DHS's new policy is not unconstitutional

DHS recently informed the public of a new policy to review the 300,000 deportation cases currently in the system and close those that are considered low-priority. Some have claimed that President Obama has used this new policy to go around Congress, thereby making his action unconstitutional. However, the process that DHS is using to close these cases is not new. In fact, it has been in use for many years. DHS will close cases using an authority known as prosecutorial discretion. Immigration authorities can use their judgment in deciding which cases to prosecute and which to close. They may do this for many reasons including fairness and administrative backlog.

This new policy is a broad use of the agency's prosecutorial discretion. It comes at a time when resources are scarce in the government. The Obama administration hopes to focus on deportation of those that pose some sort of danger to our country. The cases that are closed include those concerning youth, the elderly, and people who have lived here since childhood.

Those that are claiming that DHS's new policy in unconstitutional are incorrect in their understanding of the enforcement of immigration laws. The government has no obligation to deport everyone that is deportable. Whether one agrees with the use of prosecutorial discretion is a political and philosophical issue and does not change that it is legal and within the bounds of constitutional process.

Also, this policy is not necessarily a form of amnesty. Amnesty would grant those whose cases are administratively closed a green card or some form of status. In this case, those who have their cases closed will receive work authorization but no legal status. This policy is simply an attempt to get by until Congress passes much-needed immigration reform.

More inforation here: http://www.latimes.com/news/local/la-me-deportation-review-20110829,0,4675057.story

Recent California in-state tuition case

A friend recently forwarded me an article from the Sac Bee asking my opinion on a recent US Supreme Court decision to not review the case Martinez v. Regents of the University of California. The California Supreme Court found the law valid.

Currently, there is a law that any high school student that has attended high school in the state for at least three years will be charged in-state tuition upon entering a state college or university. The residency of the student's parents is not relevant as to whether the student gets in-state tuition.

According to the article, this law benefits not only children of undocumented parents but students in boarding schools and those whose parents have moved out of the state. For these students, the law encourages them to stay in the state.

My friend was more concerned about the implications of allowing undocumented individuals to pay in-state tuition. I explained that the children of undocumented parents do not have capacity, in my opinion, to break the immigration laws. These children were brought here by their parents and could not make the decision whether to immigrate from themselves. And thus, they should not be punished when they are just as much residents of California as other students.

Also, I think that the argument for allowing undocumented students to have in-state tuition is even stronger than for boarding students. Because their parents live in California, they pay property taxes, either directly by owning a home or indirectly through renting. By paying property taxes, these parents are contributing to public education. This contribution is the basis for in-state tuition. Those from out of state have not paid taxes and thus pay higher tuition. Boarding students' parents are not paying California property taxes.

Overall, I think the law is very wise and am glad that it has been upheld by the judicial system.

Here is the link to the article.
href="http://www.sacbee.com/2011/06/08/3684470/court-refuses-to-punish-kids-of.html">

What's new with same-sex couples and immigration

I recently gave a short presentation on this topic at a law school club meeting.

First, an immigration judge in New York suspended the deportation of the same-sex spouse of an American citizen so that the couple could challenge the constitutionality of DOMA.
Currently, the federal government does not recognize same-sex marriages performed in states such as Connecticut, Iowa, or Massachusetts. An Argentine national came here several years ago and overstayed her visa, making her deportable. While here, she married a US citizen. On a raid of a passenger bus, this Argentine lady was found to be here illegally and placed in deportation proceedings. As the legal spouse of a US citizen, she would be entitled to apply for certain types of relief from deportation. Without that relationship, she has no relief from deportation.
This lady is legally married to a US citizen. They were married in Connecticut and live in New York (which does not perform same-sex marriages but recognizes those performed in other states). The Defense of Marriage Act defines marriage for purposes of the federal government to only be between a man and a woman. The Obama administration has recently announced that it believes DOMA to be unconstitutional and will not defend it in court. This announcement has clouded the validity of DOMA for this particular immigration judge.
Should DOMA be found unconstitutional, this Argentine lady's deportation will have been unnecessary and will have caused great harm to her family. By suspending the deportation, this immigration judge is allowing her family to stay together while the courts determine whether DOMA is constitutional. Other immigration judges are not required to follow this judge's lead. However, many judges may choose to act as this judge did in similar situations.

Second, US Citizenship and Immigration Services announced that it would put applications for immigration benefits from same-sex spouses into pending status as opposed to denying them outright. This is because it is not clear whether DOMA is constitutional. However, several days later, USCIS announced it would resume denying these types of applications because DOMA is still valid.
I find this dichotomy interesting. The Justice Department will not defend DOMA in court but Homeland Security (which administers USCIS) will enforce a law that the administration believes unconstitutional. So at this point, the administration will not defend the law, but it will enforce it.

Arizona is at it again

Some state legislators are trying to push through legislation that would prohibit those born in this country to parents that are neither US citizens or lawful permanent residents from gaining citizenship. Some experts are arguing that the 14th Amendment, which gives citizenship to everyone born in the US, was only meant to clarify that former slaves and their children are citizens.
The bill does not look like it is getting very far at this point. If it were to pass, I'm sure there would be challenges all the way to the Supreme Court. I don't think we have enough strict constructionists on the Court to swing a decision in favor of a bill like this. I understand the argument that such a bill could be constitutional (not that I agree). However, even if it were, we have a long history of giving citizenship by place of birth as opposed to descent, and I see no reason to change that.

http://azstarnet.com/news/local/border/article_e3f477cf-fdb2-5609-afd1-db34e3f9dfd0.html

The states figure out for themselves why the federal government is selective about immigration enforcement

I just read an article attached below. After Arizona passed its controversial immigration legislation, several states jumped on the boat and drafted copycat legislation. However, most of these bills have been abandoned or redrafted or are just not faring well. The reason - state budgets! It costs a lot of money to enforce immigration as with any other law. The federal government tends to focus on criminal aliens. In my opinion, this is largely due to budget constraints. If you only have so much money for this particular function of government, you're going to use it up on the most urgent issue. The federal government considers criminal aliens a higher priority for removal than an otherwise law-abiding illegal aliens.
Arizonans passed their legislation because they felt the federal government wasn't doing its job. Other states have now realized while facing budget problems that the federal government may have been onto something. It's really expensive to enforce immigration measures against peaceful citizens if it requires taking funding away from other sources. I'm glad that states are now realizing what should be a priority even though I'm not glad about the recession.

http://www.washingtonpost.com/wp-dyn/content/article/2011/01/28/AR2011012806902.html