Legal Status CP - DDI 2018.docx - Legal Status CP Thanks to Arianne Ella Ariza Julia Isabel Kelvin Lucy Kyra Caleb Included are CPs Deferred Action TPS

Legal Status CP - DDI 2018.docx - Legal Status CP Thanks to...

This preview shows page 1 out of 249 pages.

You've reached the end of your free preview.

Want to read all 249 pages?

Unformatted text preview: Legal Status CP Thanks to – Arianne, Ella, Ariza, Julia, Isabel, Kelvin, Lucy, Kyra, Caleb! Included are: CPs – Deferred Action, TPS, Attorney General Reference and Referral, Parole. NBs – Politics, Double Taxation, Backlogs, Department of State DA, DV Visa Tradeof Deferred Action 1NC – Deferred Action Text: The United States Citizenship and Immigration Services should: - grant [insert group of immigrants] formal deferred action status. - notify all enforcement officers that these individuals should be classified as nonpriority. - publish this new regulation on its website in multiple languages and distribute a memorandum detailing the change to immigration attorneys and relevant afected communities. - share this information with border enforcement agencies in the Department of Homeland Security, notifying them that [insert group of immigrants] possess deferred action status. Deferred action can be granted to any group of immigrants for an indefinite period of time Vanison 10 ( Denise was a Chief of the Office of Policy for the U.S. Citizenship and Immigration Services, and now is an attorney, policy and strategic advisor. Policy and Strategy-USCIS, “Administrative Alternative to Comprehensive Immigration Perform,”)//EL For individuals already admitted to the U.S. (and therefore ineligible for PIP), USCIS can increase the use of deferred action. Deferred action is an exercise of prosecutodal discretion not to pursue removal from the U.S. of a particular individual for a specific period oftime. 2 A grant of deferred action does not confer any immigration stalUS, nor does it conveyor imply any waivers of inadmissibility that may exist. Likewise, deferred action cannot be used to establish eligibility for any immigration benefit that requires maintenance of lawful status . Periods of time in deferred action do, however, qualify as periods of stay authorized by the Secretary of DHS for purposes of sections 212(a)(9)(8) and (C) of the Act, and may be extended indefinitely. Individuals who have been granted deferred action may apply for employment authorization. Within DHS, USCIS, Immigration and Customs Enforcement. and CUSlOms and 80rder Protcctio.n all possess authority to grant deferred action. USCIS has previously allowed the use of deferred action to provide relief to non·immigrants whose periods of admission had expired. or otherwise had failed to maintain lawful immigrant statu s. In the aftennath of Hurricane Katrina, USCIS instituted a policy of deferred action for non·immigrants impacted by this natural disaster. USCIS has also granted deferred action for particular groups including applicants for interim relief related to the U visa program. Most recently. the SPC approved the use of deferred action for certain military dependents for whom a visa number is not currently available and who are ineligible for PIP. While it is theoretically possible to granl deferred action to an unrestricted number ofunlawfully present individuals. doing so would likely be controversial, not to mention expensive. Presently no specific application form or fee is required to request or receive deferred action. Were USCIS to increase significantly the use of deferred action, the agency would either require a separate appropriation or independenl funding stream. 1 Alternatively, USC IS could design and seek expedited approval ofa dedicated'deferred action form and require a filing fee . Rather than making deferred action widely available to hundreds Of thousands and as a non· legiSlative version of"amnesty", USCIS could tailor the use of this discretionary option for particular groups such as individuals who would be eligible for relief under the DREAM Act (an estimated 50,000), or under section 249 of the Act (Registry), who have resided in the U.S. since J 996 (or as of a different date designed to move forward the Registry provision now limited to entries befolt' January I, 1972). 2NC Solvency Deferred Action solves Wadhia 10, (Professor Shoba Sivaprasad Wadhia is an expert on immigration law whose research focuses on the role of prosecutorial discretion in immigration law and the intersections of race, national security and immigration. She has published more than thirty law review articles, book chapters and essays on immigration law.,The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. L. J. 243 //EL The concept of "prosecutorial discretion" appears in the immigration statute, agency memoranda, and court decisions about select immigration enforcement decisions. Prosecutorial discretion extends to decisions about which offenses or populations to target; whom to stop, interrogate, and arrest; whether to detain or to release a noncitizen; whether to initiate removal proceedings; whether to execute a removal order; and various other decisions. Similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving cost-effective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances. Unlike the criminal system, prosecutorial discretion in the immigration system is a civil matter, and it is exercised with minimal safeguards or incentives. While many scholars have written articles about undocumented immigration, restrictions on immigration, and immigrants' rights, there is a dearth of literature on the role of prosecutorial discretion in immigration law. This article describes the theory, history, and current standard of prosecutorial discretion in immigration matters. This article argues that prosecutorial discretion is both a welcome and a necessary component of immigration law. Drawing important and relevant lessons from the criminal and administrative law, this article shows why the existing model of prosecutorial discretion in immigration affairs is inadequate and, in some instances, misguided. The damaging impact of arbitrary immigration enforcement actions on the daily lives of undocumented noncitizens and their families is striking.' This article advocates for a bolder standard on prosecutorial discretion and greater mechanisms for oversight and accountability when such standards are ignored. Moreover, this article recommends that DHS recognize select acts of prosecutorial discretion as a substantive rule, where the actions operate as a de facto benefit to individuals who satisfy an identifiable set of criteria and favorable equities. This article is divided into five sections: 1) Legal Background and History, 2) Lessons from Criminal Law, 3) Lessons from Administrative Law, 4) Limitations of Prosecutorial Discretion, and 5) Recommendations. The theory behind prosecutorial discretion is seemingly simple and two-fold. The first theory is monetary. Because the government has limited resources to spend, permitting the agency and its officers to refrain from asserting the full scope of their enforcement authority against particular populations or individuals is cost saving and arguably allows the agency to focus their work on the "truly" hazardous. 2 The second theory is humanitarian. Some individuals who are in technical violation of the law may nonetheless have redeeming qualities such as a loving marriage, continued employment as an office manager, status as a mother of three, and faithfulness to prayer and the payment of taxes. Often, these humanitarian considerations are weighed against moral deservedness, namely the gravity of a person's immigration transgression. Allowing such persons to live free from apprehension, detention, or removal is in some ways a reward for their good deeds and in part a judgment by society that some people are morally desirable and more likely to succeed in the future. This article is limited to an analysis of prosecutorial discretion by immigration personnel employed by DHS, including but not limited to officers, attorneys and supervisors. Beyond the scope of this article is a scrutiny of the discretion exercised by administrative judges under the Department of Justice's Executive Office of Immigration Review in the context of formal applications for relief from removal. Similarly, this article does not address the discretion exercised by immigration officers as part of the formal adjudicatory process. Furthermore, although I attempt to distill prosecutorial discretion in the criminal and Finally, while the grant of "deferred action" status represents just one among many exercises of prosecutorial discretion by the immigration agency, the author devotes disproportionate detail to deferred administrative contexts, the analysis is by no means exhaustive. action for two reasons. First, deferred action serves as a good model from which to discuss prosecutorial discretion and analyze with administrative and criminal law. Second, practically speaking, focusing on deferred action enables the author to describe the history and evolution of prosecutorial discretion in a more fluid and chronological manner. As to the terminology, the terms "deferred action" and "nonpriority" statuses are used interchangeably throughout this article. Moreover, unless otherwise indicated the term "Department of Homeland Security" will be referred to by its full name or by the abbreviation "DHS." Also, the term "1996 immigration laws" will be used to refer to amendments made to the Immigration and Nationality Act in 1996, and specifically, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA). Pro secutorial discretion is an awesome power that affects the fate of more noncitizens than any other government action . As defined by the the former Immigration and Naturalization Service (INS) in 2000, "[p]rosecutorial discretion is the authority that every law enforcement agency has to decide whether to exercise its enforcement powers against someone."' Prosecutorial discretion is applied at both a categorical and an individual level.4 Beneficiaries of prosecutorial discretion avoid removal and in some cases are eligible to apply for work authorization. One of the most common forms of prosecutorial discretion is "deferred action" and is discussed in greater detail below. Neither the immigration statute nor the regulations contain eligibility criteria for seeking a favorable grant of prosecutorial discretion. Similarly, unlike most formal applications for discretionary forms of relief from removal, acts of prosecutorial discretion have no written application form. Prosecutorial discretion can be exercised in a wide array of situations The counterplan competes and exercises existing executive authority to use discretion to shape immigration policy Cox and Rodriguez 9 (Adam Cox, Robert A. Kindler Professor of Law at NYU, is a leading expert on immigration law, voting rights, and constitutional law. Cristina Rodríguez is the Leighton Homer Surbeck Professor of Law at Yale Law School. Her research interests include constitutional law and theory; immigration law and policy; administrative law and process; language rights and policy; and citizenship theory. Law-Chicago and Law-NYU, 119 Yale L.J. 458, The President and Immigration Law, )//EL We contend that there has been a relatively secular trend toward the enlargement of the President’s power over core immigration policy through ever-expanding congressional delegation of what amounts to screening authority. We have moved from a world of plausible independent executive authority to admit and remove to a world of pervasive delegation and subsequent executive screening. To be clear, we do not mean that Congress has formally delegated to the President the power to set the legal criteria governing the admission and deportation of noncitizens . To the contrary —as we noted at the outset of this Part, one of the signal features of immigration law is that Congress has largely In general, Congress specifies in great detail the criteria for admission and removal, particularly when it comes to the major categories of family and labor migration that make up the bulk of admissions. In this sense, immigration law resembles tax law, where Congress retains control over marginal rates, or criminal law, where Congress defines the elements of a crime, rather than other regulatory arenas in which Congress has delegated broad authority to the executive branch to set standards.183 We claim, instead, that the President’s inability to set formal admissions and removal criteria has not precluded him from playing a major role in shaping screening policy. T he modern structure of retained a monopoly over these formal legal criteria.182 immigration law that gives the President little standard-setting authority as a formal matter actually has given rise to a system of de facto delegation of power that serves as the functional equivalent to standard-setting authority. This de facto delegation is driven by legal rules that make a huge fraction of resident noncitizens deportable at the option of the Executive. This significant population of formally deportable people gives the President vast discretion to shape immigration policy by deciding how (and over which types of immigrants) to exercise the option to deport. Three principal aspects of immigration law have the effect of delegating Deferred action allows Immigrants to stay legally Davis 10,( Julie Hirschfeld Davis is a White House correspondent at The New York Times. She has covered politics from Washington for 19 years, writing on Congress, three presidential campaigns and three presidents. She joined the Times in 2014 after stints at Bloomberg News, the Associated Press, The Baltimore Sunand Congressional Quarterly. "Agency weighs skirting Congress on immigration," Seattle Times, )//EL The Obama administration, unable to push an immigration overhaul through Congress, is considering ways it could go around lawmakers to let undocumented immigrants stay in the United States, according to an agency memo. The internal draft written by officials at U.S. Citizenship and Immigration Services outlines ways the government could provide “relief” to illegal immigrants – including delaying deportation for some, perhaps indefinitely, or granting green cards to others – in the absence of legislation revamping the system. It’s emerging as chances fade in this election year for a measure President Barack Obama favors to put the nation’s estimated 12 million undocumented immigrants on a path to legal status, and as debate rages over an Arizona law targeting people suspected of being in the country illegally. The 11-page internal memo, written in April to the agency’s director, says: “ This memorandum offers administrative relief options to promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization .” It goes on: “In the absence of comprehensive immigration reform, USCIS can extend benefits and/or protections to many individuals or groups.” The memo drew a backlash by Republicans who called it evidence that Obama is looking for ways of relaxing immigration policies without political consensus to enact a new law. “The document provides an additional basis for our concerns that the administration will go to great lengths to circumvent Congress and unilaterally execute a backdoor amnesty plan,” said Sen. Charles Grassley, R-Iowa, who obtained and circulated the memo. “The problem remains that if you reward illegality, you get more of it.” Grassley led a group of conservative GOP senators who wrote to Obama in June asking him to promise that the administration wouldn’t use its authority to “change the current position of a large group of illegal aliens already in the United States.” The Iowan’s staff said the group has not received a response. “Now we find out the truth: While saying one thing to the public, the Obama administration is scheming to ensure that immigration laws are not enforced,” said Rep. Lamar Smith of Texas, the top Republican on the House Judiciary Committee. Administration officials sought to downplay the memo’s significance, saying it was merely the product of brainstorming sessions and noting that many of the ideas it suggests were first discussed when George W. Bush was president, after his immigration overhaul died in Congress in 2007. Agency spokesman Christopher Bentley said the internal document “should not be equated with official action or policy,” and represented only “deliberation and exchange of ideas.” “We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation’s immigration challenges,” he said in a statement. Still, the memo makes clear that even without such a bill, immigration officials have identified a variety of ways to relax U.S. policy to let more undocumented immigrants who might otherwise face deportation stay in the country. Among the options outlined is expanding the use of “deferred action” – in which the government can use its discretion to halt a deportation indefinitely, usually for an urgent humanitarian reason. 2AC Benefits Recipients are granted the status of “nonstatus”- cannot vote or receive public benefits Geoffrey Heeren 15 (Heeren- LL.M. Georgetown University Law Center (2012), J.D. New York University (2000),B.A. University of Chicago (1996). His work focuses in constitutional law and immigration, THE STATUS OF NONSTATUS, American University Law Review, 64 Am. U.L. Rev. 11150//EL If the government exercises its discretion and does not deport an unauthorized immigrant, what is that individual's status? The government would likely answer that such individuals have no status or at least that they do not have lawful status. Consider the Liberians granted DED in 2007. According to USCIS, DED "is not considered an immigration "status.'" n63However, individuals with DED can obtain a federal work permit that they can use as an ID card. Obviously, then, they are not "undocumented" nor "unauthorized" or "illegal" because the government has recognized their Nonstatus presence and authorized them to remain in the country. If DED is somewhere between status and no status, then it is the answer to our riddle: that which is not status and not no status. In other words, DED is "nonstatus." One way to illustrate the attributes of nonstatus is by considering those of DED. First, DED is temporary: [*1130] it has been periodically renewed for Liberians since 2007 and was most recently authorized for Liberians for a twenty-four month period beginning on October 1, 2014. n64 The most recent announcement came just four days before the last round of DED was set to expire. n65 Individuals with DED live in a state of perpetual uncertainty. Thus, the first aspect of nonstatus is that it is officially temporary, although in practice some types of nonstatus can last for a long DED comes with few substantive or procedural rights. Substantively, its holders cannot vote, n66 receive public benefits, n67 obtain driver's licenses in some states, n68 and are probably unprotected from some employment discrimination. n69 Procedurally, there is not even any application process for DED status, let alone a formal hearing. n70 DED does not prevent DHS from obtaining a removal order: it only means that DHS will generally not enforce a removal order, although the limited guidance available on DED states that there are "exceptions" to nonenforcement of the removal order, including for persons "who have committed certain crimes, persons who are persecutors, and persons who have previously been deported, excluded or removed." n71 However, there does not seem to be any time. Second, right to appeal a denial or revocation based on this vague [*1131] standard, n72 and if the presidential administration in power discriminates as to how it allocates DED, the...
View Full Document

  • Spring '19
  • Fernando Serna
  • Immigration to the United States, United States Citizenship and Immigration Services

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

Stuck? We have tutors online 24/7 who can help you get unstuck.
A+ icon
Ask Expert Tutors You can ask You can ask You can ask (will expire )
Answers in as fast as 15 minutes