Congress Passes Omnibus Bill.

This weekend, Congress passed a $1.1 trillion spending bill that will fund the majority of the government through September 2015, but will only fund DHS through February 2015. Although Senator Cruz (R-TX) attempted to defund the President’s executive action during the Senate debate, his motion was defeated by a 78-22 vote.

Senate Confirms Sarah Saldaña as Director of ICE

Despite GOP objections, the Senate voted 55-39 to confirm Sarah Saldaña as the Director of Immigration and Customs Enforcement (ICE). Ms. Saldaña will be the first Latina to lead the agency.

The AAO sustained the appeal and withdrew the director’s decision,

The AAO sustained the appeal and withdrew the director’s decision, finding that the petitioner established by a preponderance of the evidence that the beneficiary’s duties as a chief operating officer were managerial. Specifically, the AAO noted that the beneficiary would be primarily engaged as a manager based on his supervision of subordinate managers and supervisors, and thus qualified for an L-1A visa.

IJ Grants Withholding to Single Mother Fleeing Violence in Guatemala

The IJ granted withholding to a single Guatemalan woman and asylum to her two children, after giving de minimus weight to the record of sworn statement completed by CBP, which stated that the respondent was coming to the United States to work and had no fear of return. The court noted the long-standing phenomena repeated by a substantial percentage of asylum applicants who claim that they informed CBP of their fear of returning, but were told they did not have valid claims. Courtesy of Jacquelyn Kline.

The immigration reform has stirred national debate. Is it constitutional?

As most people know at this point, immigration reform has hit the U.S. through an executive order by President Obama and not through Congress. Brian Lerner explains that there is a hefty debate going on with this issue as to whether the immigration reform was constitutional or not.

See Brian D. Lerner speak about the immigration reform news 2014 about the new DACA

The Republicans are angry and state that Congress should be making laws regarding immigration reform. However, the U.S. Senate prepared a complete bill for immigration reform. It included an overhaul of both enforcement and affirmative immigration. However, explains Brian D. Lerner, when the Bill was sent to the U.S. House of Representatives, it sat there and sat there and sat there. The Speaker of the House would not even bring it for an up or down vote. Thus, while the Republicans are now furious that President Obama took the immigration reform in his own hands, the statements that Congress should do something is a bit disingenuous. They may have disagreed with the Senate version of the Bill, but why not put it up for debate? Why not allow it to go for a vote? Rather, they did nothing. Thus, explains Brian D. Lerner, Immigration Attorney, it is not as though President Obama came rushing through the doors to do immigration reform. Rather, he waited 1 ½ years after the Senate passed a bill. Clearly the immigration system is broken and immigration reform is needed.

 

Thus, the question: Is executive action by the President of the United States on Immigration Reform constitutional? In actuality, all the way back to the first President of the United States, George Washington, there have been executive orders. In this case, only when Congress has failed to act, did President Obama take action. In actuality, President Obama has not issued a lot of executive orders in his tenor as President of the United States. Now, for what seems like the first time, the House is stating they should debate and talk about the issue on immigration reform. That is great! If the President giving an executive order  is what is necessary to get the House to do something for the people of the United States on immigration reform, then President Obama’s executive action is working.

 

The President has the constitutional power to carry out his Presidency. He has actually not made any new laws, but has instituted an executive order in which to implement his policies. This is his prerogative. The issue with the constitutionality of this executive order is further shown to be legal based upon the past. DACA or DREAMERS or Deferred action has been around for a couple of years. This was also made via an executive order by President Obama. Why did the Republicans not question this executive order? Why did they not bring a lawsuit or try to get some order that DACA itself was not constitutional? Here, explains Brian D. Lerner with the current executive order, DACA has been expanded. However, the expansion of DACA goes to basically taking away the upper age limit and making it so instead of being here in the U.S. since 2007, it would be 2010. Granted, the immigration reform and constitutionality of that reform is questioning the other provisions as well. However, it seems, according to Brian Lerner, that it is the content of the immigration reform and perhaps the expansion is what has many Republicans trying to fight it. However, according to Brian D. Lerner, the immigration reform has taken effect and there are a great many organizations and Law Professors all across the U.S. which have expressed their support for the immigration reform and its constitutionality. Of course there are about 17 Repblican Governors that have filed suit against the unconstitutionality of the immigration reform. It is the opinion of Brian D. Lerner, that this suit is more of a political statement as it is unlikely to be ruled that it is not constitutional.


There are certainly a lot of arguments on both sides. However, immigration reform is needed (whether you are for immigration reform or against immigration reform) and one way or another it must be done. Thus, if President Obama’s executive action has started the wheels of Congress debating and moving forward, then hopefully the momentum will continue and Congress will ultimately pass a much needed immigration reform package.

DREAMERS and Immigration Reform. What is needed?

Immigration Reform is here and Dreamers can get a work permit and get to be here legally if they qualify. Brian Lerner states that Dreamers has been able to apply for DACA or Deferred Action for the last 2-3 years. However, with the new immigration reform for Dreamers, we now have an expanded DACA and more people will qualify for Dreamers.

 

Brian D. Lerner, Immigration Attorney states that the following list is the general requirements of the immigration reform for Dreamers:

The program will be open to individuals who:

 

  1. Came to the United States before reaching your 16th birthday;
  2. Have continuously resided in the United States since January 1, 2010, up to the present time;
  3. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  4. Had no lawful status on June 15, 2012;
  5. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  6. Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Brian Lerner, immigration attorney states that the difference between this immigration reform for Dreamers and the last Immigration Reform for Dreamers is that it first takes out the upper age requirement. Basically, one could not be older than 31 years old at the time that the first immigration reform Dreamers was made. Now, they can be as old as they are. However, the applicant, in accordance with Brian D. Lerner, must have not been older than 16 years old when he or she entered the United States.

See Brian D. Lerner speak about the immigration reform news 2014 about the new DACA

Additionally, another element with the new immigration reform is that instead of having to be physically present from all the way back in 2007, they can now show that they have been physically present since 2010. Otherwise, the immigration reform for Dreamers is basically the same. One item of concern is that you have to look at the last item regarding the criminal history of the applicant. Now, with the new immigration reform for Dreamers, there is also a rather comprehensive memo from the director of Department of Homeland Security which makes clear that someone may be under priority 1, priority 2 or priority 3 or no priority at all for immigration enforcement. Thus, there is the interplay between the immigration reform for Dreamers requirement that somebody not have been convicted of a felony or significant misdemeanor or 3 or more other misdemeanors and how that interacts with the enforcement memo. Brian Lerner also states that the definition of what is a ‘significant’ misdemeanor and/or felony seems to have been clarified somewhat by the new priority memo. Assumably, if somebody qualifies for the immigration reform for Dreamers, they will not be deported – even if under a certain priority category for enforcement.  Brian Lerner states we will have to see how this plays out and hope that the immigration officials will follow properly the executive order as well as the new policy memorandum on enforcement priorities.


As  usual, with immigration reform for Dreamers, there are questions and ambiguities and issues that need to be resolved. However, in the end, it is a good expansion of the immigration reform for Dreamers and is constitutional under the law.

What evidence do you need to in order to prove the various requirements of physical presence in DACA?

The immigration reform expanded DACA and allows persons who meet various requirements to essentially get relief from deportation and removal from the United States, to be able to stay here legally and to get a 3 year work permit.

Brian D. Lerner states it is one thing to qualify for immigration reform under DACA and yet another thing to prove that you qualify. For example, one of the requirements is that you entered the U.S. before you were age 16. How can you prove this? There are various ways according to Brian D. Lerner, immigration attorney.  For example, for the immigration reform for DACA, you could provide declarations from persons familiar with when you entered the U.S. and how you entered. Of course, the more specific they can be in the declaration, the more credible and believable the declaration is.

 

Brian Lerner states you could also provide any receipts you have received when you entered the U.S. For example, invoices, rent receipts, tickets, groceries, etc. Of course, it might be many years ago you entered the U.S., and therefore, getting receipts might be difficult. Per the immigration reform requirements for DACA, you could also get tax bills you might have received when you were young. You could get your parents tax filings to show you were a dependant. If you want to school, states Brian Lerner, you could get report cards, school records, immunization records and the like.

For immigration reform, each case is different, but there are ways of properly putting together a petition so that you have a much better chance of success. Brian Lerner states in some cases, when people will try to submit the immigration reform DACA package themselves, they will put a statement to the effect: “I was here in the U.S. before I turned 16 years old”, but they will not provide one scintilla of evidence otherwise. Obviously, this will not work. Remember, states Brian Lerner, it is your burden to prove the elements for the immigration reform DACA, not Immigration’s burden to disprove it.

 

Another element, states Brian D. Lerner, that must be proven for the immigration reform for DACA is that you have been physically present in the U.S. since January 1, 2010. This is not the same type of burden that would be required as  would be the case showing you entered before you were 16 years old. This is a continuous showing of evidence, not just a single day. Thus, Brian Lerner states that under the immigration reform for DACA, you could also submit declarations from yourself and other people to verify how long you have been here and that you meet this requirement. However, if the declarations are given by persons that are not related to you, it will carry a lot more weight than for example if it is your mother or father.

See Brian D. Lerner speak about the immigration reform news 2014 about the new DACA

Additionally, the declarations must be of personal knowledge, not just what you might have told them. In other words, according to Brian D. Lerner, a supporting declaration must be believable, detailed and have sufficient facts to meet the burden of proving this requirement for the immigration reform for DACA. Here instead of simply showing school records from when you were 16, you could show the years of school records from 2010 up until the present. You could get evidence that you have worked and get payroll records and tax records for all those years. If you rent, you could get rental statements and lease agreements and evidence you have paid utilities for all the various years in question.


Brian Lerner states that you could get court documents if there were any court action, or you could get various records that you were under medical care or in some type of proceedings. Brian Lerner states that just submitting one form of evidence is probably not sufficient and will not meet your burden for the immigration reform requirements.

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