TGIF, America! Supreme Court Upheld The Affordable Care Act And The Fair Housing Act; Ruled Same-Sex Marriage Legal Nationwide

Washington, DC– The U.S. Supreme Court delivered major landmark decisions on Thursday and Friday, respectively, that may profoundly affect the lives of Americans across the nation.

The Affordable Care Act And The Fair Housing Act Upheld

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The Progress Report

In a ringing endorsement of the Affordable Care Act and the rule of law, the Supreme Court voted 6-3 in King v. Burwell on Thursday to uphold health care subsidies. The Court did not just uphold subsidies, it strongly defended the law, sending a message that serious legal threats to the case are over. Millions of people can rest easy, knowing they will still have access to quality, affordable health insurance.

Chief Justice Roberts penned the opinion, and in it he granted a sweeping victory for supporters of the law . The opinion reads: “In a democracy, the power to make the law rests with those chosen by the people. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

What’s most noteworthy about the opinion is how it was written. The Court did not employ theChevron doctrine, which calls for the justices to defer to the relevant agency if a statute is ambiguous. Instead, the Court resolved the ambiguity of the law itself ruling that the Chevron deference does not apply to questions of “deep economic and political significance.” Because the Court did not employ the Chevron doctrine, the next presidential administration will not be able to reinterpret the law to strip away tax subsidies. In other words, if Congressional Republicans want to gut the Affordable Care Act, they are going to have to do it themselves, without the help of the Court. That’s a big deal.

Justice Scalia wrote the dissent, expressing his distaste for the Affordable Care Act colorfully. With the majority opinion upholding the law, “words no longer have meaning,” wrote Scalia. “We should start calling this law SCOTUScare.”

Because of this decision, the 16.4 million people that have gained insurance under the ACA can rest easy. The 8.7 million enrollees receiving tax credits do not have to worry about their insurance being made unaffordable. The 129 million people with pre-existing conditions no longer have to worry about losing coverage or facing significant premium increases. Women will not be discriminated against just for being women, and growth of health care costs can continue to slow.

While most of Thursday’s attention has been on King v. Burwell, the Court ruled on another significant case on the same day. In a surprising 5-4 decision, the Supreme Court ruled in Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc. that housing policies could be deemed discriminatory based on “disparate impact.” In other words, discrimination can be proven by showing that the impact of a housing policy is discriminatory even if the discrimination was not intended. Even unintentional housing discrimination denies families access to the social, economic, and health benefits that come along with appropriate housing opportunities. This means that plaintiffs could prove discrimination by showing that the impact of a housing policy was discriminatory, even if there was no conscious attempt to discriminate.

Some of the ruling, written by Justice Kennedy and joined by the four liberal members of the court, turned on technical issues of statutory interpretation and precedent, but the underlying theme was a finding by the Supreme Court that a lot of discrimination, in 1968 and today, is either unconscious or hidden:

“[The law] permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.”

Even with the ruling, these kind of discrimination lawsuits are still difficult to win. The court made clear that it is not enough simply to show a disparate impact. Plaintiffs have to prove there was a specific policy without a legitimate business purpose that created the disparity.

“A robust causality requirement is important in ensuring that defendants do not resort to the use of racial quotas. Courts must therefore examine with care whether a plaintiff has made out a prima facie showing of disparate impact, and prompt resolution of these cases is important. Policies, whether governmental or private, are not contrary to the disparate-impact requirement unless they are “artificial, arbitrary, and unnecessary barriers.”

Still, there is a significant difference between difficult and impossible. The law’s true impact stems not only from lawsuits that are fully adjudicated but from stakeholders knowing that the threat of a discrimination lawsuit is real. The court’s decision not only gives people a fighting chance to take on discriminatory housing policies, it also prevents a dangerous precedent of requiring proof of discriminatory intent that could have potentially undermined anti-discrimination in many other circumstances.

At the most basic level, the Supreme Court recognized fight against discrimination is not over, concluding, “The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.”

Same-Sex Marriage Legal Nationwide

gay-marriage-supreme-court-Reuters-640x480
Reuters/Joshua Roberts

Continuing its hot streak, the U.S. Supreme Court ruled 5-4 Friday that it is legal for all Americans, no matter their gender or sexual orientation, to marry the people they love.

The decision is a historic victory for same-sex couples rights activists who have fought for years in the lower courts. Thirty-seven states and the District of Columbia already recognize marriage equality. The remaining 13 states ban these unions, even as public support has reached record levels nationwide.

The justices found that under the 14th Amendment, states must issue marriage licenses to same-sex couples and recognize same-sex unions that were legally performed in other states. Justice Anthony Kennedy delivered the majority opinion and was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor. In a rare move, the four dissenting justices each wrote an opinion.

The lead plaintiff in Obergefell v. Hodges is Ohio resident Jim Obergefell, who wanted to be listed as the surviving spouse on his husband’s death certificate. In 2013, Obergefell married his partner of two decades, John Arthur, who suffered from ALS. Arthur passed away in October of that year, three months after the couple filed their lawsuit.

Obergefell was joined by several dozen other plaintiffs from Kentucky, Michigan, Ohio and Tennessee who were fighting both to be able to marry and to have their marriage recognized in every state in the country.

In the majority opinion, the justices outlined several reasons marriage rights should be extended to same-sex couples. They wrote that the right to marriage is an inherent aspect of individual autonomy, since “decisions about marriage are among the most intimate that an individual can make.” They also said gay Americans have a right to “intimate association” beyond merely freedom from laws that ban homosexuality.

The country’s views of same-sex marriage have transformed since 2004, when Massachusetts became the first state to allow gay couples to wed. In 2013, the Supreme Court began chipping away at the country’s legacy of discrimination against same-sex couples when it struck down part of the 1996 Defense of Marriage Act, which prevented same-sex couples whose marriages were recognized by their home state from receiving the hundreds of benefits available to other married couples under federal law.

President Barack Obama became the first sitting president to support marriage equality when he came out in favor of it in 2012, the same year that the Democratic Party made it part of its platform for the first time. The Republican Party and its slate of 2016 presidential aspirants, however, remain opposed to same-sex marriage. Sen. Ted Cruz (R-Texas) and Wisconsin Gov. Scott Walker (R) support a constitutional amendment protecting states that want to ban marriage equality.

Some conservatives have advocated for a civil disobedience effort against a Supreme Court decision in favor of same-sex marriage. However, officials in red states expressed that they are prepared to implement the decision, going so far as to ready gender-neutral marriage licenses and set later office hours. Gerard Rickhoff, who oversees marriage licenses in Bexar County, Texas, said that if same-sex couples are discriminated against elsewhere in the state, “Just get in your car and come on down the highway. You’ll be embraced here.”

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Kristine Tungol Cabagnot is an attorney at Tungol Law, and welcomes your thoughts and queries at kristine@tungollaw.com.

 

DC Follows 11 States Allowing Undocumented Immigrants to Drive Legally

Source: DC DMV

Washington, DC– The D.C. Council passed a bill this week, which was signed by D.C. Mayor Vincent Gray, that allows undocumented residents to apply for driver’s licenses. The new policy, which goes into effect May 1, 2014, sets up a system where undocumented immigrants will receive licenses that are the same but for their being marked “not valid for official federal purposes.”

Outside of D.C., 11 states and Puerto Rico allow people to apply for driver’s licenses regardless of immigration status. Last week, Illinois began to implement its law to issue licenses to undocumented immigrants living in the state if they meet conditions like purchasing insurance. Illinois state officials expect half a million people to eventually apply for the ability to drive legally.

Not that long ago, only two states (New Mexico and Washington) allowed undocumented immigrants to be eligible for driver’s licenses. Now they are joined by: California, Colorado, Connecticut, Illinois, Maryland, Nevada, Oregon, Puerto Rico, Utah, Vermont, and now DC.

Sources: ImmigrationProf Blog; Immigration Impact;  NILC Driver’s Licenses Map

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Kristine Tungol Cabagnot is an attorney at Tungol Law, and welcomes your thoughts and queries at kristine@tungollaw.com.

Immigration Relief Available for Filipino Nationals Impacted by Typhoon Haiyan

Washington, DC–In a memo released on Nov. 15, 2013, U.S. Citizenship and Immigration Services (USCIS) reminds Filipino nationals that those impacted by Typhoon Haiyan (known locally as Yolanda in the Philippines) may be eligible for certain immigration relief measures upon request. The key word here is “may be eligible,” so it is pertinent to check with either USCIS or a credible immigration lawyer if interested in availing of the following relief measures:

 

  • Change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
  • Extension of certain grants of parole made by USCIS;
  • Extension of certain grants of advance parole, and expedited processing of advance parole requests;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs);
  • Expedited adjudication of employment authorization applications, where appropriate; and
  • Assistance to LPRs stranded overseas without immigration or travel documents, such as Permanent Resident Cards (Green Cards). USCIS and the Department of State will coordinate on these matters when the LPR is stranded in a place that has no local USCIS office.

Note: “Immediate relatives” as per immigration regulation means the spouse or unmarried child under 21 years of age of a U.S. citizen or LPR; an orphan adopted abroad by a U.S. citizen; an orphan to be adopted in the U.S. by a U.S. citizen; or the parent of a U.S. citizen who is at least 21 years old.

For more information on USCIS humanitarian programs, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283.

Source: USCIS Press Release

Help The Philippines Gain Temporary Protected Status (TPS)

Residents rebuild what's left of their homes after Typhoon Haiyan. (AP Photo/Bullit Marquez)

Washington, DC–Filipinos all around the United States have quickly mobilized to petition for  the Philippines to be designated Temporary Protected Status (TPS), in light of the recent calamities that have ravaged the tiny island nation in the Pacific.

Under INA Section 244, The Secretary of the Department of Homeland Security (DHS) may designate a country, or portions of a country, for TPS when conditions exist; such as an ongoing armed conflict or an environmental disaster in the country that temporarily prevents the country’s nationals from returning safely. While not required, typically a country must first request TPS before the Secretary will make a designation. Once a country receives a TPS designation, nationals of that country residing in the U.S. receive a temporary, humanitarian form of relief from deportation that does not include the granting of permanent residence. The initial TPS designation lasts for a period of six to 18 months and can be extended if conditions continue to support the designation.

The decision to designate a country for TPS rests with the executive branch of the federal government. Congress does not vote on it, though members of Congress may ask the President to designate a particular country. However, it is up to the President and his agencies to make the final determination.

There are strong arguments for Philippines to be designated TPS status. On Friday, November 8, 2013, Typhoon Haiyan  (locally known as Yolanda)–one of the most powerful storms ever recorded on land–hit the Philippines, bringing sustained winds of 147 mph and waves as high as 45 ft. An estimated 6.9 million people have been affected by the storm. Relief efforts are just beginning as debris is slowly being cleared from access roads and airports begin to re-open. The death toll is estimated to be in the thousands while the number of people displaced by the massive storm rises into the hundreds of thousands. The long term impacts of the storm are still yet unknown.

Before the deadly super typhoon, a 7.2 magnitude earthquake struck the same geographical area in the Philippines on October 15, 2013. Hundreds of people died, more than 300 thousand people are displaced, and 3.2 million people are affected. A total of P2.25 billion (Philippine Pesos) worth of damages to public buildings, roads, bridges, and flood controls was reported. (See NDRRMC Update).

It would impose a great burden on the rescue and restoration effort in the Philippines to require the country to reabsorb its nationals from abroad, many of whom may have homes that were destroyed by the Typhoon. TPS exists to provide a safe haven for those who are reluctant to return to potentially dangerous situations, and to assist nations who are under extraordinary and temporary conditions and face difficulties in receiving their nationals safely.

A grant of TPS would allow Filipinos here in the U.S. to work and support their families in the Philippines who were impacted by the Typhoon. Remittances account for almost 10 percent of the Philippines’ Gross Domestic Product. Now, more than ever, those funds are needed to help support the recovery process.

The Washington, DC-based Migrant Heritage Commission has created a petition to the White House for TPS designation, while Change.org is also circulating a petition asking President Obama and the DHS Secretary to grant TPS to the Philippines. Meanwhile, the American Immigration Lawyers Association filed its request of the country’s TPS designation to the Acting Secretary of DHS, Rand Beers.

To sign the TPS petitions, you can either go through the Migrant Heritage Commission petition or Change.org’s petition. Every signature counts, so please do your part in helping the Filipinos gain TPS status, and in essentially rebuilding the Philippines.

Source: “AILA Requests Designation of the Philippines for TPS,” AILA InfoNet Doc. No. 13111450 (Nov. 14, 2013).

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Kristine Tungol Cabagnot is an attorney with the Tungol Law Office, and welcomes your questions and concerns at kristine@tungolaw.com.

Government Shutdown and Effects on Immigration

Photo Source: CNN

Washington, DC–Day one of the government shutdown, and immigration agencies across the U.S. have not been excepted from furlough. Here is a breakdown of how this development affects pending immigration cases, petitions, and applications:

USCIS: U.S. Department of Homeland Security (USCIS) overall will continue operating as usual as the agency is funded by filing fees and not government funds (98% of personnel will remain on the job). The exception to this is E-Verify. As a government funded program, it will not be accessible to businesses or U.S. citizens. However, the USCIS Office of the Ombudsman will suspend its operations until the shutdown is resolved. Thus, pending inquiries and requests for assistance to the Ombudsman will be placed on hold until the federal government reopens.

CIS Ombudsman: The CIS Ombudsman’s Office will be closed and will not be accepting any inquiries through their online case intake system.

DOL: Office of Foreign Labor Certification (OFLC) functions are not “excepted” from a shutdown and its employees are placed in furlough status. Consequently, OFLC will neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.

DOL’s Office of Administrative Law Judges will be unable to perform any case-related activities, including conducting hearings. Hearings that have been previously scheduled will therefore be cancelled prior to the date of the hearing, and they will not be rescheduled for hearing until an appropriations bill or continuing resolution takes effect.

DHS: Due to the lapse in federal, DHS’s website will not be actively managed.

DOS: The Department will continue as many normal operations as possible; operating status and available funding will need to be monitored continuously and closely, and planning for a lapse in appropriations must be continued. Review their“Guidance on Operations” for more information.

EOIR: Court functions that support the detained caseload will continue, but other functions are suspended. The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds. Please review their notice for more information.

ICE: From ICE Community Outreach – ICE detention and enforcement operations shall continue. ICE chief counsel trail attorneys will still work on the detained docket only during a shutdown. Please coordinate with your local Chief Counsel Office on more specifics. The ICE Community and Detainee Helpline will remain operational.

USCIS: All USCIS offices worldwide are open and individuals should report to interviews and appointments as scheduled. E-Verify is currently unavailable due to a government shutdown. Please see their notice for policies implemented due to E-Verify’s unavailability.

Summary of Government Services:

Source: AILA InfoNet Doc. No. 11040730 (posted Oct. 1, 2013), www.ailalink.org

 

Senate Passes Immigration Reform Bill

 

(AP Photo/J. Scott Applewhite)

Washington, DC — The Senate approved a sweeping immigration overhaul today in a strong bipartisan vote after an afternoon of emotional speeches as senators told personal stories of family journeys to the United States while visitors filled the galleries around the chamber.

The 70-vote tally that the bill’s drafters had hoped would spark momentum in the House slipped as Republicans peeled away. The final vote was 68-32, with 14 Republicans joining all of the Democrats.

Still, the outcome was significant in a divided Congress that rarely finds bipartisan agreement. But the landmark legislation has dim hope in the GOP-controlled House.

Despite drawing significant support from Republican senators with the addition of $46 billion in border security, House Speaker John A. Boehner (R-Ohio) has no immediate plans to consider the bill. His GOP majority opposes the bill’s path to citizenship for the 11 million immigrants in the country without legal status, and House Republicans are drafting their own bills.

“Well before they ever became citizens, in their hearts they had already become Americans,” said Sen. Marco Rubio (R-Fla.), a drafter of the bill, said of his own parents who came from Cuba. “This is not just my story. This is our story. … For over 200 years now they have come in search of liberty and freedom for sure. But often just in search of a job to feed their kids and a chance at a better life.”

Lines snaked around the halls leading to the Senate gallery entrances. Many of those who traveled to the Capitol to watch the vote were young immigrants who came to the United States as children. They call themselves Dreamers, after a provision in the bill that would give them a route to citizenship if they serve in the military or attend college. Dozens of them wore matching turquoise T-shirts reading “11 million Dreams.” Others were families of immigrants and advocates.

“We all want to stay here,” Adriana Teran, 29, who cleans houses in Charlotte, N.C., and was waiting in line with her husband and toddler for the chance to watch the proceedings. She came to the U.S. from Mexico and does not have legal status, though her 2-year-old, Juliet, is a U.S. citizen. She said her husband faces a deportation order. “It’s super important to see this vote.”

Senate Majority Leader Harry Reid (D-Nev.) asked his colleagues to sit at their assigned seats for the roll call, which is rarely done as senators usually zip in and out for votes.

“It’s historic in nature, we should be here to vote,” Reid said.

The immigration overhaul has deeply divided the Republican Party, which now faces a difficult choice over how to proceed. Some do not expect the House to finish its work until the end of the year. Top Republicans see the legislation as an important part of the party’s re-branding effort, as it reaches out to Latino and other minority voters. But for many Senate Republicans, and those in the House, offering citizenship to those without legal status is a non-starter.

Even the addition of the unprecedented “border surge” of drones, troops and fencing along the boundary with Mexico did not convince most Senate Republicans that illegal immigration would diminish. Sen. Mitch McConnell (R-Ky.), the minority leader, and other top Republican senators voted no.

“It’s with a great deal of regret, for me at least, that the final bill didn’t turn out to be something I can support,” McConnell said. “If you can’t be reasonably certain that the border is secure as a condition of legalization, there’s just no way to be sure that millions more won’t follow the illegal immigrants who are already here.”

The legislation was the product of a hard-fought agreements reached among powerful players in Washington, including the U.S. Chamber of Commerce, the AFL-CIO and advocates for immigrants.

Key Provisions

Under the legislation, immigrants would be able to gain lawful permanent resident status with green cards in 10 years, once the border has been bolstered with 24-hour drones, 20,000 new Border Patrol officers and 700 miles of fence, among other measures. They must also have paid fines and fees, know English and be in good standing after undergoing background checks.

Because 40% of the immigrants in the country illegally did not cross borders but stayed on expired visas, a new visa exit system would be required at all major airports.

The overhaul would substantially reform the nation’s long-standing preference for family members to join immigrants living here. Under the new system, more preference is given to workers.

A new guest-worker program for low-skilled maids, gardeners and others would be launched, and more high-skilled visas would be available. To stem illegal immigration, all employers will need to verify the legal status of new hires.

House Divided

Meanwhile, a bipartisan House group is working on a comprehensive immigration bill, its members hit a roadblock earlier this month when Rep. Raul Labrador (R-Idaho) dropped out. The House is more likely to pursue a piecemeal approach, led by Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Immigration Subcommittee Chairman Trey Gowdy (R-S.C.). Some measures, including one to make it a crime to be in the country without status, have already passed the Judiciary Committee.

Goodlatte issued a statement after the vote Thursday, saying he congratulated the Senate but has “many concerns about its bill,” giving no indication his committee would consider the gang of eight plan.

“While the Senate has every right to pass solutions it deems appropriate, the House does as well,” he said. “That’s the American legislative process.”

Speaker John Boehner (R-Ohio) reiterated on Thursday that he intends for the House to pursue its own immigration reform approach, rather than taking up the Senate bill.

“The House is not going to take up and vote on whatever the Senate passes,” Boehner told reporters at a press conference. “For any legislation, including a conference report, to pass the House, it’s going to have to be a bill that has the support of a majority of our members,” he added later, referring to Republicans.

House Chief Deputy Whip Peter Roskam (R-Ill.) told reporters at a National Review event earlier in the day that “it is a pipe dream to think that bill is going to the floor and is going to be voted on.”

Some House Republicans have said they don’t want the lower chamber to take up immigration reform at all, even piecemeal, and threatened a revolt if Boehner holds a vote on the Senate bill. Rep. Mo Brooks (R-Ala.) said on the “Laura Ingraham Show” on Thursday that he is in the minority for not wanting to pass any immigration legislation that would allow for a conference committee to combine the House and Senate bills in “nefarious ways.”

“I’m one of those who believes that this is fraught with peril,” Brooks said. “If we were to pass a bill that’s a good bill on immigration, on enforcing and securing our borders, on whatever topic related to immigration we may want to pass a bill on, it can become a vehicle.”

Next Stop

Should the bill clear both chambers of Congress, President Barack Obama will be asked to sign a comprehensive immigration reform bill that will provide new opportunities for unlawful residents to stay in America legally, while at the same time pumping millions of dollars into the United States’ border with Mexico in an attempt to limit the influx of undocumented people. If the bill passed today by the Senate is signed into law by Pres. Obama, millions of presently undocumented immigrants would be granted lawful status to stay in the United States.

Sources: LA Times, Huffington Post

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Kristine Tungol Cabagnot welcomes your questions and comments at kristine@tungollaw.com.

DOMA Decision’s Potential Effect on Immigration

Source: Foreign Policy

Wasington, DC–With a 5-4 decision today, the Supreme Court ruled that the 1996 Defense of Marriage Act violates the Constitution’s Equal Protection guarantee. The ruling means that married same-sex couples will now be entitled to the same federal benefits as opposite-sex couples.

One of the main beneficiaries of the decision will be the estimated 36,000 binational same-sex couples living in the United States as well as countless more forced to live outside the country because, under DOMA, gay Americans could not sponsor their husbands or wives for citizenship, even if they had been married in one of the 12 states — plus the District of Columbia — where same-sex marriage is legal.

On a political level, the decision could also smooth the way for the immigration reform bill making its way through Congress. Senator Patrick Leahy of Vermont, in particular, has been pushing for the inclusion of specific language in the bill giving equal protection to immigrants in same-sex marriages. “I can’t look at one Vermont couple and say, ‘O.K., we can take care of you,’ but another couple, ‘We have to discriminate against you,” he recently told the New Yorker‘s Ryan Lizza.

But key Republican supporters of the bill, including Marco Rubio and Lindsey Graham, threatened to walk away from the legislation if the gay marriage language was added. And Democratic same-sex marriage supporters like Chuck Schumer and Dick Durbin ended up voting against Leahy’s amendment in order to keep their fragile coalition together, angering some gay rights groups. The Supreme Court’s decision will take the heat off a little bit, enabling the Obama administration to extend immigration benefits to same-sex couples without action from Congress.

This isn’t a perfect fix. As ABC’s Abby Phillip writes, “relying solely on the court to strike down DOMA could mean that a future administration could reverse Obama’s actions when it comes to immigration law.” However, give the larger political and legal trends in the country, it’s hard to imagine a future administration taking that step or the court upholding its right to.

Source: blog.foreignpolicy.com

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Kristine Tungol Cabagnot is an associate at Tungol Law. You may reach her at kristine@tungollaw.com.

Immigration Debate Goes to Senate Floor

Pres. Obama speaks in support of the immigration bill. (Olivier Douliery, McClatchy-Tribune)

WASHINGTON — With an overwhelming vote, the Senate on Tuesday launched debate on an ambitious overhaul of the nation’s immigration laws, as Republicans, most of whom have not yet embraced the effort, declined to stand in the way of bringing it to the floor.

But continuing doubts within the GOP about some of the bill’s central elements, particularly on border security, could doom the effort. Republicans in the Senate and House want tighter control of the border with Mexico before the estimated 11 million people who entered the country illegally or overstayed their visas would be allowed to gain permanent legal status.

Democrats, who control the narrowly divided Senate, appear to be willing to accept some measures to toughen border security, but not changes that a future president or Congress could use to block the bill’s 13-year route to citizenship. They worry that pursuit of nearly complete control of the southern border, which some Republicans say is the price of their vote, is an impossible goal that would leave immigrants in legal limbo for the next decade and beyond.

Republicans remain deeply divided about whether to compromise on that point. In Tuesday’s lopsided 82-15 vote, only Republicans opposed bringing up the bill.

Trying to bridge the divide in the Republican Party is Sen. Marco Rubio of Florida, perhaps the most crucial member of the bipartisan group that wrote the bill. He has been working on his own border security measure to offer as an amendment.

“I understand many in the Democratic Party and the advocate community for immigrants are asking for certainty in the green card process, but I also think we need to have certainty on the border process,” Rubio said Tuesday in the Senate halls. “And so we need to find both.”

To become law, the bill would also have to get through the Republican-controlled House. SpeakerJohn A. Boehner (R-Ohio) said Tuesday that passing an immigration bill into law would be “at the top” of his chamber’s accomplishments this year. He also hinted that he might be willing to let a bill come to the floor even if most of his GOP caucus does not support it. “My job is — as speaker — is to ensure that all members on both sides have a fair shot at their ideas,” he told ABC’s George Stephanopoulos.

President Obama has touted the overhaul as his top second-term priority. Surrounded by law enforcement, labor and business advocates of immigration reform at the White House on Tuesday, he called on Congress to pass the “common-sense, bipartisan bill that is the best chance we’ve had in years to fix our broken immigration system.”

As the bill is written, immigrants would be allowed to transition to provisional legal status within six months after it becomes law if the Department of Homeland Security has come up with a plan for border security. After 10 years, if the plan is “operational,” most immigrants in good standing would be able to get green cards. After 13 years they could become citizens.

The legislation provides up to $6.5 billion for more drones, border agents and double-layer fencing across the border with Mexico to try to stop 90% of illegal crossings. Some sectors are well on their way to that goal, while others are less secure. But as the bill is currently written, even if this goal is not achieved, immigrants in the U.S. might still be allowed to become citizens.

“You got to give people a sense of certainty that they go through all these sacrifices, do all this, that there’s at the end of the horizon, the opportunity — not the guarantee, but the opportunity — to be part of this American family,” Obama said.

Many Republicans say that they want to support an immigration measure, but need a guarantee that there will not be a new wave of illegal immigration if they offer a path to citizenship to those who are already in the U.S.

Along with increased border security and the path to citizenship, the bill attempts to prevent illegal crossings by creating guest-worker programs for low- and high-skilled labor and by requiring all businesses to verify the legal status of new employees.

Overcoming the differences among Republicans will be key if the legislation clears the Senate and moves to the House, where the conservative majority prefers an approach that focuses more on law enforcement.

“If we don’t guarantee results on border security, if we don’t guarantee to the American people that we actually are going to get serious about stopping the flow of people illegally crossing our northwestern or southwestern border, that is the real poison pill,” said Sen. John Cornyn of Texas, the No. 2 Republican, who has proposed tougher border provisions.

As the Senate began voting Tuesday, the anticipation of an unusually strong bipartisan tally appeared to be gratifying to senators who helped craft the bill. Rubio emerged from the Republican cloakroom with a smile. Sen. Lindsey Graham (R-S.C.) flashed a thumbs-up sign with his vote. When newly appointed Sen. Jeffrey Chiesa (R-N.J.) voted yes, Sen. Richard J. Durbin (D-Ill.), a key member of the group, crossed the floor to shake his hand.

Still, GOP opposition is likely to swell in the weeks ahead, as those who voted to begin the debate want other changes that Democrats are not eager to make. Among those are one to require immigrants to pay back taxes on under-the-table jobs and another to bar holders of green cards from receiving certain tax credits, including those available to low-income Americans under the new healthcare law.

Sen. Mitch McConnell of Kentucky, the Republican leader, offered a gloomy prediction for consensus: “We may not succeed.”

Other Republican ideas, though, are more likely to gain traction. These include requiring businesses to more quickly begin verifying the legal status of all new hires and bolstering the exit system at land ports of entry to improve tracking of those who overstay their visas. Studies show that 40% of the immigrants who are here without legal status did not cross illegally but remained after their visas expired.

Rubio has an amendment that would require English “proficiency,” rather than just “knowledge,” before immigrants can gain green cards.

Outside pressure on legislators, meanwhile, continues to build. The powerful Service Employees International Union launched new television ads in support of the bill Tuesday, while the conservative Heritage Foundation urged senators to defeat it, arguing that immigrants who gain legal status would be a drain on the government.

The Senate halls are increasingly filled with immigrants making the case to senators. Among them are many young adults without legal status who were brought to the U.S. as children. They call themselves Dreamers, after the Dream Act, a once-defeated measure now included as a provision in the bill that would give an expedited path to citizenship to those who join the military or attend college.

Source: LA Times

-Kristine Tungol Cabagnot welcomes your comments and questions at kristine@tungollaw.com.

Senate Judiciary Committee Passed Immigration Reform Bill

(Getty Images/AFP/File, John Moore)

Washington, DC– The Senate Judiciary Committee approved the bipartisan “Gang of Eight” immigration reform bill on Tuesday, sending the measure to the Senate floor for consideration and giving the bill’s backers their first major legislative victory.

Members of the Democratic-controlled panel voted 13-5 in favor of the measure. If enacted, the plan would constitute the first overhaul of the nation’s immigration policy since 1986.

“The dysfunction in our current immigration system affects all of us and it is long past time for reform. I hope that our history, our values, and our decency can inspire us finally to take action,” Judiciary Committee Chairman Patrick Leahy, (D-VT), said.

Spectators cramming the committee room applauded and cheered loudly following the vote.

The panel’s 10 Democrats were joined in supporting the bill by three Republicans: Arizona’s Jeff Flake, South Carolina’s Lindsey Graham, and Utah’s Orrin Hatch. Flake and Graham are two of its four Republican authors.

Both party leaders in the Senate appeared supportive of the effort, a positive sign for backers hoping to win a solid majority in the full chamber.

“I think the ‘Gang of Eight’ has made a substantial contribution to moving the issue forward,” said Senate Minority Leader Mitch McConnell (R-KY). “I’m hopeful we’ll be able to get a bill that we can pass here in the Senate.”

Senate Majority Leader Harry Reid (D-NV) praised the “masterful” job of Leahy in navigating roughly 300 proposed amendments and advancing the 844-page bill to the floor.

Immigration reform is a priority for both parties in Washington and so far is one example of bipartisanship this year on major legislation in a sharply divided Congress.

A key political aim involves Republicans hoping to attract more Hispanics to their side, while Democrats wishing to keep that growing voter bloc squarely in their camp.

Latinos voted overwhelmingly for President Barack Obama’s re-election. He congratulated the committee on its work and urged the Senate to bring the bill to the floor at its earliest possible opportunity.

“The legislation that passed the Judiciary Committee with a strong bipartisan vote is largely consistent with the principles of commonsense reform I have proposed and meets the challenge of fixing our broken immigration system,” he said in a statement. “None of the Committee members got everything they wanted, and neither did I, but in the end, we all owe it to the American people to get the best possible result over the finish line.”

The measure approved by the Judiciary panel would create a 13-year path to citizenship for most of the country’s 11 million undocumented immigrants.

It aims to strengthen border security while raising the cap on visas for high skilled workers and establishing a new visa program for low skilled workers on America’s farms and elsewhere.

Proponents say the change is necessary to permanently and fairly resolve the status of undocumented residents. Critics insist the proposed change amounts to amnesty, rewarding those who chose to break the country’s immigration laws.

Sen. Jeff Sessions (R-AL) is leading the charge against the “Gang of Eight” proposal and is a tough critic. He has tried to derail the bill at nearly every turn, arguing that adding millions of newly legalized workers to the mix over the next few years will only hurt the most vulnerable segments of the American work force. He also has raised security and other concerns.

“This will be a hammer blow to the wages and employment opportunities of American workers—both immigrant and native born,” Sessions said in a statement after the vote.

“This bill is bad for workers, bad for taxpayers and—as immigration officers have pleaded for us to hear—a threat to public safety and the rule of law,” he said.

In a defeat for backers of expanded gay rights, the committee did not approve a pair of Leahy-sponsored amendments bolstering federal support for bi-national same-sex relationships.

Specifically, Leahy had proposed recognizing same-sex marriages in which one spouse is an American, and allowing U.S. citizens to sponsor foreign-born same-sex partners for green cards given proof of a committed relationship.

Florida Sen. Marco Rubio, the most prominent Republican in the “Gang of Eight,” was among those who called Leahy’s amendments a poison pill virtually certain to destroy GOP support for the measure.

Leahy’s amendments could be considered again when the bill is taken up by the full Senate. Doing so, however, would be little more than a symbolic gesture, as the proposals have virtually no chance of winning the 60 votes almost certainly needed to clear the 100-member chamber.

Earlier this month, Sen. Richard Durbin (D-IL) noted the possibility that an upcoming ruling by the U.S. Supreme Court on the federal Defense of Marriage Act could render the whole issue moot.

“The DOMA ruling could change this whole debate,” Durbin said. “They could eliminate DOMA and impose obligations on our federal government (relating to) same gender marriage, and that would dramatically change what we’re trying to achieve.”

The House is working on its own version of immigration reform.

Source: CNN.com

–Kristine Tungol Cabagnot welcomes your questions and comments at kristine@tungollaw.com.

Arizona Denial of Driver’s Licenses to DACA Recipients “Likely” Irrational

 

Pres. Obama meets with Gov. Jan Brewer (AZ), June 2010. (Wikimedia Commons/CC, 2.0)

The Nation reports on Arizona’s continuing efforts to deny driver’s licenses to immigrants who have been provided relief under the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program.  Arizona Governor Jan Brewer has been adamant in refusing to allow Arizona to allow recipients of DACA relief — who are authorized to work and remain in the United States — to obtain driver’s licenses. Other states, such as North Carolina, Oregon, and California, are permitting DACA recipients to obtain licenses.

Last week, a U.S. district court refused to issue a preliminary injunction even though it found that the plaintiffs would likely prevail on a claim that the Arizona policy was not rational and thus could not withstand constitutional scrutinty.

The issue of driver’s license eligibility for undocumented immigrants has long been an issue of concern, especially because traffic stops by local police have increasingly been used as a tool in immigration enforcement.

Reposted from: Law Professor

–Kristine Tungol Cabagnot welcomes your questions and comments at kristine@tungollaw.com.

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