Recent News from the Courts

Obama's lawyers urge the Appeals Court to allow the implementation of the Executive Actions:   President Barack Obama appears likely to lose – again – in the lengthy legal fight over his executive actions on immigration.  Two of the three appeals court judges who heard oral arguments on 10 July were doubtful about the legality of the Actions.  This seems to indicate that the February court decision to block the new programs would stay in place.

 

The appeals court judges did not rule immediately on the administration’s request.    With just 18 months left in President Obama’s term, the court battle has put his programs danger of failing.   No matter how the court rules, the legal battle could stretch into next year.    The case could go to the full 5^th Circuit Court or to the Supreme Court.    If it goes to the Supreme Court, they would probably not make a decision until June of 2016.

 

Obama’s Executive Actions of November 2014 allowed certain immigrants who are parents of U.S. citizens or legal resident children to apply for deportation reprieves and work permits.  That was DAPA.    The Executive Actions also expanded DACA program of 2012, providing relief to immigrants brought to the U.S. as children.

 

But U.S. District Judge Andrew Hanen of the 5^th Circuit issued an injunction in February, which stopped the programs from taking effect.  Twenty Five states say that the Executive actions are illegal. 

 

Judges appear skeptical of Obama immigration actions:  On July 10, the 5^th Circuit Court Judges Jerry Smith and Jennifer Walker Elrod said they were worried that the executive actions would give benefits to people in the country illegally.  They said that a work authorization may lead to obtaining other benefits.

 

The chief attorney for the state of Texas argued that Texas state laws reserve certain benefits only to those who are lawfully present.  He said the Executive Actions should not be able to override the state laws.

 

If the case does go to the Supreme Court, the result is not predictable.  The Court has not been helpful in immigration matters.   The Court has decided that marriage equality should be the law in all of the US States, but that only benefits residents of the U.S.

 

In July, the Supreme Court decided that consular officers do not have to explain visa decisions:    For a long time, lawyers and others have asked for more transparency with regard to consular visa decisions.  They want to know the reasons for the denials to see if there is any chance to appeal the decisions.

The difficulty has been the “doctrine of consular non-reviewability”.  According to this policy, the courts in the US have always said that the consul is king and his decisions are unquestionable.

 It may be very difficult, or even impossible, to get a detailed explanation of a consul’s denial, and the Supreme Court decision in July was not helpful.  The case involved a US citizen who married a man in Afghanistan.  His immigrant visa application was denied because the consulate said he might be guilty of terrorism.  He had been an accountant for the government of Afghanistan when it was controlled by the Taliban.  So why did the consulate think that this office worker might be a national security threat?   They refused to say.  And, in view of the Supreme Court decision, there is no court in the US that can force the consulate to supply detailed reasons for a denial.

 

For immigration applicants wanting to get more explanation for denials by American consular posts, this Supreme Court decision was not helpful.  It will likely encourage consuls and the State Department to continue to refuse to reveal details of denials.

 When a fiancée or marriage case is denied at the Consulate, the consular officer just needs to say he thinks it was a sham marriage, or he thinks there was mis-representation.  Cases can be denied without any hard facts to support the consul’s decision.  There is no court in the US that could force the consulate to give a detailed explanation of a denial.

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Q.1.  If a denial cannot be appealed through a court in the US, what option does the denied applicant have if he wants to know exactly why the visa was denied?

 

A.1.  A visa denial can be appealed to the Visa Office at the Department of State.  Unfortunately, this process takes about a year, and the Visa Office almost always supports the decision of the consular office.

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Q.2.  The new DACA in the Executive Actions is still waiting for approval from the court.  What about the original DACA of 2012?

 

A.2.  CIS is still accepting new and renewal applications for DACA, under the rules of 2012.   The new DACA rules of Obama's Executive Actions are still stuck in court and  may never get out of court.  The original DACA program provides permission to remain in the US for 2 years and can be renewed for two years.   DACA approval also allows employment.  If you need details about this, please contact our office by phone or email.

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Q.3.  If the Executive Actions case goes to the Supreme Court, can we be optimistic about their decision?

 

A.3.  If it does go to the Supreme Court, the decision will probably not come until June 2016.  We cannot predict how the Court will decide.  Everyone was hopeful about a favorable decision in the CSPA/F2B matter, but the Supreme Court ruled against that.