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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


Wednesday, December 30, 2020

Feds Can’t Back Out of Landmark Deal Protecting Immigrant Children


FILE – In this Dec. 11, 2018 file photo, an asylum-seeking boy from Central America runs down a hallway after arriving from an immigration detention center to a shelter in San Diego. (AP Photo/Gregory Bull, File)

(CN) — The Trump administration failed to satisfy the requirements of a landmark settlement when it sought to impose new rules governing the detention and release of immigrant children in federal custody and therefore cannot terminate the agreement, a Ninth Circuit panel ruled Tuesday.

The 1997 Flores settlement sets standards for U.S. immigration authorities overseeing the detention, release and treatment of all accompanied and unaccompanied immigrant children in federal custody. It requires U.S. immigration agencies to promptly release immigrant children to parents or guardians or to care for them in non-secure, safe and sanitary facilities until their cases are resolved. 

Immigrant children who are in deportation proceedings and not released are also entitled to a bond hearing under the Flores settlement.

Citing a surge of immigrants crossing at the U.S. Mexico border, the Trump administration moved in 2019 to terminate Flores with new rules governing U.S. Department of Homeland Security’s detention conditions and U.S. Department of Health and Human Services’ immigration proceedings for children picked up at the border.

The rule would have allowed Homeland Security to detain immigrant youth traveling with relatives or guardians for as long it takes to resolve their immigration cases, as well as placement in facilities not licensed to house children.

The Flores settlement does allow federal agencies to place immigrant children in secure facilities if a child has been charged with a crime or when an “influx of minors” overwhelms existing facility capacity. However, the federal government must still resolve children’s cases “expeditiously.”

In September 2019, U.S. District Judge Dolly M. Gee, the judge overseeing the Flores settlement, rejected the government’s attempt to implement the new rules, invalidated them entirely and said that only Congress can overturn the 1997 agreement.

In a 38-page published opinion by U.S. Circuit Judge Marsha Berzon, the Ninth Circuit panel affirmed parts of Gee’s ruling, including that new regulations relating to immigrant children travelling with adults don’t comply with Flores.

“The DHS regulations both limit the circumstances under which accompanied minors may be released and ‘create an alternative to the existing licensed program requirement for U.S. Immigration and Customs Enforcement (ICE) family residential centers,’ allowing ICE to operate family detention centers under internal standards, without state oversight,” Berzon, a Bill Clinton appointee, wrote.

The panel agreed the regulations should be barred from taking effect, that they did not terminate the Flores settlement, and found Gee did not abuse her discretion by denying the Trump administration’s request to get out of the agreement.

The parties to the Flores agreement have clashed on the issue of family separation, with Trump administration attorneys saying the federal government will not release family units together from custody.

Attorneys for the children told the Ninth Circuit panel the Flores settlement includes provisions encouraging the federal government to release parents of detained children, though it isn’t required under the agreement.

Under the settlement, children who arrive in the U.S as part of family units still have a right to be released to their other relatives in the U.S. who might be able to take care of them. But the Trump administration has declined to release families together, creating a legal conundrum forcing detained immigrant parents to choose to have children held in federal custody or be released to guardians as a deadly pandemic grips the nation.

Berzon and the panel found the Trump administration has failed to show how any recent increase in family migration makes it more difficult to comply with requirements for prompt release of children. 

“Even if the government has legitimate justifications for detaining adults, it has not shown why it must also detain accompanying minors,” Berzon wrote. “For example, the government could detain parents but release their children to another available relative. Nothing in the agreement requires the government to take children from their parents against the parents’ will.”

A rule allowing Homeland Security to transfer unaccompanied immigrant children to Health and Human Services (HHS) custody when they’re apprehended and processed is consistent with the Flores agreement and may take effect, the panel ruled.

A U.S. Department of Justice spokesperson did not immediately respond to a request for comment on the ruling.

The Trump administration had argued the Flores settlement is too broad in its regulatory scope and has created conditions that help fuel accompanied and unaccompanied child migration to the U.S.

In 2019, more than 80,000 unaccompanied children arrived at the U.S. Mexico border and 10,000 were held in Department of Health & Human Services custody, according to federal data. More than 500,000 members of family units were encountered at the border that year.

The panel allowed most of the new rules governing HHS bond hearings to take effect but blocked a hearing request requirement and a rule allowing the Office of Refugee Resettlement to place an unaccompanied child in jail-like conditions if they’re deemed a danger to themselves or others.

“We conclude that the HHS hearing regulations are consistent with the agreement except to the extent that they require unaccompanied minors held in secure or staff-secure placements to request a hearing, rather than providing a hearing to those minors automatically unless they refuse one,” Berzon wrote.

Attorneys for the children did not immediately respond to an emailed request for comment.

U.S. Circuit Judges Milan D. Smith, Jr, a George W. Bush appointee, and William Fletcher, also a Clinton appointee, rounded out the panel.

The Flores settlement emerged out of Jenny Lisette Flores v. Edwin Meese, a federal class action filed in 1985 on behalf of unaccompanied immigrant children fleeing torture and abuse in Central America.

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

Trump faces looming decision on extending visa suspension


President Trump is facing a fast-approaching deadline to extend an executive order he imposed earlier this year suspending various temporary work visas amid the coronavirus pandemic.

Trump is under pressure from some corners to extend the order into 2021, which would put pressure on the incoming Biden administration over whether to quickly rescind it. The president's advisers are said to be split over whether Trump should act, according to sources familiar with discussions.

Trump in June signed an executive order suspending the issuance of H-1B visas, H-2B visas, H-4 visas, L-1 visas and certain J-1 visas. The moratorium on new visas is in place through Dec. 31, meaning Trump has until Thursday to extend it or let it lapse.

Proponents of extending the visa suspensions argue the pandemic is ongoing, and some on Trump's team believe it would create a potential political headache for President-elect Joe Biden out of the gate. Trump may also be inclined to push through a few final policy measures before Biden takes office.

Neither the White House nor the Department of Homeland Security responded to requests for comment.

The Trump administration initially justified the suspension by claiming it would free up jobs for Americans who were out of work due to the pandemic. But immigration had largely been closed off due to travel restrictions already, and many companies have said certain jobs that existed pre-pandemic will not be filled again.

Some conservative groups have pressured the Trump administration in recent days to extend the visa suspensions, however, arguing the economy has yet to fully recover from the pandemic.  

Since Thanksgiving, unemployment claims have risen again above 800,000 as the number of coronavirus cases spiked, setting new daily records for infections, hospitalizations and deaths.

"Given that we are still in the midst of the worst economic crisis in living memory, extending the proclamation well into 2021 should be an easy decision," said RJ Hauman, head of government relations at the Federation for American Immigration Reform, which sent Trump a letter advocating for an extension.

"The question then becomes this: will President-elect Biden immediately side with powerful business interests that continue to demand more cheap foreign labor?" Hauman said. "Or will he realize that high levels of immigration and guest worker admissions are an impediment to American workers recovering along with the economy?"

Biden has pledged to undo much of Trump's immigration agenda. He has committed to "immediately" reverse Trump's travel ban on several majority-Muslim countries, reverse policies that separate parents from their children at the border and order a review of the Temporary Protected Status program.

The president-elect has also vowed to restore refugee admissions to pre-Trump administration levels and reform the visa system.

The Biden transition team did not respond to a request for comment about whether he would rescind an extended suspension of temporary visas.

Should Trump extend his order, it would not sit well with business groups and even some Republican lawmakers who expressed disapproval when it was first announced in June.

The U.S. Chamber of Commerce, the National Association of Manufacturers and other business groups filed a lawsuit at the time, arguing that the U.S. has benefited from temporary worker visa holders and that the order would discourage qualified workers from coming to the U.S. 

“Banning critical and skilled workers from entering the country was a mistake, and it disrupted manufacturers’ fight against COVID-19 at exactly the wrong time," Linda Kelly, the National Association of Manufacturers' senior vice president and general counsel, said in a statement on Monday.

"Manufacturers’ legal case halted the ban and ensured we could continue leading our pandemic response and economic recovery," she added. "Any effort to extend this misguided and unlawful policy would only hamper recovery efforts and undermine innovation at this consequential moment in our nation’s history.”

Sen. Lindsey Graham (R-S.C.), a staunch Trump ally who has been a proponent of immigration reform, said in June that those who believe work visas hurt the American worker "do not understand the American economy." Graham's office did not respond to a request for comment about a potential extension of the executive order.

Alex Gangitano contributed

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

Monday, December 28, 2020

Immigrant Advocates Vow To Keep Up The Pressure As Biden Asks For Patience

 By Joel Rose

Immigrant advocates, eager to break with four years of Trump administration policies, are raising concerns about President-elect Joe Biden's plan to move cautiously to avoid making matters worse.

While still publicly supporting the Biden transition team, they're imploring the incoming administration to move with urgency.

"This is a matter of life and death," said Guerline Jozef, the executive director of the Haitian Bridge Alliance, because tens of thousands of migrants still face dangerous conditions in Mexican border towns.

"We have people literally dying in Tijuana, in Matamoros, all over Mexico because of those policies that stop them from coming up for asylum," she said during a call with reporters on Tuesday.

During a press conference in his home state of Delaware, the president-elect sought to reassure immigrant advocates that he will move to undo many of President Trump's immigration policies. But Biden acknowledged that many of those changes would not happen on Day 1.

"The timeline is to do it so that we, in fact, make it better, not worse," he said.

During the campaign, Biden promised to undo many of Trump's policies at the border. He has pledged to restore asylum protections, and to end the program that requires tens of thousands of asylum seekers to wait in Mexico for their hearings in U.S. immigration court. But he now says those efforts could take months, not days.

"It's a matter of setting up the guardrails so we can move in the direction," Biden said, so that we don't "end up with two million people on our border."

Biden's comments echoed those made by two of his top policy advisers in an interview with Spanish wire service EFE that was published on Monday, which seemed calculated in part to temper expectations among the Spanish-speaking populations in Latin America and avoid triggering a new migration crisis at the border.

"Processing capacity at the border is not like a light that you can just switch on and off," said Susan Rice, the incoming domestic policy adviser, according to a translation of the interview transcript. "Migrants and asylum seekers absolutely should not believe those in the region peddling the idea that the border will suddenly be fully open to process everyone on Day 1. It will not."

On a call with reporters, immigrant advocates across the country urged the incoming administration to move quickly.

"So many people have fallen into danger and kidnapping and homelessness" while waiting for a chance to seek asylum in the U.S., said Linda Rivas, executive director and managing attorney at the Las Americas Immigrant Advocacy Center in El Paso, Texas.

"So we definitely have this sense of urgency that we want to convey."

In the interview with EFE, Rice was asked whether the Biden administration will move to end the public health order that has effectively closed the border to migrants during the coronavirus pandemic. Rice did not give a clear answer, to the dismay of some immigrant advocates.

"The Trump administration used public health as their sole rationale" for closing the border, said Dr. Michele Heisler, medical director of Physicians for Human Rights, on the call with reporters. "There's no basis for that," said Heisler, who argues the incoming administration could begin to process asylum seekers at the border without jeopardizing public health in the U.S.

But overall, immigrant advocates seem willing to give Biden and his team the benefit of the doubt — at least for now.

"This is a new vision that we're quite excited about," said Frank Sharry, the executive director of America's Voice, a pro-immigrant nonprofit in Washington, D.C. "We're going to push them every step of the way so they don't take their foot off the pedal."

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

Thursday, December 24, 2020

Mayorkas will set a new tone and agenda at DHS


Mayorkas will set a new tone and agenda at DHS
© Getty Images

The incoming administration’s motto “Build Back Better” is more than a clever alliteration, it’s a directive for every cabinet secretary and incoming employee. When it comes to the Department of Homeland Security and its many immigration agencies this will require setting a new tone and agenda that begins to change their ethos from one that treats immigrants as a threat to one that understands the power and potential of being a nation that welcomes newcomers.

One of the unfortunate and enduring legacies of the creation of the Department of Homeland Security was the consolidation of benefits agencies like U.S. Citizenship and Immigration Services (USCIS) under the same umbrella with law enforcement agencies. Thus, the tools of enforcement and security have become so dominant that almost everything in the department’s vast network of agencies and responsibilities is seen through that narrow enforcement and security lens.

Since being folded into DHS, the agencies have lost sight of their role to ensure our immigration system is harnessed to attract new talent and ideas, as well as to protect those seeking safety and protection. Instead, immigration policy has literally and figuratively become about building walls and deterring people from migrating to America.

Immigration agencies whose primary functions are the administration of benefits like providing visas, granting naturalizations, unifying families, or granting asylum have been transformed into immigration enforcement agencies. This is a deep perversion of their purpose.

Managing this shift will require expert leadership, and President-elect Biden’s nomination of Alejandro Mayorkas to lead the Department of Homeland Security offers a chance for change. His personal and professional life experiences provide him with a depth of understanding about how these agencies should work.

As a former U.S. Attorney and Deputy Secretary of Homeland Security, he understands the tools of enforcement. But, as the child of a Holocaust survivor, whose family fled Cuba when he was a boy, he also understands the transformative power of America’s immigration system and what it means to become a naturalized American citizen. He led USCIS with a respect for the agency’s mandate to efficiently and fairly serve those who are applying for immigration benefits. His implementation and management of the DACA program was remarkable for its efficiency and integrity.  

Mayorkas has shown an ability to strike a balance between enforcement and generosity. Those who would oppose his nomination or the nomination of other incoming administration officials for pursuing policies that welcome people into the country are clearly stuck in an old isolationist mindset on immigration that is an affront to America's history as a nation that welcomes people not only for their safety, protection, and benefit, but for our own benefit as well.

The underlying restrictionist bias that has plagued the immigration agencies has gone on for far too long. It has obscured the fact that immigration is a benefit to American society, culture, and economy. The focus on enforcement has also blinded the agency to more effective ways to address the root causes of many of the problems that we face in the immigration system today.  In fact, this enforcement bias was the cause of the horrific separation of families and is the reason that we have a humanitarian crisis at our southern border.    

Immigration advocates and lawyers had their disagreements with Mayorkas during his previous tenure, but they respected his transparency, his willingness to listen, and the decisiveness of his leadership. It stands in marked contrast to the last four years of a revolving door of leadership by appointees who put the whims and personal interests of the White House above the safety of our country and the integrity of our immigration system. Mayorkas’s nomination offers a chance to set the department on a path out of that chaos and signals an important change to come in the culture of the immigration agencies.

Benjamin Johnson serves as executive director for the American Immigration Lawyers Association.

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

Wednesday, December 23, 2020

Migrant women file lawsuit against doctor for alleged forced medical procedures


Migrant women file lawsuit against doctor for alleged forced medical procedures
© Getty

Lawyers representing a group of more than 40 migrant women on Monday filed a class-action lawsuit alleging abuse and forced medical procedures at a Georgia immigration detention center. 

The 160-page legal complaint, filed in the U.S. District Court for the Middle District of Georgia, argues that fourteen women identified as “Petitioners” in the case were each “subjected to, non-consensual, medically unindicated, and/or invasive gynecological procedures by Mahendra Amin,” a doctor at the at the Irwin County Detention Center (ICDC). 

The lawsuit adds that after the women attempted to speak out against such abuse, detention center officials “retaliated against them in order to silence them,” including by placing or threatening to place them in solitary confinement, on cell restriction or transferring the women to other units to separate them from each other. 

The lawsuit also outlined other alleged retaliatory measures taken against the women, such as physical assault “including while they were handcuffed,” the legal filing states. 

About 40 women have filed sworn testimony in the case, "revealing a relentless pattern of unnecessary and non-consensual medical procedures, including unwanted gynecological surgeries and other non-consensual medical interventions," according to a statement released with the complaint.

The lawsuit also includes testimony from gynecological and mental health experts, and statements from the women describing their experiences. 

The group has also filed a motion for a temporary restraining order calling for “an immediate end to retaliation against women for speaking out, compensation for the harms they have suffered, and writs from the court requiring [Immigration and Customs Enforcement] ICE to make the women available to fully participate in the lawsuit, or alternatively, to release the women from the detention center.” 

The groups who filed the lawsuit, which include law firms and organizations such as the National Immigration Project of the National Lawyers Guild (NIPNLG), are also calling for President-elect Joe Biden’s incoming administration and Congress to “correct the wrongs of [President] Trump’s anti-immigrant agenda by closing the Irwin County Detention Center and investigating all ICE officers and contractors who turned a blind eye against the abuse the women suffered under their supervision.”

The Department of Justice has opened a criminal investigation into the alleged mistreatment at the detention facility. The inspector general for the Department of Homeland Security (DHS) is also investigating the case.

The lawsuit comes after four human rights advocacy groups in September filed a whistleblower report with DHS with information provided by Dawn Wooten, an ICDC nurse. The report included allegations of widespread medical malpractice, including subpar COVID-19 treatment and "red flags regarding the rate at which hysterectomies are performed on immigrant women."

Detainees interviewed for the report alleged that women were sent to a gynecologist who seemingly over-prescribed the hysterectomy procedure, and in some cases, ICDC officials and the doctor failed to fully explain the consequences or receive full consent from patients subjected to hysterectomies.

"Everybody he sees has a hysterectomy—just about everybody," said Wooten, according to the report.

ICE spokesperson Lindsay Williams said in a statement to The Hill at the time that the agency does not comment on matters before the Office of Inspector General (OIG), but "takes all allegations seriously and defers to the OIG regarding any potential investigation and/or results."

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

Tuesday, December 22, 2020

Despite court victories, DACA faces biggest legal test ahead of Biden presidency


A federal judge who has issued scathing rulings against Obama-era immigration policies is set to review the legality of a deportation relief program for hundreds of thousands of young undocumented adults known as "Dreamers," just weeks before President-elect Joe Biden takes office.

Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas will hold arguments on Tuesday in a lawsuit that seeks to wind down Mr. Obama's Deferred Action for Childhood Arrivals (DACA) program, which Hanen has previously said is likely illegal.

The case before Hanen represents the most imminent threat to DACA, which has so far survived a years-long campaign by the Trump administration to end it. If Hanen declares DACA unlawful, the ruling could hamstring Mr. Biden's pledge to safeguard the program and place more than 640,000 current recipients, as well as 300,000 potential new applicants, in legal limbo.

"This case is important because Texas and several other states want a judge to declare that DACA is unlawful and to block DACA into the next presidential administration," Nina Perales, a lawyer for the Mexican American Legal Defense and Educational Fund representing the program's beneficiaries, told CBS News.

While Trump administration officials are technically the defendants in the case, Perales' group and the state of New Jersey have been representing DACA recipients because the Justice Department has agreed with Texas and other GOP-led states acting as plaintiffs that the program should be ultimately dismantled.

"Plaintiffs and Federal Defendants agree — DACA is unlawful," Trump administration lawyers wrote in June 2018.

The coalition of states challenging DACA have not asked Hanen to immediately terminate the protections for current program enrollees. Instead, they've asked him to either suspend DACA by barring new applications and renewals, or to delay an order terminating the program in its entirety for two years.

In November, the Trump administration asked Hanen to allow the Department of Homeland Security to alter DACA even if he suspends the program. Unlike in previous filings, it did not say it agreed DACA is illegal.

In recent years, DACA recipients and their allies have garnered significant legal victories, convincing federal judges across the country and the Supreme Court to rule that the Trump administration violated administrative law when it moved to end the Obama-era initiative in September 2017. More recently, a federal judge in New York ordered the program's full reinstatement after finding that Acting Homeland Security Chad Wolf lacked the authority to issue new restrictions, including a ban on new applications.

Unlike these court cases, however, the lawsuit being reviewed by Hanen does not focus on the Trump administration's effort to end DACA. Instead, it centers on whether Mr. Obama had the authority to create the program in 2012 and whether his administration properly implemented it.

If his previous rulings are any indication, Hanen seems likely to answer both questions in the negative. An appeal of such a ruling would be filed before the 5th Circuit Court, arguably the most conservative federal appellate body in the country, and the ultimate arbiter could be the Supreme Court.

Appointed by President George W. Bush in 2002, Hanen gained national attention during the Obama presidency for strongly admonishing the government and its immigration practices in his opinions. In 2015, he blocked Mr. Obama's bid to expand DACA eligibility and create a new deportation relief program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

The 5th Circuit subsequently upheld Hanen's order, which stemmed from a lawsuit filed by Texas and 25 states. The DAPA program, which could have benefited millions of undocumented parents of U.S. citizens and green card holders, never went into effect and remained blocked after an equally divided Supreme Court affirmed the lower court ruling in the summer of 2016.

After the Trump administration's attempted wind-down of DACA was interrupted by the courts, a group of Republican state attorneys general, led by Ken Paxton of Texas, sued again in May 2018 and the case was transferred to Hanen. Paxton asked him to kill the program. The Mexican American Legal Defense and Educational Fund and New Jersey subsequently intervened in the case and have been arguing for DACA's survival ever since. 

In late August 2018, Hanen issued a 117-page opinion on a motion for a preliminary injunction finding that the GOP attorneys general had "clearly shown" that they were likely to prevail in their argument that DACA is unlawful and should be blocked. He found DACA to be contrary to federal immigration law and that the Obama administration appeared to have violated legal administrative requirements by implementing the initiative through a memo, rather than through a rule-making process open to public comments.

"This program, which allots lawful presence and its corresponding benefits to more than a million aliens, must be committed to the decision-making power of Congress, not the Executive alone," Hanen wrote. "Nevertheless,  if implemented by the executive branch, it must at least undergo the formalities of notice and comment."

To the surprise of many, including DACA advocates, Hanen did not terminate the program, saying Texas and the other states waited too long — nearly six years — to ask for a preliminary injunction. He also said that, in the context of a preliminary injunction, the interests of hundreds of thousands of immigrants with DACA benefits outweighed those of the Republican-led states.

"Here, the egg has been scrambled," Hanen said. "To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country."

Perales, the lawyer representing DACA recipients, will be arguing Tuesday that Texas and the other states do not have legal standing to challenge the program and have failed to demonstrate they are harmed by it. Hanen, however, has preliminarily determined that the states do have standing, citing their argument that they have to provide DACA recipients certain social services. 

Any financial burden on the states, Perales has argued, is not directly linked to DACA recipients or is offset by their economic contributions. 

Perales said Hanen's prior rulings don't necessarily dictate his decision on the current motion. "He will take a full look at the case where it is now," she added.

DACA shields undocumented immigrants who came to the U.S. as minors before 2007 from deportation and allows them to work in the U.S. legally. It does not place recipients on a pathway to U.S. citizenship. Eligibility requirements for the program include arriving in the U.S. before the age of 16, earning a high school diploma, GED or serving honorably in the military and not having serious criminal convictions, including any felonies.

León Rodríguez, who oversaw DACA as Mr. Obama's second U.S. Citizenship and Immigration Services director, said that while an unfavorable order by Hanen could limit Mr. Biden's fulfillment of his campaign promises, it could also "shake" Washington and prompt lawmakers to pass legislation enacting the program into law. DACA, he said, was always meant to serve as a "Band-Aid to stop the bleeding."

"In one way it could complicate things for the Biden administration," Rodríguez told CBS News. "In a different way, it could bring about what needs to happen anyway, which is that Congress and the executive branch in partnership need to take responsibility for the issue of the Dreamers."

Camilo Montoya-Galvez is the immigration reporter at CBS News. Based in Washington, he covers immigration policy and politics.

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

Exclusive: Biden team weighs deportation relief for more than 1 million Hondurans, Guatemalans


WASHINGTON (Reuters) - The incoming Biden administration is considering a plan to shield more than a million immigrants from Honduras and Guatemala from deportation after the countries were battered by hurricanes in November, three people familiar with the matter told Reuters.

U.S. President-elect Joe Biden’s transition team is weighing whether to grant them Temporary Protected Status (TPS). The program allows people already in the United States at the time of the designation to stay and work legally if their home countries have been affected by natural disasters, armed conflicts or other events that prevent their safe return. The designations last six to 18 months and can be renewed.

TPS covers both immigrants in the United States illegally and those on legal visas. The program bars certain applicants with criminal convictions and those deemed security threats.

The sources stressed that no decisions were expected until after Biden takes office on Jan. 20 and staff are in place to conduct formal evaluations.

“They’re looking into TPS the same way they’re looking into a number of things to decide on the right course of action,” said one of the people, all of whom requested anonymity. “Circumstances on the ground certainly warrant that.”

A transition team spokesman declined to comment.

If Biden’s Democratic administration does grant TPS to Hondurans and Guatemalans, it would represent a major expansion of the program and the biggest use of that authority in decades.

The discussion of the TPS humanitarian protections represents a sharp departure from the administration of Republican President Donald Trump.

Trump attempted to phase out most enrollment in the TPS program, arguing the countries had recovered from natural disasters that happened years or decades ago, but the terminations were slowed by federal courts and the protections will remain in place at least until October 2021.

Biden’s campaign website called Trump attempts to roll back TPS “politically motivated” and Biden has said he would not return enrollees to unsafe countries.

If the Biden administration ultimately offers new TPS protections to Hondurans and Guatemalans, it could enthuse liberal Democrats but would risk criticism from Republicans who back Trump’s tougher approach to immigration, making it more difficult for Biden to pass the immigration bill he plans to introduce at the start of his term.


U.S. border officials are also concerned about the effects of a major surge in migration in the middle of the coronavirus pandemic. The situation could be exacerbated by talk of new TPS designations, said Brandon Judd, president of the National Border Patrol Council, a union for Border Patrol agents.

The two hurricanes that powered through Central America in November, named Eta and Iota, killed more than 100 people in Honduras and forced more than 300,000 to be evacuated from their homes, with more than 125,000 still displaced in shelters, according to the Honduran government.

In Guatemala, the storms killed dozens of people, destroyed roads, bridges, and other infrastructure, and inundated swaths of farmland while it already had a growing hunger crisis.

More than a quarter of a million families in Guatemala have been affected by the agricultural destruction, according to the agricultural ministry. The World Food Programme warns the damage will create a high risk of food insecurity for subsistence farmers and their families throughout the next 10 months, until the next harvest occurs.

The governments of both Honduras and Guatemala have called on the United States to issue new TPS designations for their nationals in the United States.

A group of four Democratic senators from the states of Virginia and Maryland sent a letter on Friday to Alejandro Mayorkas, Biden’s nominee to become homeland security secretary, urging Mayorkas to “promptly” issue new TPS designations for Honduras and Guatemala, as well as for El Salvador and Nicaragua.

In Texas, 42-year-old Margarita Rivera, a Honduran immigrant living in the United States illegally and working at a cake shop, said flooding was so devastating in her hometown along the northern coast that many of her neighbors lost their homes and had to be rescued by boat.

“I would love if TPS were approved,” she said, explaining that it would be extremely difficult for her to survive and make ends meet in Honduras if she were deported.

Roughly 411,000 people of different nationalities have TPS protections, according to a 2019 report by U.S. Citizenship and Immigration Services (USCIS).

Some 79,000 Hondurans are already enrolled in the program under a 1999 designation issued by Democratic President Bill Clinton’s administration following hurricane damage. However, to be eligible, Hondurans must have been residing in the United States on or before Dec. 30, 1998.

Reporting by Ted Hesson in Washington and Laura Gottesdiener in Monterrey, Mexico; Additional reporting by Kristina Cooke in Los Angeles; Editing by Ross Colvin and Grant McCool

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

Monday, December 21, 2020

Nguyen v. Barr

 An asylum-seeker waived review of the Board of Immigration Appeals’ discretionary denial of his application by failing to contest that aspect of the board’s decision in his opening brief, and instead raising it for the first time in his reply brief. The board correctly concluded that the asylum-seeker’s proposed social group of known drug users lacked definable boundaries and therefore could not serve as a legally cognizable social group.

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

Justices Put Off Ruling on Trump Plan for Unauthorized Immigrants and Census


WASHINGTON — The Supreme Court on Friday dismissed a lawsuit challenging the Trump administration’s plan to exclude unauthorized immigrants from the calculations used to allocate seats in the House, saying it was premature.

The court’s ruling handed the administration an interim victory, allowing it to continue to pursue an effort that could shift the allotment of both congressional seats and federal money to states that are older, whiter and typically more Republican.

“At present,” the court said in an unsigned opinion, “this case is riddled with contingencies and speculation that impede judicial review.”

“We express no view on the merits of the constitutional and related statutory claims presented,” the opinion said. “We hold only that they are not suitable for adjudication at this time.”

The court’s three liberal members dissented. They said that the case was far enough along for a decision and that they would have ruled the plan unlawful.

“The plain meaning of the governing statutes, decades of historical practice and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status,” Justice Stephen G. Breyer wrote in a dissent joined by Justices Sonia Sotomayor and Elena Kagan. “The government’s effort to remove them from the apportionment base is unlawful, and I believe this court should say so.”

“Where, as here, the government acknowledges it is working to achieve an allegedly illegal goal,” Justice Breyer wrote, “this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.”

Dale Ho, a lawyer with the American Civil Liberties Union, which represents some of the challengers, said the ruling was a temporary setback.

“This Supreme Court decision is only about timing, not the merits,” he said in a statement. “This ruling does not authorize President Trump’s goal of excluding undocumented immigrants from the census count used to apportion the House of Representatives.”

“If this policy is ever actually implemented,” Mr. Ho said, “we’ll be right back in court challenging it.”

The practical effect of the ruling may be limited because Census Bureau officials have said they may not be able to produce data on unauthorized immigrants before Mr. Trump leaves office. When the case was argued last month, Jeffrey B. Wall, the acting solicitor general, acknowledged that the situation was fluid and that the bureau may not be able to identify many immigrants who are in the United States without authorization.

By law, the Commerce Department is required to supply census information to the president by the end of the year, but it may not be able to meet that deadline. Mr. Wall indicated that the Census Bureau does have good data on the tens of thousands of unauthorized immigrants held by Immigration and Customs Enforcement, but that number is almost certainly too small to change apportionment.

He was less certain that the bureau could match records concerning people subject to orders of removal, young immigrants known as Dreamers or other categories of unauthorized immigrants.

The Constitution requires congressional districts to be apportioned “counting the whole number of persons in each state,” using information from the census. In July, Mr. Trump issued a memo taking a new approach. “For the purpose of the reapportionment of representatives following the 2020 census,” the memo said, “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.”

“Current estimates suggest that one state is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the state’s entire population,” the memo said, apparently referring to California. “Including these illegal aliens in the population of the state for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.”

In the memo, Mr. Trump ordered Wilbur Ross, the secretary of commerce, to provide him with two sets of numbers, one including unauthorized immigrants and the other without them. But how Mr. Ross would derive the second set of numbers became unclear after the Supreme Court last year rejected his efforts to add a question on citizenship to the census.

In dissent, Justice Breyer said the memo was powerful evidence. “The harm is clear on the face of the policy,” he wrote. “The title of the presidential memorandum reads: ‘Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.’”

In the spring, as the coronavirus pandemic slowed data collection, the administration asked Congress to extend the legal deadline for delivering reapportionment totals from the end of the year to April 2021.

But Mr. Trump abruptly reversed course in July, ordering that the Dec. 31 deadline be met. That forced the Census Bureau to try to complete five months of data processing in about two and a half months.

The majority in Friday’s decision said the Census Bureau faced daunting challenges. “Everyone agrees by now that the government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status,” the opinion said.

The case before the court, Trump v. New York, No. 20-366, was brought by two sets of plaintiffs, one a group of state and local governments and the United States Conference of Mayors, and the second a coalition of advocacy groups and other nongovernmental organizations.

A three-judge panel of the Federal District Court in Manhattan ruled that the new policy violated federal law. Two other courts have issued similar rulings, while one said the dispute was not ripe for consideration.

In an unsigned opinion in the case from Manhattan, the panel said the question before it was “not particularly close or complicated.”

“The secretary is required to report a single set of figures to the president — namely, ‘the tabulation of total population by states’ under the ‘decennial census’ — and the president is then required to use those same figures to determine apportionment using the method of equal proportions,” the panel wrote, quoting the relevant statutes.

The two sides in Friday’s Supreme Court decision disagreed about whether Mr. Trump’s plan would affect not only House seats but also the distribution of federal money.

“Given the connection between the decennial census and funding allocation, a change of a few thousand people in a state’s enumeration can affect its share of federal resources,” Justice Breyer wrote in dissent.

The majority said the link between Mr. Trump’s apportionment plan and federal money was open to dispute. “According to the government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum,” the opinion said, meaning that the plan “will not inexorably have the direct effect on downstream access to funds or other resources predicted by the dissent.”

Indeed, the majority said, “how that question will be addressed by the secretary and the president is yet another fundamental uncertainty impeding proper judicial consideration at this time.”

Should Mr. Trump be able to proceed with his plan, further litigation is certain. But in dissent, Justice Breyer said the majority should have acted immediately. “Waiting to adjudicate plaintiffs’ claims until after the president submits his tabulation to Congress, as the court seems to prefer, risks needless and costly delays in apportionment,” Justice Breyer wrote.

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. @adamliptak  Facebook

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