Paul Zoltan 2016-12-20 18:02:05
Virtually no new immigration-related legislation emerged from the 2016 scrum on Capitol Hill. Yet in the months leading up to November’s election, the states, federal courts, agencies, and immigrants themselves dramatically reshaped how our immigration laws are interpreted and administered. In March, the Department of Homeland Security published a final rule allowing F-1 nonimmigrants in science, technology, engineering, and mathematics programs to extend their post-graduation optional professional training by two years. The STEM extension somewhat softened the blow to employers when, in April, over 230,000 H-1B petitions were submitted for the 85,000 new H-1B visa numbers issued per fiscal year. On the issue of immigration, Texas Attorney General Ken Paxton lost a legal battle and won one in June. U.S. District Judge David C. Godbey ruled that Texas could not block the resettlement of Syrian refugees in the state. But soon after, U.S. v. Texas bore fruit: an evenly divided U.S. Supreme Court upheld U.S. District Court Judge Andrew S. Hanen’s injunction against the expansion of Deferred Action for Childhood Arrivals, or DACA, and the implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents, DAPA. The decision came too late in Obama’s second term for a re-do that—unlike DAPA and “DACA 2.0”—conformed to the Administrative Procedures Act. In Mathis v. United States, the Supreme Court clarified when courts may look beyond the text of a penal code to determine whether a conviction renders a noncitizen deportable. State criminal statutes seldom define crimes in ways that track the Immigration and Nationality Act. This confounds many judges charged with determining whether, for instance, an assault conviction is a “crime of violence” or if it involves moral turpitude. When a law may be violated in different ways, and only some of these trigger deportability, courts have treated that law as “divisible” and looked to the record of conviction (indictment, plea, judgment, and sentence) to determine which “prong” was violated. By narrowing the circumstances that permit such an inquiry, Mathis makes it tougher for U.S. Immigration and Customs Enforcement to meet the “clear, unequivocal, and convincing” evidence standard to establish a noncitizen’s deportability based upon the commission of a crime. Another summer surge in Central American asylum seekers contributed to an unprecedented backlog in the nation’s immigration courts. With over 500,000 pending cases nationally, immigration judges are setting cases out as far as 2020. In Texas’ courts, noncitizen respondents wait an average of 729 days for their final hearing—nearly four times longer than they did 10 years ago. August saw the expansion of the “provisional waiver” program that exempts certain noncitizens from being required to return to their country before seeking forgiveness for unlawfully residing in the U.S. The program now not only embraces the spouses, children, and parents of U.S. citizens, but also the beneficiaries of all employment- and family-based immigrant visa categories. In September, Congress voted to extend by just two months the controversial EB-5 foreign investor program, throwing the initiative’s future into doubt. Critics of the program pointed to the most recent of several much-publicized scandals: In April, the U.S. Securities and Exchange Commission alleged that a ski resort had run a “Ponzi-like” scheme that raised $350 million from foreign investors eager to attain U.S. residency. Arguably, the biggest news for immigration law came in November with the election of Donald J. Trump. His campaign promise to end Obama’s “illegal executive amnesties” augurs the termination of the provisional waiver program, the cancellation of over 700,000 employment authorization cards issued to DACA registrants, and the potential revocation of DHS’ policy of arresting only those noncitizens who are “enforcement priorities.” PAUL ZOLTAN has exclusively practiced immigration law since 1992. He has chaired the District 6A Grievance Committee for the State Bar of Texas, the advisory board of the Dallas office of the International Rescue Committee, and the boards of directors of Proyecto Adelante and the Center for Survivors of Torture. He has taught both immigration law and legal writing and reasoning at the University of Texas at Dallas and, for his work with Dallas' Refugee Support Network, Legal Aid of NorthWest Texas honored him with the 2016 Louise Raggio Women’s Legal Advocacy Award.
Published by State Bar of Texas. View All Articles.
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