Miley & Brown, P.C.

As seen on http://www.aila.org (The American Immigration Lawyers Association website):

Mothers and Children Detained in Violation of Court Order Plead for Freedom
Sixty-nine mothers who have been detained with their children at the South Texas Family Residential Center in Dilley, Texas, wrote a public letter to ICE pleading for an end to their imprisonment. In the letter and accompanying testimonials, the mothers describe the impact that their prolonged detention has had on themselves and their children, including deep depression, “suicidal thoughts, prol

Miley & Brown, P.C.

As reported at http://www.aila.org for the American Immigration Lawyers Association:

McClatchyDC: Obama Administration Pulled Back to Court over Family Detention
McClatchyDC reports that attorneys for detained mothers and children fleeing violence and poverty in Central America filed a motion with the U.S. District Court for the Central District of California on Tuesday to enforce the Flores settlement agreement, arguing that the Obama administration continues to detain children in deplorable and unsanitary conditions in CBP facilities in violation of the

Miley & Brown, P.C.

BuzzFeed News: U.S. Immigration Department Sued over “Unlawful Delay” of Citizenship Applications of Muslims
BuzzFeed News reports that thirteen Muslim plaintiffs filed a lawsuit on Wednesday in the U.S. District Court for the Eastern District of Missouri alleging that USCIS unlawfully delays the citizenship applications of Muslim immigrants by applying different rules under the Controlled Application Review and Resolution Program (CARRP). “Plaintiffs bring this action to compel the USCIS to finally—after years of waiting—adjudicate their pending appli

Sad Times for Immigration Reform

These Are Sad Times for Immigration Reform. Last week the Obama administration took action that could penalize cities that do not cooperate with U.S. immigration (known as “sanctuary” cities). We know it is a sad day because the action is winning praise from conservative Republicans (mostly the anti-immigrant faction). Typically, “sanctuary” cities have refused to cooperate with Immigration officials by turning over undocumented immigrants because the city believes that doing so would undermine community trust and law enforcement efforts. Under a new policy, announced by Attorney General Loretta Lynch, the Federal Bureau of Prisons will put prisoners finishing their sentences into immigration custody by default when immigration authorities seek deportation, even if local or state officials want the immigrant for prosecution or to finish a state or local sentence. This, in order to avoid placing the prisoner in the custody of a local “sanctuary” city that may not be willing to return the individual to the federal authorities. Doris Meissner, Commissioner of the Immigration and Naturalization Service under President Bill Clinton characterized this move as one using the federal system as leverage to “pushback” against sanctuary cities. We know it is “wrong” because Republicans were jubilant about the announcement. At a meeting of the House Appropriations Subcommittee, Chairman John Culberson (R. TX) said: “We thank you for the change in policy.” “It is a very significant change.”

However, as a practical matter the policy change is mostly symbolic. Why, because, it is limited to the Bureau of Prisons and means that the prisoners, after serving a lengthy term would be released to Immigration and Customs Enforcement for removal proceedings rather than to local law enforcement. My guess is that this new policy was implemented in response to the shooting of Kathryn Steinle in San Francisco July 2015 by a Mexican national who was released by the Sheriff rather than to ICE custody. This current policy would have prevented such action because the individual would have been released into the custody of ICE rather than the local Sheriff. Meissner called the new policy “quite ingenious” stating that it will help keep the federal government from dropping the ball by releasing prisoners to local authorities and not following through with deportation proceedings and removal of criminal aliens.

We at Miley & Brown, P.C. applaud any efforts by the House Republicans to engage in bi-partisan efforts to move immigration reform forward. Visit us at www.mileybrown.com where you can contact one of our attorneys and contact Congress.

Immigration, Counterterrorism and Social Media

Immigration, counterterrorism and social media. We all knew this was coming. Social media is, well, social. Anything we put out on social media stays there and is available for the world to view. That view can be by good guys or by bad guys. In his February 11^th State of Homeland Security remarks, Secretary of Homeland Security Jeh C. Johnson addressed DHS’ renewed efforts to ensure that counterterrorism will remain the cornerstone of the DHS mission.

Toward this end, the FBI continues to do an excellent job of detecting, investigating, preventing, and prosecuting terrorist plots here in the homeland. The Federal Protective Service is enhancing its presence and security at various U.S. government buildings around the country. There is an intensified effort at intelligence sharing among DHS, FBI, Joint Terrorism Task Forces, fusion centers & local police chiefs. There is so much more being done to help keep America safe including enhancing and strengthening the Visa Waiver Program (known as the Electronic System for Travel Authorization (ESTA)).

I know, I know. I’m getting to the social media thing. DHS is expanding their use of social media. It is currently used for over 33 different operational and investigative purposes within the Department. They have begun consulting social media of applicants for some immigration benefits. The Social Media Task Force within DHS has recommended expanding use of social media even further.

These enhancements can and should produce favorable results. There is a downside: the risk of bringing unwarranted scrutiny upon innocent individuals using social media who pose no risk or harm. Enhanced screening of asylum or refugee seekers (http://www.mileybrown.com/Asylum-Applications.shtml) is likely to make an already lengthy and opaque process (18 to 24 months) even lengthier and less transparent.

Several bills have been introduced that would require DHS to screen social media of refugees and those visiting or immigrating to the United States. This scrutiny of literally billions of posts, tweets, etc. is our future. A recent pilot project involves screening social media accounts of applicants for the fiancé (K-1) visa (use by Ms. Malik, a San Bernardino shooter). In order to be useful, these programs will require many linguists and extraordinarily sophisticated algorithms that can distinguish or understand parody or sarcasm.

At Miley & Brown, P.C., we applaud any efforts to help keep America safe that are consistent with the constitution, the law, and good sense. You can visit us at http://www.mileybrown.com. There, you can also contact Congress to tell them you want immigration reform.

Justice Scalia – His Surprising Impact on Immigration Cases

For all the screaming coming from conservatives about the necessity for Justice Scalia’s seat to be filled after the election, there is a little known fact about Scalia that even the most strict constructionist, supposed hard-core right-winger would be shocked by: at least as it relates to aliens with criminal convictions, Scalia often voted in favor of the criminal alien!

Right-wingers are incapable of even saying Justice Scalia’s name without first using the words “conservative” and thus naturally assume that Scalia’s strict constructionist approach promotes the rule of law against criminal aliens.  Yet, as legal scholars recognize (and politicians and those who blindly follow a party never do), a so-called strict constructionist approach can have unintended consequences.  Take for example, Haitian citizen Josue Leocal. Leocal had been convicted of driving under the influence in Florida.  He was put into deportation and an Immigration Judge ordered him deported, holding that because such a crime often ends in death, injuries and destruction of property, his conviction was a “crime of violence.”  Up to this point, aliens were routinely deported after being convicted of a DUI conviction.  Leocal appealed his case all the way to the U.S. Supreme Court.  In a unanimous decision, Justice Scalia voted that such a crime was not a crime of violence because the Florida law did not contain the required level of intent and did not contain an element of a substantial risk that physical force would be used to commit the crime.  The result was that Leocal’s deportation order was overturned and he was permitted to stay in the U.S.  Of course Scalia’s vote did not mean that he thought it was acceptable for aliens to drive drunk.  But because Scalia read the elements of the Florida law strictly, the result is that, to this day, being convicted of a simple DUI, in itself, is not a basis to deport someone.

Another example is Jose Lopez, an alien from Mexico who entered the U.S. illegally in the 1980’s.  He was granted his green card under the amnesty program put into place by President Reagan.  How did Mr. Lopez show his appreciation for his newly granted status? He proceeded to be arrested and convicted of felony possession of cocaine in South Dakota.  Unsurprisingly, he was eventually ordered deported by an Immigration Judge.  Like Leocal, Lopez appealed his case all the way to the Supreme Court, where Justice Scalia once again voted in favor of the criminal alien.  Although Lopez had been convicted of a state felony, under Federal law, possession of drugs is not necessarily a felony and possession alone does not ordinarily fit within the definition of a drug trafficking crime.  If they had ever been paying attention instead of fawning over his “conservative” credentials, I wonder what the right-wing would think about Scalia’s vote?

How about Jamican, Adrian Moncrieffe?  Adrian was arrested for having little more than an ounce of marijuana in his car, but later plead guilty to a misdemeanor charge of possession with intent to distribute.  On it’s face, it is the type of offense that sure sounds like a drug dealing crime and not merely a possession crime.  Of course, Adrian was ordered deported but when his case reached the U.S. Supreme Court, you guessed it – Scalia voted for the criminal alien.  Even though his conviction was essentially for drug dealing, Federal law recognized that he would not be treated as a drug dealer if he possessed only a small amount of marijuana.  One can almost see the blood draining from the right-wing’s face!

Finally, what about Tunisian citizen, Moones Mellouli, who came to the U.S. on a student visa?  When he was in Kansas, he was convicted of possession of drug paraphernalia to store or conceal a controlled substance.  One of the facts not in dispute was that he had attempted to hide four Adderall pills in his sock when police stopped him.  Adderall is a prescription pill and is a controlled substance under both Kansas and Federal law. Obviously being a drug conviction, he was ordered deported by an Immigration judge. The problem was that the charging documents and the plea agreement never identified the type of pills.  When the case came to the Supreme Court, Scalia voted that Mellouli could not be deported.  The reason was the interplay between the Federal immigration and drug laws and the Kansas drug laws.  An individual can only be deported for drug crimes in which the controlled substance is defined by Federal law.  But in Mellouli’s case, the Kansas law contained a number of controlled substances that are not included on the Federal list and because the criminal documents never identified the controlled substance, Scalia could not state whether the pills that Mellouli was trying to hide were on the Federal list – even though everyone involved (even Scalia) knew the pills were Adderall!

Shocking outcomes?  Only if you have a belief that strict constructionism means that the law will always punish criminal aliens.  The fact is, that in each of these cases, Scalia followed the black letter law and if it meant that a criminal alien would not be deported, so be it.

For more information about all your immigration needs visit http://www.mileybrown.com

Texas v. USA

This past Tuesday, the United States Supreme Court agreed to hear Texas v. USA, a case that could be the most important case of 2016 – and not because this case comes in an election year.

The Background:
In November 2014, President Obama issued an executive order to the Department of Homeland Security (DHS) that was intended to impact millions of individuals that are in the country without authorization.  The purpose behind the order was the recognition that the Federal government does not have the money and other resources to hunt down, arrest and then deport everyone in the country that is here without authorization (even if the government wanted to).  Consequently, Obama ordered the DHS to focus its enforcement efforts against certain groups of people, such as those with serious criminal backgrounds.  In other words, since DHS can’t arrest and deport everyone, they should go after those people that everyone agrees shouldn’t be in our country.  Makes sense!

Despite what is being spewed from conservatives and other right-wing organizations, Obama’s order does not let everyone else “off the hook.”  For practical purposes, for everyone else, the order essentially means the DHS will come looking for them later – they’re just not a priority right now.  As a result, understanding that this order would mean that there will be millions of undocumented people in the country that the DHS is not targeting at this time, the order allows these people to come out of the shadows and apply for permission to work legally.  Of course being granted permission to work does not give these millions of people any lawful status, but it does create several huge benefits both for the individual and our country.

First, by having to apply for the permission to work, the person is having to provide all of their contact information to the government and if they want to maintain this permission, they will need to constantly file a new application and thus keep their contact information up to date.  If the government is ever going to seek to have these people removed, isn’t it better to know where they live?  Makes sense!

Second, being granted a work authorization permits the person to apply for a social security number.  This in turns allows the person’s employer to take out taxes from the person’s paycheck.  The result is now there would be hundreds of thousands of people (millions?) now working and paying taxes.  Before, countless of these individuals were being paid under the table by dishonest employers and never paying a dime in taxes.  Makes sense!

Third, in most states, having the work authorization and social security number permits the individual to obtain a driver license.  Let’s face it, whether the undocumented individual has a driver license or not, chances are, they’re driving anyway.  By permitting that individual to get a driver license, the particular state will also have the individual’s address.  Further, the individual would be permitted (and probably required) to get auto insurance.  Makes sense!

Who Qualified:

Among other specific instructions to the DHS, the emphasis of the order was to permit undocumented parents of U.S. citizens or legal permanent residents that could prove they had been the U.S. for a certain period of time and had not been convicted of certain crimes to come forward and expose themselves to the immigration authorities.  In doing so, they were required to apply for a work authorization and by extension a state issued ID or driver license.  As planned, it was intended that the program would be implemented in early 2015.

The Problem:

Republican lead governments from 26 states sued the Federal government in an attempt to stop the order from going into effect.  Lead by Texas Attorney General Ken Paxton (currently under indictment for two felonies involving securities fraud), the states filed suit in the Federal Court in Brownsville, Texas.  Given the national implications for this case, why was the case filed in, of all places, a town of 180,000 located on the border with Mexico?  The answer is obvious: these conservative politicians wanted the case to be heard by a conservative judge.

Ordinarily, when a lawsuit is filed in Federal Court, the case is randomly assigned to one of the judges in that jurisdiction.  Here the one place they could ensure that the case would be set before a conservative judge was to file it in Federal Court in Brownsville since, at the time, there was only one active judge in that court: Judge Andrew Hanen, a George Dubya appointee.

In February 2015, Judge Hanen issued an order preventing the Executive Order from going to effect.  To be clear, Judge Hanen did not decide that Obama’s Order was illegal.  He merely decided that the Order should not go into effect for the time being.  The Federal Government appealed Judge Hanen’s decision to the Federal 5^th Circuit Court of Appeals.  The widely recognized conservative 5^th Circuit decided that it would not overturn Judge Hanen’s decision.  As a result, the Federal Government appealed the 5^th Circuit’s decision to the U.S. Supreme Court and on Tuesday, the Court announced that it would decide the issue.

The Issue:

It is well established that government entities have the authority to exercise “prosecutorial discretion,” which is a fancy way of saying that the government has the power to decide who they are going to arrest, prosecute or deport and who they are not.  In its simplest form, it is the same authority your local police officer has when he decides not to give you a speeding ticket and lets you off with a warning.

Of course there are several distinct problems that the Republicans complain about, but when boiled down, their argument is essentially that President Obama doesn’t have the authority to make such an order.  Instead, they argue, Obama should have to go through Congress to implement such a program. Put another way, the Republicans are arguing that Obama, on his own, does not have the authority to exercise the discretion to pick and choose who the DHS should attempt to deport.  The Republicans also argue that even if Obama has such authority (which of course he does), that implementing the Order will cause economic harm to the individual states by, for instance, having to process thousands of new driver license applications.

In announcing that it would hear the case, the Supreme Court told the parties that they needed to address whether Obama’s Order violates the “take care clause” of the Constitution.  This is the clause that requires the President to execute the laws of the U.S.  However, the question is how far does this requirement go and what discretion does the President have to take other actions in conjunction with executing the laws?  This particular issue was not argued in Judge Hanen’s court or the 5^th Circuit.  Thus, the Supreme Court is truly making the case a purely Constitutional question.  Common sense dictates that the President has some discretion in deciding the cost/benefit of apprehending and deporting every person that is in the U.S. illegally.  No doubt the President will argue that the states do not have the power to interfere in his authority to execute Federal immigration laws.  On the other hand, the states will argue that the President may have some discretion, but that he doesn’t have the authority to not only award them lawful presence but also to give them permission to work.

The Supreme Court will probably hear oral argument around April and should make a decision around June – mere months before the political conventions of both parties.  Regardless of the Court’s decision, it will be big news and certainly have an immediate impact on millions of people – the office of the President being one of them.

Miley & Brown, P.C. located at 705 Ross Avenue in Dallas, Texas is a full-service immigration law firm.  Both partners, Craig Miley and Sarah Z. Brown, are Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.  Gary Frost is an immigration attorney for Miley & Brown, P.C. and enjoys helping others affording them better opportunities for their families.  For more information contact the firm at 972.301.2313.

Majority of Americans Favor a Path to Citizenship

According to an AP poll, 54% of Americans support a path to citizenship for illegal immigrants already in the US. More than 7 in 10 Democrats are in favor and 4 in 10 Republicans are also in favor.

Many of the Republican Presidential candidates are espousing tough stands on immigration but this poll strongly suggests that 25% of Republicans would vote in favor of keeping President Obama’s Executive Actions on immigration in place.  Donald Trump and Ted Cruz have been particularly negative about foreign nationals illegally in the US, but this poll shows that these two demagogues do not have the total backing of their party.

We at Miley & Brown strongly support a program for the 11 million persons illegally in the US to be granted authorization to be employed with a path towards citizenship.  Immigration is a founding principal and fact of this country.  Even George Washington immigrated to the US!  Sarah Z. Brown, Attorney at Miley & Brown, P.C.

http://www.mileybrown.com

2016 Omnibus Appropriations Bill

Yesterday Congress released the 2016 omnibus appropriations bill to fund the government for the remainder of the fiscal year. The attorneys at Miley & Brown join the American Immigration Lawyers Association (AILA) in applauding Congress for passing a bill that largely rejects efforts to force through anti-immigrant or anti-refugee proposals. However, Miley & Brown joins with AILA in having deep disappointment that Congress included changes to the Visa Waiver Program (VWP) that discriminate against nationals of Syria, Iraq, Iran, and Sudan, as well as people who travel to those countries. Targeting a group of people based upon their religion alienates those persons which in turn makes our country less safe and secure.  We are in a time when working with our Muslim friends is necessary. Engaging with our Muslim allies is paramount in the fight against terrorism. Sarah Z. Brown, attorney at Miley & Brown.

http://www.mileybrown.com

Update on DAPA and Expanded DACA

On November 20 and 21, 2014, President Obama announced his “immigration accountability executive action.” There were a series of measures including an Expanded DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parental Accountability). Both are common sense programs. Unfortunately, Texas (along with several other states) filed a lawsuit to block these common-sense measures. A Federal District Court in Texas issued a nationwide blocking those measures. On November 9, 2015, a divided panel of the Fifth Circuit Court of Appeals issued a decision affirming the Texas federal district court’s order and blocking implementation of DAPA and expanded DACA.

The Obama administration has filed an appeal to the U.S. Supreme Court. A coalition of 224 immigration, civil rights, labor, and social service groups has filed an amicus (“friend of the court”) brief on November 30^th urging the Supreme Court to review the case, Texas v. U.S. We do not yet know whether the Supreme Court will accept the case and be able to review it this term.

If the Supreme Court takes up this lawsuit and, if the Obama administration is successful, who are the people that would benefit?

DAPA: The Deferred Action for Parental Accountability would be a prosecutorial discretion program administered by USCIS to provide temporary relief from deportation (deferred action) and work authorization to unauthorized parents of U.S. citizens or Lawful Permanent Residents (LPRs). The DAPA program resembles the DACA program in some important respects, but the eligibility criteria are distinct.

The program would be open to individuals who:

• have a U.S. citizen or LPR son or daughter as of November 20, 2014;
• have continuously resided in the United States since before January 1, 2010;
• are physically present in the United States on November 20, 2014, and at the time of applying;
• have no lawful immigration status on November 20, 2014;
• are not an enforcement priority, which is defined to include individuals with a wide range of criminal convictions (including certain misdemeanors), those suspected of gang involvement and terrorism, recent unlawful entrants, and certain other immigration law violators
• present no other factors that would render a grant of deferred action inappropriate; and
• pass a background check.

DAPA grants would last for three years.

DACA Expansion: Deferred Action for Childhood Arrivals (DACA) is a prosecutorial discretion program administered by USCIS that provides temporary relief from deportation (deferred action) and work authorization to certain young people brought to the United States as children—often called “DREAMers.” DACA does not offer a pathway to legalization. However, it has already helped over half a million eligible young adults move into mainstream life, thereby improving their social and economic well-being. The DACA Expansion, if upheld by the Supreme Court, would eliminate the age ceiling and make individuals who began residing here before January 1, 2010 eligible. Previously, applicants needed to be under the age of 31 on June 15, 2012, and to have resided here continuously since June 15, 2007. Also, if upheld, the expansion would increase grants of employment authorization from two years to three years.

There are several other aspects to the Presidential announcements from November 2014. These include numerous changes to how we enforce immigration laws, how we process immigration benefits, how we encourage further business innovation, and how we welcome immigrants to this nation. Other changes in enforcement measures will include a new department-wide enforcement priorities memo to focus attention on national security threats, those with criminal convictions, and recent unlawful entrants. Also, DHS will be replacing its Secure Communities program in favor of a new model of federal/state/local cooperation that focuses on convicted criminals rather than all unauthorized immigrants encountered by local authorities. The President also created a New Americans Task Force, tasking a broad range of federal agencies to develop a national policy on immigrant integration and cooperation with local communities, and has directed U.S. Citizenship and Immigration Services (USCIS) to embark on an ambitious effort to encourage naturalization.

Numerous other programs will be tweaked or expanded, including programs that protect unauthorized family members of persons who join the military, an expansion of eligibility for in-country processing of waivers of the three- and 10-year admission bars, and protections for high-skilled workers transitioning from a temporary to a permanent legal status.

Miley & Brown, P.C. located at 705 Ross Avenue in Dallas, Texas is a full-service immigration law firm.  Both partners, Craig Miley and Sarah Z. Brown, are Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.  For more information contact the firm at 972.301.2313.