- Eli Kantor
- Beverly Hills, California, United States
- Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; firstname.lastname@example.org. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com
Thursday, April 28, 2016
By Rafael Bernal
April 27, 2016
Registration among Latino voters is skyrocketing in an election cycle dominated by Donald Trump and loud GOP cries to close the border.
Arturo Vargas, executive director of the National Association of Elected and Appointed Officials (NALEO), projects 13.1 million Latinos will vote nationwide in 2016, compared to 11.2 million in 2012 and 9.7 million in 2008.
Many of those new Latino voters are also expected to vote against Trump if he is the GOP nominee, something that appears much more likely after the Republican frontrunner’s sweeping victories Tuesday in five East Coast states.
A whopping 80 percent of respondents in a poll of registered Hispanic voters in Colorado and Nevada said Trump's views on immigration made them less likely to vote for Republicans in November. In Florida, that number was 68 percent.
The figures are sparking confident tones from Democrats, who think their party’s nominee will benefit from a huge advantage in the fall not only in the presidential race, but in battles for the House and Senate.
Because of the contrast between the GOP and Democratic fields, “we feel absolutely confident about our chances of electing Democrats up-and-down the ballot in November,” said Walter Garcia, western regional director for the Democratic National Committee.
Many of the newly registered Latino voters are in California and Texas, relatively safe states for Democrats and Republicans, respectively.
In fact, because so many Hispanic voters live in those states, the effect of the rising registration numbers will be somewhat undercut, according to Vargas.
Still, rising registrations among Hispanics in Colorado, Florida and Nevada could make it easier for the Democratic candidate to retain those swing states blue. Even Arizona could be in play, say some poll watchers.
Registration is a game-changer with Latino voters.
Only about 48 percent of eligible Hispanics vote, but nearly 80 percent of registered Hispanics go to the ballot box.
Democrats have already targeted Colorado, Florida and Nevada with at least $15 million for Latino outreach, according to Vargas.
In Colorado, where 15 percent of eligible voters are Hispanic, the demographic has already shown its ability to flip elections.
The 2016 Colorado Democratic Caucuses were one of the first big tests for Bernie Sanders against Hillary Clinton. With nearly 30,000 new registered voters and strong support from Latino millennials, Sanders beat Clinton by more than 20,000 votes.
President Obama won 51.5 percent of the vote in Colorado in 2012, compared to 46 percent for GOP nominee Mitt Romney. In Nevada, Obama won 52 percent of the vote compared to 46 percent for Romney.
Arizona has been a relatively safe state for Republicans in recent presidential elections, but Democrats have long wondered if they could make it competitive.
Romney won 53.5 percent of the vote in 2012, compared to 44.5 percent for Obama.
David Lublin, associate professor of government at American University, describes Arizona as “the sort of state that if Clinton starts moving into landslide or big win territory, she could win.”
Yet the real danger for Republicans could be down the ballot — particularly in the battle for the Senate, where longtime Sen. John McCain (R-Ariz.) could be a target.
Obama won 74 percent of the Hispanic vote in 2012, according to exit polls by NBC.
A Democrat in 2016 would likely depend on larger Hispanic turnout and a larger share of the white vote to win the state.
Romney hurt himself with Hispanic voters in 2012 by suggesting that undocumented workers self-deport. He moved to the right on immigration and border security in the primary, and was relatively quiet on the issue in the general election.
Both parties think Trump’s rhetoric, which has included insults of Mexicans and a plan to build a wall on the border and make Mexico pay for it, could be more difficult to overcome in a general election.
Trump has "motivated Latino voters," said Rep. Norma Torres (D-Calif.)
Immigration was shown by the America's Voice/Latino Decisions polls to be the key issue driving Hispanics away from Republican candidates in 2016.
However, Latino voters nationally said the most important issue facing the country is the economy.
Ruth Guerra, Republican National Committee director of Hispanic media, gives little credence to the polls: “Not only is Latino Decisions on Hillary Clinton’s payroll, they have proven to be inaccurate time and again, so we will take their results in context.”
She also criticized likely Democratic nominee Hillary Clinton on immigration issues, accusing her of thinking Latinos would have “amnesia” on the issue.
She noted that Clinton was opposed to giving driver’s licenses to undocumented workers as a senator from New York, but has now reversed her position.
“Clinton’s flip flops and hypocrisy on immigration are a mile long because she will tell voters anything to win an election,” Guerra said.
A win by a Democrat presidential candidate in Florida, Colorado and Nevada would make it very difficult for a GOP candidate to reach 270 electoral votes and win the White House.
In fact, Democrats could actually lose the swing state of Ohio but win Pennsylvania or Wisconsin and get to 270 — simply by holding other states that have voted for the Democratic nominee in presidential elections for the last six cycles.
Jon Ralston, a veteran Nevada political journalist who is not surprised by the numbers, said “the real problem is that Trump, and to a lesser degree Cruz, will drive up Hispanic turnout against Republicans."
He said the only path for the GOP nominee to the White House in such a situation would be to win more white votes.
Ralston described this as “a path we have never seen before. Huge increase in white vote.
If the numbers hold true, the electoral map becomes daunting for Republicans with the three states in question turned solid blue. Based on 270towin's 2016 toss-up map, Democrats would only have to win one of either Wisconsin, Ohio, Pennsylvania, Virginia or North Carolina (or a more unlikely combination of only New Hampshire and Iowa) if the Hispanic vote does indeed deliver Colorado, Florida and Nevada.
"It’s not a favorable situation among Latinos and it doesn’t seem like Republicans will be able to make it up among white voters," said Lublin.
Jon Ralston, a veteran Nevada political journalist who is not surprised by the numbers, said "the real problem is that Trump, and to a lesser degree Cruz, will drive up Hispanic turnout against Republicans," and opined there's only one path for the GOP in the general election: "A path we have never seen before. Huge increase in white vote."
For more information, go to: www.beverlyhillsimmigrationlaw.com
By Lynn Tramonte
April 27, 2016
From now until November, the pro-immigrant movement has two goals: organizing to defeat politicians who stand against us, and getting ready for DAPA and the expansion of DACA.
With the rise of Donald Trump, the immigration debate among Republican political “leaders” has been reduced to the level of schoolyard bullies. Who can build the longest wall; who can talk the toughest about immigrants coming to feed their families; who can deport 11 million people and their children the fastest — it’s all been a race to the bottom on the Republican side.
Never mind the fact that the Republican electorate is largely OK with broad legalization; GOP “leaders” are pandering to the lowest common denominator in their Party. That choice will come back to bite them in the general election.
Latino Decisions political scientists calculate that the Republican candidate needs the support of 42–47% of Latino voters in order to win the popular vote in 2016. But 79% of Latino voters have a “very unfavorable” view of Donald Trump, according to recent Latino Decisions polling, and only 4% say they have no opinion. Trump is well-known in the Latino community, and that’s not a good thing for the GOP.
Trump is not the Republicans’ only problem. Two dozen Republican-led governors and attorneys general — with the backing of House Speaker Paul Ryan and the vast majority of congressional Republicans — have made it their mission to deny work permits and opportunities to people we know and love.
Republicans are suing the parents of U.S. citizens. Think about that. Their lawsuit against DAPA and DACA expansion targets the parents of people who can vote — either in this election or the near future. Fifty-seven percent of Latino voters today know someone who is undocumented. This is not an abstract policy issue for many voters, it is deeply personal.
Democrats who support DACA and DAPA have work to do in order to maximize turnout among voters with a stake in this debate. In Nevada, 38% of Latino voters don’t know where Rep. Joe Heck fits on the pro-immigrant to anti-immigrant scale, despite the fact that he voted several times to undercut DAPA and DACA. His opponent in the U.S. Senate race, Democrat Catherine Cortez Masto, posts similar numbers despite clearly coming out on the other side.
While it’s in Heck’s interest to run and hide from his record, Cortez Masto can benefit if she’s able to better define him and herself using their actual immigration positions.
Which leads me to the importance of DAPA and DACA in these elections. Simply put, the policies matter. The lawsuit matters. The political affiliation of the people behind the lawsuit matters. Seventy-four percent of Latino voters say they are less likely to support a Republican in November because of the Party’s opposition to DAPA.
I think that Republicans don’t understand why this issue is so important. It might seem like we’re talking about a simple piece of paper, but it’s a paper that has the power to transform people’s lives. Protection from deportation can lead to a legal work permit, a driver’s license, and finally feeling like a recognized person in society. People won’t have to fear simply driving down the road anymore. They can enjoy their kids, and make plans for the future. Yes, it means more people paying taxes and that’s good for our country. But the benefits of DAPA and DACA are so much more.
The pro-immigrant movement, lead by the Dreamers, won DACA 2012 and the 2014 DAPA and DACA expansion policies through organizing and power. We defended these policies in the courts, and we proved our case. It’s clear that the law is on our side. A bipartisan coalition of labor, law enforcement, business, civil rights, and faith leaders stood with our community because they know these policies are good for families and good for America. Now, it’s up to the Supreme Court and, in particular, Chief Justice John Roberts to remove politics from the judiciary and follow the law.
We’re confident this will happen, and we’re getting ready for DAPA and DACA+ implementation to start this year. The Lorain Ohio Immigrant Rights Association (LOIRA), for example, is holding a vaccine clinic next week so that future DAPA beneficiaries can get the medical records they need and be ready to apply.
For the rest of this year, we’ll be working to implement DAPA and DACA expansion, and hold politicians who stand against us accountable.
By Sabrina Rodriguez
April 27, 2016
Almost a year after the U.S. and Cuba reestablished diplomatic ties, a growing number of lawmakers from both parties are pushing to gut a Cold-War era law that gives Cuban migrants fast-track permanent residency and welfare benefits.
The White House insists it doesn’t plan to touch the 50-year-old Cuban Adjustment Act, even as it encourages Congress to lift the longstanding U.S. embargo on communist-led Cuba. But lawmakers and some foreign leaders say President Barack Obama may be forced to reconsider before his term is up if the number of Cuban migrants coming through the border continues to rise.
Nearly 17,000 Cubans arrived in the U.S. in the last three months of 2015, according to the Department of Homeland Security, up from 9,200 during the same period in 2014.
“Cubans seeking to come to the U.S. for asylum should be able to apply through a more normal process,” said Republican Rep. Blake Farenthold of Texas, who, along with Rep. Henry Cuellar, a Texas Democrat, introduced the Correcting Unfair Benefits for Aliens Act last month.
In October, Rep. Paul Gosar, an Arizona Republican, put forth a similar measure, the Ending Special National Origin-Based Immigration Programs for Cubans Act.
Farenthold, who also is co-sponsoring Gosar’s bill, said he was moved to act after hearing stories from Border Patrol agents about how many Cubans were reaching border checkpoints and saying, “Hi, I’m Cuban. Let me in.”
The Adjustment Act was passed in response to the thousands of Cuban migrants fleeing the Castro regime following the 1959 Cuban Revolution. Since then, Cubans who arrive in the U.S. have been automatically considered political refugees, without having to prove persecution. No other group of asylum seekers receives such preference.
The Cuban government is standing by its decades-old position that the policy should end, criticizing the incentive it creates for Cubans to risk their lives to reach the U.S.
As of 2013, there were more than 1.1 million Cuban immigrants in the U.S., according to the Migration Policy Institute. Most have been able to take advantage of the Act to claim residency, making Cubans one of the 10 largest immigrant groups in the U.S. since 1970.
But as the years have flown by, it’s become clear that many of the Cubans who come to the United States are seeking economic opportunities, not necessarily fleeing political oppression. A 2015 Sun-Sentinel investigation in Florida found that a number of Cuban immigrants abuse benefits by collecting welfare checks while still traveling to and from Cuba.
Meanwhile, Costa Rica also is urging Obama to change the law amid a spike in the number of Cuban migrants trapped along its borders as they try to reach the U.S. Those Cubans are taxing Central American governments’ resources as they rush to reach the U.S. partly out of fear the law will be repealed before they get their shot at life in America.
The Costa Rican government is expected to send a letter to Obama this week urging him to change the law.
The Cuban Adjustment Act “constitutes a perverse incentive for migrations and favors the conditions for human trafficking,” Manuel González Sanz, foreign minister of Costa Rica, said in a statement this month. “The truth of the matter is that it [the migration] is the product of an outdated legislation that exists in the United States, a product of the Cold War, that has no reason to be from our point of view.”
From November to March, the Costa Rican government helped pay for a group of almost 8,000 Cubans fly to El Salvador and take buses to go through Guatemala to Mexico. Those migrants had been traveling through Costa Rica, but were stranded at the border with Nicaragua because they did not have necessary entry permits.
In December, Costa Rica announced it would not offer passage to any more Cuban migrants. Another 1,200 Cubans are stranded in Panama, trying to get into Costa Rica, but González said the country cannot let them in.
Since Obama and Cuban President Raúl Castro announced in late 2014 that the two countries would set aside their decades of estrangement, the U.S. has taken numerous steps to, as Obama puts it, “cut loose the shackles of the past.”
But when it comes to the laws on Cuban migrants, the Obama administration has no plans for change. In August, Secretary of State John Kerry said the U.S. would keep supporting “safe, legal and orderly migration” from Cuba to the U.S. and fully implement current policy.
The administration’s decision not to announce support for repealing or amending the law likely stems from worries that if it did so before the change was finalized, the number of Cubans rushing to the U.S. will leap even higher, Cuba analysts say.
“They’re not saying it because we all know it’s going to cause a huge migration crisis,” said Ailynn Torres, a researcher at the Juan Marinello Cuban Institute for Research on Culture in Havana. “Cubans adjusted their expectations the moment the administration announced it would normalize relations, even if the administration swears the Act isn’t on the agenda.”
“It’s politically delicate, and it needs to be treated as such,” Torres said.
Some argue that it’s unfair to stop helping Cubans seeking asylum so long as the U.S. keeps its embargo on the island nation, and that both issues should be dealt with at once. The Obama administration has used executive action to poke holes in the embargo, but, although Democrats are largely on board and a growing number of Republicans are amenable to the idea, there’s not yet enough momentum in Congress to formally lift it.
Both Farenthold and Gosar hint that they’d be supportive of lifting the embargo, but say the immigration issue should be dealt with first. They argue that Cubans should not be given preference in migration in part because it encourages more to leave Cuba.
Noting that Obama visited Cuba in March, Farenthold said “a lot will be dictated” by what the president chooses to do now that he’s seen the island country.
“Congress needs to have a say in this, but if past history says anything, Congress isn’t going to have the input it should,” the Republican said.
Gosar’s bill has 12 Republican co-sponsors from 10 states, and generally speaking, it’s been Republicans who have been calling for a repeal of the Cuban Adjustment Act. However, a number of Democrats also say it might be time to revisit or somehow amend the bill.
Gosar said the issue could get greater attention from the presidential candidates if the number of migrants rises. It could prove an especially sensitive issue because Florida is a swing state in presidential elections.
Sen. Jeff Flake (R-Ariz.), one of the few Republicans who early on supported the reestablishment of ties with Cuba, also has indicated support for a new approach to Cuban migrants. "That's going to have to be revisited and just about everybody recognizes that." he said in a March interview with the Reason Foundation.
Largely absent from the conversation are Cuban-American lawmakers, who have not made up their minds on how to deal with the full Act and instead are chipping away at refugee welfare assistance following the Sun-Sentinel investigation.
Rep. Carlos Curbelo, a Miami Republican, has introduced a bill to reform refugee welfare assistance, but his office said he is not working on any Cuban Adjustment Act-specific legislation.
Former presidential candidate Marco Rubio this month urged Congress to remove welfare benefits for recently arrived Cubans, but he failed to garner enough support to add the change to a bill that was on the Senate floor. The Florida senator, who vehemently opposed Obama’s decision to restore ties with Havana, also specified that it was not a call to repeal the Act.
The “Miami Cuban delegation has no desire to cooperate with President Obama,” said David Abraham, an immigration and citizenship law professor at the University of Miami. “Any movement on the Act would look like a surrender. They won’t do it even if they’re tired of it and it doesn’t serve their interests.”
James Williams, president of Engage Cuba, an advocacy group, said the discussions are a sign of how much the debate over whether to reestablish ties with Cuba has shifted toward acceptance of having a relationship.
“It’s this slow march forward. It’s just about the speed of the change now,” Williams said.
By Kristina Wong
April 27, 2016
The House Armed Services Committee on Wednesday held vigorous debate on undocumented immigrants’ enlistment in the military during its annual marathon markup of its 2017 defense authorization bill.
Rep. Ruben Gallego (D-Ariz.), a Marine veteran, introduced an amendment that would direct the defense secretary to establish a process under which a service secretary could authorize the enlistment of an illegal immigrant – if he or she has an employment authorization issued under the Deferred Action for Childhood Arrivals (DACA) program.
Gallego said arguments that his amendment was "backdoor amnesty" was "nonsense."
Rep. Mo Brooks (R-Ala.) argued that the U.S. military should not be enlisting undocumented immigrants when some U.S. citizens and lawful immigrants serving in the military are getting "pink slips."
"All recruitment and reenlistment needs are being met," Brooks countered.
Committee Chairman Mac Thornberry (R-Texas) proposed a substitute amendment that would reaffirm the Defense Secretary's ability to enlist anyone who is determined to be "vital to the national to the national interest" -- which could include those who fall under the DACA program.
Several Democrats, including Rep. Loretta Sanchez (D-Calif.) and Rep. Donald Norcross (D-N.J.), voiced support for Thornberry's substitute amendment, which was adopted by voice vote.
Another debate broke out over another Democratic amendment, by Rep. Marc Veasey (D-Texas), which would direct the defense secretary to study whether those under DACA with employment authorization documents could impact diversity at military service academies and among ranking officers in the military.
Brooks also opposed that amendment, saying "We need to focus on Americans who want to serve our country."
"My focus is on the desire to turn away as few Americans as possible who want to serve in the United States military," he said.
Gallego spoke in favor of the amendment, arguing it just called for a study.
"They are not taking the places of citizens," Veasey said. "This is just a study."
"Why shouldn't we just allow the DOD to do a study to see if they can add to our nation's security?" he asked.
Veasey's amendment was defeated by voice vote.
Rep. Luis Gutierrez Calls for Temporary Protection Status of Ecuadorian Immigrants Escaping Earthquake’s Destruction
By Jose Serrano
April 27, 2016
U.S. Rep. Luis Gutierrez, D-Ill., sent President Barack Obama a letter on Monday urging for temporary deportation protection of Ecuadorians in the wake of a massive earthquake that rocked the South American country earlier this month.
Temporary Protected Status (TPS) is short-term legal status granted to undocumented immigrants escaping catastrophic situations abroad, like civil war or natural disasters. Ecuador isn't designated for TPS by the U.S. Citizenship and Immigration Services, but Gutierrez is urging the president to make an exception considering the earthquake's trail of destruction.
"Like other nations, such as Nepal and Haiti in recent years, Ecuador is experience widespread devastation in the aftermath of a 7.8 magnitude earthquake that struck the country's coast over one week ago," Gutierrez said, noting over 650 people have died while 130 remain missing.
Gutierrez said Ecuadorians around the country, including many Chicagoans, want government to step in. If approved, TPS would grant deportation relief and the continued ability to send money through remittances.
"The United States Congress created TPS for exactly these types of dire circumstances in foreign countries," Gutierrez said. "Given the magnitude of the destruction, Ecuadorians cannot safely return home."
Relief Efforts Hindered by Debt
Aftershocks continued for days after the April 16 temblor rocked the seaside town of Pedernales, located about 297 miles from Quito, the country capital. Half a dozen nearby provinces declared a state of emergency soon after, and over 13,500 military and police officers were immediately deployed to aid victims.
Gutierrez approximated 25,000 people were left homeless, but housing them will be a problem given the ruins left around the quake's epicenter. Pedernales Mayor Gabriel Alcivar recently told TIME his town is completely destroyed.
"There has been an exodus from the city as people have completely abandoned their homes," Alcivar said. "We are not accustomed to such big earthquakes. We're used to small tremors, but this earthquake has changed the city beyond recognition. We simply aren't prepared to deal with this."
Alcivar wasn't the only one caught off-guard.
Ecuador government officials find themselves burdened with a multi-billion dollar reconstruction project months after making their first-ever on-time bond payment to creditors. Finding means to pay the debt was "a very serious problem," as President Rafael Correa said in December.
In a nationally televised address last Wednesday, Correa announced temporary tax increases nationwide to purchase emergency supplies and alleviate some of the rebuilding costs, which he estimates to be around $3 billion.
Sales tax will range from 12 percent to 14 percent for the next year, and working citizens will have to give a percentage of their wages, depending on how much they make; those with over one million in assets will make a one-time payment equaling 0.9 percent of their wealth.
"This is how a modern society responds to this kind of disaster and the way each Ecuadorian, within his ability, contributes to the recovery of his own motherland."
Immigration Reform 2016: Undocumented Students Sue Georgia Officials For In-State Tuition Under DACA
International Business Times (Georgia)
By Julia Glum
April 27, 2016
Ten young undocumented immigrants in Georgia filed a lawsuit Tuesday asking the board that oversees its university system to give them in-state tuition rates — again. After being shot down by the Georgia Supreme Court in February, the group of students was asserting for the second time that they have the "lawful presence" required to receive the cheaper college prices, the Associated Press reported.
The students argue they're in the country legally under the Deferred Action for Childhood Arrivals program, a policy that lets qualified immigrants under a certain age get work permits and protection from deportation for two-year renewable periods. The initiative also known as DACA has benefited more than 665,000 people, particularly in states like California, Illinois and Texas, according to the American Immigration Council.
The Georgia Undocumented Youth Alliance posted on Facebook that it was suing each of the 20 members of the Board of Regents, which controls the state university system, in order to sidestep the sovereign immunity laws that stalled their case the first time.
“We are bringing this action against the individual members of the Board of Regents for their failure to correctly implement their own rules on in-state tuition,” attorney Charles Kuck said in a statement to the Atlanta Journal-Constitution. “Justice, common sense, and Georgia’s own economic self-interest all demand in-state tuition for DACA recipients. We will fight for this until we win. The hope of Georgia’s children is at stake.”
College tuition for residents is typically much cheaper than for nonresidents. For example, at the University of Georgia, the estimated annual cost of attendance for an in-state student is about $25,000. For an out-of-state student, it's $44,000.
"My family has been paying [Georgia] taxes for the last 15 years," plaintiff Maria Carrillo wrote in a message accompanying an online petition on the issue. "It is ridiculous that the Board of Regents continue to deny us entrance to universities that we have helped fund."
Nearly 20 states have policies that let undocumented immigrants receive in-state tuition rates, among them Colorado, Illinois, New Jersey and Washington, according to the National Conference of State Legislatures.
By David Leopold
April 27, 2016
There has been a lot of speculation about what will happen if the Supreme Court is deadlocked in United States v. Texas, the dispute over DAPA and DACA+, President Obama’s immigration executive actions. The bottom line, as I’ve noted before, is that a 4–4 tie would result in judicial chaos.
To analyze what may happen, it’s important to look back at what happened in the U.S. District Court when Judge Andrew Hanen issued his ruling last year. Hanen, an outspoken critic of the Obama administration’s immigration policy, was the judge sought by the GOP Governors and Attorneys General when they filed their lawsuit challenging the President’s actions.
When Hanen enjoined DAPA and DACA+ he took the unusual step of issuing a nationwide injunction. While the administration asked Hanen to limit his order geographically, it respected his decision and ceased further agency action on the deferred action guidance pending resolution of the litigation.
Since then things have changed.
In February Justice Scalia suddenly died, depriving the Supreme Court of its most outspoken conservative voice. This also created the possibility that the Court could evenly split on the Republican challenge to DAPA and DACA+. While I and many others remain convinced that a majority of the justices — including Chief Justice Roberts — will dismiss the Republican lawsuit on standing grounds, it’s worth considering the ramifications of a 4–4 split among the justices.
First, as a technical matter, if the Supreme Court evenly divides, the decision of the 5th Circuit affirming Hanen’s injunction would remain in place. But, importantly, that might be limited to only the 5th Circuit and no longer nationwide. As Tom Goldstein explained on SCOTUSblog, if “there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.” Although Goldstein believes such cases are more likely to be reargued once a new justice is confirmed, it’s clear there would be no immediate national precedent in the event of an even split. At Think Progress, Justice Editor Ian Millhiser wrote about what that would mean for U.S. v. Texas:
In a highly unusual order, a federal district judge issued a nationwide halt to the policy and refused to stay that decision. A conservative panel of the conservative United States Court of Appeals for the Fifth Circuit upheld those decisions by the district judge. Thus, if the Court splits 4–4 in the Texas case, the Fifth Circuit’s order will stand.
The ramifications would be severe: In an oped published this morning in the New York Daily News renowned former Manhattan District Attorney Robert Morgenthau explained why:
A tie vote would provide no guiding principle of law, and would leave in place a lower-court ruling preventing the President from enforcing his policy, with nothing to replace it. And that would be a tragedy.
As Justice Ruth Bader Ginsburg noted during the arguments, there are currently approximately 11.3 million undocumented immigrants in the United States. Congress has provided funds to remove perhaps 400,000, which leaves the administration with a huge pool of undocumented immigrants, funding to remove a tiny fraction, and limited guidance from Congress regarding how to prioritize removal procedures.
The result of that disconnect is exactly what you would expect: a travesty. Removal cases pour into immigration courts in a flood, with little hope of resolution.
What then would become of Hanen’s nationwide injunction? According to Noah Feldman, professor of constitutional and international law at Harvard University and Bloomberg View columnist, the answer is not clear:
There’s a legitimate technical question about whether the national injunction should remain in place after the Supreme Court has heard the case. It would take five votes for Supreme Court to issue a national injunction itself — votes that certainly won’t exist. Therefore it’s at least conceivable that the plan could go into place outside the 5th Circuit.
At a minimum, a 4–4 split by the Supreme Court would raise serious questions about the national scope of Hanen’s hold on DAPA and DACA+. If properly challenged in other circuit courts, a tie vote could limit that one District Court judge’s ability to single handedly thwart the administration’s deferred action guidance.
Nor is the tenuous nature of the national injunction in the event of a split lost on the opponents of deferred action. Texas Governor Greg Abbott, who filed the lawsuit against DAPA and DACA+ as Attorney General, has all but conceded the injunction would lose its national effect if the Supreme Court evenly splits:
Because politics is being played at the United States Supreme Court, I think the best we can hope for is a 4–4 split decision, the consequences of which will mean that we will win, but it will not be a broad-based application across the United States affirming the principle that the president does not have the unilateral authority to rewrite the law.
Abbott is wrong that a 4–4 split would be a ‘win” for the Republican challengers to DAPA and DACA+ — to the contrary, a divided court would create many opportunities for supporters of deferred action. But Abbott is correct that a split would mean that the “broad-based application across the United States” of the injunction would be left in serious legal jeopardy.
The question then becomes, how would the national injunction actually begin to crumble, under the 4–4 split scenario?
Its demise would likely have to start with the Justice Department taking bold and affirmative action to get DAPA and DACA+ back on track. While the Obama Administration has argued that the injunction should be limited to the 5th circuit, it has never questioned its national scope. But if the Supreme Court deadlocks, the Administration’s relative silence about the national scope is likely to end. The administration could — and should — challenge the applicability of Hanen’s order outside the 5th circuit. It could do so by filing declaratory judgment actions in U.S. district courts in states such as California and Washington, which made clear their opposition to Hanen’s views in briefs submitted to the Supreme Court. The Department of Justice might argue, as it did in the lower courts, that Hanen’s nationwide injunction is overly burdensome:
The district court’s injunction is drastically overbroad and thus is invalid even if some injunction were warranted. Twenty-four States, the District of Columbia, and the U.S. territories are not parties to this action, and a dozen States participated as amici below to oppose plaintiffs’ challenge and demonstrate the adverse effects of the district court’s injunction. Yet the district court enjoined the Guidance on a nationwide basis, barring implementation in States that do not oppose the policies set forth in the Guidance and even in States that actively support them. In these circumstances, a nationwide injunction is a manifest abuse of discretion. An injunction “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.
The results of such a challenge might vary. Different judges in different courts within different circuits might come to different conclusions about the national applicability of Hanen’s injunction, ultimately creating a patchwork of results across the U.S. Again, Ian Millhiser:
Where things get complicated is if the Justice Department successfully obtains an order from a different circuit upholding the program, or if an immigrant who hopes to benefit from the program obtains a similar order. The Fifth Circuit is among the most conservative courts in the country, and it is unlikely that every circuit will follow its lead. In that case, there will be competing court orders holding the policies both legal and illegal, and no possibility of Supreme Court review. It is not immediately clear what happens in such a case.
While it’s hard to predict how various district courts and circuits will rule, it’s quite possible that many, if not most, courts will permit the implementation of DAPA and DACA+ within their jurisdiction. As I wrote in a post earlier this month:
Needless to say, things could get complicated. No doubt the legitimacy of Hanen’s “national injunction” would be challenged by governors and attorneys general, along with immigrant advocates, who will head to federal courts to allow implementation of DAPA. No doubt the ensuing litigation will be chaotic. All of this would limit the ability of Judge Hanen to thwart the program if the case eventually returns to his courtroom.
Nor are challenges to the nationwide injunction necessarily limited to actions by the administration. One can imagine a variety of scenarios where states and individuals might have standing to challenge the injunction in other circuits in an effort to unfreeze DAPA and DACA+. In fact, several states, including California, Washington and Connecticut, have expressed a clear interest in ending the injunction in their states. As they vehemently argued to the lower courts:
Although the district court’s injunction should be stayed in its entirety for the reasons stated above, in the alternative the amici States ask that the Court stay the injunction outside of Texas, or at least outside of the Plaintiff States. As detailed above, in light of the complete absence of even a claim of harm in the non-Plaintiff States, there is no basis for forcing the injunction on us.
While there’s a lot of uncertainty about what could happen in the event of a 4–4 split by the Supreme Court, one thing is very clear: advocates for immigrants are likely to use every tool at their disposal to make sure DAPA and DACA+ are implemented outside the 5th Circuit. That will include bringing political pressure on the Obama Administration to leave no legal stone unturned in an effort to implement DAPA and DACA+ where possible.
There’s also some certainty about another element of this case — that the Republican Party’s association with this lawsuit is likely to hurt them politically during this November’s elections. Fitting alongside the comments of the likely Republican standard bearer, who has slandered Mexicans (and many others) and called for mass deportation, the GOP’s attempts to block and overturn DAPA and DACA+ are helping to further tarnish the Republican Party’s brand among Latino voters, as new polling shows. Ironically, in the end, the Republicans’ shameless political lawsuit against DAPA and DACA+ may help lead to an electoral outcome that could, perhaps, lead to some real progress on immigration reform.