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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; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Tuesday, November 24, 2020

Biden picks first Latino to lead Homeland Security

 By Rafael Bernal

Biden picks first Latino to lead Homeland Security

President-elect Biden is naming Alejandro Mayorkas as the next secretary of the Homeland Security Department, the first Latino to lead the department at the center of immigration policy.

Hispanic community advocates and immigration activists praised the selection, saying Mayorkas is a homeland security professional with personal empathy for immigrants.

“We are thrilled with President-elect Biden’s historic selection of Alejandro Mayorkas to lead the Department of Homeland Security," said Marielena Hincapié, executive director of the National Immigration Law Center.

"This represents an exemplary choice that will not only serve our next president, and the American people well, but also sends a strong signal to immigrant communities that the Biden administration fully intends to follow through on their commitment to undo the harms of the Trump administration," added Hincapié.

Mayorkas, 60, is a lawyer best known for his stints as director of United States Citizenship and Immigration Services (USCIS) and as deputy secretary of Homeland Security, the number two spot at the agency.

Congressional Hispanic Caucus Chairman Rep. Joaquín Castro (D-Texas) called Mayorkas's appointment "fantastic," and called on Biden to appoint four more Hispanics to his Cabinet.

"As the former Deputy Secretary of DHS and lead implementor of DACA, he has the necessary experience to bring about much needed reforms. The Congressional Hispanic Caucus looks forward to working with Alejandro Mayorkas to treat immigrants with dignity and respect," said Castro in a statement.

Mayorkas's selection shows the incoming Biden administration is targeting President Trump's executive overhaul of the immigration system, regardless of the likelihood of congressional gridlock on the legislative end.

"America and the Biden administration face a huge task to undo Trump’s original sin — his relentless cruelty towards and demonization of immigrants and refugees, and to build through administrative and legislative reform an immigration system that reflects our commitment to being a welcoming nation," said Frank Sharry, executive director of America’s Voice, a progressive immigration advocacy organization.

"Alejandro Mayorkas is an inspired choice. He’s the right person to undo Trump’s cruelties, advance fair and humane policies, and deliver on the bold change the American people strongly support," added Sharry.

Mayorkas, who was reportedly in consideration for the post along with California Attorney General Xavier Becerra, brings experience within DHS to the table, a critical element for an agency with more than 200,000 employees and a recurrent morale issue.

The Mayorkas pick comes with former USCIS Chief Counsel Ur Jaddou heading the Biden-Harris transition DHS agency review team. Jaddou served at USCIS while Mayorkas was deputy secretary.

Immigration activists would likely welcome a Jaddou appointment to head USCIS; she has led the DHS Watch project at America's Voice since leaving her post at USCIS in early 2017.

Mayorkas, who was born in Cuba, will become the seventh formally-appointed DHS secretary in history if he's confirmed by the Senate.

But he would take the reins of the agency after a leadership morass in the second half of the Trump administration.

While Trump's DHS has formally been led by John Kelly and Kirstjen Nielsen, in practice Trump has run through five DHS chiefs: Kelly, Nielsen, Elaine Duke, Kevin McAleenan and Chad Wolf.

Under Trump, DHS's role as a national security clearinghouse, responsible for coordinating agencies on issues from terrorism to natural disasters, has taken a back seat to the agency's broad immigration administration and enforcement roles.

Those immigration responsibilities have put the department at odds with immigrant communities since its creation in 2003.

That rift grew under President Obama, particularly as large-scale deportations shook mixed-status communities, but the immigrant community's trust of DHS institutions was shattered under Trump's aggressive executive actions.

“After four long, dark years of Mexicans being painted as ‘rapists’ and ‘criminals,’ children being separated from their parents, repeated assaults on DACA and a general contempt for Latinos from the highest office in the land, Mayorkas’ nomination signals a new day for the Department of Homeland Security and for all our country,” said Janet Murguía, head of UnidosUS, the country's largest Hispanic civil rights association.

As the first Latino, and the first immigrant, to hold the DHS role, Mayorkas could find some cover from the political flak that's inevitable as the country's official in charge of deportations.

"When I was very young, the United States provided my family and me a place of refuge. Now, I have been nominated to be the DHS Secretary and oversee the protection of all Americans and those who flee persecution in search of a better life for themselves and their loved ones," wrote Mayorkas on Twitter

For more information contact us at http://www.beverlyhillsimmigrationlaw.com/

Monday, November 23, 2020

Temporary Protected Status solution for undocumented immigrants

 BY LEON FRESCO, OPINION CONTRIBUTOR

The presidential election likely means a new perspective on immigration policy. But a potentially divided Congress means that it may be difficult to enact immigration reform legislation that addresses the major problems in America’s immigration system. 

One area where most observers normally think an obvious fix exists would be the restoration of the Deferred Action for Childhood Arrivals (DACA) program that the current administration had slated for termination. The problem, however, with such a quick fix is that there is an existing lawsuit in a Texas federal court challenging the legality of DACA for not having been issued with notice and comment rulemaking and also for violating the Immigration and Nationality Act (INA). The same court previously invalidated the Obama administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program for the same reasons the DACA program is being challenged, and the Supreme Court’s composition has changed since 2016 such that many more immigration cases have been adjudicated in favor of the enforcement position.

In addition, even at its most ambitious, the DACA program only helps a very small percentage of the estimated 10 to 12 million undocumented individuals living in the United States.  

There is, however, a statutory program that grants unreviewable discretion to the president that could help almost all of the undocumented individuals in the United States on day one of a new presidency. Title 8 Section 1254a of the U.S. Code specifically authorizes a U.S. president to grant any foreign national Temporary Protected Status (TPS) if there is an “earthquake, flood, drought, epidemic, or other environmental disaster” in the foreign national’s home country. Pursuant to the statute, a grant of TPS provides: a) relief from removal; b) the ability to work in the United States; and c) the ability to become eligible for lawful permanent residency if the foreign national has a qualifying relative (spouse, parent or child) or U.S. employer who will petition the individual for a green card.

A proposal available under the INA that could address the flux of DACA recipients would be that, on day one of a new administration, the president would grant TPS to every foreign national without status who was present in the United States prior to March 13, 2020, which was the date the current administration declared a national emergency regarding the coronavirus outbreak.  The current administration has already laid the groundwork for such a global granting of TPS by having had the director of The Centers for Disease Control and Prevention (CDC) issue a memorandum pursuant to Title 42 Section 265 of the U.S. Code that bans foreigners from entering the United States by identifying “the existence of a communicable disease” throughout the world and stating that “COVID-19 is a global pandemic that has spread rapidly.”

This TPS announcement would allow all people already present in the United States to immediately gain 18 months of legal status, and would place many people already here on a path to gain lawful permanent residency, which they cannot now gain by virtue of being in undocumented status. It would also not be subject to being overturned by the courts given how clearly the statute permits the granting of TPS for nationals of a country where there is an epidemic, and given that the current administration itself has recognized a global epidemic in its orders banning people from entering America’s land borders due to this epidemic. 

The manner most conducive to removing the uncertainty for DACA recipients and others in precarious immigration statuses would not involve running the risk of: a) waiting for Congress to pass legislation given that might not ever pass; b) reinstating a deferred action or parole program that is likely to be stricken by the courts for not going through the formal regulatory process; nor c) spending over a year in the formal regulatory process trying to craft a regulatory program that may still be stricken by the courts.

The most effective solution if the goal is to provide certainty is often the easiest one, and the TPS solution simply uses the road that the current administration already paved when it excluded all foreign nationals from the United States on the basis of the existence of a global pandemic. It is axiomatic that if it is too dangerous to accept foreign nationals from countries where the COVID-19 pandemic is rampant, it is equally dangerous to remove foreign nationals in the United States to countries where the COVID pandemic is rampant.

Consequently, a new approach should be considered that involves the use of TPS and it is the more certain path to achieving the relief that was intended by the DACA program, but for a larger group of individuals.

Leon Fresco is a partner in Holland & Knight’s Washington, D.C., office where he focuses his practice on providing global immigration representation. Before joining Holland & Knight, he was the deputy assistant attorney general for the Office of Immigration Litigation at the U.S. Department of Justice’s civil division.

For more information contact us at http://www.beverlyhillsimmigrationlaw.com/

Trump administration revives talk of action on birthright citizenship

 BY BRETT SAMUELS 

The Trump administration has revived discussions around taking executive action targeting birthright citizenship in its final weeks before leaving office, according to two people familiar with the discussions.

President Trump has spoken throughout his first term about ending birthright citizenship. Drafts of a possible order have been circulating for some time, and there is now internal discussion about finalizing it before the Biden administration takes over in January, sources said.

The administration is aware the order would be promptly challenged in court, but officials would hope to get a ruling on whether birthright citizenship is protected under the 14th Amendment, according to one source familiar with the plans. Many lawmakers and experts have argued it is protected, but the courts have not definitively ruled on the issue.

“Since taking office, President Trump has never shied away from using his lawful executive authority to advance bold policies and fulfill the promises he made to the American people, but I won’t speculate or comment on potential executive action,” White House deputy press secretary Judd Deere said in a statement.

The Department of Justice has been consulted about a possible birthright citizenship order given it would deal with the legal implications of the new policy. A spokeswoman for the department did not immediately respond to a request for comment.

The birthright citizenship measure is being discussed as one of multiple executive actions the Trump administration could take on its way out the door. White House chief of staff Mark Meadows told aides following Election Day to come up with possible policy priorities to push through in the two months before Inauguration Day.

Others in the works include additional reforms to the H-1B visa program, regulatory reforms and measures targeting China. The president earlier Friday announced two major actions aimed at lowering the price of prescription drugs.

The wave of action reflects how many in the White House are attempting to cement their agenda before the Biden administration takes over in January, even as Trump refuses to concede the race and has pursued thus far unsuccessful legal challenges in key battleground states.

The president first proposed ending the practice that grants citizenship to those born in the United States during his 2016 presidential campaign. He revived the idea in 2018 during an Axios interview, saying he would sign an executive order to enact the change.

Trump in August 2019 again said his administration was “very seriously” considering a measure to end birthright citizenship.

In each instance, lawmakers and legal experts have pushed back on the idea and cast doubt on Trump's ability to unilaterally end birthright citizenship. They have asserted that birthright citizenship is protected under the 14th Amendment, which states, in part, that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Some outside groups and allies of the administration have wondered why Trump has waited until his final weeks in office to follow through on a birthright citizenship order that he has talked about for years.

“The Citizenship Clause of the 14th Amendment was clearly intended to guarantee that emancipated slaves would properly be recognized as U.S. citizens,” said RJ Hauman, government relations director at the Federation for American Immigration Reform. “It is a fundamental misapplication of this clause that U.S.-born children of illegal aliens are granted automatic citizenship, much less the offspring of people who come here to simply give birth on American soil."

“If the president finally issues a long-awaited executive order limiting birthright citizenship, it will be up to the Supreme Court to resolve this issue once and for all,” Hauman added.

The Trump administration issued an order in January restricting visas applications for women believed to be traveling to the United States primarily to give birth. Some administration officials had hoped at the time that the so-called “birth tourism” order would dissuade the president from pursuing a full-on order to block birthright citizenship.

Trump campaigned for his first term on a message of restricting legal and illegal immigration, and he has imposed policies that limit asylum, drastically reduce the number of refugees and that separate migrant children from their families.

But even if an order targeting birthright citizenship fails on legal grounds as some of his other immigration measures have, or if it is quickly undone by the Biden administration, experts cautioned that it could still have a chilling effect on those seeking to come to the United States.

“That’s going to have a deterrent effect on people who are seeking to come here, who may be present,” said Shev Dalal-Dheini, director of government relations for the American Immigration Lawyers Association. “The goal of this administration with all of its policies is it doesn’t matter if the policy actually takes effect and becomes the law of the land, but it’s what is the deterrent effect on people in the interim.”

For more information contact us at http://www.beverlyhillsimmigrationlaw.com/

Friday, November 20, 2020

Michael Smolens: Biden plans big changes in immigration system — some won’t be easy

 By Michael Smolens The San Diego Union-Tribune (TNS)

Nearly 15 years ago, then-Sen. Joe Biden voted to fund hundreds of miles of new fencing along the border with Mexico.

He was joined by Sens. Hillary Clinton, Barack Obama and other Democrats.

One of the first things President-elect Biden said he will do after being sworn in on Jan. 20 is halt the construction of President Donald Trump’s border wall, though he doesn’t plan on tearing down what has been built so far.

About $15 billion has been spent on the project and 450 miles of wall have been constructed, all but 12 miles of it replacing some kind of existing barrier.

Biden has pledged to quickly undo many Trump policies, including some of the more disputed immigration measures enacted over the past four years.

He has vowed to reinstate the Deferred Action for Childhood Arrivals program, end the travel ban from mostly majority-Muslim countries and African nations, and eventually raise the limit on refugees allowed into the United States.

Biden has proposed a task force charged with reuniting hundreds of undocumented immigrant children with their parents after being separated by federal authorities.

He also has promised to pursue a comprehensive overhaul of the immigration system with Congress within his first 100 days in office. That has been a goal of many Democrats and bipartisan coalitions for decades, but immigrant advocates question whether it can be achieved now — or even whether it should be, given the likely trade-offs.

As Biden’s own history shows, immigration policies, particularly regarding enforcement, don’t always neatly break down along party lines, even if it seemed that way in recent years with Democrats universally denouncing Trump’s more controversial moves and harsh rhetoric about undocumented immigrants.

Americans across the political spectrum, and leaders in both parties, want a solution for illegal immigration, control of the border and sensible, workable immigration laws. For decades, Washington mostly has struggled to do any of that, even in less-volatile times.

Biden’s border security plans call for increased screening at ports of entry, particularly for illegal drugs coming up through Mexico, along with more investment in surveillance technology. He also wants to work on economic and security measures with Mexico and Central American countries — ideas he backed when he voted for the Secure Border Fence Act of 2006.

While many Democrats applaud Biden’s approach, some say the United States has to be careful and not send a message that border enforcement is going away.

“We’ve got to make sure that we don’t give an impression that we have open borders,” Rep. Henry Cuellar, D-Texas, told The Dallas Morning News. “The criminal organizations, they hire people, they know what our policies are. We don’t want them to go and advertise that there’s no wall so start coming into the U.S., and then we start seeing caravans again. It’s a balance.”

One of the more confounding aspects of Trump’s immigration policy regards the DACA program. Partisans tended to be split over other programs, such as building the wall and seeking to limit asylum.

But polls consistently showed DACA had broad support among Democrats, Republicans and independents. Leaders of both parties, including Trump at times, said they wanted to find a way to keep DACA recipients here. Yet the president took legal action early in his term to end the Obama administration program, which gives temporary legal status to undocumented immigrants who were brought to the U.S. as children.

That kept more than 600,000 DACA recipients in limbo, uncertain whether they would be deported to homelands many hardly know. The courts have blocked Trump, and those immigrants have a brighter future with a Biden administration poised to take control.

While the deportation threat appears to be evaporating, how Biden will make DACA permanent is unclear. In theory, doing it by executive order like President Obama did to create the program leaves DACA open to legal challenges that maintain congressional action is necessary.

Given the backing DACA has, it would seem standalone legislation to codify the program would have a good chance of passage, but that’s what many thought in the past and it didn’t happen.

Biden has vowed to pursue a comprehensive immigration bill that could include DACA and a pathway to citizenship for an estimated 11 million undocumented immigrants in the United States, among other things.

But natural supporters are not confident all-inclusive legislation would make it, with Democrats in control of the White House and the House of Representatives, and Republicans possibly still holding the Senate (depending on the outcome of two Georgia Senate elections in January).

For one thing, the administration has a lot of priorities, with addressing the deadly COVID-19 pandemic and its economic fallout being the first among them.

Also, even if Democrats win both seats in Georgia, Republicans in the Senate likely will still have enough leverage to be at the negotiating table on an immigration bill.

Immigrant advocates contend that means a continuation of GOP demands for more military-like border enforcement and crackdowns in the country’s interior.

“When activists hear comprehensive immigration reform, it’s like PTSD,” Cristina Jimenez, an immigrant leader and co-founder of United We Dream, told Newsweek. She was an informal adviser to the Biden campaign on immigration.

“It’s a package with harmful provisions for our community in exchange for a pathway to citizenship. It does not work for us and we need to break away from the old framework.”

The border wall will be halted and it looks like DACA recipients will get to stay. But a close presidential race, a smaller Democratic majority in the House and a Senate still up for grabs have led many analysts to conclude there was no sweeping mandate in this election.

That goes for the notion of what direction immigration legislation may take.

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ABOUT THE WRITER

Michael Smolens is a columnist for The San Diego Union-Tribune.

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(c)2020 The San Diego Union-Tribune

Distributed by Tribune Content Agency, LLC

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For more information contact us at http://www.beverlyhillsimmigrationlaw.com/

Trump, Pelosi barrel toward final border wall showdown

 BY ALEXANDER BOLTON

President Trump and Speaker Nancy Pelosi (D-Calif.) are headed to a final showdown over his signature border wall, setting the stage for a rematch of a fight two years ago that shuttered the government for 35 days.

The White House is requesting a $2 billion installment to continue building the wall, while Pelosi and House Democrats have countered with no new money for construction.

Democrats have also proposed rescinding earlier wall funding, according to a House Democratic aide.

And to guard against Trump’s workaround to the previous standoff, the House spending bill prohibits the administration from shifting funds from other accounts to pay for the wall.

Aides say congressional leaders and the heads of the Senate and House Appropriations committees will soon negotiate a compromise between the $2 billion request and counteroffer of zero dollars once both chambers settle on the allocation amounts for individual spending bills that will make up the year-end omnibus.

Senate Appropriations Committee Chairman Richard Shelby (R-Ala.) said negotiators are “close” to settling those top-line numbers but declined to comment on what the funding number for the wall is likely to be.

But whatever the agreed-upon amount, many Republicans are predicting Trump is going to put up a fight for more wall funding.

“It’s extremely critical, and I think he’s going to go to the mat on the border wall. And I think a lot of Republicans are going to go with him,” said Ford O’Connell, a GOP strategist. 

“The immigration issue is about being pro-worker and pro-jobs, and that is important to the Trump message going forward. And if Republicans don’t put up on this, they’re worried that the base will lose faith in them on one of their issues,” he added.

O’Connell said the wall fight is elevated by President-elect Joe Biden’s vow to reverse Trump’s executive orders on immigration.

Biden has pledged to reinstate the Deferred Action for Childhood Arrivals (DACA) program to shield immigrants who came to the country at a young age from deportation and to overturn the travel ban on people visiting the U.S. from majority-Muslim countries.

The former vice president also wants to change Trump’s policy requiring asylum-seekers to wait in Mexico for hearings in U.S. immigration court.

Groups on the left are urging Pelosi to stand strong in opposing new money for the border wall. They also want Congress to decrease funding for Immigration and Customs Enforcement and Customs and Border Protection.

“We are opposed to any additional border wall funding. This is a signature issue for Trump, building his border wall, which by the way he claimed Mexico would pay for. He has received $4 billion from Congress for his border wall, but in addition to that he has illegally siphoned money from the other parts of the government,” said Madhu Grewal, federal immigration policy counsel at the American Civil Liberties Union.

Pelosi and Senate Democratic Leader Charles Schumer (N.Y.) hit Trump for repurposing nearly $4 billion in military funds to pay for wall construction in 2019.

Grewal noted that Biden has said he will stop border wall construction when he’s in office. 

“So it begs the question, what is this funding going towards?” said Grewal, adding that the wall is “harmful for border communities” and “endangers wildlife along the border.”

“There’s a wide coalition of groups that have come together opposing border wall construction,” she said.

The White House in its fiscal 2021 budget request asked for about $2 billion to construct additional border wall sections. Senate Republicans support the request.

The Senate Appropriations Committee has recommended $1.96 billion for 82 miles for the “border wall system,” according to a funding measure the panel posted last week.

The omnibus spending package for fiscal 2020, which ended on Sept. 30, included $1.375 billion for physical barriers along the southern border. The White House request for 2021 represents a $625 million increase, though it’s less than the $5 billion the White House requested for 2020.

Progressives in the House are likely to balk at any compromise funding figure for the wall.

The American Prospect, a left-leaning publication, wrote that Democrats “caved” to Trump on the border wall when it agreed to the $1.375 billion in December 2019.

Earlier that year, progressives were infuriated when the chamber cleared a $4.6 billion emergency funding bill from the GOP-controlled Senate to improve conditions at detention facilities on the border.

Brent Wilkes, senior vice president for institutional development at the civic engagement group Hispanic Federation, said the border wall does not need a funding increase. 

“We believe the wall is a waste of money. It doesn’t work, it’s largely being done to satisfy Trump’s ego. Trump is not the president and this is an unnecessary expense that should be discontinued,” he said. “We think any funding that’s in the budget once Biden takes office should be repurposed back to the agencies that lost the money to begin with.”

“We think that Biden, as president, will have the flexibility he needs to redirect that funding to some of the things that were put on the back burner that actually did work,” Wilkes added. “We need a humane immigration policy. We need to restore our refugee policy.”

Conservatives point out that funding the border wall is an important symbolic opportunity for Trump. 

“My sense is the president is going to try to insist on this kind of as a goodbye present for Biden,” said Mark Krikorian, the executive director for the Center for Immigration Studies, a group that advocates lower levels of immigration.

“I think it’s kind of a last-ditch political effort,” he said.

Krikorian added that the border wall will be a legacy of sorts for Trump on the issue of immigration. 

“I was a little dubious four or five years ago,” he said. “My sense is it was oversimplifying a complicated issue, but symbols matter. The fact that the president got a significant amount of wall built ... is important.

“It sends a message that we’re serious about this,” he said.

For more information contact us at http://www.beverlyhillsimmigrationlaw.com/

Thursday, November 19, 2020

Four Years of the Trump Administration in Court. One Word Stuck in My Head.

 By 

During four years struggling to keep up with the flood of court cases challenging the refusal by various Trump administration officials to follow the law, a word ​has come to mind so often that I can’t shake it. It’s the word “mean.​” There’s a meanness to the ​man and to the policies issued from the sycophantic bubble that passes for his administration.

Mean may be too mild and commonplace a word to describe the astonishing fact that the Department of Homeland Security cannot find the parents of 545 children separated from them at the southern border. A violation of human rights, a descent into bureaucratic immorality, is more appropriate.

Nonetheless, mean is a word that should sting. It’s what links this administration’s actions across the government. Judges don’t use the word themselves, but it pervades their accounts of how the controversies reached a climax in their courtrooms. So I’d like to inject the word into the discourse about the Trump administration in these waning weeks.

One example is a decision this past weekend by Judge Nicholas Garaufis of Federal District Court in Brooklyn. He invalidated a series of moves by Chad Wolf, the supposed acting secretary of the Department of Homeland Security, following the Supreme Court’s decision in June that stopped President Trump from canceling DACA, the Obama administration program that still protects from deportation undocumented immigrants who were brought here as children.


Chief Justice John Roberts, writing for a 5-to-4 majority, said the Trump administration’s rescission effort was “arbitrary and capricious” and in violation of the Administrative Procedure Act. Notably, the decision didn’t say that the administration couldn’t cancel the program, but only that it had to go back to the drawing board and do so correctly. Among other factors, the chief justice said, the administration had to take into account the “reliance interests” of the hundreds of thousands of young people who have been accepted into the program and have ordered their lives according to its terms.

But rather than even try to walk through the door that the Supreme Court had opened, Acting Secretary Wolf went around to the back door to disable DACA to the maximum extent possible. He issued a memorandum instructing the department to reject all pending and future DACA applications; to reject all pending and future requests for “advance parole,” the status that permits DACA recipients to re-enter the country if they need to leave, for example, to visit family members; and to require DACA recipients to renew their status annually instead of every two years.

In his opinion invalidating the memorandum, Judge Garaufis simply described these measures without evaluating them. He didn’t have to, because he concluded that Mr. Wolf lacked authority to issue the memo, having been improperly designated as acting D.H.S. secretary.

The judge’s 31-page opinion offers an intricate account of the bureaucratic turmoil that has left the mammoth agency and its quarter-million employees without Senate-confirmed leadership for 600 days and counting. His deadpan account of the ways in which the formal rules of succession were flipped and evaded by a changing cast of characters makes the department seem like a Feydeau farce. (In a footnote, Judge Garaufis observed dryly: “The court wishes the government well in trying to find its way out of this self-made thicket.”)

But at the heart of this tale is meanness. Failing to bend the Supreme Court to its will, the administration tried to take revenge on a vulnerable group of people whose only offense, through no fault of their own, is living among us.


And then there is Betsy DeVos, the secretary of education who doesn’t believe in public education. She also doesn’t believe in granting legally required relief to indebted students who were defrauded by the for-profit colleges to which they paid tuition with federally guaranteed student loans. Stacy Cowley and Tara Siegel Bernard reported this distressing story in The Times last week.

Last month, in a scathing opinion, Judge William Alsup of Federal District Court in San Francisco wrote that the secretary’s policy of routinely denying applications for loan forgiveness without explanation “frankly, hangs borrowers out to dry.” While under President Barack Obama, the Department of Education granted applications at the rate of 99.2 percent, the current denial rate is 94.4 percent, with a backlog of more than 100,000 cases.

“Simply put, where there’s smoke, there’s fire,” Judge Alsup wrote. “We need to know what is really going on.” He ordered expedited discovery in a class-action lawsuit brought on behalf of the defrauded borrowers, whom the judge described as suffering from “shared trauma.” He said: “They sought opportunity via higher education only to be deceived by for-profit institutions and, at least in some cases, saddled with crushing debt.”

If there is a policy reason for her behavior, Secretary DeVos hasn’t articulated one; Judge Alsup called the department’s failure to explain itself “galling.”

Meanness might explain a lot.

Education has been a special Trump target. Given the president’s negative attitude toward both foreigners and higher education, it should have been no surprise that his administration came up with a particularly diabolical pandemic-justified way to disrupt the lives of thousands of international students enrolled in American universities. Students whose universities had gone to remote learning would lose their student visas and have to return home.

When Harvard and M.I.T. sued, the administration caved. But at the same time, students seeking to enter the United States to attend schools that still offer in-person classes had a very hard time getting visas because U.S. consulates have essentially stopped processing them. As a result, international student enrollment on U.S. campuses fell this semester by 43 percent.

What could have been the reason for unsettling so many lives (and so many college budgets) in such an obviously self-defeating effort to wall the country off from the global world? The administration knew it couldn’t defend itself in court. Meanness is an explanation, not a defense.


Looking ahead, we know that Jan. 20, 2021 — Inauguration Day — won’t mark an end to the country’s troubles. President-elect Joseph R. Biden’s administration will face enormous challenges. At times, it will fail to meet them. At times, we will gnash our teeth, dispute the president’s priorities, question his judgment.

But we have this to look forward to: He won’t be mean.

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For more information contact us at http://www.beverlyhillsimmigrationlaw.com/

Judge Halts ‘Public Health’ Expulsions of Children at the Border

 By 

WASHINGTON — A federal judge on Wednesday blocked President Trump’s policy of turning away migrant children at the border as public health risks, ruling that the expulsion of thousands of children without due process exceeded the authority that public health emergency decrees confer.

The Trump administration has since March used an emergency decree from the Centers for Disease Control and Prevention to effectively seal the border to migrants, rapidly returning them to Mexico or Central America without allowing immigration authorities to hear their claims for asylum. Top homeland security officials have cited the potential spread of the coronavirus that could come from detaining asylum seekers in border facilities.

But Judge Emmet G. Sullivan of the United States District Court for the District of Columbia, an appointee of President Bill Clinton’s, said that while the emergency rule allows the authorities to prevent the “introduction” of foreigners into the United States, it did not give border authorities the ability turn away children who would normally be placed in shelters and provided an opportunity to have a claim for refuge heard. The order applies across the country.

Lee Gelernt, a lawyer for the American Civil Liberties Union, one of four organizations that brought the class-action lawsuit, praised the decision.


“The policy, which has already resulted in the summary expulsion of thousands of young children, was simply pretext to do what the Trump administration has wanted to do for four years: close the border to children and asylum seekers from Central America,” he said.

It is unclear if the Trump administration will appeal the order. The ruling does not apply to single adults or families crossing the border, although Judge Sullivan did cast doubt on the overall use of the rule. While the judge said the authority granted by the rule was “extraordinary,” he wrote that it was “distinguishable” from whether the rule allowed the government to rapidly turn away migrants.

The administration used the rule to expel nearly 200,000 migrants in the fiscal year that ended Sept. 30, according to Customs and Border Protection data. More than 13,000 of those migrants were children traveling alone, the A.C.L.U. said.

Judge Sullivan’s ruling will raise the pressure on the incoming Biden administration as it considers how far to roll back Mr. Trump’s border policies. While President-elect Joseph R. Biden Jr. has said that he would halt other restrictions, like Mr. Trump’s so-called Remain in Mexico policy that has forced tens of thousands of migrants back to that country to await a court hearing, officials have said only that they would consult with public health officials on the health emergency decree.

While officials with the Department of Homeland Security have used the C.D.C.’s pandemic emergency declaration to justify the policy, the rule was pushed forward by the White House and specifically Stephen Miller, the White House immigration hard-liner who had tried to use health authorities to curtail migration even before the coronavirus emerged.


“We hope that the Biden administration will immediately repeal this policy given that C.D.C. believed it was unnecessary as a public health measure,” Mr. Gelernt said. “What the Biden administration does on this policy may be the first real test of where it is on immigration and protecting children.”

Sarah Pierce, a policy analyst at the Migration Policy Institute, a nonpartisan research group, warned that the ruling could fuel a surge of migration to the border. Some families turned away have responded to similar court decisions by seeking protection again. The Department of Homeland Security’s intelligence analysts have said that the pandemic’s toll on economies in Central America is likely to result in an uptick of migration in the coming months.

“As good as this order is for the children who are subject to it, from the perspective of the Biden administration, this creates a new challenge: How do they plan on Day 1 to handle increased flows of children at the southern border?” Ms. Pierce said. “This has really opened a can of worms for the incoming administration.”

Mr. Biden’s transition teams did not answer questions about the looming challenge.

Children who cross the border alone are supposed to be placed in shelters managed by the Department of Health and Human Services within 72 hours of being detained. They can then be placed with relatives acting as sponsors as their immigration cases are processed.

Top border officials argued that because of the pandemic, public health law had to take precedent over immigration laws.

“There are times when someone’s want and need to claim asylum is superseded by something of far greater value, and that’s lives of American citizens,” Mark Morgan, the acting commissioner of Customs and Border Protection, said last month.

Mr. Morgan argued that without the rule, the lives of Border Patrol agents and others would be put at risk from overflowing border facilities. But the immigration advocacy organizations bringing the case argued that the health emergency actually exposed agents more readily because they had to arrange for children to be taken by airplane back to their home countries. The shelters those children would normally be placed in were capable of adopting social distancing guidelines, the lawyers argued. The number of migrants in custody in border facilities has also dropped drastically since last spring, when the highest number of migrants crossing the border in more than a decade was recorded.


The court appeared to agree, finding that the Trump administration had not provided scientific evidence justifying the rapid deportations.

“The court disagrees that the C.D.C.’s interpretation implicates its scientific and technical expertise because the government has not explained how that scientific and technical expertise lead it to interpreting ‘introduction’ to encompass ‘expulsion,’” Judge Sullivan said in the ruling.

The administration’s rollout of the policy has been marked by a lack of transparency and questions over its legal justification. After The New York Times first reported that the administration would cite the pandemic to effectively seal the border to asylum seekers, border authorities said it would not apply to unaccompanied children.

But The Times later revealed that border authorities were applying the restrictions to such children. And despite a diplomatic agreement prohibiting the United States from expelling children from other countries to Mexico, The Times recently reported that a senior Border Patrol official told colleagues in an email that such a practice was occurring.

The practice has confused and spread anxiety among relatives of the children, who have scrambled to learn how they ended up in Mexico.


Zolan Kanno-Youngs is the homeland security correspondent, based in Washington. He covers the Department of Homeland Security, immigration, border issues, transnational crime and the federal government's response to national emergencies and security threats. @KannoYoungs

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