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    Published on 11-05-2012 11:43 AM

    Yes He Can: A Reply To Professors Delahunty and Yoo

    by Cyrus D. Mehta and Gary Endelman

    October 28, 2012

    Article II, Sec. 3 of the Constitution provides that the President "shall take Care that the laws be faithfully executed." That being so, can President Obama grant deferred action for childhood arrivals (DACA) whose presence here represents a violation of US law? Professors Robert Delahunty and John Yoo offer a scholarly and resounding "No" to this question. In their paper, The Obama Administration, the DREAM Act and the Take Care Clause(hereinafter cited as Delahanty & Yoo). They argue that the President must enforce the removal provisions of the Immigration and Nationality Act. Absent either express or implied authority to the contrary, the Obama Administration has violated its constitutional duty. No presidential prerogative exists that would sustain such non-enforcement nor has the President put forward a cogent excuse that would make his DACA decision constitutionally permissible. Professors Delahunty and Yoo offer up George Washington’s famous reminder in his Proclamation of September 15, 1702 that "it is the particular duty of the Executive 'to take care that the laws be faithfully executed." Such a serious charge requires an answer. That is why we write.

    We agree with Professors Delahunty and Yoo that President Obama must enforce all provisions of the INA, including the removal sections contained in Section 235. We do not agree, however, that DHS Secretary Napolitano's June 15, 2012 memorandum, or ICE Director John Morton's June 17, 2011 directive on prosecutorial discretion, instructed or encouraged ICE officers to violate federal law. At current levels of funding, it is manifestly impossible for ICE to deport most undocumented persons in the United States. Even at the historically high levels of removal under President Obama, some 400,000 per year, this amounts to only 3-4% of the total illegal population. Delahanty & Yoo n.21. That is precisely why the Obama Administration has focused its removal efforts on “identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law offenders and other individuals prioritized for removal.” Delahanty & Yoo n. 22, citingLetter from Janet Napolitano, Secretary, Department of Homeland Security, to Senator Richard Dubin (D-Ill.)(Aug. 18, 2011). Far from refusing to enforce the law, President Obama is actually seeking to honor his constitutional obligation by creating a scheme that removes some while deferring the removal of others without granting anyone legal status, something only Congress can do.

    Professors Delahanty and Yoo’s characterization of DACA relief as detached, even radical, suffers from a lack of an informed appreciation of the extent to which it has deep roots in existing immigration law. The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there. Never has the size of a vulnerable population been a valid reason to say no. The extension of DACA relief is less a leap into the unknown arising out of a wild, lawless ideology divorced from a proper respect for the Take Care Clause than a sober reaffirmation of an existing tool for remediation in prior emergencies. Professor Delahanty ...
    Published on 11-05-2012 11:11 AM

    Bloggings On Dysfunctional Government

    by Angelo Paparelli

    Published on 11-05-2012 11:09 AM

    Bloggings on Nurse and Allied Health Immigration

    Chris Musillo

    EB-2 For Physical Therapists

    by Chris Musillo

    As we have blogged about in the past, the USCIS' inconsistently adjudicates EB-2 petitions for Physical Therapists.   The law is straightforward. If the position requires an Advanced Degree, then EB-2 Petition should be approved. An Advanced Degree is a US Master’s Degree, the foreign equivalent of a US Master Degree, or a Bachelors Degree and five years of progressive work experience.

    If the FCCPT or another credible educational evaluator finds that the Beneficiary’s foreign education is equal to a US Masters Degree, then the EB-2 Petition should be approved, since all US employers effectively require an Advanced degree as their minimum requirement for entry into the petition.

    Published on 11-05-2012 10:42 AM

    Bloggings on DACA

    by DACA Field Report Blog

    Chino The Baker

    The following DACA field report comes from Carmen Cornejo of Dream Act Arizona:

    Some days ago, during a DACA application drive organized by No DREAM Deferred Coalition, I found Chino...or Chino found me.

    He was neatly dressed with a crisp blue shirt, vest, slacks and shiny black shoes. He was polite, assertive and inquisitive. He had all the necessary documentation to demonstrate his presence in the USA since his arrival in a neatly organized binder.  He had done a better job collecting info than most applicants, yet his school records were missing.

    Since coming to Phoenix at age 15, Chino has been working as a baker. He ...

    Published on 10-29-2012 10:10 AM

    I-9 Myths and Truths About Asylees and Refugees

    by Ann Cun

    Yesterday, October 22, 2012, the Department of Justice’s Civil Rights Division Office of Special Counsel (OSC) offered a webinar for employers on issues related to employment discrimination of Asylee and Refugee workers. If you missed the webinar, no need to worry just yet. OSC provides many repeat webinars for workers and employers every month.

    No matter how many OSC webinars I’ve attended, I always learn something new each time. The OSC attorneys who hosted the latest webinar answered many questions surrounding Asylees and Refugees. Many employers may be wondering why there would be a special webinar dedicated to this group of workers. To be frank, Ayslees and Refugees are provided special status in the U.S. precisely because of their unique life situations. While employers need not become legal experts, nowadays, it’s certainly very convenient to have legal experts on call, particularly in this area of law.

    Read on to find out if your organization is equipped to properly manage the employment eligibility process for Asylees or Refugees workers:

    1. True or False? The OSC reviews four types of employment discrimination: a) Citizenship, b) National Origin, c) Document Abuse, and d) Retaliation or Intimidation.

    True. In pursuing employment discrimination claims and investigations based on citizenship status, Asylees and Refugees are considered a protected class of workers, in addition to U.S. Citizens and Legal Permanent Residents.

    2. True or False? Employers who have federal contracts may require all of its new hires working under the federal contract project to be U.S. citizens or Legal Permanent Residents.

    False. According to the OSC, federally-contracted employers may not require all new hires working under that federal contract to be U.S. citizens or Legal Permanent ...

    Published on 10-26-2012 11:05 AM

    Bloggings on Immigration Law

    by Roger Algase

    Incompetence, Indifference and Inimical Attitudes On The Part Of Immigration Officials Continue Unabated, Regardless Of What Anyone Says About The Big Picture.

    As the election goes into the final stretch, the media focus is on the big immigration picture, But for people who are actually applying for green cards and visas, the only thing that matters is what is happening to their petitions and applications. No matter what grandiose promises the politicians may or may not make, the immigration system can work only if it is administered by officers who both know the law and are willing to follow it.

    Unfortunately, the idea that the people responsible for making decisions about actual immigration cases are willing either to learn what the law is, or pay attention to it, let alone doing both, often seems to be more of a Platonic ideal than actual reality. Recently, I wrote about an adjustment of status to permanent resident application filed by one of my clients which was held up by an RFE requesting evidence that the applicant, who had been in the US for over ...

    Published on 10-26-2012 10:21 AM

    Bloggings on Immigration Law and Policy

    by Greg Siskind

    October 25, 2012