About Me

My photo
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, September 29, 2021

Democrats pitch parliamentarian on immigration plan B


Senate Democrats are pitching the Senate parliamentarian on their backup plan for getting immigration reform into a sweeping spending bill.

Sen. Dick Durbin (D-Ill.) said that Democrats are currently presenting an alternative plan to parliamentarian Elizabeth MacDonough, who decides whether something complies with the strict rules governing what can be included in the spending bill. 

“We’ve presented a legal memo for the second approach and a CBO score,” Durbin said, referring to an estimate from the Congressional Budget Office.

Democrats previously pitched the parliamentarian on using the spending bill to provide 8 million green cards for immigrants in four groups: "Dreamers," temporary protected status holders, and agricultural and other essential workers.

But MacDonough rejected that effort, arguing that it doesn’t comply with the rules for reconciliation — the budget process that Democrats are using to bypass the filibuster in the Senate.  

"The policy changes of this proposal far outweigh the budgetary impact scored to it and it is not appropriate for inclusion in reconciliation," she wrote in the ruling obtained by The Hill, referring to the budget process Democrats are using to avoid the Senate filibuster.

Because Democrats are using reconciliation to pass the spending bill without GOP support, there are strict requirements for what can be included. One of the requirements is that any provision in the bill has to impact the federal government's spending or revenues and that the impact can't be "merely incidental" to nonbudgetary intentions.

MacDonough's ruling was a blow to Democrats, who have struggled for years to get immigration reform through Congress.

Progressives immediately called on Democrats to overturn MacDonough, a move that would require the support of all 50 Democrats plus Vice President Harris in the chair.

But Senate Democrats rejected those calls, noting that there wasn't the support within the caucus for using the hardball tactic. 

Instead, they immediately began searching for a plan B.

Durbin confirmed on Tuesday that part of their pitch to MacDonough is to change the registry date for certain undocumented immigrants and beneficiaries of humanitarian parole programs, essentially implementing a statute of limitations for past unauthorized entries. 

It currently allows undocumented immigrants who came to the United States before 1972 to apply for legal status. Durbin said he could not remember the date Democrats were suggesting updating it to, and Durbin's office declined to say. 

According to an analysis by FWD.us, changing the registry date to 2010 — allowing any migrants who’ve been in the country since that date to apply for residency — would make around 6.7 million people eligible for legal permanent residency.

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

Tuesday, September 21, 2021

Li v. Garland

 Substantial evidence supported a denial of asylum to an alien who submitted false information in her asylum application regarding her arrest record and in her visa application regarding her employment; while this latter factor alone might not support an adverse credibility finding, it was an appropriate factor to consider when the alien made no attempt during her hearing to explain why she needed to provide the false information. An alien’s omission regarding her husband’s employment was not a proper basis for an adverse credibility determination, where the omission might be a collateral or ancillary omission that, under the totality of the circumstances, had no tendency to suggest the alien fabricated her claim.

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

Monday, September 20, 2021

Guzman v. NBA Automotive

 A worker sufficiently exhausted her administrative remedies even though her administrative complaint with the Department of Fair Housing and Employment gave the wrong name for her employer, where her complaint unmistakably identified her employer as the respondent.

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

Lawson v. Grubhub

 A district court properly denied certification to a proposed class of delivery drivers where all members but two had signed agreements waiving their right to participate in a class action. California Proposition 22 did not abate the application of the retroactive application of the ABC test to claims rooted in wage orders.

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

Haitians stuck in Texas extend Biden's immigration woes


The growing group of Haitians massing under a bridge in Texas under increasingly squalid conditions is worsening President Biden’s political headache over immigration.

Images of thousands of people camping under a highway overpass have reopened a favorite Republican line of attack against Biden, with Texas GOP officials blaming the president for the rise in Haitian migration.

The Hill on Thursday reported that an Immigration and Customs Enforcement (ICE) plane carrying 86 Haitians landed Wednesday in the ravaged Caribbean nation, which saw its president assassinated in July and suffered a devastating earthquake in August.

Eight further ICE flights scheduled to go to Haiti next week, according to a report by NBC News.

The Border Patrol on Thursday confirmed it would seek the quick expulsion of “the vast majority of single adults and many families” camping under the Del Rio, Texas, bridge.

That drew swift condemnation from immigrant advocates, who were shocked the Biden administration would return people to a country so mired in crisis.

On Friday, Reps. Ayanna Pressley (D-Mass.) and Nydia Velázquez (D-N.Y.) led 56 House Democrats in a letter demanding the administration suspend all expulsion and deportation flights to Haiti.

“The Biden Administration cannot claim it is doing everything it can to support the Haitian community while continuing to unjustly deport Haitians as the island weathers its worst political, public health and economic crises yet,” said Pressley.

Republicans have reveled in publicizing conditions in Del Rio as evidence of a failed Biden border policy.

The twin lines of attack from liberals upset about the deportations and Republicans calling for tougher measures have seemingly put Biden between a rock and a hard place at a time when regional migration flows have become unpredictable.

In August, migrants from Mexico, Guatemala, Honduras and El Salvador accounted for 147,403 land encounters with U.S. border authorities at the southern border, while nationals of other countries accounted for 61,484.

While most migrants attempting to cross the border without prior authorization are still either Mexican or Central American, migrants from the rest of the world last month outnumbered those from any single country.

The Department of Homeland Security (DHS) does not break down the citizenship numbers for people from other countries, but two of the largest components of that group are Haitian and Venezuelan citizens.

Haitian immigration is particularly politically sensitive for the Biden administration, as advocates place some blame for conditions in Haiti on U.S. policy toward the country, particularly during the Obama administration.

“Conditions — and therefore migration from — Haiti is inextricably linked to the elephant in the room, i.e. U.S. foreign policy, which for well over a decade has proactively and recklessly … supported corrupt, anti-democratic leaders instead of civil society, resulting in institutional dysfunction and collapse,” said Steve Forester, immigration policy coordinator at the Institute for Justice & Democracy in Haiti.
Many advocates for Haitian immigrants trace the country's current political disarray back to the Obama administration's support for former President Michel Martelly.

Martelly, who in 2011 was the first Haitian president sworn in in a peaceful transfer of power to an opposition party, left political chaos upon his resignation in 2016, designating Jovenel Moïse as his party's candidate to succeed him.

Moïse became president after a short interim government, but his government descended into chaos amid controversy over when his term should end.

The controversy remained unresolved when Moïse was assassinated in July.

Still, the Biden administration reportedly plans to amp up deportations and expulsions to Haiti, primarily using the Trump-era Title 42 policy, which allows immigration officials to expel foreign nationals without hearing asylum claims under the guise of sanitary protections.

The Biden administration on Friday appealed a federal court's decision to exempt family units from Title 42.

That’s left advocates and Haitian community leaders doubly frustrated, both because the Biden administration is apparently turning a blind eye to the humanitarian crisis on the island, and because few, if any, steps have been taken to publicly support the country's robust civil society organizations.

“Meanwhile, in the wings, ready with a serious, competent alternative for Haiti, is the Commission for a Haitian Solution to the Crisis, an organization of grassroots groups and various sectors of civil society committed to honest governance and real democratic elections, who began working together to deal with Haiti’s dysfunction many months before the assassination. The congressional Haiti caucus in the U.S. supports them, as do many responsible and involved Haitians in the diaspora,” wrote Amy Wilentz in an op-ed in the Los Angeles Times.

Wilentz is a journalist who’s written extensively about Haiti's political progression since the ousting of former dictator Jean-Claude Duvalier in 1986.

Still, the crisis in Del Rio is attracting national attention, and feeding the narrative that Biden's immigration policies have had a magnet effect for Haitian migrants.

But experts say the current concentration of Haitians in Del Rio has been years in the making, and sparked more by restrictionist turns in U.S. and Mexican immigration policy than by Biden's relative liberalization in certain areas of immigration.

While a census of the migrants in Del Rio is still pending, most are believed to have left Haiti before 2021, and some have potentially spent years in Mexico, especially in Tijuana, more than 1,000 miles west of Del Rio.

In parts of Mexico's northern border, interactions between Haitian migrants and Mexican authorities have increased, leading many migrants to fear potential deportation from Mexico.

“There are lots of different ways that Haitians in Mexico are being threatened with deportation,” said Nicole Phillips, legal director of the Haitian Bridge Alliance.

And a humanitarian parole process that allowed some Haitians a tenuous shot at temporary legal status ended in August, prompting many Haitians to risk crossing the border to claim asylum on U.S. soil

“A lot of these folks in Del Rio came from other parts of the border where they had been waiting patiently to be allowed lawful entry into the U.S. under the process that sometimes took months and months, but at least there was a chance and now there's no chance offered,” said Phillips.

And many of those migrants could have qualified for temporary protected status a humanitarian deportation deferral program that Biden expanded for Haiti in August, had they crossed the border before the cut-off date of July 29.

“The increase in asylum claims at this one border crossing is partly a result of our closed borders to migrants who are being apprehended and turned around in large numbers but are not offered safe alternatives to petition for asylum at U.S. ports of entry,” said Douglas Rivlin, director of communication at America's Voice.

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

Friday, September 17, 2021

USCIS to Welcome 21,000 New Citizens in Celebration of Constitution Day and Citizenship Day

 WASHINGTON— U.S. Citizenship and Immigration Services will celebrate Constitution Day and Citizenship Day this year by welcoming 21,000 new citizens in 335 naturalization ceremonies across the country between Sept. 17 and 23.

“It is an honor to welcome so many new Americans this Citizenship Day and Constitution Day,” said USCIS Director Ur M. Jaddou. “Citizenship Day and Constitution Day are special days at USCIS – an agency where many people come to work every day to help those at home and abroad realize the full meaning of U.S. citizenship. As we take time to reflect on what citizenship means to each of us, let us share in the commitment to invest fully in this country’s promise to be a place of hope and possibilities for all.”

On Sept. 17, the nation observes Constitution Day and Citizenship Day as part of Constitution Week (Sept. 17 to 23). The commemoration honors both the signing of the U.S. Constitution on Sept. 17, 1787, and an observance that began in 1940 as “I Am an American Day.” Citizenship Day began in 1952, based on a law signed by President Harry Truman, and in 1955, President Dwight Eisenhower proclaimed the first Constitution Week.

Each year, USCIS celebrates Constitution Day and Citizenship Day – and Constitution Week – by celebrating the connection between the Constitution and citizenship, reflecting on what it means to be a citizen of the United States, and holding special naturalization ceremonies across the country.

USCIS is committed to breaking down barriers and making the naturalization process accessible to all who are eligible as part of President Biden’sExecutive Order 14012Restoring Faith in Our Legal Immigration System and Strengthening Integration and Inclusion Efforts for New Americans. The Interagency Strategy for Promoting Naturalization, released on July 2, 2021, calls for a community-based approach to encouraging the roughly 9 million lawful permanent residents eligible for naturalization today.

Under the Biden-Harris administration, USCIS has taken a number of steps to support those seeking to naturalize. As part of the strategy, USCIS reinstated the Outstanding Americans by Choice (ABC) initiative, which was paused in November 2017, demonstrating our full resolve to honoring immigrants and their contributions to this country. The ABC initiative recognizes the significant achievements of naturalized U.S. citizens through civic participation, professional achievement, and responsible citizenship. USCIS will honor these recipients throughout our Constitution Day and Citizenship Day ceremonies.  

USCIS encourages new U.S. citizens to share their naturalization stories and photos on social media using the hashtag #NewUSCitizen

Featured ceremonies/dignitaries:

·         Lincoln Center’s Damrosch Park Naturalization Ceremony (Sept. 17): DHS Secretary Alejandro N. Mayorkas will participate in a Citizenship and Constitution Day naturalization ceremony at Lincoln Center’s Damrosch Park.

·         Mount Vernon Naturalization Ceremony (Sept. 17): USCIS Director Ur M. Jaddou will participate in a Citizenship and Constitution Day naturalization ceremony at George Washington’s Mount Vernon, where USCIS will recognize an Outstanding American by Choice.

·         Boston Naturalization Ceremony (Sept. 17):USCIS Acting Deputy DirectorTracy Renaud will participate in a Citizenship and Constitution Day naturalization ceremony at the Boston Federal Courthouse, where USCIS will recognize an Outstanding American by Choice. Eva Millona, Assistant Secretary of the DHS Office of Partnership and Engagement will also participate in the ceremony.

·         Boston Naturalization Ceremony (Sept. 17): Deputy Secretary of Education Cindy Marten will participate in a Citizenship and Constitution Day naturalization ceremony at the Boston Federal Courthouse.

·         World War I Memorial (Sept. 23): VA Secretary Denis McDonough and Felicia Escobar Carrillo, USCIS Chief of Staff will participate in a Citizenship and Constitution Day naturalization ceremony at the World War I Memorial (Pershing Park), Washington, DC.

For more information on USCIS and its programs, please visit uscis.gov or follow us on TwitterInstagramYouTubeFacebook, and LinkedIn.

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

Emily DeSa Appointed as the Regional Attorney of Region 4-Philadelphia

 September 17, 2021

Today, National Labor Relations Board General Counsel Jennifer Abruzzo announced the appointment of Emily DeSa as the Regional Attorney of the NLRB’s Regional office in Philadelphia, Pennsylvania (Region 4). In her new position, Ms. DeSa will assist Regional Director Thomas Goonan in the administration and enforcement of the National Labor Relations Act in the eastern half of Pennsylvania, the southern half of New Jersey, and portions of northern Delaware.

Ms. DeSa grew up in Queens, New York. She attended Binghamton University – State University of New York, earning a Bachelor of Science degree in Economics, with a minor in Mathematics, and the Maurice A. Deane School of Law at Hofstra University, earning a Juris Doctor degree with a concentration in labor law, studying under the late Region 29-Brooklyn Regional Director Samuel Kaynard.  She worked as an intern in Region 29 while in law school and then began her career there in 1990 as a Field Attorney. Ms. DeSa transferred to Region 4 in Philadelphia in 2008 and was promoted to Supervisory Attorney in 2013. From February 2020 through March 2021, she served as Acting Regional Attorney in Region 6 in Pittsburgh, Pennsylvania. 

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

Tuesday, September 14, 2021

Biden expands program to legally bring Central American minors to US


Biden expands program to legally bring Central American minors to US

The Biden administration announced Monday it will begin accepting applications for its expanded Central American Minors (CAM) program, which allows adults in the United States to petition to legally bring their minor dependents from the troubled region.

CAM is part of the administration's strategy to lessen pressure on border enforcement agencies that are stressed by a rising flow in irregular migration through Central America and Mexico.

"Strengthening collaborative migration management, which includes creating legal pathways, including CAM, is one of the pillars of the president's blueprint for a fair, orderly and humane immigration system," said a senior administration official on a call with reporters.

Monday's announcement follows the reinstatement of the program in March and a June expansion of eligibility for the program, which had been shut down by the Trump administration in 2017.

Under CAM, parents and legal guardians who are lawfully present in the United States can petition for their children to be granted status to travel to and remain in the United States.

According to administration officials, tens of thousands of parents could be eligible to apply for the revamped program.

In its first stage under the Biden administration, CAM reopened cases for parents from Honduras, El Salvador and Guatemala whose applications had been interrupted during the Trump administration.

The second phase will take new applications from the expanded categories of eligible parents and guardians.

Along with U.S. citizens and legal permanent residents, eligible applicants include foreign nationals under temporary protected status, humanitarian parole, deferred enforced departure, withholding of removal, a pending asylum application or a visa for victims of criminal activity.

The expansion of CAM eligibility to people under temporary or humanitarian status in the United States is part of the Biden administration's effort to highlight its family reunification initiatives.

The Biden administration separately announced an initiative to grant at least three years of legal residency to parents of families who were separated under the Trump administration's short-lived zero tolerance policy.

Still, the CAM initiative is also geared toward depriving human smugglers of a source of income by granting legal pathways to minors from Central America to skip the dangerous irregular route through Mexico.

For minors to be eligible for CAM, they must go through the application process while in Central America, a feature that's designed both to cut the smugglers' client base and to reduce the number of minors presenting at the U.S.-Mexico border.

Biden administration officials are expecting August's border apprehension numbers to be lower than July's, easing political pressure related to the so-far unyielding rise in regional migration.

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

Monday, September 13, 2021

Court rulings put Biden in tough spot with Trump's 'Remain in Mexico' policy


A string of recent court decisions has put President Biden in a predicament: Re-implement his predecessor's Remain in Mexico policy in good faith or turn to Trump-era tactics to dismantle the divisive immigration rule.

A lower court decision upheld by the Supreme Court last month orders the White House to resume former President Trump’s Migrant Protection Protocols (MPP) -- a program Biden pledged to end during the 2020 campaign.

Critics of the program, first enacted in December 2018, argue it essentially blocks migrants from applying for asylum. Since its implementation, the U.S. has pushed as many as 70,000 people back to Mexico, forcing them to wait in border towns for their day in U.S. immigration court.

“The question of what happens now turns on what does good faith mean?” said Jorge Loweree, policy director for the American Immigration Council.

“The federal government doesn't only have a binary choice to detain every person at the southern border or expel them to Mexico -- there are other options they have under law.”

While the initial district court decision largely forced the Biden administration to re-administer the program, the Fifth Circuit opinion that was upheld by the Supreme Court gives Biden officials much more leeway in how to do so.

It notes the government does not have to restart MPP overnight and that it has the discretion to allow some migrants to enter the country to pursue asylum claims without holding them in immigration detention.

They could choose to run with “Trump lite,” said Ahilan Arulanantham, co-director of the Center for Immigration Law & Policy at the University of California, Los Angeles School of Law.

“The threshold question is a political one, it's not actually legal one. Do we want to stick to the plan that we started when we ended MPP at the beginning and that President Biden promised to do at the debates and all that?” he said.

“Or do we want to now change course and adopt a policy that is the Trump policy or something closer to the Trump policy than what we had originally said we were going to do?”

It’s clear many Democratic lawmakers want Biden to stay the course and stick with his campaign promise.

“MPP does not represent our values as a country and should be permanently discarded along with the many other unlawful Trump administration policies designed to punish and deter refugees from seeking safety. The court orders leave ample room for your administration to ensure MPP never again puts another person in harm’s way,” nearly 30 Democrats wrote to Biden in a letter Thursday spearheaded by Rep. Veronica Escobar (D-Texas) and Sen. Bob Menendez (D-N.J.).

Some say the Biden administration should take another page out of the Trump administration’s playbook and simply rewrite the memo withdrawing MPP.

It’s a tactic Trump officials used with his so-called Muslim ban, drafting the policy three times as it repeatedly faced litigation.

“If the administration really wants the policy outcome, it could certainly rewrite the memo. The Muslim ban was written three times because the administration wanted the policy outcome. They wrote in one way, it got struck down. They write it again, it goes to the Supreme Court. They write it again, each time curing whatever defects the court is describing in order to make it harder to attack. And surely you could do that here, and the court decisions give you the road map for how to do it. It’s not rocket science,” Arulanantham said.

For Biden to do the same would involve replacing his June memo with a new one.

“They frankly should consider issuing a very lengthy, 100-page-plus memo going through every detail they possibly can about the program, the reasons for rescinding it, and the problems they see with it to call Judge Kacsmaryk’s bluff,” Loweree said, referring to the federal district court judge who first directed Biden to re-implement MPP.

But Arulanantham said the administration's hesitation to do so is likely significant.

“There’s one explanation staring you in the face for why they don't want to do that. And that has to be that they genuinely I think are undecided about whether they actually want to get rid of MPP,” he said.

The Department of Homeland Security (DHS) appealed the Fifth Circuit’s decision, but it's not clear what next steps they plan to take in terms of implementation.

Reached for comment, DHS confirmed that it has not yet removed anyone to Mexico and pointed to an Aug. 24 statement.

“As the appeal process continues, however, DHS will comply with the order in good faith. Alongside interagency partners, DHS has begun to engage with the Government of Mexico in diplomatic discussions surrounding the Migrant Protection Protocols,” DHS said after the Supreme Court decision.

According to CBS News, DHS’s policy office has been working on plans for an "expeditious reimplementation," obtaining a memo that included cost estimates.

But reimplementing MPP comes in the midst of an incredibly complex picture.

After the Biden administration ended the Trump policy, it started to process some 13,000 applicants into the country.

But an estimated 25,000 people are still waiting along the Mexico border, living in refugee camps in an increasingly chaotic situation. The U.S. government has urged Mexico to clear some of the camps, citing security concerns.

And the U.S. lost track of many of the applicants, who left Mexico rather than await their court date, something DHS Secretary Alejandro Mayorkas wrote in his revision of the program “resulted in the abandonment of potentially meritorious protection claims.”

Meanwhile, the Biden administration has continued another Trump policy, Title 42, which allows the U.S. to immediately expel border crossers without giving them the chance to apply for asylum.

Over the last five months, border officials have expelled roughly 100,000 people each month using Title 42, a group that includes mostly single adults as unaccompanied children and some families are exempted from the policy.

Arulanantham said on MPP, the Biden administration could take a similar tactic, continuing the program, but exempting unaccompanied children and families.

“You could pick whoever you think doesn't can't get a fair hearing under MPP,” he said, or carve out certain populations who wouldn’t fare well in refugee camps, including non-Spanish speakers.

“They could say, ‘We don't think we don't think children can get fair hearings under MPP so, for children who are coming here alone or families who have children in them, we're not going to apply MPP. But we will apply it to single adults, so single adults who come here have to go back to refugee camps in Mexico to wait for their case dates,’” he said.

But Arulanantham acknowledged the carve outs could force the Biden administration to have a different set of rules for a number of populations.

“If they choose to keep MPP in some forms, then all these different groups essentially could be treated differently,” he said.

“A middle ground like this is essentially saying, ‘We’re going to operate the normal asylum system for some set of people but keep it shut off for another set of people.’”

Also adding to the complexities is that many don’t believe MPP itself was legal in the first place--a fact that is likely to tee up new lawsuits for a Biden administration that had already sought to pause cases challenging the Trump policy.

Anand Balakrishnan, a lawyer with the American Civil Liberties Union, which previously sued over MPP, said beyond the underlying illegality they also found success in arguing that the procedures to screen people under MPP were insufficient under domestic and international asylum laws.

“It's created a humanitarian crisis of its own,” he said. “MPP, while it purports to allow people to apply for asylum, in reality--and the numbers bear this out--it's a completely hollow promise. It essentially strands people in extraordinarily dangerous conditions.”

The decision also has foreign policy impacts, as the U.S. seeks to work with Mexico on a number of matters, including allowing for work permits for those living in the refugee camps. 

“Judge Kacsmaryk is essentially dictating foreign policy to the administration,” Loweree said.

“Judges have been reluctant to interfere in matters of foreign policy forever, but now this judge is taking it upon himself to say you have to restart this program even though it forces the administration to externalize some aspects of immigration processing onto a another country, which is just unheard of.”

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

Democrats make case to Senate parliamentarian for 8 million green cards


Democrats' long-held hopes for providing a path to legal status for millions of immigrants is now in the hands of a little-known figure: The Senate parliamentarian. 

Democrats pitched Elizabeth MacDonough, a nonpartisan referee, Friday on their plan to provide permanent legal status, which paves the way for a path to citizenship, for 8 million immigrants, including Dreamers, temporary protected status holders, agricultural and other essential workers. 

After struggling for years to get a deal on immigration reform, and with President Biden’s sweeping comprehensive plan stalled on Capitol Hill, Democrats are ready to go it alone by including their smaller plan in a sweeping $3.5 trillion social spending bill they hope to pass as soon as this month. 

But first, they’ll need to convince MacDonough, a former immigration lawyer who has jettisoned key priorities for both parties in budget reconciliation measures in recent years. 

“You think about that all the time,” Sen. Tim Kaine (D-Va.) told The Hill about trying to figure out what will pass muster with the parliamentarian. 

Democratic staffers from the Senate Judiciary and Budget committees, as well as Senate leadership staffers, met with MacDonough to make their case that the immigration plan complies with the arcane rules that govern what can be included in the spending package. 

Democrats are using the budget reconciliation process to prevent the GOP from filibustering their measure in the Senate. The problem is that there are sharp limits on what can be included in such measures. 

The most well-known requirement Democrats will need to convince MacDonough of is that the immigration plan has an impact on federal spending and revenues and that its impact isn’t “merely incidental” to its non-budgetary goals. 

“We believe that passing this legislation through reconciliation is permissible because the bill’s budgetary effects are a substantial, direct and intended result and the non-budgetary effects do not so disproportionately outweigh the budgetary effects as to make them merely incidental,” a Democratic aide said. 

Democrats say their plan would increase budget deficits by $139.6 billion over a 10-year period, according to initial estimates from the Congressional Budget Office. 

The Senate plan is narrower than Biden’s pledge to provide a pathway to citizenship for 11 million immigrants. But Democratic staffers indicated that the narrower four categories gave them the strongest pitch for getting immigration reform into the spending package and complying with the budget rules. 

They also stressed that the bill doesn't directly address citizenship, noting they see it as a bill that provides a pathway to getting permanent legal status or a green card. Earning permanent legal status allows an individual, if they can meet a slew of requirements, to eventually apply for citizenship. 

GOP staffers also pitched MacDonough on Friday about why the Democratic plan doesn’t meet the requirements laid out for what can get included in the budget bill. They've been signaling for weeks that they would fight Democrats' plan to try to sidestep them on immigration. 

Sen. John Cornyn (R-Texas), a member of the Judiciary Committee, argued that the Democrats’ plan “almost surely will not work, consistent with the rules of the Senate.” 

Cornyn has also pointed back to one of MacDonough’s predecessors, Alan Frumin, who has warned that while changes to immigration do likely impact the budget, those impacts could be argued to be “merely incidental” to the plan’s larger goal of immigration reform. 

There’s no guarantee MacDonough will greenlight the Democratic plan. She’s sparked frustration on both sides of the aisle with recent decisions. In 2017, she jettisoned a Senate GOP plan to repeal and replace ObamaCare, and earlier this year she warned Democrats that boosting the minimum wage to $15 per hour, a key priority for progressives, didn’t meet the rules for budget reconciliation.

If she rules against immigration reform, the provision could be stripped out of the bill unless Democrats can muster 60 votes, meaning the support of at least 10 GOP senators, to keep it in the bill.

MacDonough is part referee, responsible for deciding what complies with the Senate’s budget rules, and something of a Senate oracle, unknowable to reporters and largely leaving senators and staff to try to interpret which way she’s leaning by questions she asks. 

“It varies from oral argument to oral argument whether we do get any feedback. There have been some, where we do get a lot of questions and we can learn from that sort of like watching the Supreme Court when they have a lot of questions,” a second Democratic aide said about pitching MacDonough. 

Democrats are feeling hopeful that they will be able to get immigration reform into the $3.5 trillion spending plan, pointing back to 2005 when a plan to address a backlog of visas was included in a reconciliation bill. 

Democrats and aligned outside groups have been ramping up pressure to include immigration reform in the sweeping spending package. 

The Senate previously passed “comprehensive” immigration reform back in 2013, but it hit a wall in the then-GOP controlled House. 

Since then, the discussion around immigration on Capitol Hill has become more polarized with then-President Trump demanding billions to build the U.S.-Mexico border wall, supporting cuts to legal immigration and taking a hard line on asylum. Bipartisan discussions under Biden have failed to make much headway. 

Biden, who chaired the Judiciary Committee during his time in the Senate, has endorsed including immigration in the reconciliation bill but hinted that it “remains to be seen" if it’s allowed to stay in. 

Asked by The Hill before the summer break when he would start worrying about the parliamentarian, Sen. Dick Durbin (D-Ill.), the Judiciary Committee chairman, quipped: “I’ve already started.” 

And Speaker Nancy Pelosi (D-Calif.), during a recent virtual town hall, pledged that Democrats would “fight” for their immigration plan but acknowledged there are questions about what “will survive the parliamentarian in the Senate.” 

“We are limited in what the parliamentarian in the Senate will allow,” she said, “and that is most unfortunate.” 

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

Wednesday, September 08, 2021

Afghan refugees need and deserve legal status in the United States


Afghan refugees need and deserve legal status in the United States
© Greg Nash

The Afghans evacuated by the United States have escaped the Taliban, but they still face a humanitarian emergency. These are refugees experiencing stunning loss and anxiety — they have well-founded fears of persecution as defined in the Refugee Convention and U.S. law — and they need and deserve legal status in the United States through a smooth and welcoming process. 

As we have seen, the Afghan refugees were and continue to be hurriedly evacuated and provided quick entry through what’s known as the parole authority of the secretary of the Department of Homeland Security. While this authority — used in the past for Cuban and Kurdish refugees, among others — enabled the United States to move quickly, it does not come with any assurances of support, a pathway to permanent residence in the United States or, most importantly, reunification with spouses and children left behind.

Congress should urgently solve this problem by passing legislation that will adjust the immigration status and that will immediately provide transition assistance to the tens of thousands of Afghan refugees who have arrived and will arrive in the future. 

But if Congress is slow, or fails to act, the Biden administration has at its disposal a fit-for-purpose option — the Refugee Act of 1980, which Congress enacted with near unanimity. In fact, this crisis could provide the administration with a unique opportunity to revitalize this landmark refugee legislation.

With the Refugee Act, Congress designed a system for normal times as well as for emergencies that would recognize refugees of humanitarian concern to the United States, receive them in safety and dignity, and put them on a pathway to become new Americans. Since 1980, the United States has resettled more than 3 million refugees, most of whom are now lawful permanent residents or U.S. citizens. 

While the current administration inherited a U.S. refugee admissions program that had been decimated by the Trump administration, it wasn’t until May — and then only under enormous pressure from refugee advocates — that the president raised the 2021 fiscal year refugee admissions ceiling to 62,500. But as of July 31, the U.S. had admitted only 6,274, on a pace to fall far short of President Trump’s record low ceiling.

Support for refugee admission “slots” are funded by Congress but cannot be rolled over from one fiscal year to the next, so with less than one month left in the 2021 fiscal year, over 50,000 refugee admissions places are likely be lost at the very same time those very same fully funded places could be used to receive and integrate Afghan refugees now on U.S. military bases in the United States or at locations overseas.

In the absence of new legislation from Congress to quickly adjust status and provide refugee benefits to the Afghans, the administration should make quick use of these 50,000 funded admission slots. The president should also be prepared to use the authority he is given by the Refugee Act both to raise this year’s refugee ceiling and to announce a ceiling of 200,000, for next year to accommodate Afghan arrivals as well as other refugees.

In short, in the absence of congressional action, the Refugee Act provides a safe and legal solution. 

Moreover, while some might argue that Afghans who were not considered for refugee status overseas and are already here as parolees cannot be processed under the Refugee Act, we do not share that view. Rather, we agree with a 1980 opinion from Justice Department’s Office of Legal Counsel, which argued that U.S. law “does not require that the alien be processed overseas or that he apply for refugee status in a third country.”

Biden administration officials will also confront the question of how to process Afghans who are currently being provided temporary refuge overseas but will very soon be in the United States. Even if the administration is unwilling to apply the Refugee Act to parolees already on U.S. soil — and in the absence of congressional action to solve the problem — the administration could use the Refugee Act for expedited and “bifurcated” processing under the Refugee Act, as applied in 1999 for Kosovar refugees evacuated from then-Macedonia.

The U.S. evacuation of 9,000 Kosovar refugees demonstrated that resettlement need not always be slow and bureaucratic. Under “bifurcated processing,” U.S. immigration officials initiated a refugee adjudication in Macedonia, quickly recognizing that the Kosovars they were interviewing had essentially all fled Kosovo at the same time for the same reason. Those Kosovars were flown and paroled into the United States. Many were sent to a military base in New Jersey where U.S. officials completed their processing and adjudications. Kosovars entered Fort Dix as parolees, but left as refugees. 

Like the Kosovar refugees who preceded them, these Afghans all fled at the same time for essentially the same reason and can easily establish that they are refugees under U.S. law. 

Congress should urgently act to quickly straighten out the status of the Afghans within the framework of the Refugee Act. But if that is not forthcoming, the administration has an option — the Refugee Act itself, which should be as adaptive and flexible as its drafters intended.

Eric Schwartz is former assistant secretary of state for Population, Refugees and Migration (2009-2011) and executive director of Refugees International.

Mark Hetfield is president and CEO of HIAS, a global Jewish refugee agency.

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