FJ Blog

Friday, 16 January 2015

In the past few weeks, President Obama’s executive actions on immigration reform have been under attack in Congress and in the courts. You may recall that during the appropriations process late last year, a decision was made to fund DHS until only February in order to give the new Congress an opportunity to undo President Obama’s administrative actions on immigration. Wasting no time in acting, this week, the House of Representatives passed a bill funding the Department of Homeland Security (DHS) that attempts to block the President from implementing the new executive actions on immigration reform and to end the existing DACA program for young people. The parts of the Homeland Security bill relating to administrative relief were added to the bill as amendments. Members of the House of Representatives voted on the amendments and the underlying bill mainly along party lines. However, several pro-immigration reform Republicans voted against the amendments and final passage of the bill and several Democrats voted in support of the amendments and final passage. The amendment to terminate the DACA program passed by only a slim margin, with 26 Republicans voting against it, mostly from districts with high immigrant populations. The final appropriations bill passed by a vote of 236-191. Farmworker Justice joined other organizations in condemning the anti-immigrant amendments. 

The DHS funding bill is not expected to become law, however, as it is unlikely to get the 60 votes needed to pass the Senate. Even if it were to pass the Senate, President Obama is likely to veto the bill. This poses a problem for Congress because if they don’t pass a bill funding the Department of Homeland Security by February 27th, then the agency will be “shut down” (last time there was a government shut down the majority of DHS employees worked without pay until Congress passed an appropriations bill awarding them back pay). Senate Majority Leader Mitch McConnell said that he will give Senators the opportunity to vote on the House version of the bill. Some Republican Senators have stressed the importance of funding the security agency over playing politics on immigration. 

On the litigation front, a federal judge heard oral arguments on Thursday in the lawsuit in which 25 states are suing the President over his executive actions on immigration. After the hearing in the Southern District of Texas, Judge Andrew Hanen will decide whether or not to order the government to refrain from implementing the deferred action programs until after the case is fully adjudicated. It’s also possible that the judge could prohibit the implementation of the deferred action programs only in those states that are suing the federal government, allowing the programs to proceed in the other states. About a dozen states led by Washington State Attorney General Bob Ferguson have filed a brief in the case defending the executive actions.

In one victory for President Obama’s immigration executive actions, on December 23rd, a federal judge dismissed Sheriff Joe Arpaio’s lawsuit against the Federal Government challenging the Administration’s deferred action program. Judge Beryl Howell held that Arpaio does not legally have the right to bring the lawsuit. She found that he was unable to show that he would suffer a particular harm and therefore his claim is better suited for the political process to work out. In other words, he is no different from any other citizen who doesn’t like a government policy. Arpaio’s argument that the policies would affect him relied on the effect that undocumented immigrants’ criminal activities would have on him as a sheriff (arguing that the program incentivized more undocumented criminals to enter the country). Judge Howell said that the opposite is true: the Administration’s focus on deporting serious criminals could actually address his concerns rather than exacerbating them as Arpaio claimed. Judge Howell’s opinion also stated that the deferred action programs are an exercise of valid prosecutorial discretion consistent with Congressional policy.

In response to President Obama’s deferred action programs, some growers and their associations have begun to cry wolf about labor shortages again. A Florida article claiming that there is a labor shortage in agriculture says that during an economic recovery, workers leave agriculture for “less intensive jobs that produce more pay and stability – like hospitality and construction.” The article goes on to say that “industry experts fear the trend will broaden if many illegals are allowed to stay in the United States without fear of being deported,” implying that the fear of deportation keeps them working in agriculture. Check out Daniel Costa’s blog on the Economic Policy Institute’s website which responds to the Director of Government Affairs for the Western Growers’ Association, Ken Barbic’s statement that farmworkers with DAPA will leave agriculture. 

For too long growers have been able to rely on an oversupply of farm labor and paying below market wages to keep their labor costs down, whether through guestworker programs or by hiring undocumented workers. Like any other business, growers need to follow the economic law of supply and demand to attract and retain farmworkers. That means improving wages and working conditions and introducing more efficiency and fairness into the workforce. Farmworker Justice rejects the demands of some legislators and growers for a new guestworker program that would eliminate wage and other labor protections from the H-2A program and would not include an opportunity for immigration status and citizenship. The only solution to stabilize our labor force is Congressional action that offers the opportunity for legal immigration status and citizenship to undocumented workers. While President Obama's executive action provides valuable relief for those who qualify, the action is limited in that it will only reach a portion of the undocumented farm labor force and does not provide a path to citizenship. 

Meanwhile, Sen. Dianne Feinstein (D. Calif.) is reportedly interested in filing a farmworker immigration bill based on the agricultural stakeholder agreement in last year’s Senate bill. However, even if a reasonable compromise farmworker bill passes the Senate, the House is unlikely to take it up. Rep. Goodlatte’s “Agricultural Guestworker Act” that was passed out of the House Judiciary committee in the last Congress is worse than the historically abysmal Bracero program, and would create a massive new guestworker program with low wages and almost no worker protections. Undocumented farmworkers would be expected to self-deport and come back as guestworkers without their family members. In addition to being contrary to American values, Goodlatte’s bill fails to provide needed reforms and lacks the political support to become law.

Farmworker Justice will continue working to build support for meaningful immigration reform in Congress that includes a path to citizenship, and to educate Congressional offices about the problems in the current H-2A guestworker program and with the guestworker reform model. We are also continuing to defend President Obama’s immigration executive actions while educating the farmworker community about administrative relief and planning for implementation in conjunction with the UFW Foundation and the Si Se Puede network, as well as with other immigration advocacy groups.

by Megan Horn
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Friday, 19 December 2014

As the 113th Congress comes to an end, so does the closest chance that we have had to passing comprehensive immigration reform in over a decade. The prospects for immigration reform that includes a path to citizenship in the incoming 114th Congress are dim. On the bright side, President Obama’s executive actions on immigration will be implemented in 2015, including expanded DACA and the new deferred action for parents program (DAPA), which could grant deportation relief for up to 5 million people. US Citizenship and Immigration Services is expected to begin accepting applications for expanded DACA in February and DAPA in May 2015.

President Obama’s executive action on immigration is likely to face challenges in the upcoming Congress; however, any efforts to block the President’s immigrations actions are likely to be largely symbolic because Congress lacks the vote to override an expected Presidential veto. In the last couple of weeks, Congress passed and the President signed the omnibus appropriations bill which funds all government agencies through FY 2015, except for the Department of Homeland Security (DHS). DHS was separately funded until February, when the Department’s budget will be reconsidered. House Republican leadership chose to only fund DHS for two months to give them another opportunity to block the President’s immigration executive action.

In the Senate, Senator Rand Paul (R-KY) filed a bill in an attempt to prevent the President from implementing his deferred action programs for undocumented immigrants. The “The Preventing Executive Overreach on Immigration Act,” is the companion legislation to Rep. Yoho’s (R-FL) bill, H.R. 5759, with the same title, which passed the House two weeks ago. Paul’s bill would prevent the Administration from implementing the DAPA program (the program which will allow parents of US citizens and lawful permanent residents who have been living in the US since January 1, 2010 to apply for deferred action and work authorization). The bill would also prevent the Administration from processing any new DACA applications, effectively terminating the program.

The Senate Judiciary Committee also held a hearing titled, “Keeping Families Together: The President’s Executive Action on Immigration and The Need to Pass Comprehensive Reform.” Prior to the hearing, UFW member Raul Esparza de la Paz participated in a press conference with Senators and other impacted community members. De la Paz said that he has one adult child who has already benefited from DACA and that he and his wife and 2 of his adult children will now be able to benefit from deferred action, removing the fear of immigration enforcement that they currently live with. De la Paz urged Congress to support the executive action on immigration and work to pass comprehensive immigration reform.

In addition to challenges from Congress, President Obama’s immigration actions are facing legal challenges from the courts. On Tuesday, in an overreach of his authority, a federal judge in Pennsylvania took it upon himself to declare Obama’s executive action on immigration unconstitutional in a court opinion that provided no basis for him to issue such a decision. The judge, Arthur Schwab, did not order the Administration to stop implementing the executive action and his ruling has no legal effect on it. The decision has been criticized because the constitutionality of the case was not at issue: neither party had argued that the President’s actions are unconstitutional nor had they briefed the court on the issue. Ilya Somin, a law professor at George Mason University writes in the Washington Post that the court opinion’s discussion of the executive action was brief and poorly reasoned. The Huffington Post reports that Judge Schwab has a checkered past. He has been removed from two cases by the 3rd Circuit Court of Appeals, in 2008 and 2012, a move that is rare and considered to be a disciplinary action.

There are also two pending constitutional challenges to the President’s administrative action. As mentioned in a previous update, several states have sued the President; the total count is now up to 24 states. The notorious Sheriff Joe Arpaio in Arizona has also requested a federal court to declare the President’s administrative relief programs unconstitutional and issue an order preventing the President from implementing it. The Department of Justice has asked the court to dismiss the Arpaio case. As we’ve said before, the President’s deferred action programs are firmly rooted in his prosecutorial discretion authority and many legal scholars believe the programs are constitutional. Nonetheless, we will be watching these cases closely and will keep you informed on developments.

Recent polls indicate that the majority of voters want Congress to act to fix our broken immigration system, rather than prevent President Obama’s executive action. Only time will tell whether Congress will listen. Unfortunately, statements by Congressional leaders indicate that Congress may move forward on a guestworker and enforcement-only strategy, doing nothing for the 11 million undocumented immigrants in the US. In the new Congress, Farmworker Justice will continue to advocate for immigration reform that treats farmworker communities and other undocumented immigrants humanely and in a way that comports with our values as a nation of immigrants. We will also be preparing to help implement DAPA in farmworker communities.

by Megan Horn
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Friday, 05 December 2014

Two weeks have passed since President Obama’s announcement of executive relief. Farmworker Justice, along with many individuals and organizations, is working hard to share information about the upcoming opportunity for deferred action through the new deferred action program for parents (DAPA) and the expanded DACA programs. Information is available on our webpage, www.farmworkerjustice.org, and the sisepuede.org website. We are working with the UFW Foundation and other farmworker and immigration groups to plan for the implementation of administrative relief when the application period begins in around May 2015. Our Spanish-language outreach flyer can be found here.

Even as we continue to plan to implement administrative relief, we are also having to defend the program against congressional attacks. Following last week’s Thanksgiving recess, Congress returned this week to a brief session. As expected, President Obama’s executive action on immigration came under immediate attack by House Republicans.

On Tuesday, the House Committee on Homeland Security held a hearing titled “Open Borders: The Impact of Presidential Amnesty on Border Security.” Secretary of Homeland Security Jeh Johnson testified at the hearing, defending the executive actions on immigration as a common sense approach to enforcing immigration law. The House Judiciary Committee also held a hearing on Tuesday, with a biased title “President Obama’s Executive Overreach on Immigration.” As the name implies, the hearing focused on whether or not the President has the authority to take his administrative actions on immigration, particularly the Deferred Action for Parental Accountability program (DAPA). Republicans and their witnesses claimed that the President does not have the authority to create deferred action programs. The Democrat members’ witness, Marielena Hincapie, executive director of the National Immigration Law Center, defended the President’s constitutional authority as a proper exercise of prosecutorial discretion. Farmworker Justice submitted statements for the record of both hearings to support the president’s executive action and highlight its importance to agricultural workers.

With some exceptions, there is broad consensus among legal scholars that the President has ample authority to create DAPA and DACA along with his other executive actions on immigration. His actions are supported by a legal memo by the Office of Legal Counsel. One hundred and thirty-five legal scholars have signed a statement stating that the President’s actions were constitutional and within his legal authority. Separately, four lawyers who formerly served as general counsel to US Citizenship and Immigration Services wrote a letter supporting the President’s authority to take these actions. 

On Thursday, the House passed Rep. Yoho’s (R-FL) bill, H.R. 5759, the “Preventing Executive Overreach on Immigration Act of 2014” by a 219-197 vote. H.R. 5759 asserts that President Obama’s deferred action program has no statutory or constitutional basis and seeks to categorically prevent the executive branch of the government from providing deferred action going forward, with only limited exceptions. The bill also incorrectly implies that President Obama’s deferred action programs provide categorical relief, instead of case-by-case relief. The House voted largely along party lines with a few pro-immigration reform Republicans voting against it and 3 Democrats voting for the measure. 

Farmworker Justice condemns the House’s passage of HR 5759, which would strip away potential protections and work authorization from the many aspiring Americans who could benefit from the President’s executive authority, including the parents of US citizen and LPR children and DACA individuals who came to the country as children. Instead of playing political games, the House should take up and pass HR 15, the comprehensive immigration reform bill that is similar to the bill passed by the Senate over a year ago, S.744.

Yoho’s bill was largely a symbolic measure as the Senate is not expected to take it up and President Obama has promised to veto it. A few other anti-immigrant Republicans voted against the bill or abstained from voting in protest because they would like the House to be more aggressive in opposing the President’s action. Specifically, those members along with Senator Ted Cruz would like to see the deferred action programs defunded through the government spending bills up for a vote next week, even though this would almost certainly lead to a government shutdown. 

House Speaker John Boehner and other Republican leaders do not support shutting down the government (Republicans were largely blamed for the last shut down). Instead, Speaker Boehner proposes to split the funding bill in two parts, funding all of the government except for the Department of Homeland Security (DHS) until September 2015 and funding DHS, which among other things is responsible for immigration services and enforcement, only for a few months. That way, this fight can play out again in 2015 when Republicans control both houses of Congress.

Seventeen states also filed a lawsuit against the President arguing that his executive actions are in violation of his constitutional duty to enforce the laws and are placing an illegal burden on state budgets. The lawsuit is led by Attorney General and Governor-elect of Texas, Greg Abbott. It is unclear whether the states have standing, or the right to sue the President at all. 

Some grower groups have expressed concern that the President’s administrative relief will not be very helpful to them and that it may instead harm them by giving their workers work authorization and the ability to “migrate into other industries that give them year-round work, holidays, pensions, more security. And that would be obviously detrimental to agriculture.”

We are expecting to see efforts to pass an agricultural program in the upcoming Congress. Incoming Senate Majority Leader Mitch McConnell (R-KY) has declared that he will “bust up” the Senate comprehensive immigration reform bill to pass it in pieces. He said that he would like to focus on border security, E-verify and changes to the H-1B and H-2A programs. McConnell, however, did not promise to bring up the piece that would offer undocumented immigrants a path to citizenship. We will be watching any efforts to change the H-2A program closely. Despite many grower complaints that the H-2A temporary foreign agricultural worker program is “unworkable,” the H-2A program has seen huge increases in recent years. Program use has expanded over 140% since 2005, with 18% growth in the last year alone. From our perspective, the H-2A program’s modest protections are inadequate to protect workers and the program is rife with abuse. H-2A workers typically arrive indebted and fearful, are tied to an employer for an entire season, and must leave the country when the job ends, factors which make workers extremely vulnerable to abuse. 

In the upcoming Congressional session, Farmworker Justice will continue to fight against proposals for harsh and exploitative temporary agricultural guestworker programs and will urge Congress to provide farmworkers and other aspiring Americans currently residing in the US a path to permanent legal status and eventual citizenship. 

by Megan Horn
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