Law Criminalizing ‘Encouragement or Inducement’ of Immigrants to Live in the US Unlawfully Is Upheld in SCOTUS Case

 

Written by Kelly Chauvin, Summer 2023 Legal Intern for the American Immigration Council

Last month, the U.S. Supreme Court held that a section of immigration law that forbids “encourag[ing] or induc[ing]” a non-citizen to enter or reside in the United States did not violate the U.S. Constitution’s protection of free speech guaranteed in the First Amendment. The Court’s decision, however, places certain limits on the statute’s application.

The case of U.S. v. Hansen involved the prosecution of a fraudster whom the government charged with violating the “encouragement and inducement” statute after he scammed immigrants by promising them a path to U.S. citizenship through adult adoptions. Unfortunately for the victims, this path does not exist.

In fighting the charges, the defendant argued the “encourage or induce” subsection was unconstitutional because in its effort to regulate unprotected speech—like criminal conduct—the law risked infringing on protected speech.

More information https://www.inmigracionyvisas.com/a5789-in-the-US-Is-Upheld-in-SCOTUS-Case.html

The Supreme Court Heard A Major Case On DACA. Here’s What You Need To Know

By Jorge Loweree

The Supreme Court heard arguments on November 12 in three cases challenging President Trump’s attempted rescission of the Deferred Action for Childhood Arrivals (DACA) initiative. The Court’s decision could have far-reaching consequences for DACA recipients and the limits of executive authority when it comes to immigration law and policy.

President Obama created the DACA initiative in June 2012 to provide young unauthorized immigrants with protection from deportation and the ability to work lawfully in the United States in two-year renewable increments. All applicants were required to meet specific criteria related to age, education, and criminal history. Government data indicates that approximately 661,000 people are currently enrolled. President Trump terminated the program September 5, 2017.

On Tuesday, the Supreme Court focused on one primary question: did the Trump administration provide an adequate explanation for why it ended DACA?

Anytime the Executive Branch makes a major policy decision such as ending DACA, it must explain why and ensure that the reasoning is not “arbitrary and capricious.” The Trump administration needed to provide a reason why it was ending an initiative that hundreds of thousands of people had benefited from and relied upon.

In two memos announcing the rescission, administration officials claimed DACA was an unconstitutional exercise of executive authority, and thus “illegal” from the start. Both memos failed to offer any policy justifications for the termination of the program. They instead pointed to a decision by the U.S. District Court in Brownsville, Texas barring a similar program known as Deferred Action for Parents of Americans (DAPA) as proof that DACA was illegal.

In response to several lawsuits, lower courts across the country issued injunctions against the rescission. This forced the government to continue accepting and adjudicating DACA requests from people who have DACA or those who participated in the past. These lawsuits then made their way to the Supreme Court.

The Supreme Court focused on the Administrative Procedure Act (APA) when it discussed whether the president’s decision to eliminate DACA is one that can be reviewed by federal courts and, if so, if it was lawful as implemented. The APA sets forth the standards governing the judicial review of decisions by executive branch agencies.

The APA permits a federal court to review whether government action is “arbitrary or capricious,” or otherwise not in accord with the law. It thus provides a check on government decisions that do not have lawful, rational justifications.

This review is particularly important when major policy decisions would significantly impact the lives of hundreds of thousands of people across the United States, like the attempted rescission of DACA. The APA contains an exception, however, for actions considered to be within an agency’s discretion.

The administration argued that its decision falls within this exception and is therefore not reviewable by the courts. This is a curious position given its exclusive focus on the DAPA case in Texas as its justification for rescinding DACA.

The respondents—the parties that initially challenged the DACA rescission—argued that the original memo rescinding the policy contained factual and legal errors, and that the reasoning provided for the decision was insufficient.

Initial reports indicate that a majority of the justices appear ready to allow the administration to move forward with the rescission of the program.

The consequences of simply revoking a program like DACA that people have come to rely on for many years are dire. The lives of hundreds of thousands of people who participated in the program over the last seven years would be thrown into disarray.

It would then be up to Congress and the president to negotiate a permanent solution allowing DACA recipients to live and work in the United States without the constant threat of deportation. The House passed such a measure in June of this year.

Source: www.immigrationimpact.com

https://www.inmigracionyvisas.com/a4615-DACA-Here-What-You-Need-to-Know.html

Which Immigration Cases Will The Supreme Court Rule On This Session?

By Katie Rane www.immigrationimpact.com

The Supreme Court began a new session this October, and in the coming months, the justices will hear several high-profile immigration cases.

These cases involve the attempted termination of the Deferred Action for Childhood Arrivals (DACA) initiative, the highly-criticized killing of a young boy in Mexico by a Border Patrol agent, and the criminal prosecution of immigrant workers.


The Termination of the DACA Initiative

On November 12, the Supreme Court will consider the Trump administration’s decision to end DACA, an Obama-era initiative that offers legal protection to some immigrants who arrived in the United States as children. Previous decisions from lower courts have temporarily stopped the termination.

The plaintiffs in this case (Department of Homeland Security v. Regents of the University of California) claim that the attempted rescission of DACA violates the Administrative Procedure Act (APA). The APA outlines specific procedures that must be followed in implementing large-scale policy changes to prohibit executive decisions that are “arbitrary and capricious.”

The end of DACA would upend the lives of hundreds of thousands of people in the United States and would increase the number of unauthorized immigrants in the United States by nearly 700,000. This could have disastrous effects for DACA recipients, their families, and the country at large.


Young Boy in Mexico Killed by Border Patrol Agent

The Supreme Court will also hear a case on November 12 based on the story of a 15-year-old boy who was shot in Mexico by a Border Patrol agent in the United States. The case is Hernandez v Mesa.

Sergio Hernandez, a Mexican citizen, was playing with a friend in the canal between Juarez, Mexico and El Paso, Texas when Border Patrol agent Jesus Mesa fired shots from the U.S. side. One bullet hit Hernandez, who was on the Mexican side of the border, killing him.

The Court will determine if Hernandez’s family can sue the Border Patrol agent for damages.

In order to recognize the family’s claim for damages, the Court must determine that the agent violated the U.S. Constitution by using excessive, deadly force against Hernandez. In making this determination, the Court will consider whether Agent Mesa is protected under “qualified immunity,” a legal doctrine that protects federal officers from prosecution when they act within the scope of their employment.

Cases involving excessive force and abuse rarely result in serious disciplinary action by the agency. A Bivens remedy in this case would create real consequences for immigration officials who violate noncitizens’ rights.

The Prosecution of Immigrant Workers The immigrant worker case (Kansas v. Garcia) deals with three individuals accused of identity theft—a state crime—based on information they provided in federal employment documents. On October 16, the Supreme Court will address whether federal documents can support state criminal charges and whether federal immigration law prevents states from criminally charging noncitizens for identity theft.

This case highlights a recurring pattern in the prosecution of unauthorized immigrant workers: it is the workers, not the employers, being brought to court.

For example, in the Mississippi ICE raids this summer, a federal investigator testified that there was probable cause to believe that employers hired unauthorized workers “for the purpose of commercial advantage or private financial gain.” Yet none of the employers have been prosecuted.

Each of these cases will have far-reaching policy implications affecting immigrants throughout the United States. Hopefully, the Court will take this opportunity to increase the due process rights of individuals impacted by immigration enforcement in the United States.

Source: www.immigrationimpact.com

https://www.inmigracionyvisas.com/a4550-Immigration-Cases-Will-the-Supreme-Court-Rule.html

DACA Is Still In Effect As It Heads To The Supreme Court

Written by Aaron Reichlin-Melnick

The Ninth Circuit Court of Appeals issued a stinging rebuke to President Trump’s ongoing efforts to end the Deferred Action for Childhood Arrivals (DACA) initiative last week, unanimously upholding a lower court injunction which had blocked the Trump administration from ending the program. 

Just three days before that hearing, the Department of Justice (DOJ) took the unusual step of asking the Supreme Court to bypass the appeals process and hear the DACA case before the Ninth Circuit issued a decision. Now that the Ninth Circuit has ruled, the Supreme Court could take up the case as early as next spring—with DACA remaining in effect until they rule. 

Back in September 2017, the administration announced that it would be ending DACA, the initiative which allows undocumented immigrants brought to the United States as children to receive temporary permission to remain in the country. Multiple lawsuits challenging the termination of DACA soon followed. 

In one of those challenges, a federal court in San Francisco found that the administration’s termination of DACA was “based on a flawed legal premise” and ordered the government to continue processing renewal applications. Courts in New York and the District of Columbia soon followed suit with similar orders, which remain on appeal. 

The Ninth Circuit’s decision concluded the same. Though DOJ had argued the original DACA initiative was illegal and unconstitutional—supposedly giving the agency no legal ability to review or continue the program—the court found differently. The Ninth Circuit determined that it had the authority to review and reject the administration’s conclusions as to whether DACA was legal. 

Noting that many previous presidents (including Eisenhower, Reagan, and H.W. Bush) had provided discretionary immigration benefits to large groups, the Ninth Circuit declared that DACA “was a permissible exercise of executive discretion.” Since the administration had offered essentially no other reason for ending DACA beyond its claim that DACA was illegal, the Ninth Circuit held that the government had improperly ended DACA. 

Importantly, the Ninth Circuit was clear that the administration could have chosen to end DACA as a matter of discretion at any time—but had chosen not to, instead relying on the legal conclusion that it simply had no authority to continue the initiative. It is possible that the administration chose not to use its discretion to end DACA because in doing so it would have been forced to admit it was legal. 

Although judges ruled 3-0 against the government, at least one judge on the Ninth Circuit would have gone even further. In a concurring opinion, Judge Owens declared that the plaintiffs should have been granted an injunction due to the administration’s “unconstitutional racial animus” against DACA holders. Most DACA beneficiaries are Latino, people who have borne the brunt of the president’s attacks on immigrants. 

Now that the Ninth Circuit has ruled, the case is directly on path to the Supreme Court. Until the Supreme Court issues a decision, individuals who have DACA can continue to apply for DACA renewals and the government will continue to process them. If the Supreme Court accepts the case, it is likely that a decision would come at the end of the term in June. Until then, the initiative remains in place.

Última Actualización: Noviembre 19 de 2018
Fuente: www.immigrationimpact.com