DACA Continues Amid Legal Challenges and Uncertain Future

The Deferred Action for Childhood Arrivals (DACA) program faced another legal setback after a three-judge panel at the U.S. Fifth Circuit Court of Appeals issued a decision holding that the program was unlawful. The ruling affirms the decision issued in a lower court by U.S. District Judge Andrew Hanen that the program was not legal because it was not subject to public notice or comment under the federal Administrative Procedures Act requirements. The 5th Circuit’s decision sends the case back for review to Judge Hanen, tasking him with evaluating whether or not the Biden administration's new regulation on DACA, issued in August of this year, is in compliance with federal law.

In a hearing on October 14, 2022, Judge Hanen indicated that he would allow the DACA program to remain in place for the time being but noted that the court would undertake a review of the new regulations related to the program. No timetable was provided for this review. The ruling keeps DACA in place and allows those who received work permits and deferred status to keep benefits, but it stops the administration from approving new applications.

The new rule took effect on October 31, 2022, and despite being 453 pages long, it provides little substantive changes to the DACA program that has been in place since 2012. Instead, the Biden administration hopes this procedure will allow DACA to withstand future legal challenges. The legal challenges against the program have been led by conservative states, including Texas, who argued that it was not legal when President Obama originally established it. Legal experts believe the Supreme Court may ultimately hear the case if Judge Hanen strikes the program again.

The Supreme Court has previously considered issues related to the program, including a 2020 5-4 decision, which held that the Trump administration failed to follow federal procedures when it ended the program. Despite these previous rulings, many remain concerned that the conservative-leaning body will vote against the program. President Biden issued a statement expressing disappointment over the continued legal challenges to DACA and called on Congress to pass a comprehensive solution to the issue. 

"Today’s decision is the result of continued efforts by Republican state officials to strip DACA recipients of the protections and work authorization that many have now held for over a decade," Biden said in a statement. "And while we will use the tools we have to allow Dreamers to live and work in the only country they know as home, it is long past time for Congress to pass permanent protections for Dreamers, including a pathway to citizenship."The fight leaves more than 600,000 DACA recipients in legal limbo, uncertain of what their ultimate future may be in the United States. While President Biden has claimed that he will do “everything within [his] power” to protect the program, advocates are calling for a permanent solution to the issue. This includes legislative solutions that provide DACA recipients with a pathway to citizenship. However, the prospects for legislative solutions may prove difficult if Democrats lose control of Congress in the upcoming November election. Many DACA recipients remain critical of both the decision by the courts and the failed promises by Democratic lawmakers and administrations that have kept them in an uncertain and precarious situation for years.

“It is beyond time for Congress and Biden to act on their promises to secure permanent protections for Dreamers, including a pathway to citizenship, once and for all,” the advocacy group Families Belong Together said in a statement cited by Politico.  

What does this mean for DACA Recipients? It is important to note that this ruling does not change the status quo for DACA recipients. They can continue to work and enjoy their benefits and status under the program. Furthermore, it does not appear that Judge Hanen will make a sudden decision to strike down the program, though that remains a possibility in the future as he reviews new rules put forth by the Biden administration. Many believe that if Judge Hanen ultimately decides to end the program, his decision will include a “wind down” period based on the impact the termination may have on DACA recipients. The ruling does prevent USCIS from approving any new applications for the program and leaves the ultimate future of all DACA recipients up in the air. For the latest updates on USCIS, including changes that may occur after the publication of this blog, please check the USCIS website on DACA.

9th Circuit Rules Against California's Ban on Private Immigration Detention

The United States Ninth Circuit Court of Appeals has issued a new ruling on AB 32, a California law that banned the use of for-profit prisons, jails, and immigration detention facilities. The ruling by an 11-judge en banc panel of the court affirmed a three-judge panel’s ruling that the provision of AB 32 that banned the use of private detention facilities by U.S. Immigration and Customs Enforcement (ICE) violates the Constitution. The ruling is a setback for legislators who had supported the ban on private facilities as part of a broader campaign to protect the health and safety of California residents.

 The ruling is the latest decision in a legal battle that has gone on since 2020, which started after the private prison company Geo Group, Inc. (GEO) and the federal government sued California to stop enforcement of the legislation. GEO and the federal government had specifically asked for an injunction against the state of California from enforcing AB 32 against private facilities used by ICE. Immigrant Legal Defense, along with Immigrant Defense Advocates, the California Collaborative for Immigrant Justice, and the Center for Gender and Refugee Studies, filed an amicus brief in the case, asking the court to consider the bad faith conduct of private prisons in California. In 2020, a lower district court ruled that California had not violated the constitution in passing AB 32 and denied GEO the injunction it had sought, reasoning that the ban was focused on ensuring the health and safety of residents as opposed to interfering with the enforcement of immigration laws.

The ruling was appealed to the 9th circuit, with the panel of judges overruling the lower court's decision and sending the case back to be reconsidered by the district court. The ruling by the Ninth Circuit specifically found that AB 32 violated the “Supremacy Clause” of the Constitution, which prevents states from interfering with the federal government's activities. In an opinion written by Judge Jacqueline H. Nguyen, the court held that AB 32 “would override the federal government’s decision, pursuant to discretion conferred by Congress, to use private contractors to run its immigration detention facilities.”The majority held that California was interfering with the enforcement of federal laws by denying ICE the ability to use private facilities to house immigrants detained by the agency for deportation. Arguing that AB 32 “...would give California a “virtual power of review” over ICE’s detention decisions… and allow the “discretion of the federal officers [to] be exercised . . . only if the [state] approves.”

The court believes that the state went too far in effectuating this ban. “California cannot exert this level of control.” Advocates commenting on the decision disagreed with the majority, pointing out that the court’s decision focused almost exclusively on issues related to constitutional law and state interference but ignored the state’s interest in protecting health and safety by banning private facilities.  Hamid Yazdan Panah, with Immigrant Defense Advocates, told the L.A. Times, “What I think is really missing from this decision is any sort of recognition of the harm inflicted on people and families by these facilities.

”The ruling does not mean the fight for AB 32 is over. Instead, the Ninth Circuit is sending the case back to a district court to consider the request based on its ruling with respect to the constitutionality and to consider other factors in deciding whether to grant an injunction against the state of California. These factors include the public interest. Jackie Gonzalez, Immigrant Defense Advocates’ policy director, said any such analysis, if done correctly, should weigh in favor of the state’s ban. “There’s no doubt that a law that puts the lives and humanity of people over profits ... is in the public interest,” she said. Gonzalez also disagreed with the majority's decision, arguing that the enforcement of immigration laws does not necessarily mean the creation of private detention centers, citing the broad discretion ICE has to refer people to court without placing them in a detention facility.  In a statement to the San Francisco Chronicle, she noted, “Immigration laws in this country can be enforced without locking people up for profit.” A dissenting opinion, written by Chief Judge Mary H. Murguia and two other judges, disagreed with the majority and argued that the law did not directly regulate the federal government and, thus, should have been deemed constitutional.

The dissent argued the bill had originally been written to exercise the state’s police powers to protect health and safety. “The court took judicial notice of AB 32’s legislative history, which supports the conclusion that the state law responds to concerns about the health and welfare of detainees within the state’s borders. This legislative history included committee analysis referring to a 2016 Department of Justice report documenting higher rates of inmate-on-inmate and inmate-on-staff violence, as well as higher rates of use of force by staff, at private prisons.”It further noted that the bill was not intended to interfere with immigration enforcement.  “AB 32 may have an impact on federal immigration operations, but it is not an immigration law or a law regulating the federal government. Indeed, the law mentions neither immigration nor the federal government.”

The dissent closed by arguing that they did not believe the law was unconstitutional based on recent decisions by the Supreme Court. California Attorney General Rob Bonta wrote the bill during his time in the state legislature, told the L.A. Times that he was “deeply disappointed” with the ruling, and provided the following statement. “Assembly Bill 32 was enacted to protect the health and welfare of Californians and recognized the federal government’s own documented concerns with for-profit, private prisons and detention facilities. At the California Department of Justice, we’ll continue to do our part to stand up for the dignity and rights of everyone in our state.” Read more about AB 32 in prior ILD blogs below:

• AB 32 Ruling May Change Immigrant Detention Forever

• AB 32 and the Future of Immigration Detention in California

• 9th Circuit Rules Against AB 32, Advocates Vow to Fight On

Despite Tens of Thousands of Applications, Afghans Have No Clear Path to the United States

The U.S. Citizenship and Immigration Services (USCIS) is facing renewed criticism over the treatment of Afghans seeking refuge after reports that the agency approved fewer than 2% of Afghans who applied for humanitarian parole. Advocates have pointed not only to the abysmal grant rate but also to the disparate treatment afforded to Ukrainians by the same agency.

The new scrutiny comes at a time when USCIS announced that it would be ending the use of humanitarian parole for Afghans and instead shift its focus to “permanent resettlement.” Beginning on October 1, 2022, the United States plans to discontinue the use of parole for Afghans entering the United States. The use of parole allows individuals to enter the United States and bypass visa requirements or other processes that can often take years before entry is allowed. The Biden administration has claimed that the shift is an attempt to move away from emergency evacuations and develop long-term resettlement capabilities. 

"Moving forward, Afghan arrivals will enter the United States with a durable, long-term immigration status that will facilitate their ability to settle and integrate into their new communities more quickly, and they will also travel directly to their new destination community without the need for a stop-over at a safe haven in the U.S.," an administration official told CBS news. However, the move has been met with skepticism by advocates, many of whom believe that the United States has failed to address the humanitarian crisis left in the wake of its withdrawal from Afghanistan in 2021. One of the primary concerns centers on the fact that nearly 50,000 Afghans applied for humanitarian parole through USCIS, but most applications remain unadjudicated, and the majority have been rejected. In particular, advocates are outraged that USCIS collected tens of millions of dollars in fees for the applications, has denied the majority of cases, and has done little to set up an alternative path for Afghans who remain in the country.  “The sheer magnitude of some of the failures, such as (nearly) $20 million in fees collected only to approve 123 applications, paints a more dire picture than perhaps we even realized,” Sunil Varghese, policy director at the International Refugee Assistance Project, said in an email with Reveal News.

“The U.S. military and diplomatic presence in Afghanistan may have ended last August, but the U.S. government’s obligations to at-risk Afghans did not. These shockingly low processing numbers should serve as a reminder that the U.S. can and should do more.”Criticism of USCIS reached a peak during a talk at UCLA by the agency’s Director, Ur Jaddou. Students staged a walkout during her discussion of the topic, holding signs critiquing the failure of USCIS to adjudicate Afghan parole requests fairly. During the discussion, Jaddou was asked specific questions on the development of special programs for Ukrainians seeking entry to the United States when no such program was set up for Afghans. Students were not the only ones who have taken notice of the disparate treatment between Afghans and Ukrainians. U.S. Senator Jeanne Shaheen (D-NH), a senior member of the Senate Foreign Relations and Armed Services Committees, joined Senator Ed Markey (D-MA) in a letter to the Biden administration raising concerns over the inconsistent treatment of the two populations and calling for “an approach to Afghan parole applications that mirrors the new treatment of Ukrainian applications, including accelerating the processing of Afghan parole applications, waiving (or refunding) application fees, and not requiring a showing of targeted violence.

”The letter emphasized that applications by Ukrainians have been processed in an expedited manner and were received with no associated fees, while applications from Afghans have remained unadjudicated for months and have experienced higher denial rates. The letter also noted the requirements for Afghans to attend in-person consular interviews and fact-specific documentation attesting to their need for humanitarian parole, while Ukrainians face no such requirements. While the announcement by the Biden administration that it would be focused on permanent resettlement options for Afghans has been welcomed by some, advocates remain concerned about the fate of thousands of Afghans who have yet to receive a response to their pending humanitarian parole applications.

The administration has also touted the fact that it has successfully evacuated 80,000 Afghans to the United States. But advocates have noted that this does not take into account tens of thousands of Afghans who have filed applications with USCIS, asking for humanitarian parole. Many of whom have limited alternative options for resettlement. Speaking to Reveal News, Wogai Mohmand, co-founder of Project ANAR, a non-profit launched to assist thousands of Afghans applying for humanitarian parole, expressed skepticism of the announcement and noted that the policy shift “doesn’t help any of the Afghans that filed for parole or that remain in Afghanistan.” 

Despite Supreme Court Ruling, Biden Administration Slow to End "Remain in Mexico" Policy

The Biden administration is facing renewed criticism for failing to terminate the notorious Migrant Protection Protocols (MPP), despite a Supreme Court decision authorizing the administration to end the program. The MPP, also known as the “Remain in Mexico” policy, is a program enacted by the Trump administration designed to prevent migrants from crossing into the United States. At the same time, they apply for asylum, effectively forcing them to remain in Mexico while their claims are adjudicated in the United States. More than one month has passed since the Supreme Court issued its ruling, yet the administration has been slow to cease the policy. The policy has been slammed by advocates who note that requiring migrants to remain in Mexico forces them to remain in unhealthy camps and shelters, often becoming the target of violence or exploitation in dangerous cities along the border. 

The Biden administration had previously attempted to end the program in the summer of 2021. Still, it was prevented from doing so by Texas and Missouri, who sued to keep the program in place, claiming increased costs would burden them. A federal district judge ruled in favor of the states and ordered the administration to keep the program in place. A circuit court upheld the ruling despite attempts by the administration to issue a new legal memo to end the program. However, on June 30, 2022, the Supreme Court decided in a 5-4 ruling that the administration did have the right to end the program and that lower courts were incorrect in their rejection of the memorandum issued by the Biden administration to justify the termination of the MPP. The MPP stands as one of the most notorious border policies by the Trump administration and has been decried as not only racist but illegal.

Advocates argue that the program is a dangerous departure from international norms that require nations to provide safety to those seeking asylum. The program stands as a frightening example of policies that Western governments may adopt to deter migrants, forcing third countries to host migrants in dangerous and unhealthy conditions. For many, it is no surprise that these policies target people of color and those from the global south. The U.S. Homeland Security Secretary Alejandro Mayorkas commented, welcoming the ruling but noted it may take time to implement. "We need to wait until the Supreme Court's decision is actually communicated to the lower court, to the federal district court and the Northern District of Texas ... So, we have to wait several weeks for that procedural step to be taken," he said. However, critics of the administration remain unconvinced. “Their hands aren’t tied,” said Blaine Bookey, legal director of the Center for Gender and Refugee Studies at the University of California, Hastings, in an interview with Times.

“Every single day [MPP is] in place, it’s causing harm, it’s endangering lives, and it’s frankly allowing the Trump Administration to rule from the grave.”Immigration, in general, and the border continue to be a touchstone of controversy and conflict under Biden, just as they were under Trump. While the Trump administration made good on threats to enact anti-immigrant policies and build a divisive wall, the Biden administration has built a track record of breaking promises made on the issue of immigration and continuing Trump-era policies at the border. Despite stating during his campaign that he would not build “another foot” of the Trump border wall, Biden has continued construction on the wall and sought to preserve much of the administrative capacity to detain and deport migrants at the southern border.

His administration promised to end the Title 42 program, which provides border authorities broad discretion to deport individuals under the pretense of protecting public health. Notwithstanding this promise, Biden has continued to use the program to prevent more than 1.8 million people from entering the United States. Biden even went so far as to promise to end the use of for-profit immigration detention facilities. Still, his administration has worked to expand their use and sued states like California that sought to ban their operations. These broken promises are particularly disappointing for advocates that point to Biden’s reluctance to exercise the power that Trump wielded so broadly to terrorize and intimidate immigrant communities.

What may be most disappointing for critics is not only Biden’s broken promises or disorganized strategy but his inability to imagine immigration policies beyond the status quo of exclusions, walls, and deportation. In an interview with Time, Felicia Rangel-Samponaro, the co-director of The Sidewalk School, an organization in Mexico dedicated to helping migrant children, slammed the Biden administration’s continued policies of deportation, which she believes will continue even if the MPP is terminated. “MPP could end right now as we speak, and that would make no difference and Reynosa or Matamoros,” she says. “People will still be stuck [in Mexico]. The expulsions will continue to Reynosa seven days a week.”

About the California Legal Immigration Fellowship

Immigrant Legal Defense provides mentorship for new immigration attorneys in rural California as part of the California Immigration Legal Fellowship – a historic partnership with the state of California, which increasingly recognizes immigration legal access as a fundamental equity issue. To date, ILD has supported ten fellows at organizations in California’s Central Valley and the Central Coast – locations historically limited in their capacity to provide pro-bono direct representation and who have never before been able to represent clients in detention.

Clients of ILD & the Immigration Legal Fellowship recently wrote this letter of thanks to supporters of this program:

As a husband and wife with two children and deep ties to California, we are writing to share our story with you and to tell you how big of an impact the California Immigration Legal Fellowship has made on our family.

We met and fell in love in 2016. L is a U.S. citizen who was born and raised in Bakersfield, California, but her husband, H, had recently immigrated from El Salvador to the United States because gangs had threatened him back home. He was facing deportation, which terrified the both of us. The possibility of him being sent back to danger in El Salvador was even more terrifying once we had children.

We tried everything we could to get a lawyer to help H apply for protection here. In Bakersfield there aren’t many immigration attorneys, and we’d heard that we had to be really careful because attorneys might charge you a lot of money but not do a good job on your case. The idea that we’d hire the wrong person was scary to us, but in the end we couldn’t find any local attorneys who could take our case. We spoke to a few notarios, and one told us to go to Fresno or Los Angeles. We did everything we could to find help for H’s case in the Central Valley, but nothing panned out. We started to give up.

Then, when L was a student at California State Bakersfield, she started getting emails from the
school administration announcing a new program: students with immigration legal questions could sign up for a free consultation with Immigrant Legal Defense (ILD) because of a program paid for by the state of California. She signed up and told the attorney about our family’s situation. Soon, we were connected to an attorney, Irving, a California Legal Immigration Fellow from Coalition for Human Immigrant Rights (CHIRLA who was supervised by an attorney, Laura Polstein, at ILD). Laura and Irving didn’t charge us any money, and we immediately felt comfortable with them and saw they would fight for our family. They helped us apply for every option available to protect H from being deported back to danger and to
keep our family together.

We are a family that values community and works to help others. L graduated from Cal State Bakersfield in 2021 with a degree in Psychology and now works for the local school district, helping connect bilingual families to early education opportunities. L’s brother joined the National Guard and is currently deployed in Poland, where he is helping Ukrainian refugees fleeing war. Once he secures legal status, H is eager to work in support of our community, too.

Our family needed an immigration attorney, someone to reach out their hand and help. We knocked on so many doors, and are so grateful that we finally found the California Immigration Legal Fellowship. Without this program, we don’t know where we’d be. We spent years walking around in fear that we’d be separated, that H would be killed back home. We have deep roots in California and want to stay here, safely and together. None of this would be possible without the California Immigration Legal Fellowship, and we are so grateful to you for your continued support of this program, making sure families like ours receive this same support throughout California.

Thank you, from the bottom of our hearts.