With Justice Ginsburg Gone, Dreamers Desperately Need A Political Solution

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With the passing of Justice Ruth Ginsburg this past week, immigrants have lost one of the great champions of immigrant rights. A liberal justice, she consistently voted for the rights of immigrants and in the increasingly more conservative Supreme Court, formed a bloc with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor in the Court’s major 5-4 decisions on immigration. A couple of the major ones in which she participated on the losing side were United States v. Texas , 136 S. Ct. 2271 (2016) (per curiam) in which the Court tied 4-4 to sustain the Texas court decision barring President Obama’s DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) program which would have given legal protections and work authorization to the parents of citizens and permanent residents; and DHS et al. v, New York, et al. , 140 S. Ct. 599 (2020) in which the court by 5-4 vote allowed the new public charge rule to be implemented in February 2020 by staying the preliminary injunction of a New York federal court. Recently, however, she took part in the 5-4 winning vote in Department of Homeland Security v. Regents of the University of California , 140 S. Ct. 1891 (2020) in which the Court rebuffed the Trump Administration’s attempt to end the DACA (Deferred Action for Childhood Arrivals) program. Although that decision was decided on procedural grounds that the Court indicated might be overcome by another suit after the government complied with proper procedure, there was no assurance that such could actually be done in a 5-4 court in which Chief Justice John Roberts exercised the swing vote. Justice Roberts, a conservative with centrist bend, had earlier frustrated the Administration by providing the swing vote in National Federation of Independent Business v. Sebelius , 567 US 519 (2012) , a decision upholding the Affordable Care Act, and Department of Commerce v. New York , 139 S. Ct. 2551 (2019) , which denied Mr. Trump the right to add a citizenship question to the U.S. Census.

However, with the appointment of another conservative justice, the tide will move further to the right, and consistent 6-3 or 5-4 losing votes can be expected in most cases dividing the nation, including those on immigration. Justice Roberts will lose his position in these highly contested cases as the deciding vote. President Trump has already vowed to nominate a replacement within this week and Senate Majority Leader Mitch McConnell (R-Kentucky), has stated that he will bring the nomination to the floor of the Senate – both defying Justice Ginsburg’s dying wish that her replacement be made by the next President.

The effect on the 700,000+ Dreamers in the DACA program will be momentous, and the reelection of Donald Trump will ensure that they will either be used as the ultimate bargaining chip for a Trump administration to ram through its entire program of immigration restructuring or failing that, all be subject to removal proceedings with both legal protections and work permits revoked or no longer extended. Already since the Supreme Court’s decision, the Administration has moved to reject all new applications for DACA benefits and restrict renewals to one year instead of the present two years.

The unpalatable nature of a Trump immigration scheme is already being seen in his taking advantage of the pandemic to issue proclamations, executive orders and regulations barring nationals of disfavored countries even as the US leads the world by far in infections, and restricting qualified and approved workers from other lands from entering even though studies have shown that they would benefit the country and add more jobs. It is known that Mr. Trump’s chief takeaway from his DACA defeat is his belief that the Court’s decision gives him the authority to create such a program for merit-based immigration. On July 10, 2020, he said, “We are working out the legal complexities right now, but I’m going to be signing a very major immigration bill as an executive order, which Supreme Court now, because of the DACA program, has given me the power to do that.” Previously his son-in-law, Jared Kushner, drafted a merit-based immigration plan that did not move forward, but an idea of its contents was in Mr. Trump’s May 16, 2019, speech in which he said that it would eliminate all current family and employment-based preference categories and replace them with new “Build America” visas awarded by points. In Mr. Trump’s America, huddled masses and refugees need not apply, only the rich and highly skilled. This country could take a lesson from Germany and its Chancellor Angela Merkel that took in over a million refugees in 2015 in a program now seen as highly successful in building a stronger Germany from what was then an aging population.

For Dreamers and all immigration proponents – indeed all who support civil rights, voting rights, the environment, women’s rights, LGBTQ rights, honor, civility, truth, corruption-free government, a rational foreign policy, decision making other than from gut instincts, and all the other parts of the American system that Mr. Trump has damaged and will in his next four years destroy for a generation– the only solution appears to be a political one in getting out the vote and voting.


About The Author

Alan Lee, Esq. Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2019, 2020), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.


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