Oct 3, 2018
by Christopher Kerosky, Kerosky, Purves & Bogue, LLP, Sonoma County Human Rights Commissioner
In 2015, one federal judge in Texas unilaterally blocked an Executive Order issued by President Obama called DAPA that would have extended a reprieve from deportation and a work permit to 5 million people. Later that same year, the difference on the federal appeals court was one judge in a 2-1 ruling affirming the decision of that Texas judge.
And one justice on the Supreme Court would have tipped the balance in June 2016, when the vote on that Court tied 4-4 on whether the law was constitutional, leaving the Texas judge’s unprecedented ruling in place. Justice Scalia had died in February and the Republicans had blocked Obama’s nominee to replace him — Merrick Garland — who would have likely voted in favor of the law.
That DAPA law was modeled after DACA but applied to all undocumented immigrants with a clean record and U.S. citizen children. Immigration advocates heralded it as a temporary solution for a huge segment of our local North Bay undocumented population, who are vital to our economy. Probably more than 25,000 immigrant families in Sonoma County alone would have benefited from DAPA.
Instead, while the case was still on review, Donald Trump won the election and promptly killed the law. As a result, 5 million immigrants are still in limbo, living in the shadows, in fear of deportation.
Currently, the state of Texas is leading an effort to repeal DACA as unconstitutional. They have filed again in the same federal court in Brownsville, Texas where there is only one judge — the same one who struck down DAPA. The judge has expressed the possibility that he may invalidate DACA, thereby closing down that law nationwide. Since other Courts have found DACA constitutional, this issue will likely be resolved by the Supreme Court; if it votes to terminate the law, that would deprive 800,000 young people of their temporary legal status and expose them to deportation.
Another key subject before the courts is California’s sanctuary law. The Ninth Circuit Court of Appeals has rejected Trump’s challenges to those laws; that case will probably be decided by the Supreme Court. If our sanctuary laws are struck down, we could return to the days when our undocumented immigrants were turned over to ICE for deportation after traffic violations and other misdemeanors.
Another legal issue headed for the courts: the U.S. Department of Homeland Security just announced measures to punish immigrants otherwise eligible for a green card if anyone in their immediate family ever received certain government assistance. Despite Trump’s statements to the contrary, our laws have always prohibited undocumented immigrants from getting food stamps, social security or Medicaid. But the U.S. citizen children of such immigrants are eligible.
This comes up when a person marries a U.S. citizen and navigates the lengthy process to obtain permanent residence. Immigrants applying for residence have always had to show that they were not dependent on the government or likely to become so. They have to present a sworn affidavit from relatives promising to support them economically with documentation showing their financial ability to do so.
Under this new Trump law, the immigrant can be denied a green card if at some point during their lives in the U.S. their U.S. citizen children or spouse legallyreceived government assistance.
Attorney General Jeff Sessions has also issued a series of administrative orders intended to limit the opportunities for immigrants to obtain legal status. These have ranged from redefining asylum to exclude many victims of domestic violence to limiting a Court’s discretion to close deportation cases when an immigrant is married to a U.S. citizen or otherwise entitled to permanent residence.
Sessions also appears to be considering a change in a law that requires the government to release from custody asylum applicants — including families — who have proven to an asylum officer that they have a credible fear of persecution in their home country. His order permitting these asylum applicants to be held indefinitely is expected later this fall.
Many of these Trump initiatives are being challenged in court and will likely end up on the Supreme Court’s docket.
This nominee will be the deciding vote
So, if you think the current debate over the Supreme Court nominee doesn’t concern immigrants, think again.
It’s likely that the future of DACA, our state’s sanctuary laws and many of these Trump Administration efforts to limit legal immigration will be decided by the U.S. Supreme Court. If that happens, the vote of one justice will probably make the difference. Since the court is evenly split 4-4 on many critical issues, the new justice will likely be the deciding vote. That Justice could be Trump’s nominee, Brett Kavanaugh who has a record of ruling against immigrants.
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