, the Chief Judge of the United States Court of Appeals for the District of Columbia. Efforts to fill the seat were unsuccessful as Republicans vowed to keep Garland from sitting on the bench. Thus, Scalia’s death left behind an eight-person bench, and with no one to fill his seat, the growing possibility of a deadlock within the Supreme Court.

June 6, 2016

Undocumented Immigrants Appeal Judge’s Request to Hand Over their Personal Information

by Jacob Sapochnick

As previously reported, the Department of Justice is currently facing off in court against a federal judge from the State of Texas, who has accused federal prosecutors of misrepresenting, and withholding information in federal court, related to the implementation of the expanded Deferred Action for Childhood Arrivals (DACA) program and new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program that was scheduled to take effect on February 18, 2015, as part of President Barack Obama’s executive actions on immigration. All of that changed, when Judge Hanen filed a temporary injunction in court, blocking these executive orders from taking effect, just days before February 18, 2015. Judge Hanen is asking the court to punish federal prosecutors working for the Department of Justice by forcing them to attend mandatory ethics courses.

In addition, Hanen has requested that the Department of Homeland Security hand over the names, addresses, and other information of individuals who were unlawfully granted immigration benefits under these programs. On Friday, a group of undocumented individuals came forward, asking an appellate court to respect their privacy by not turning over their personal information to the State of Texas, and other interested parties. This group of undocumented individuals is currently being represented by the American Civil Liberties Union (ACLU) and the National Immigration Law Center (NILC). Attorneys for the group are expected to argue before the U.S. Court of Appeals for the Fifth Circuit in order to block Judge Hanen’s order.

May 26, 2016

Colorado Legislature Bill Aims to Crack Down on ‘Notario’ Fraud

by Jacob Sapochnick

The state of Colorado is set to pass a new bill known as HB16-1391 that will prosecute non-attorneys posing as licensed immigration attorneys or legal representatives in matters relating to immigration. Colorado Senator Dan Pabon, first introduced the bipartisan bill, HB 16-1391 the Immigration Consultants Deceptive Trade Practice, before the Colorado Senate earlier this year. The focus of HB16-1391 is to crackdown on “notarios” targeting the Hispanic community, who are not licensed to practice law in the United States. The word “notario” in some Latin American countries refers to a person that is either highly trained to conduct legal matters or is an attorney. The word notary in the United States takes on a different meaning. A notary public in the United States is not an attorney and cannot conduct legal matters. They cannot provide legal advice nor represent individuals before court. Instead, a notary public can attest or certify writings to make them authentic. Notary publics are typically involved in the certification of affidavits, depositions, and other negotiable documents. In the United States they witness the making of documents and sign in order to attest that documents are authentic. The Hispanic community is often misled by these “notarios” who advertise themselves as authorized legal representatives and/or attorneys for compensation. Despite the fact that these “notarios” are not authorized to offer legal consultations, they often do causing irreparable damage to the people they serve. They often give false hope to people in the United States unlawfully and mislead them into applying for an immigration benefit they are not eligible to receive, prompting their removal from the United States. The bill, Immigration Consultants Deceptive Trade Practice, will prohibit non-attorneys from conducting consultations, receiving compensation, and providing legal services to individuals related to immigration.

May 19, 2016

Answering Your Top 4 Frequently Asked Questions

by Jacob Sapochnick

In this segment, we answer 4 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. For more information on the services we offer please click here.

Consular Report of Birth Abroad (CRBA) and the Affidavit of Support

Q: I am a US Citizen married to a foreign national. We have a child together. We recently moved to the United States from abroad. My husband and son entered the United States on a B-2 visa and we are planning to apply for their adjustment of status. My question is regarding the Form I-864 Affidavit of Support. I have just secured employment and will be able to sponsor my family. I want to know what documents are required in support of the Affidavit of Support as proof that I have sufficient income to support my family. At the moment I do not have pay stubs. I plan to start my employment next month.

A: Thank you for your question. If your child was born abroad, your child may acquire U.S. Citizenship by filing for a Consular Report of Birth Abroad (CRBA, Form FS-240) before your child reaches their 18^th birthday. To do so, the U.S. Citizen parent must report the birth of the child at their nearest U.S. Embassy or Consulate. Anytime that a child of a U.S. Citizen parent is born abroad, the parent must report the birth to nearest U.S. Consulate as soon as possible. This will allow the Consulate to issue a Consular Report of Birth Abroad as an official record of your child’s claim to U.S. Citizenship. The CRBA may be used as proof of your child’s U.S. Citizenship and allows the child to obtain a U.S. passport. A child with a consular report of birth abroad receives the same privileges as a child born in the United States. It is recommended that you first contact your closest U.S. embassy or Consulate before filing a petition for your son, because it is likely that you will not need to go through the immigration process for your son.

May 16, 2016

Immigration Naturalization Rates Climb, but not for Political Reasons

by Jacob Sapochnick

According to a new study by the Pew Research Center, the number of permanent residents applying for U.S. Citizenship has risen 5% when compared to the 2012 election cycle. This fiscal year USCIS received the highest number of applications for naturalization in four years. The Pew Research Center suggests that the recent surge in applications for naturalization is not due to political reasons.

This fiscal year approximately 249,609 permanent residents applied for naturalization, a 13% increase from the previous fiscal year, according to preliminary data provided by the U.S. Citizenship and Immigration Services. During the last election cycle, in fiscal years 2011 and 2012, there was a 19 % increase in applications, compared to this year’s election cycle at 13%. Research conducted by the Pew Research Center indicates that the increase in the number of applications is due to practical reasons, such as avoiding fee increases and criminal prosecution, and not for political reasons. For instance, during fiscal years 2007 and 2008, the number of naturalization applications decreased by 62%, at a time when USCIS announced an increase in the application fee for adults, from $330 to $595, taking place on July 30, 2007. As a result of this announcement, an unusual number of applications were filed before the planned increase in filing fees. In fiscal year 2007, before the increase in filing fees, the number of naturalization applications increased by 89% compared to fiscal year 2006. This was the largest increase in naturalization applications ever seen since 1907.

From fiscal year 1995 to 1998, more than 900,000 people applied for citizenship every fiscal year, reaching a record high 1.4 million naturalization applications in fiscal year 1997, due to a series of Congressional legislation enacted in the mid 1980s. According to the Pew Research Center, one such legislation was the Immigration Reform and Control Act of 1986, which gave approximately 2.7 million undocumented immigrants the opportunity to become legal permanent residents. This piece of legislation increased the pool of potential citizens who would apply for naturalization within 5-10 years. By 2009, nearly 40% of permanent residents had become U.S. Citizens. In 1996 Congress passed laws restricting public benefits and legal protections of noncitizens, and expanded the list of offenses for which legal permanent residents could be prosecuted and deported. These laws prompted millions of permanent residents to apply for naturalization out of fear of deportation.

April 28, 2016

The takeaway thus far of United States v. Texas: the lawsuit challenging expanded DACA and DAPA

by Jacob Sapochnick

On April 18, 2016 the United States Supreme Court heard arguments in the lawsuit United States v. Texas, a lawsuit brought by 26 states, led by the state of Texas, challenging President Barack Obama’s executive actions on immigration. These executive actions include the expanded Deferred Action for Childhood Arrivals (DACA) program, and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program announced by President Obama in November of 2014. Following this announcement, the Obama administration received push back from the Republican led House of Representatives. There was also public outcry from conservatives, when President Obama announced that these programs would not only shield eligible individuals from deportation, but allow them to obtain employment authorization. In February 2015 these initiatives came to a screeching halt, when a federal district court granted these states a preliminary injunction preventing the implementation of expanded DACA and DAPA to take place. Since then, the lawsuit has moved through the courts, and now remains at the Supreme Court. On Monday April 18^th eight justices heard oral arguments in the case arguing for and against these executive actions on immigration. A final decision is expected from the justices in June. The Director of Advocacy at the American Immigration Lawyers Association (AILA) Greg Chen, AILA’s Legal Director Melissa Crow, and UCLA Law Professor Hiroshi Motomura weighed on what happened in the court Monday morning and what we can expect from the Court moving forward.

The experts identified 2 key issues that were discussed during Monday’s oral arguments.

The court mainly focused on:

Threshold question: Whether or not the Supreme Court should consider the case in the first place. The court asked themselves if the plaintiff states have standing to sue in the first place to bring the case to the court.
The Merits of the case: Whether or not the President has the authority to implement these executive actions based on the ‘Take Care’ clause of the constitution.

Greg Chen highlighted that this case is particularly important because for the first time in 20 years, we have not seen any real immigration reform from any of the three branches of government. Chen also noted that these executive actions on immigration, if implemented, would shield millions of undocumented immigrants from deportation. States also have a huge interest in passing these executive actions for the economic and tax revenue benefits alone, since undocumented immigrants have not been able to properly abide by tax laws due to their unlawful presence in the United States.

Melissa Crow highlighted that in Court proceedings, the traditionally four ‘liberal’ justices on the bench Breyer, Sotomayor, Ginsburg, and Kagan seemed to be sympathetic to the Obama administration in the questions they posed to the attorneys representing both sides in this lawsuit. Melissa noted that in order to overturn the federal injunction halting expanded DACA and DAPA, a fifth vote is required from the conservative camp either from Chief Justice Roberts or Justice Kennedy. The questions posed by the traditionally ‘conservative’ justices did not necessarily provide clues into their stance on these issues. Their questions simply showed that they were engaged in the issues and mostly focused on the issue of standing to sue.

April 11, 2016

House Republicans to Battle the Obama Administration on Immigration before the Supreme Court

by Jacob Sapochnick

The Supreme Court is expected to hear oral arguments for United States v. Texas, a lawsuit challenging the President’s executive actions on immigration, on Monday April 18^th. We have learned that attorneys representing the Republican led House of Representatives will be given 15 minutes to argue against Obama’s executive actions on immigration, included the expanded Deferred Action of Childhood Arrivals (DACA) program, and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. This move comes after the House of Representatives voted in favor of filing a brief before the Supreme Court challenging the executive actions on immigration. The court has also authorized a group of undocumented mothers of U.S. Citizen children to speak before the Supreme Court for 10 minutes. The Obama administration is currently at a disadvantage, given that only eight Supreme Court justices will ultimately be handing down one of the most important decisions of our generation come June. Obama had hoped that the House of Representatives would hold hearings in consideration of his Supreme Court pick, Chief Judge of the District of Columbia Court of Appeals, Merrick Garland, by the time oral arguments would begin. Unfortunately, this has not been the case. Republicans have refused to hold hearings in consideration of Judge Garland. It is likely that they will continue to delay hearings until the next President of the United States takes office next year.

Oral arguments on April 18^th will be no more than 90 minutes long. The majority of the time will be divided by the Obama administration and attorneys representing Texas and 25 other states challenging the constitutionality of Obama’s executive actions on immigration. United States v. Texas is unique because it will finally put to rest the issue of whether or not the executive action on immigration is within the President’s constitutional powers. This case is also unique because it will be one of the few times that the Supreme Court has addressed the issue of illegal immigration and the rights of unlawful immigrants under the constitution.

March 16, 2016

UPDATE: Obama Announces Merrick B. Garland as SCOTUS Nominee

by Jacob Sapochnick

This morning, President Obama announced his nominee to fill the vacant seat of Antonin Scalia on the Supreme Court. Contrary to what was believed, President Obama chose the most experienced and respected nominee among his top contenders, as opposed to the most progressive choice. The final decision came down to Chief Judge of the United States Court of Appeals for the District of Columbia, Merrick B. Garland. The President’s choice reflects political concerns to seat a Justice in time for oral arguments to begin in the case, United States v. Texas, a case that challenges the President’s modified Deferred Action for Childhood Arrivals (DACA) program and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. In the coming weeks, Judge Garland will need to face the Republicans in the Senate, who have vowed to block him from sitting on the Supreme Court. In order to be confirmed, he must receive votes from Republicans in the Senate. It is expected that Republicans will vote in Garland’s favor since he is not inclined to take leading positions on ideological questions such as DACA/DAPA. If appointed, Garland is unlikely to take a progressive approach on the bench. Throughout his career, Garland has taken a centrist or neutral view of the law. The Supreme Court is expected to hear oral arguments for United States v. Texas in April. For more on DACA/DAPA please click here.

Profile:

Chief Judge Garland was appointed to the United States Court of Appeals in April 1997 and became Chief Judge on February 12, 2013. He graduated summa cum laude from Harvard College in 1974 and magna cum laude from Harvard Law School in 1977. Following graduation, he served as law clerk to Judge Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit and to U.S. Supreme Court Justice William J. Brennan, Jr. From 1979 to 1981, he was Special Assistant to the Attorney General of the United States. He then joined the law firm of Arnold & Porter, where he was a partner from 1985 to 1989 and from 1992 to 1993. He served as an Assistant U.S. Attorney for the District of Columbia from 1989 to 1992, and as Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice from 1993 to 1994. From 1994 until his appointment as U.S. Circuit Judge, he served as Principal Associate Deputy Attorney General, where his responsibilities included supervising the Oklahoma City bombing and UNABOM prosecutions.

March 14, 2016

Obama Administration to Announce SCOTUS Nominee This Week

by Jacob Sapochnick

The Obama administration may announce its choice for the Supreme Court nomination as early as this week. We have learned that there are three contenders being considered for the Supreme Court nomination. All three candidates serve as judges for the United States Court of Appeals for the District of Columbia, and are well respected by both parties. They include Sri Srinivasan, Merrick Garland, and Paul Watford, who is rumored to be at the top of the President’s list. The Supreme Court nominee will be required to face a Republican Senate, in order to be formally appointed to the Supreme Court. Senate Republicans have already warned the White House that they will not hold hearings for any Supreme Court nominee suggested by President Barack Obama. As soon as Republicans heard of the passing of Justice Antonin Scalia, they urged caution from the White House. Senate Republicans anticipate that the next President of the United States will be the party’s Presidential nominee. It is for this reason that they claim that the Supreme Court nomination should be made by the next President of the United States, and not by Barack Obama. In a televised announcement, following the death of Antonin Scalia, President Obama made it very clear that his intentions were to choose the Supreme Court nomination, despite warnings from Republicans. Senate Republicans responded by stating that they would block any of the President’s advancements.

President Obama will need to choose a Justice that will have a tendency to vote liberally in order for his expanded Deferred Action for Childhood Arrivals (DACA) program and new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program to survive. The expanded DACA and new DAPA program were introduced in November 2014 as part of President Obama’s executive actions on immigration. These programs have been temporarily suspended following a federal court order filed by Texas and other states. The Supreme Court is expected to hear oral arguments in the case, United States v. Texas, this April with a final ruling made by summer time.