26-Jun-2012

Written By Elizabeth Chatham

This month has been an unusually active time-period in the realm of immigration reform. The U.S. Supreme Court issued its opinion onArizona’s (in) famous Senate Bill 1070 and, only ten days prior, the Department of Homeland Security announced a sweeping policy reform that potentially grants hundreds of thousands of young individuals temporary immigration benefits. Although the executive and judicial branches have taken notable actions, the need for comprehensive immigration reform to mend this nation’s ill-functioning immigration laws remains critical. The ultimate authority to bring about such reform rests with Congress, which has unfortunately stalled on taking necessary action on immigration issues for years. The purpose of this article is to explain the positive impact that even minor progress can have in this area of the law, and what services Davis Miles McGuire Gardner, PLLC, is able to provide for immigration representation.

U.S. Supreme Court Rule on Arizona SB1070

On June 25, 2012, the Supreme Court issued its long-awaited decision on the constitutionality of SB1070 in Arizona v. United States, striking down every provision ofArizona’s aggressive immigration law except for the so-called “show me your papers” provision.  The Justices ruled in a 5-3 majority (Kennedy, Roberts, C.J., Ginsburg, Breyer, and Sotomayor) that federal law preempts the following sections of the law: §3, requiring immigrants to carry proof of registration with the federal government; §5(C), making it a crime for illegal immigrants to work or seek work in Arizona; and §6, authorizing state and local officers to make warrant-less arrests if they have probable cause to believe a person is removable.

However, the most controversial section of the law (§2(B))—which requires police officers conducting a stop, detention, or arrest to make an effort to verify an individual’s immigration status if they have reasonable suspicion to believe that the individual is unlawfully present in the United States—has been remanded to the 9th Circuit Court of Appeals for further proceedings consistent with the Court’s opinion. The Justices unanimously held that it would be “improper to enjoin §2(B) before the state courts [have] had an opportunity to construe it and without some showing that §2(B)’s enforcement in fact conflicts with federal immigration law and its objectives.”

What this means is that §2(B) is not yet in effect, but it will be once the 9th Circuit lifts the injunction that was previously imposed. Still, §2(B) remains open to challenges based on certain preemption and constitutional grounds that were not raised during arguments in this case. More specifically, the interpretation and application of this section should be further litigated based on ethnic and racial profiling claims.

Ultimately, this is a major victory for the Federal Government. The Court’s decision serves to confirm that the power to regulate immigration and to enforce applicable laws rests exclusively with federal authorities. In other words, it is impermissible for states such asArizonato create their own immigration laws and to penalize foreign nationals due to lack of immigration status. The Court also warns that detaining individuals for long periods of time solely to verify their immigration status may open the door for further legal challenges, in which case §2(B) will likely be invalidated.

Deferred Action Policy for DREAM-Eligible Youth

On June 15, 2012, the U.S. Department of Homeland Security (DHS) issued a memorandum that in effect grants temporary immigration benefits to certain young people who entered theUnited Statesas children. The decision is fundamentally grounded in a need to enforce this nation’s immigration laws in a sensible manner, taking into consideration the fact that many of this new policy’s intended beneficiaries have never had any intent to violate the law. The Federal Government is thereby defining its priorities as to who to deport.

Essentially, those individuals who meet the criteria outlined below will be considered for deferred action—meaning relief from removal from the country or from entering into removal proceedings—for a period of two years. Deferred action is subject to renewal and will also permit eligible individuals to apply for work authorization for two years at a time.

Applications for Deferred Action and related work authorization will not be accepted until the USCIS establishes application requirements and filing fees. The proper procedure is supposed to be in place within 60 days of the date the memorandum was issued. It remains unclear whether applicants will be able to file for Deferred Action and work authorization concurrently. Still, the five criteria that must be satisfied before one may be considered for Deferred Action pursuant to this new policy are as follows:

1. The individual came to theUnited Statesunder the age of sixteen;

2. Has continuously resided in theUnited Statesfor at least five years preceding June 15, 2012, and was present in theUnited Stateson June 15, 2012;

3. Is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of theUnited States;

4. Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and

5. Is not above the age of thirty.

Note, however, that the temporary benefits granted through deferred action do not provide a path to permanent residency or citizenship. Also, the process of applying is not risk-free. Every applicant must undergo an extensive background check and volunteer information that may place them or their family at substantial risk should this policy change in the future, for example if a new President is elected this fall. It is highly advisable for potential dreamers and their families to consult with a reputable and licensed immigration attorney to assess their eligibility for deferred action and the related risks.

To conclude, it seems fair to say that the recent steps taken by our Supreme Court and the Department of Homeland Security are in the right direction, though by no means perfect or sufficiently comprehensive to address our country’s broken immigration laws. Congress, we are all waiting for you.

* For questions about SB1070 or the new Deferred Action policy for dreamers, please contact Elizabeth Chatham at (480) 344-4056 or echatham@davismiles.com. Ms. Chatham is a partner at Davis Miles McGuire Gardner, PLLC, practicing exclusively in the area of immigration and nationality law. Ms. Chatham has broad experience representing private employers, nonprofits, families, and individuals in complex immigration matters.