Immigration and Labor Rights

Give thanks to farmworkers this Thanksgiving!

Several quality news articles in the past few weeks included stories that remind us of the hard work of the workers who plant, harvest and process our food. They also highlight challenges that farmworkers face as a result of poor wages and working conditions, inequality resulting from lack of immigration status and disempowerment in the political system, and structural racism.

As you plan, prepare and enjoy your Thanksgiving meal, here is some food for thought. Around 2.4 million farmworkers labor on US farms and ranches. According to 2011-12 data from the National Agricultural Workers Survey (NAWS), about 71% of farmworkers who work in crop production are immigrants. At least half, or 1.2 million farmworkers, are undocumented.

Farmworkers’ average total individual income (including farm and nonfarm work) is $15,000-$17,499. The average farmworker family’s total income is $17,500- $19,999. The federal poverty level for a family of 3 was $19,090 in 2012. Twenty-five percent of all farmworkers had a family income below the federal poverty line. However, because the survey results did not include dependents living outside of the United States, this number may not completely reflect the number of families living in poverty.

There is evidence that undocumented farmworkers make less than their documented coworkers, in part because the better jobs go to those with status, and in part due to the higher instances of wage theft that they experience. This must-read Guardian article, which profiles the US’s poorest border town, Colonia Muniz in the Rio Grande Valley of Texas, describes the exploitation of undocumented workers there. The article features an undocumented farmworker, Theresa Azuara, a member of La Union del Pueblo Entero, (LUPE). Theresa describes an instance in which an agricultural employer didn’t pay her at all for two weeks of work. “She said she accepted exploitation as a part of the price of being in the US illegally until she started to attend meetings of [LUPE].”

The Desert Sun recently finished a 3 piece series titled “Death in the Sun” which profiles the large numbers of deaths and illnesses from heat stress in agriculture, the passage of the recent California heat stress legislation and advocacy to prevent heat stress illness.

On a lighter note, NPR’s morning edition is doing a series on the foods of the season and the people behind them. The first story profiles a farmworker, Jose Martinez, who migrates to pick apples in Pennsylvania. Jose’s children attend East Coast Migrant and Seasonal Head Start programs in the different locations where they live throughout the year.

This week’s story focuses on the sweet potato harvest. NPR interviewed a couple, Nabor Segundo and Rosalia Morales, who come to North Carolina from Florida for to work in sweet potatoes and tobacco. Nabor describes the arduous nature of picking sweet potatoes. Nabor and Rosalia also have children in the migrant head start programs.

There is a nice op-ed from our friends at CAUSE in Santa Barbara County, California, "Extend Gratitude to Farmworkers: The Food on our Tables is Picked by People Overworked and Underpaid."

Finally, an interview with “Eric Schlosser on the People Behind Our Food” in Civil Eats offers some solutions to people interested in supporting workers in the food system. Schlosser urges readers to support food workers by fighting for an increase in the minimum wage, support companies that are treating workers well and “fight against the demonization of immigrants in this country. Speak out against the demagogues who are trying to get votes by scapegoating some of the poorest and most hard-working people in the United States.” Farmworker Justice couldn’t agree more.

As you enjoy your Thanksgiving meal, honor all of the workers who made your meal possible. Farmworkers and other food sector workers deserve to be treated with dignity and respect. We therefore appreciate the food magazine, Bon Appétit, for encouraging its readers in its holiday giving article to assist farmworkers by donating to Farmworker Justice.

We appreciate your support for the work of Farmworker Justice. Our policy analysis, advocacy, litigation, education, training, public education and coalition-building empower farmworkers to build a brighter future.

Happy Thanksgiving!
 

Farmworker Justice Immigration Update 11/20/2015

On One Year Anniversary of the President’s Executive Action, Immigrants Wait for Relief

On November 20, 2014, in response to strong organizing and calls for relief by the immigrants’ rights community, President Obama announced a series of administrative actions aimed at addressing our broken immigration system. Farmworker Justice is deeply disappointed that two key actions, the creation of the DAPA (Deferred Action for Parents of Americans) program and expansion of the DACA (expanded Deferred Action for Childhood Arrivals) program, remain in limbo. One year later, millions of potentially eligible families are still waiting for the relief that they need to live in peace, free from the fear of deportation, and to contribute more fully to their communities.

Today we moved one step closer to resolution of the Texas v. US lawsuit with the Department of Justice filing its petition for review in the Supreme Court. The Supreme Court may choose whether or not to review the 5th Circuit Court of Appeals decision upholding the district court’s injunction (order) blocking expanded DACA and DAPA. The Texas v. U.S. lawsuit against the Obama Administration’s DAPA and expanded DACA programs and the ensuing injunction reflects judicial intervention in a political dispute between the Executive Branch and states that disagree with the President’s immigration policy. Farmworker Justice believes the injunction was issued in error and that the ongoing delays perpetuate our terribly broken, inhumane immigration system and stop the federal government from exercising its proper authority. We commend the Department of Justice for its prompt action to seek review of this case in the Supreme Court and we hope the Court will swiftly accept and rule on the case. Farmworker Justice participated in an amicus curiae brief to the Fifth Circuit Court of Appeals and plans to do so for the Supreme Court case as well. We are optimistic that the Supreme Court will rule with the Administration.

DAPA and expanded DACA are vitally important to farmworker families, their communities and the agricultural system. Together, the programs could provide relief to an estimated 700,000 farmworkers and their family members. At least half the farm labor force is undocumented, which contributes to the low wages and labor abuses in the fields. With protection against the constant fear of deportation, farmworkers and other aspiring Americans will be empowered in their workplaces and communities.

Jaime Diaz’s story, published in a Miami Herald op-ed last year, provides just one example of a farmworker whose family could benefit from DAPA. Jaime and his wife have been cultivating and harvesting crops for some 20 years in the United States. With DAPA for Jaime and his wife, Jaime’s family would feel secure and his children would no longer have to fear the police as agents of family separation via deportation. Jaime and his wife and others like them feed us and benefit our economy; they deserve better.

Enforcement Priorities
One successful aspect of the administrative relief is the Department of Homeland Security’s memo that outlines new immigration enforcement priorities. Much work still needs to be done to make sure that the guidelines are followed by enforcement officers and careful consideration is given to exercise prosecutorial discretion in individual cases.

Administrative Action Needed to Curtail Retaliation Against Immigrant Workers

Farmworker Justice joins other allies in continuing to push for workers’ rights by supporting a roadmap to citizenship and urging the Administration to fulfill its goal of “protect[ing] all workers from exploitation and workers’ rights violations, regardless of immigration status.” To support the latter goal, President Obama’s administrative actions included the creation of the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws (“Interagency Working Group”).

The Interagency Working Group’s tasks include the important objective of “strengthen[ing] processes for staying the removal of, and providing temporary work authorization for, undocumented workers asserting workplace claims and for cases in which a workplace investigation or proceeding is ongoing.” While Farmworker Justice and other groups have participated in two stakeholder sessions, we still await concrete actions addressing these issues. Additionally, we hope that the Administration will issue memorandums of understanding between DHS and various federal and state government agencies, such as the NLRB, EEOC, and California’s ALRB.

We are disappointed at the lack of progress on these actions. Meanwhile, workers who seek to improve their working conditions continue to face threats of immigration enforcement in the workplace. In a meatpacking plant in Illinois, ICE conducted an investigation and raid while workers were in the midst of negotiating a new union contract. More about UNITE HERE!’s campaign on behalf of these workers can be found here.

Integral to democracy and human rights is the protection of all workers’ rights. And when some workers at an employer can be intimidated by threats of immigration enforcement, all workers at that employer can lose bargaining power. We urge the Obama Administration to use its remaining year in office to improve protections and establish clear procedures to encourage immigrant workers to exercise their workplace rights and ensure that they are protected from retaliation when they do so. This is extremely important in agriculture where the majority of workers are undocumented.

On this one-year anniversary of President Obama’s executive action on immigration groups across the country are engaged in actions to call for immigration relief and to make clear this is a battle that will continue until we have won immigration reform with a path to citizenship for the 11 million aspiring Americans. For more information on events in your area, please check the Alliance for Citizenship webpage: http://www.allianceforcitizenship.org/calendar.


 

Farmworker Justice Immigration Update 11/20/2015

On One Year Anniversary of the President’s Executive Action, Immigrants Wait for Relief

On November 20, 2014, in response to strong organizing and calls for relief by the immigrants’ rights community, President Obama announced a series of administrative actions aimed at addressing our broken immigration system. Farmworker Justice is deeply disappointed that two key actions, the creation of the DAPA (Deferred Action for Parents of Americans) program and expansion of the DACA (expanded Deferred Action for Childhood Arrivals) program, remain in limbo. One year later, millions of potentially eligible families are still waiting for the relief that they need to live in peace, free from the fear of deportation, and to contribute more fully to their communities.

Today we moved one step closer to resolution of the Texas v. US lawsuit with the Department of Justice filing its petition for review in the Supreme Court. The Supreme Court may choose whether or not to review the 5th Circuit Court of Appeals decision upholding the district court’s injunction (order) blocking expanded DACA and DAPA. The Texas v. U.S. lawsuit against the Obama Administration’s DAPA and expanded DACA programs and the ensuing injunction reflects judicial intervention in a political dispute between the Executive Branch and states that disagree with the President’s immigration policy. Farmworker Justice believes the injunction was issued in error and that the ongoing delays perpetuate our terribly broken, inhumane immigration system and stop the federal government from exercising its proper authority. We commend the Department of Justice for its prompt action to seek review of this case in the Supreme Court and we hope the Court will swiftly accept and rule on the case. Farmworker Justice participated in an amicus curiae brief to the Fifth Circuit Court of Appeals and plans to do so for the Supreme Court case as well. We are optimistic that the Supreme Court will rule with the Administration.

DAPA and expanded DACA are vitally important to farmworker families, their communities and the agricultural system. Together, the programs could provide relief to an estimated 700,000 farmworkers and their family members. At least half the farm labor force is undocumented, which contributes to the low wages and labor abuses in the fields. With protection against the constant fear of deportation, farmworkers and other aspiring Americans will be empowered in their workplaces and communities.

Jaime Diaz’s story, published in a Miami Herald op-ed last year, provides just one example of a farmworker whose family could benefit from DAPA. Jaime and his wife have been cultivating and harvesting crops for some 20 years in the United States. With DAPA for Jaime and his wife, Jaime’s family would feel secure and his children would no longer have to fear the police as agents of family separation via deportation. Jaime and his wife and others like them feed us and benefit our economy; they deserve better.

Enforcement Priorities
One successful aspect of the administrative relief is the Department of Homeland Security’s memo that outlines new immigration enforcement priorities. Much work still needs to be done to make sure that the guidelines are followed by enforcement officers and careful consideration is given to exercise prosecutorial discretion in individual cases.

Administrative Action Needed to Curtail Retaliation Against Immigrant Workers

Farmworker Justice joins other allies in continuing to push for workers’ rights by supporting a roadmap to citizenship and urging the Administration to fulfill its goal of “protect[ing] all workers from exploitation and workers’ rights violations, regardless of immigration status.” To support the latter goal, President Obama’s administrative actions included the creation of the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws (“Interagency Working Group”).

The Interagency Working Group’s tasks include the important objective of “strengthen[ing] processes for staying the removal of, and providing temporary work authorization for, undocumented workers asserting workplace claims and for cases in which a workplace investigation or proceeding is ongoing.” While Farmworker Justice and other groups have participated in two stakeholder sessions, we still await concrete actions addressing these issues. Additionally, we hope that the Administration will issue memorandums of understanding between DHS and various federal and state government agencies, such as the NLRB, EEOC, and California’s ALRB.

We are disappointed at the lack of progress on these actions. Meanwhile, workers who seek to improve their working conditions continue to face threats of immigration enforcement in the workplace. In a meatpacking plant in Illinois, ICE conducted an investigation and raid while workers were in the midst of negotiating a new union contract. More about UNITE HERE!’s campaign on behalf of these workers can be found here.

Integral to democracy and human rights is the protection of all workers’ rights. And when some workers at an employer can be intimidated by threats of immigration enforcement, all workers at that employer can lose bargaining power. We urge the Obama Administration to use its remaining year in office to improve protections and establish clear procedures to encourage immigrant workers to exercise their workplace rights and ensure that they are protected from retaliation when they do so. This is extremely important in agriculture where the majority of workers are undocumented.

On this one-year anniversary of President Obama’s executive action on immigration groups across the country are engaged in actions to call for immigration relief and to make clear this is a battle that will continue until we have won immigration reform with a path to citizenship for the 11 million aspiring Americans. For more information on events in your area, please check the Alliance for Citizenship webpage: http://www.allianceforcitizenship.org/calendar.


 

Farmworker Justice Immigration Update 11/10/2015

Yesterday, the Fifth Circuit Court of Appeals issued its decision in Texas v. US, upholding the lower court’s order blocking the government from implementing DAPA and expanded DACA. One of the three judges, Judge Carolyn King, dissented from the majority and issued an opinion stating, among other things, that the DAPA and expanded DACA memo articulates an exercise of prosecutorial discretion that is not reviewable by the courts and that the case should therefore be dismissed. She also disagreed with much of the reasoning in the majority and district court opinions. Though disappointing, the ruling was not unexpected. However, there is a much better chance that the US Government could win at the Supreme Court. A press release from the Department of Justice indicates that they will appeal the case to the Supreme Court. The prompt decision to appeal increases the chance that the case will be heard by the Supreme Court this term, if the Supreme Court grants certiorari (agrees to review the case). However, because it is already late to make it onto the docket for this term, it may not be heard until 2016, in which case a decision may not happen after President Obama’s term is over. Even if it is not possible to get the case scheduled in the Supreme Court this year, it is still very important for the Obama Administration to fight the case in order to pave the way for a subsequent administration to implement DAPA or a similar program.

While these developments are discouraging, it is important to remember that many farmworkers may still be eligible for DACA if they are able to meet the education requirement. Further, due to the new immigration enforcement priorities, those individuals without criminal histories should not be targets of enforcement. We continue to fight for the immigration reform this nation so desperately needs and believe participation in the political process is critical to our eventual success. Please encourage eligible or potential eligible citizens and voters to educate themselves about the options and vote.

Congressional Attacks on the H-2B Program

After years of litigation, the Department of Labor finally has successfully implemented rules in the H-2B temporary nonagricultural guestworker program that would provide some basic protections for workers. The H-2B program allows employers who can show that they are unable to find qualified willing and available US workers to hire guestworkers for temporary or seasonal jobs. Employers in forestry, landscaping, seafood processing, carnivals, hotels and hospitality and construction use the program. The H-2B program, like the H-2A program, is rife with abuses, due in part to the fact that workers are tied to their employers by their visas. Unfortunately, despite the urgent need for DOL’s very modest protections in the H-2B program, the employer lobby has pushed Congress to respond with attacks on these protections and a proposed expansion of the program.

The Senate Labor HHS appropriations bill that passed out of the Senate Appropriations Committee over the summer contains policy riders that would defund enforcement of many of the protections for H-2B workers and the US workers working alongside of them. The appropriations rider would also lower the already low wage rates in the H-2B program by allowing employer associations to create their own wage surveys of their own members to establish the wage they must pay in the H-2B program. The wages are supposed to protect US workers from adverse effects. For example, while the 2013 Bureau of Labor Statistics, Occupational and Employment Statistics data for pine straw workers in Florida was around $17/hour, an employer association submitted a survey indicating wages of $7.80/hr, one penny above that then-state minimum wage. The appropriations language would also effectively raise the cap in the H-2B program by exempting returning workers from the cap.

As if the stripped protections in the appropriations bill wouldn’t do enough harm, on October 30, 2015, Senators Thom Tillis (R-N.C.), Barbara Mikulski (D-Md.), Mark Warner (D-Va.), and Bill Cassidy (R-La.) introduced the Save our Small and Seasonal Businesses Act of 2015 (S. 2225). S. 2225 would make all the changes in the appropriations bill and would additionally even further reduce worker protections, such as by shifting the program from DOL to DHS and removing DOL’s oversight and enforcement authority. A more detailed analysis of S. 2225 to which Farmworker Justice contributed is available at this link.

Though it may seem that it isn't possible to strip workers of more protections than S.2225 does, some Members of the House have managed to come up with a bill that does so. On November 4th, Chairman of the House Judiciary Committee Bob Goodlatte (R-VA), House Small Business Committee Chairman Steve Chabott (R-OH), Rep. Andy Harris (R-MD) and Rep. Charles Boustany (R-LA) filed the “Strengthen Employment and Seasonal Opportunities Now (Season) Act” (HR 3918). In addition to many of the same changes to the H-2B program in the Senate bill, HR 3918 would strip H-2B workers of access to the health care exchanges and subsidies under the Affordable Care Act and exclude them from certain other tax benefits. Farmworker Justice is still analyzing this bill and will provide more information on it in the future.

These H-2B proposals represent a flawed piecemeal approach to immigration reform that would deprive U.S. workers of job opportunities, lower already poor wages for guestworkers and the domestic workers working alongside them, and allow for exploitative conditions in the workplace. Farmworker Justice opposes these proposals and any proposals to weaken the wages and worker protections in guestworker programs. Instead of giving in to employer demands to lower their labor costs, Congress should be working towards a comprehensive solution to reform our immigration system. Farmworker Justice is working with the International Labor Recruitment Working Group to fight off these harmful proposals.

Immigration in the Presidential Campaigns

In a shameful move, Senator Marco Rubio (R-FL) said that if he is elected President, he would end the Deferred Action for Childhood Arrivals program (DACA) that allows DREAMERS to have a temporary reprieve from deportation and work authorization. As many commentators have pointed out, Rubio has flipped flopped on immigration. He is an original author of the 2013 Senate passed comprehensive immigration reform bill, S744. He appears to be responding to pressure from Trump, whose frequent racist and xenophobic comments are driving the Republican candidates to more anti-immigrant positions.

Tragic Bus Accident

On November 6, a bus carrying H-2A workers from Michigan to Texas crashed in Arkansas, killing 6 passengers. The H-2A workers were reportedly returning to Mexico and were traveling in a bus that was owned by a labor contractor. Our hearts go out to these farmworkers and their families. Farmworkers face many occupational hazards and there have been many deaths from transportation incidents.
 

Farmworker Justice Immigration Update 10/26/2015

Congress

The Senate held a failed vote last Tuesday to move forward on Senator Vitter's (R-LA) “The Stop Sanctuary Cities Act.” The legislation proposed to strip federal funding for local law enforcement agencies with community trust policies that promote good relations between law enforcement and immigrant communities. Such policies vary but they often limit police officers from asking people about their immigration status and the circumstances in which a law enforcement agency will turn immigrants over to federal immigration authorities. These policies make local areas safer. Community members are far less likely to come forward to report crimes and serve as witnesses if they perceive a risk of removal for themselves or their family members.

The measure failed by a vote of 54-45, with most Republicans voting for the measure and most Democrats voting against it. Sixty votes were needed to proceed to a debate on the bill. Senators Joe Donnelly (D-IN) and Joe Manchin (D-WV) voted with Republicans to move forward on the bill. Senator Kirk (R-IL) was the only Republican who voted against the bill. Senator Lindsey Graham (R-SC), a coauthor of the 2013 comprehensive immigration reform bill passed by the Senate, did not vote on the measure. The House already passed its own version of the anti-sanctuary city legislation this past summer, but it will not move forward unless the Senate is successful in passing similar legislation.

Meanwhile, the House has been consumed with drama around the elections for a new Speaker. Majority Leader Kevin McCarthy (R-CA) withdrew his name from the race the day the internal Republican election was scheduled to take place, stating that he didn't have enough support from the Republican caucus. The action came as a surprise and the election was postponed. After many Republican House members called on Rep. Paul Ryan (R-WI) to run for speaker, he announced last Tuesday that he would run for Speaker only if specific terms are met, including the backing of the three main house Republican caucuses, the Republican Study Committee, the Freedom Caucus and the moderate Tuesday Group. On Friday, Ryan announced that he has enough support to run for Speaker (even though he did not receive the 80% needed for an official endorsement by the Freedom Caucus; he does have the support of 2/3 of its members). Reports indicate that in order to win the support of the conservative Republicans, Ryan pledged not to move forward immigration legislation in the current Congress and without a majority of Republicans supporting the measure. Prior to his interest in the Speaker position, Ryan had worked behind the scenes to try to help move immigration reform forward in the House. Rep. Gutierrez issued a statement indicating his disappointment that Ryan made such a promise in order to secure the votes needed for his leadership bid. Speaker Boehner has set the internal Republican vote for October 28th and the House floor vote for October 29th.

Budget issues dominate the agenda in Congress this fall. The US government is set to reach the debt limit on November 3rd, so Congress must vote to raise the debt limit by then. The Federal Government's short term spending bill will expire on December 11th and Congress will have to pass another spending bill to avert a government shutdown. Some Members of Congress see these must-pass bills as an opportunity to insert policy changes into the legislation. President Obama has stated that he will veto anything less than a clean increase of the debt ceiling. Leadership in both parties are interested in negotiating a deal to raise the spending caps in the government's budget and have stated that they want to avoid a government shutdown. Farmworker Justice will be tracking these bills and working with others to prevent riders that would harm farmworkers and immigrants and low-wage workers more broadly.

Administrative Relief

While we prepare for implementation of President Obama’s administrative relief program, its implementation date is increasingly uncertain. The Deferred Action for Parents of American Citizens and Lawful Permanent Residents (DAPA) program that has the potential to benefit over 700,000 farmworkers and their family members remains on hold due to a court order. The Federal Government has appealed the district court’s decision to enjoin the DAPA and expanded DACA programs in Texas v. US to the 5th Circuit Court of Appeals. However, the three-judge panel of the Appeals Court is likely to uphold the lower court’s decision. While the prospects for the Supreme Court to accept the case and overturn the decision are brighter, the appellate decision must be issued very soon or it will be too late for the Supreme Court to rule during the term that ends in June 2016. As President Obama’s term of office ends in January 2017, the future of DAPA remains uncertain.

Farmworker Justice continues to advocate that the administration make DACA and other administrative changes to immigration policy accessible to farmworkers. This includes collaborating with other organizations to urge the administration to take action to protect immigrant workers asserting their labor rights from deportation and provide them access to work authorization. We are also educating farmworker serving organizations on DACA and how to prepare for DAPA by collecting documents through presentations and webinars.

New H-2A Sheepherder Rule

The Department of Labor released a new regulation in the H-2A program for ranchers seeking to employ guestworkers to herd sheep and other livestock on the open range. While the new regulation is a step up from the outdated and stagnant wages and protections currently in the sheepherder program, Farmworker Justice is disappointed that the Department of Labor gave in to industry pressure and lowered the wages from the original wage formula in the proposed rule.

The regulation will replace outdated guidance which allows employers to pay H-2A sheepherders and goatherders just $750 a month to be on call 24 hours a day, 7 days a week and live in mobile housing on the range. The low wages allowed under the H-2A program have been criticized for many years, as have the living conditions which the Government has permitted. Many H-2A sheepherders and goatherders live in isolation in tents or dilapidated trailers with no heat, air conditioning, running water or toilets and rely on their employers to deliver food periodically. They often have no contact with other people for weeks. Human trafficking is not uncommon in this industry.

Under the new regulation, ranchers will be required to pay a higher minimum wage except in states where state law already requires higher pay for herders (currently California). Generally, the ranchers will be required to pay at least $7.25 per hour for 48 hours per week, or about $1,500 per month. This increase will be phased in over three years. The wage formula in the Final Rule is still inadequate to compensate H-2A range livestock workers and to attract domestic workers to these jobs and essentially just requires employers to pay the federal minimum wage. The substantive requirements related to living conditions are also not substantial enough to ensure that these workers have adequate housing, food and access to emergency and other services. The regulations will go into effect on November 16th, 2015. Farmworker Justice's full statement on the regulation is available here.

H-2A Program Continues Steady Increase

The Department of Labor has released the total numbers of H-2A applications processed in FY 2015, which show that use of the program continues to increase significantly. There were about 140,000 jobs certified in FY 2015, up from around 117,000 positions in FY 2014, about a 20% increase. Florida beat North Carolina as the top user of the H-2A program this year, followed by North Carolina, Georgia and Washington. Although the H-2A program remains a small fraction of the 2.4 million in the farm labor force, it is expected to continue its expansion. Even as the program experiences tremendous growth, growers continue to complain that the program is too bureaucratic and difficult to use (i.e., they don’t like DOL’s oversight and the program’s other protections). The wage and worker protections are essential to protect domestic workers and to ensure that growers seek domestic workers before turning to the H-2Aprogram. Unfortunately, violations of program rules are common and much more enforcement is needed. As we’ve mentioned before, the structure of the program is inherently flawed due to the fact that workers are tied to their employers by their visas making them unlikely to come forward and report labor violations for fear of retaliation.


 

Farmworker Justice Immigration Update 10/2/15

The Pope calls for Immigration Reform and Boehner Quits
Last week Pope Francis visited New York City, Philadelphia and Washington, DC where he spoke at the White House and to Congress. The Pope spoke passionately about welcoming immigrants and refugees and treating them with dignity.

Among the events surrounding the Pope’s visit, We Belong Together organized the 100 Women, 100 Miles Pilgrimage, in which 100 mostly-immigrant women walked from a detention center in York, Pennsylvania to Washington, DC to greet the Pope and to demand that migrants be treated with dignity and respect. Along the way, the women met with farmworker members of CATA, the Farmworker Support Committee, to dialogue about successful organizing campaigns among excluded workers.


Speaker of the House John Boehner (R-OH), a Catholic, had invited the Pope to speak to Congress. The day after the Pope’s speech, the Speaker announced that he is retiring from Congress at the end of October. Majority Leader Kevin McCarthy is favored to become the new Speaker and there is likely to be a more competitive race to succeed him as Majority Leader.


As you may remember from previous updates, Kevin McCarthy represents Bakersfield and other areas in Kern County, CA, a district that is 35% Latino and home to many farmworkers. McCarthy has been the target of many protests pushing for immigration reform organized by the United Farm Workers, the UFW Foundation and other groups, but he has not expressed support for comprehensive immigration reform that includes a path to citizenship for undocumented immigrants. The change in leadership is not likely to change the prospects for getting a CIR bill passed in the House nor to change the way Congress functions. The divisions in the Republican Party remain and McCarthy is likely to face the same challenges and obstacles to passing legislation as Boehner.


On Wednesday, the last day of the fiscal year, Congress passed legislation to temporarily fund the government for FY 2016. Despite efforts by some conservative lawmakers to defund Planned Parenthood at the risk of forcing a government shutdown, Congress passed a government spending bill through December 11th when it will have to revisit the budget fight. Senator Ted Cruz’s (R-TX) attempts to block the funding bill were stopped procedurally by Republican leadership and most of the other GOP Senators who are apparently tired of his antics.


New Bill Offers Undocumented Immigrants Access to Healthcare
Rep. Luis Gutierrez (D-IL), an ardent advocate for immigration reform that includes a path to citizenship for undocumented immigrants, introduced the Exchange Inclusion for a Healthy America Act of 2015 on Wednesday, which would expand health insurance access to millions of immigrants, including over a million farmworkers and their family members. The bill would provide undocumented immigrants with equal access to the health insurance exchanges under the Affordable Care Act, including federal subsidies, if they are otherwise qualified for them. Farmworker Justice applauds the bill, which would have a great impact on the health of farmworkers and their families. While the bill is unfortunately not expected to move very far in this Congress, it sends a strong message about the need for a humane, fair approach to immigrants.


North Carolina Seeks to Ban Municipalities’ Community Trust Policies
The North Carolina legislature passed an anti-immigrant bill that would ban local government’s community trust policies that prevent local law enforcement officers from asking about a suspect’s immigration status and sharing immigration information with federal authorities. The bill would also limit the type of identification cards that government agencies may accept. Some law enforcement officers have stated that the inability to accept IDs from embassies and other institutions will require them to arrest people for driving without a license rather than issuing tickets. The bill would be harmful to communities as immigrants who are victims and witnesses of crimes will be less likely to come forward if they are unable to trust law enforcement officers. The Governor has not yet signed the bill. Contact the NC Justice Center for more information.


Farmworker Labor News

This month marks the 50th anniversary of the beginning of the Delano, California grape strike and boycott, when Larry Itlong and Pete Velasco led Filipino American farmworkers in a strike and asked the mostly Latino union led by Cesar Chavez and Dolores Huerta to join them. The two groups would later merge and form the United Farm Workers Union. The United Farm Workers held an event to commemorate the event in Delano.


Congratulations to the brave farmworker women and their attorney, Victoria Mesa, who won a $17.42 million in a sexual harassment lawsuit against Moreno Farms in Florida.

Farmworker Justice is pleased that the EPA issued an improved Worker Protection Standard (WPS) Monday and that it includes many important new protections from exposure to pesticides for farmworkers. Farmworker Justice has worked for many years to improve the WPS in collaboration with many organizations. Read Farmworker Justice’s statement here.
 

MPI Briefing on Farm Labor Highlights Recent Data Trends

The Migration Policy Institute held a briefing on September 16, 2015 titled “ What's New in Farm Labor? Immigration and the Agricultural Sector.” A recording of the briefing can be found here. The speakers included Philip Martin, Chair, UC Comparative Immigration & Integration Program, University of California, Davis; Tom Hertz, Economist, Rural Economy Branch, Resource and Rural Economics Division, Economic Research Service, U.S. Department of Agriculture; and Craig Regelbrugge, Senior Vice President, Industry Advocacy and Research, AmericanHort. Unfortunately, the panel on farm labor and immigration did not include a speaker providing the farmworker perspective, though Farmworker Justice’s Director of Immigration and Labor Rights, Adrienne DerVartanian, had the opportunity to speak briefly from the audience to identify issues important to farmworkers regarding the data and analysis.

The briefing largely focused on data trends in the farm labor market and whether there are indications that the farm labor market is tightening. The briefing also examined the potential impact of legalization of undocumented immigrants on retention of farmworkers as well as a brief discussion of the H-2A guestworker program and future-flow policy proposals.

Dr. Martin provided basic demographic data about the agricultural workforce, much of it derived from the National Agricultural Worker Survey (NAWS) and USDA data. Since 2004, agricultural employment has increased by about 6%. He noted the difficulty of quantifying the number of farmworkers and estimated roughly 1.2 million farm labor jobs and roughly 2.4 million farmworkers ( based on California’s Unemployment Insurance data of roughly 2 farmworkers for every full-time equivalent employee). However,, the rate of undocumented immigration has slowed. The NAWS reveals that there are fewer newcomers in agriculture (workers in the US for less than one year) with a drop from 20% in 2000 to 2% of the agricultural workforce in the latest NAWS data (2011-12). Roughly half of the current agricultural workforce is undocumented, with about 2/3 of foreign-born farm workers lacking immigration status. The remaining farmworkers are about 33% citizens, 18% lawful permanent residents and 1% having some other kind of work authorization. The workforce is also aging: the average age is now 37 and farmworkers tend to be more settled. More NAWS data is available in our factsheet. According to Martin, this data in combination with some other trends provide some indication that the labor market is tightening.

In addition to the above data, Martin pointed to an overall increase in farmworker income. Martin noted that while the data on wages indicates that wages are on average rising slightly, the data is “spotty” and inconsistent; with increases varying from year to year and state to state. Martin noted that the primary increase in income comes from an increase in the number of weeks worked per year, rather than a significant increase in the hourly wage. Tom Hertz pointed to evidence of a modest rising real hourly wage increase for farmworkers as compared to other workers with low education levels— 7% since 2001 compared to -2% for convenience store workers— but also noted the inconsistent data Martin had flagged. Unfortunately, despite this evidence of modest increases, farmworker wages are still very low, with an average wage of just $9.31 across the country or about $15,000-$17,000 per year, and with very little access to any benefits such as health insurance or paid sick leave. 

During the discussion on the tightening labor market, Prof. Martin pointed out that economic incentives in agriculture may create artificial labor shortages with farmers requesting too many workers and contractors promising too many workers too soon. This is how several agricultural counties in California can have unemployment rates over 20% with growers still claiming a “shortage.” Martin also presented data showing that growers in California are increasingly using farm labor contractors to supply their labor. Since 2007, more workers are being brought to California farms by farm labor contractors than are being hired directly.

Prof. Martin raised the question of whether increasing wages actually works, pointing to the belief among many farmers that increasing wages doesn’t attract workers (he questions whether increased wages attracts new workers or merely shifts workers between farms.) This is one place where a worker perspective in the discussion could have been helpful. It’s hard to imagine how increasing wages and offering other benefits would not attract workers; indeed, it is the very premise that drives much of the private labor market. Regelbrugge raised a concern about the feasibility of increasing farmworker wages, noting the global nature of the agricultural market and the increase of imports. Martin’s research actually includes a study noting that a 40% increase in farmworker wages poses little threat to US consumers or the export market, and would only increase US consumer household spending by about $16 per year. Additionally, consumers are growing increasingly conscious about the conditions under which their food is produced, as illustrated by supply chain projects such as the Equitable Food Initiative and the Coalition of Immokalee Workers’ Campaign for Fair Foods, both of which address wages and working conditions by working with corporations at the top of the supply chain.

Regarding H-2A workers, Martin noted the growth in the H-2A program, particularly in Washington and California, which grew from 4,400 worker positions certified in 2012 to 9,000 positions certified in 2014 and 3,000 H-2A positions certified in 2012 and 6,000 in 2014, respectively. Overall, the program has grown from roughly 75,000 positions certified in FY07 to an estimated 130,000 positions certified in FY15. Martin noted that many employers value their H-2A workers because they are “loyal” and do not switch to higher paying employers. Of course, H-2A workers have no choice but to be loyal because their nonimmigrant visa and ability to remain and work in the United States is tied to their employer. This dependence on their employers not only creates a market distortion but it leaves H-2A workers extremely vulnerable to exploitation. Because H-2A workers often pay recruitment fees to come to the United States, their debt can make them even more desperate to please their employers. As a result, H-2A workers will often work to the limits of human endurance to keep their employers --even the law-abiding, good employers—satisfied. Other elements of the H-2A program also cause H-2A employers to prefer their H-2A workforce to the domestic workers, including their ability to pick workers based on age, gender and race; the exclusion of H-2A workers from the Migrant and Seasonal Agricultural Worker Protection Act, one of the main federal protections for farmworkers; and the exclusion of H-2A workers from social security and unemployment taxes.

Tom Hertz also examined the impact legalization has had on farmworkers’ decisions to remain or leave agriculture and on their wages. At Farmworker Justice we have prioritized the issue of immigration reform because the undocumented status of the majority of farmworkers is a major contributing factor to the low wages, poor conditions and extensive illegal practices in agriculture. We believe immigration reform with a path to citizenship that includes the current undocumented and H-2A farmworkers is essential to stabilize the agricultural workforce and improve wages and living and working conditions for farmworkers

There is an assumption among some that farmworkers obtaining immigration status will leave agriculture. As a result, AgJOBS and other agricultural immigration compromises have included future work requirements for agricultural workers and have expanded employer access to guestworker programs. We believe many farmworkers value and enjoy their work, but simply want to be treated with respect and be able to support their families by earning a living wage with benefits. Moreover, many farmworkers may not have the networks, education or English skills needed to obtain many other jobs. Hertz’s extensive analysis of data shows that employer fears are likely overblown.

The data presented by Dr. Martin and Dr. Hertz are helpful in understanding the complicated nature of the US farm labor force. Immigration reform policies in agriculture addressing the future flow of immigrant farmworkers must strike a balance between ensuring enough labor while encouraging a stable agricultural workforce through higher wages and better working conditions for farmworkers and year-round (or closer to year-round) employment. Essential to these goals are a path to citizenship for the 11 million undocumented immigrants that includes farmworkers and their families, and policies that offer equal rights and promote respect and dignity for all farmworkers.
 

Farmworker Justice Immigration Update 9/11

Farmworker Justice Immigration Update Sept. 11, 2015

Congress Back in Session Congress returned from its August recess. Unfortunately, it is unlikely there will be much positive action on immigration for the rest of this year. In the few legislative days scheduled, Congress is likely to be consumed with funding the government for fiscal year 2016 amid threats to shut down the government.

The voluntary E-verify program and the EB-5 Investor Visa program are up for reauthorization this fall. Farmworker Justice will be on the lookout for harmful amendments that would affect farmworker families. Otherwise, Congress plans to continue with its efforts to pass enforcement-only legislation when it comes to immigration. For example, the Senate Judiciary Committee has rescheduled its markup of Senator Vitter’s (R-TN) Stop Sanctuary Cities Act, S. 1814, for Sept. 17th. As we mentioned in our last update, S.1814 would make it unlawful for state and local jurisdictions to fail to comply with federal immigration detainer requests. Violation of the law would make jurisdictions ineligible to receive certain federal funds. Farmworker Justice opposes this bill and other efforts to force localities to enforce immigration law, which undermine immigrants’ confidence in local law enforcement against criminals.

Presidential Campaigning and Immigration Unfortunately, the Republican Presidential primary campaign has taken a very anti-immigrant tone. Donald Trump has gotten a lot of attention for his anti-immigrant, anti-Mexico rhetoric and policy proposal for immigration reform. Trump scapegoats immigrants for the economic challenges that many Americans face. Trump wants to deport all undocumented immigrants, end birthright citizenship and lower the number of future immigrants allowed in the country, as well as make Mexico pay for a wall on our Southern border. Trump also wishes to impound remittances derived from the wages of undocumented Mexican immigrants until Mexico pays for the wall.

While Trump is currently leading the Republican presidential candidates, his unfavorable ratings are high among the rest of the population, the majority of whom support a legalization program with a path to citizenship.

Farmer representatives are quoted in a Politico piece, stating that Trump’s anti-immigrant rhetoric is “terrible for agriculture.” As usual, growers also complained about their supposed difficulty using the H-2A guestworker program. Growers typically complain about the H-2A program because they do not like the government oversight and modest Reagan-era wage and other protections intended to protect US and foreign workers. The protections are necessary because of the limited ability of guestworkers to protect their rights due to their guestworker status and dependence on their employers. Belying grower complaints about the H-2A program are the program statistics, which continue to show H-2A growth and high rates of approval of employers’ applications.

The American Farm Bureau Federation reported that it has worked all year with House Judiciary Committee Chairman Bob Goodlatte to advance an agricultural guestworker bill in the House; however, there is no indication he has any plans to move agricultural guestworker legislation forward. Remember, Goodlatte is the author of the horrible “Agricultural Guestworker Act” that passed out of his committee in 2013 (though the Farm Bureau did not endorse it). The Agricultural Guestworker Act would create a huge guestworker program with almost no worker protections and would require undocumented farmworkers to self deport and apply to become guestworkers without their families.

Trump’s immigration proposal is silent on the issue of guestworker programs for agriculture or other lesser-skilled jobs, but he has aligned himself with anti-immigrant groups and politicians that seek to lower overall immigration, including of guestworkers. The media has reported, however, that Trump’s businesses have hired guestworkers in the past.

Another Republican primary candidate, Ben Carson, who has been steadily climbing in the polls, recently criticized Trump’s plan to deport all undocumented immigrants. Instead, he proposes to make undocumented immigrants guestworkers. While Carson has not elaborated on the plan, guestworker status typically implies that people will not be on a path to citizenship. Moreover, as we know from our experience with the H-2 programs, guestworker programs are rife with abuses. When guestworkers are exploited, US workers are harmed as well by worsening wages and working conditions.

Failing to provide a path to citizenship would create a second-class of Americans, which is antithetical to our values as a nation of immigrants. Moreover, if Trump and other candidates succeeded in their stated goal of ending the Constitution’s guarantee of citizenship to those born in the U.S., they would create a permanent subclass of people living and working in this country. The solution for our broken immigration system must include a path to citizenship for the 11 million undocumented immigrants in the US.

H-2A Litigation Update: Two former H-2A sheepherders filed a complaint alleging price fixing in federal court in Colorado against two associations that bring in sheepherders largely from South America to work under the H-2A agricultural guestworker program. The complaint alleges that the two major associations, the Western Range Association and Mountain Plains Agricultural Service, colluded to keep prices down and US workers out of the market. Sheepherders under the program make around $2 to $3 an hour in most states, live in poor conditions and are often unable to leave the farm. The case is Rodolfo Llacua et al. v. Western Range Association, No. 15-cv-01889 (D.Colo.).

Farmworker Justice Immigration Update 8/07/2015

H-2 Guestworker News

BuzzFeed News published a must-read article on abuses of H-2 guestworkers, “The New American Slavery: Invited to the US, Foreign Workers Find a Nightmare.” The article highlights how the structure of the H-2A temporary agricultural guestworker program and the H-2B temporary nonagricultural guestworker program create extremely poor living and working conditions allowing for wage theft, sexual harassment and in the worst cases, allow for modern day slavery. We have heard that Buzzfeed is interested in additional reporting on the H-2A and H-2A programs.

The problems start for H-2 workers when they pay illegal recruitment fees for the opportunity to work in the United States and therefore arrive indebted and desperate to work to repay their debt. As a result, workers will often work to the limits of human endurance to keep their employers happy with their performance. They 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. Workers also fear being blacklisted the following year, which makes them unlikely to complain about working conditions or labor violations. H-2A agricultural workers also are excluded from the principal federal employment law for farmworkers, the Agricultural Worker Protection Act. The isolation of H-2A and many H-2B workers, who live in employer-provided housing in rural communities, exacerbate these problems.

When Congress turns back to working on comprehensive immigration reform, it must provide opportunities for foreign agricultural and other lesser-skilled workers who perform jobs vital to our economy to obtain legal permanent residence status and eventually citizenship.

In other H-2 worker news, the Southern Poverty Law Center reached a $20 million settlement on behalf of 200 Indian H-2B workers recruited to work for Signal International on the gulf coast after Hurricane Katrina. The workers paid tens of thousands of dollars in recruitment fees, were subject to wage theft and squalid living conditions, and were illegally detained by company security guards. The settlement came after a New Orleans jury awarded $14 million to five of the workers finding that Signal had engaged in labor trafficking, fraud, racketeering and discrimination. As part of the settlement, Signal also agreed to apologize to the workers. Congratulations to the workers, SPLC and its co-counsel on the case!

Congressional Attacks on Community Trust Policies

Much of the immigration news in recent weeks has focused on immigration enforcement. The murder of a woman in San Francisco by an undocumented immigrant who had recently been released from jail prompted Congress to hold hearings and work on legislation addressing the issue of local law enforcement cooperating with federal immigration enforcement officials. Federal immigration authorities had issued a detainer for the man, but a local ordinance prevents San Francisco authorities from detaining non-violent offenders on immigration detainers when they are otherwise eligible for release. Such policies, referred to as community trust policies, seek to encourage immigrant crime victims and witnesses to come forward without fear of immigration enforcement. Several recent proposals in Congress attack local jurisdictions’ community trust policies through legislation that would strip localities of federal money if they fail to enforce immigration laws. 

Many local law enforcement agencies have community trust policies that include guidelines for police officers’ conduct when interacting with immigrant community members. Such policies vary but they often limit police officers from asking people about their immigration status and the circumstances in which a law enforcement agency will turn immigrants over to federal immigration authorities. These policies make local areas safer. Community members are far less likely to come forward to report crimes and serve as witnesses if they perceive a risk of removal for themselves or their family members. Many local law enforcement agencies also argue that their limited resources should be focused on enforcing criminal laws and keeping communities safe. 

Some courts have found that local law enforcement agencies have violated people’s Fourth Amendment rights by detaining immigrants without probable cause in order to turn them over to federal immigration authorities. This prompted many local law enforcement agencies to create limited detainer policies that limit the circumstances in which they will detain immigrants with convictions in order to turn them over to Immigration and Customs Enforcement (ICE).

Community trust policies and limited detainer policies conflicted with the federal government’s Secure Communities program, which was heavily criticized for contributing to racial profiling, eroding trust of local law enforcement by immigrant communities and resulting in Fourth Amendment rights violations. In response to these critiques by law enforcement agencies, community members and immigrants’ rights groups, the Department of Homeland Security (DHS) terminated the Secure Communities program at the end of 2014 and announced the Priority Enforcement Program (PEP) to replace it. PEP aims to focus on the detention and deportation of immigrants convicted of felonies and certain other serious crimes, and those who pose a danger to the community or a threat to national security. PEP attempts to remedy the high probability of Fourth Amendment violations by requiring ICE to present probable cause that the person is removable and issue a request for notification rather than an immigration detainer unless there are special circumstances that would make a detainer preferable.

In July, the Migration Policy Institute released a report, “Understanding the Potential Impact of Executive Action on Immigration Enforcement” analyzing the potential effects of DHS’s shift in enforcement priorities and the change from the Secure Communities Program to the Priority Enforcement Program. The report states that under DHS 2014 enforcement priorities, 87% of undocumented immigrants would not fall into one of the deportation priorities outlined by the Department of Homeland Security. The MPI report also addresses DHS’s attempt to promote collaboration between ICE and local jurisdictions in a way that gives local jurisdictions more autonomy in how they manage ICE detainers. However, advocates remain skeptical about how PEP will be implemented.

Despite repeated assertions by ICE Director Sarah Saldaña and Secretary of DHS Jeh Johnson that DHS does not want to use a mandatory approach when dealing with local jurisdictions, the House Appropriations Committee voted to prevent jurisdictions that do not comply with DHS immigration mandates from receiving DHS grants, including FEMA funds. 

On July 23, 2015, the House passed H.R. 3009, the Enforce the Law for Sanctuary Cities Act, which would penalize jurisdictions that have community trust policies. The bill passed by a vote of 241-179 mainly along party lines with only six Democrats voting for the bill and five Republicans voting against it. HR 3009 would make state and local jurisdictions ineligible to receive “State Criminal Alien Assistance Program” funds if the local authorities follow any law, policy, or procedure that prohibits or restricts communication with DHS or other government entities regarding an individual’s citizenship or immigration status. The bill, authored by Representative Duncan Hunter (R-CA) also targets jurisdictions that prohibit state or local authorities from gathering information on an individual’s citizenship or immigration status. The Act would affect over 300 jurisdictions, including many localities that do not have community trust policies, but have policies aimed at protecting the Fourth Amendment rights of their community members. 

There are several similar bills being drafted by Senators. For example, Senator Vitter’s (R-TN) bill, the Stop Sanctuary Cities Act (S.1814), would make it unlawful for state and local jurisdictions to fail to comply with federal immigration detainer requests. Violation of the law would make jurisdictions ineligible to receive State Criminal Alien Assistance Program funds and chronic offenders would be ineligible to receive Byrne Memorial Justice Assistance Grant Program funds. The Senate Judiciary Committee was scheduled to mark-up his bill on Thursday but has postponed the markup until September. 

Senator Feinstein (D-CA) has also outlined a bill that would make compliance with ICE requests for notification mandatory for state and local jurisdictions. Senator Boxer (D-CA) is considering joining Feinstein on the bill. More than 50 California organizations wrote a letter to the Senators opposing the bill.

The proposed laws are problematic for the same reasons the Secure Communities program was considered controversial. Extended detention based on foreign birth or speculation of immigration status results in violations of the Fourth Amendment rights of individuals. Mandatory compliance erodes trust and goodwill between federal agencies and state and local jurisdictions as well as between community members and local law enforcement agents, eroding the safety of local communities. Farmworker Justice signed a letter by the American Civil Liberties Union signed by 139 organizations opposing the Stop the Sanctuary Cities Act.  

Farmworker Justice Immigration Update 7/20/15

Updates on Administrative Relief: Oral Arguments in the Texas v. United States case and Post-Injunction 3-year Employment Authorization Documents under 2012 DACA

On July 10, the United States Court of Appeals for the Fifth Circuit listened to oral arguments regarding President Obama’s DAPA and expanded DACA deferred action programs. The arguments are available here. If the Obama administration prevails and these programs are implemented, they would provide temporary, but renewable, relief from deportation for approximately 4.4 million undocumented immigrants currently living in the U.S. Roughly 700,000 undocumented farmworkers and their spouses are estimated to be eligible for DAPA or expanded DACA.1

Having heard the arguments, the three judge panel will now have to decide whether to keep in place the injunction issued by the district court in Texas or whether to lift the injunction and allow the programs to be implemented. The issues before the court are whether the state of Texas has standing for its lawsuit against the federal government and whether the claims presented by Texas and the other states are matters than can be decided by the federal courts. Alternatively, the Court can consider on constitutional grounds whether the president overstepped his authority when he created DAPA and expanded DACA programs. If the court finds that the President did overstep his authority, it would affirm the February injunction of the District Court that prevented President Obama’s plan from moving forward.

As to whether Texas and the states even have the power to challenge the federal executive branch's authority to regulate immigration (the “standing” issue), the arguments on that issue largely have centered on the costs Texas would incur by having to issue driver’s licenses to DAPA beneficiaries. Texas has said it would be a burden to have to pay at least $130 each for driver’s licenses for as many as 500,000 unauthorized immigrants who could obtain the licenses if they received deferrals under the president’s programs. Texas is arguing that the driver’s license costs are an injury that gives them the right to sue. Texas Solicitor General Scott Keller told the panel that the suing states will be harmed if the president’s policies are allowed to take effect, as they’d result in undocumented immigrants gaining lawful presence in the U.S and becoming eligible certain health-care benefits. 

On the other side of the arguments, the US Government’s lawyer (Benjamin C. Mizer, a principal deputy assistant attorney general) asked the panel to lift the injunction and clear the way for President Obama’s DAPA and expanded DACA programs. He noted that these programs are meant to protect qualifying immigrants from deportation and allow them to work in the country legally. Judges Smith and Elrod questionned the US government about its contention that the administration had ample authority to focus immigration enforcement on deporting immigrants who commit crimes or threaten national security, and to defer deportations of those who pose little risk to public safety and have families in the United States. Assistant Attorney General Mizer argued that both of the elements at the heart of Obama’s directive — stopping deportations and subsequently granting those immigrants work permits — were legally sound. Judge Elrod’s question in response underscored her skepticism - “So the secretary has boundless discretion to give work authorization to whomever he wants and it is not constrained by congressional law?”

Two of the judges on Friday's panel, Jerry Smith and Jennifer Walker Elrod, were in the majority on the panel that voted 2-1 in May against allowing the deferred action programs to continue pending the appeal of the injunction. In that prior opinion, they disagreed with the US Government’s contention that Texas had no standing. They also previously ruled that the Obama action was subject to judicial review under the federal Administrative Procedures Act (in other words, that the Obama Administration should have engaged in notice and comment rule-making to create the DAPA and expanded DACA programs), which the Justice Department disputes.

The July 10 oral arguments lasted for more than three hours. The judges did not say when a decision will be issued. Whoever the losing party is, it is likely they will appeal the decision. The losing party could seek “en banc” review by the 5th Circuit Court of Appeals; however, it is not clear that this would be advantageous for the US government to do. The next step would be a request for the Supreme Court to review the issue. The timing of the 5th Circuit’s ruling is important because of the limited intake of cases and calendar of the Supreme Court’s oral argument sessions as well as the upcoming presidential campaign. A decision from the nation’s highest court could come during the intensity of the 2016 presidential campaign. The last time around, after the appeals court considered the emergency request to stay the injunction, that ruling wasn’t handed down until more than a month after the oral arguments in April. It’s conceivable a final decision on the constitutionality of President Obama’s immigration executive order may not come until the summer of 2016.

DACA Post-Injunction 3-Year EADs

As we mentioned in our last update, the DACA 2012 program is not affected by the injunction and continues in effect. The only piece of the 2012 DACA program that has been impacted is the issuance by DHS of 3-year employment authorization documents (EADs) after the issuance of the injunction on February 16, 2015. The Judge has ordered DHS to show compliance with the injunction by July 31, 2015 and DHS is replacing the 3-year EADs issued or mailed after the injunction with 2-year EADs. Three year EADs issued or mailed to DACA recipients on or after the February 16, 2015 injunction must be returned to DHS. If DHS does not recover the 3-year EAD, it may call recipients and possibly conduct home visits to recover the 3-year EADs. It is very important that individuals who fall in this category return their 3-year EADs. DHS is threatening to take adverse action against those DACA recipients who fail to return their 3-year EADs, including the possible termination of DACA employment authorization, with possible negative future implications.

This recall does not apply to the approximately 108,000 three-year EADs that were approved and mailed by USCIS on or before the February 16, 2015, injunction date and that have never been returned or reissued by USCIS.

For those who would like assistance knowing whether the recall applies to their EADS, United We Dream has developed a tool for people to "screen" themselves: www.unitedwedream.org/uscisalert

Additional resources are available on USCIS’s webpage in English or Spanish

On CLINIC’s webpage in English and Spanish

And from NILC: http://nilc.org/nr071515.html.

 


1Ed Kissam and Jo Ann Intili, Number, Distribution, and Profile of Farmworkers Eligible for DAPA or DACA, (Revised/Expanded analysis), Werner-Kohnstamm Family Fund, Dec. 12, 2014, at p. 3, available at http://www.wkfamilyfund.org/docs/Profile-Farmworkers-Eligible-for-DAPA-or-DACA.pdf.

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