Blog

Farmworker Justice Immigration Update 2/20/15

President Obama’s Deferred Action Programs Put on Hold by Court

A very conservative, outspoken federal judge issued a temporary order Monday blocking the Federal Government from implementing the President’s deferred action programs that were announced on November 20, 2014, known as DAPA and expanded DACA. The ruling was not unexpected as the federal judge, Judge Andrew Hanen, has made his views on the President’s policies on immigration known in the past. Unfortunately, the ruling creates uncertainty and fear in affected communities, but at this time is only a temporary roadblock as President Obama’s administration is appealing the order. Many legal scholars believe President Obama’s actions are constitutional and likely to prevail. Farmworker Justice urges people to stay calm and to continue preparing for administrative relief. Read our updated flyer on administrative relief in Spanish and English.

Judge Hanen based the injunction, or order blocking the deferred action programs, on the claim that the Obama Administration had not followed proper procedures in creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the expanded Deferred Action for Childhood Arrivals (expanded DACA) program. This finding may be overturned as the programs are a general statement of policy based in prosecutorial discretion and do not require formal rulemaking. The judge has not yet addressed whether the programs violate any law or the Constitution. For a more detailed explanation of why Judge Hanen’s decision is wrong, read Harvard Law School Professor Cass Sunstein’s article in Bloomberg View and University of Chicago Law School Professor Eric Posner’s article in Slate.

Not just anyone can challenge a federal policy in court. Challengers have to meet a certain legal standard, known as standing, which includes a requirement to show that the plaintiff will be harmed by the law. The court in Texas v. US held that of the 26 states challenging the programs, Texas, at least, has “standing,” or the right to sue. A recent lawsuit by the notorious Arizona Sheriff Joe Arpaio challenging the President’s deferred action programs was thrown out of court because Arpaio could not show that the programs would cause him any harm. In the Texas case, Judge Hanen found that the State of Texas will be harmed by the cost of processing drivers’ licenses for deferred action recipients (apparently fees don’t cover the costs). He did not take into account any potential financial benefits to Texas through increased tax revenue and economic stimulation that is likely to result in the granting of work authorization to many of the state’s residents. This holding that Texas has standing to sue could also be overturned on appeal.

Today, the White House announced that it will seek an emergency stay – a request to block the injunction – of the judge’s order, which could speed up the appeals process. The normal process to appeal could take several months or longer. The Justice Department plans to file the stay by Monday at the latest.


Important things to know about the judge’s ruling:

The Obama Administration is likely to ultimately win the court case. 
Farmworker Justice, along with many legal experts, believes that President Obama’s executive actions are a proper exercise of his prosecutorial discretion, are constitutional, and should ultimately prevail. 

Potential DAPA and expanded DACA applicants should continue to collect their documents, save money for application fees and otherwise prepare to apply for deferred action. 
However, there is not currently an application process and they should not pay anyone to apply for them. For now, potential applicants should go to community information sessions or check out online resources to see if they may be eligible.

The original DACA program is still up and running.
The court order only affects the prosecutorial discretion memo by Secretary of Homeland Security Jeh Johnson dated Nov. 20, 2014 that outlines the changes to DACA and the new DAPA program. The original DACA program is not affected. Because the Nov. 20th memo expanded the DACA program and work authorization from 2 to 3 years, it appears that for now, work authorization may only be issued for 2 years. New applicants and renewal applicants should still submit their applications. The eligibility guidelines are available here

The Administration’s new enforcement priorities are still in effect.
The court case does not affect any of the other executive action memos on immigration. In fact, the judge stated that the Administration has the authority to set priorities as to who should be deported. The Department of Homeland Security’s new enforcement memo, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” outlines the Department of Homeland Security’s priorities for deportations. Most undocumented immigrants without criminal convictions or with very minor convictions who did not enter or attempt to enter the US after December 31, 2013, will not be a priority for deportation and are not likely to be arrested or deported by DHS.

Farmworker Justice will continue to work with groups throughout the country to support and plan implementation of the DAPA/DACA programs and to win legislation that creates a path to citizenship for undocumented farmworker families. Several hundred thousand farmworkers who labor on our farms and ranches could be eligible for these deferred action programs. The programs are well within the President’s authority. By eliminating the constant fear of deportation, farmworkers and other aspiring Americans will be able to contribute more fully to their communities and will be empowered in their workplaces.

Major Victory in Case of Guestworker Abuse
On a more positive note, a federal jury in Louisiana awarded $14 million to 5 former Indian H-2B guestworkers, who were the victims of labor trafficking, fraud, racketeering and discrimination. Congratulations to the workers, their attorneys and the many other organizations and individuals who have worked hard for years to help bring justice to these workers. The workers are represented by the Southern Poverty Law Center, the American Civil Liberties Union, the Asian American Legal Defense and Education Fund, the Louisiana Justice Institute, Crowell & Moring, LLP, Sahn Ward Coschignano & Baker. More than 200 other workers have pending claims against the employer, Signal International, and the immigration lawyer and international labor recruiter that it used.
 

President Obama’s Deferred Action Programs Put on Hold by Court

A very conservative, outspoken federal judge issued a temporary order Monday blocking the Federal Government from implementing the President’s deferred action programs that were announced on November 20, 2014, known as DAPA and expanded DACA. The ruling was not unexpected as the federal judge, Judge Andrew Hanen, has made his views on the President’s policies on immigration known in the past. Unfortunately, the ruling creates uncertainty and fear in affected communities, but at this time is only a temporary roadblock as President Obama’s administration is appealing the order. Many legal scholars believe President Obama’s actions are constitutional and likely to prevail. Farmworker Justice urges people to stay calm and to continue preparing for administrative relief. Read our updated flyer on administrative relief in Spanish and English.

Judge Hanen based the injunction, or order blocking the deferred action programs, on the claim that the Obama Administration had not followed proper procedures in creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the expanded Deferred Action for Childhood Arrivals (expanded DACA) program. This finding may be overturned as the programs are a general statement of policy based in prosecutorial discretion and do not require formal rulemaking. The judge has not yet addressed whether the programs violate any law or the Constitution. For a more detailed explanation of why Judge Hanen’s decision is wrong, read Harvard Law School Professor Cass Sunstein’s article in Bloomberg View and University of Chicago Law School Professor Eric Posner’s article in Slate.

Not just anyone can challenge a federal policy in court. Challengers have to meet a certain legal standard, known as standing, which includes a requirement to show that the plaintiff will be harmed by the law. The court in Texas v. US held that of the 26 states challenging the programs, Texas, at least, has “standing,” or the right to sue. A recent lawsuit by the notorious Arizona Sheriff Joe Arpaio challenging the President’s deferred action programs was thrown out of court because Arpaio could not show that the programs would cause him any harm. In the Texas case, Judge Hanen found that the State of Texas will be harmed by the cost of processing drivers’ licenses for deferred action recipients (apparently fees don’t cover the costs). He did not take into account any potential financial benefits to Texas through increased tax revenue and economic stimulation that is likely to result in the granting of work authorization to many of the state’s residents. This holding that Texas has standing to sue could also be overturned on appeal.

Today, the White House announced that it will seek an emergency stay – a request to block the injunction – of the judge’s order, which could speed up the appeals process. The normal process to appeal could take several months or longer. The Justice Department plans to file the stay by Monday at the latest.


Important things to know about the judge’s ruling:

The Obama Administration is likely to ultimately win the court case. 
Farmworker Justice, along with many legal experts, believes that President Obama’s executive actions are a proper exercise of his prosecutorial discretion, are constitutional, and should ultimately prevail. 

Potential DAPA and expanded DACA applicants should continue to collect their documents, save money for application fees and otherwise prepare to apply for deferred action. 
However, there is not currently an application process and they should not pay anyone to apply for them. For now, potential applicants should go to community information sessions or check out online resources to see if they may be eligible.

The original DACA program is still up and running.
The court order only affects the prosecutorial discretion memo by Secretary of Homeland Security Jeh Johnson dated Nov. 20, 2014 that outlines the changes to DACA and the new DAPA program. The original DACA program is not affected. Because the Nov. 20th memo expanded the DACA program and work authorization from 2 to 3 years, it appears that for now, work authorization may only be issued for 2 years. New applicants and renewal applicants should still submit their applications. The eligibility guidelines are available here

The Administration’s new enforcement priorities are still in effect.
The court case does not affect any of the other executive action memos on immigration. In fact, the judge stated that the Administration has the authority to set priorities as to who should be deported. The Department of Homeland Security’s new enforcement memo, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” outlines the Department of Homeland Security’s priorities for deportations. Most undocumented immigrants without criminal convictions or with very minor convictions who did not enter or attempt to enter the US after December 31, 2013, will not be a priority for deportation and are not likely to be arrested or deported by DHS.

Farmworker Justice will continue to work with groups throughout the country to support and plan implementation of the DAPA/DACA programs and to win legislation that creates a path to citizenship for undocumented farmworker families. Several hundred thousand farmworkers who labor on our farms and ranches could be eligible for these deferred action programs. The programs are well within the President’s authority. By eliminating the constant fear of deportation, farmworkers and other aspiring Americans will be able to contribute more fully to their communities and will be empowered in their workplaces.

Major Victory in Case of Guestworker Abuse
On a more positive note, a federal jury in Louisiana awarded $14 million to 5 former Indian H-2B guestworkers, who were the victims of labor trafficking, fraud, racketeering and discrimination. Congratulations to the workers, their attorneys and the many other organizations and individuals who have worked hard for years to help bring justice to these workers. The workers are represented by the Southern Poverty Law Center, the American Civil Liberties Union, the Asian American Legal Defense and Education Fund, the Louisiana Justice Institute, Crowell & Moring, LLP, Sahn Ward Coschignano & Baker. More than 200 other workers have pending claims against the employer, Signal International, and the immigration lawyer and international labor recruiter that it used.