August 24, 2020

Democrats must invest in the future of the party -- Latinos

[Cross-posted from The Boston Globe]

By Luis R. Fraga, Luz E. Herrera, and Leticia Saucedo

Last week, America watched a new type of Democratic National Convention. It was more representative of our country and we were glad to see Latino entertainers, workers, immigrants, mothers, daughters, and elected officials representing constituencies at different levels of government.

Who was not highlighted in a prime time speaking role was former presidential candidate and secretary of Housing and Urban Development in the Obama administration, Julián Castro. Representative Alexandra Ocasio-Cortez of New York was included only at the invitation of former presidential candidate and Senator Bernie Sanders. While she maximized her 90 seconds, party protocol ate up her speech time. Why did the DNC miss this opportunity to showcase the promise of a progressive Latino voice for the future of the Democratic Party?

Castro was the first presidential candidate to advance a police reform plan that called for a national use of force standard, sentencing reform, the end of qualified immunity, cash bail reform, and investment in public defenders, and diversion programs. He called for the federal government to seek accountability for excessive use of force months before George Floyd’s tragic death forced people across the political spectrum to publicly affirm that Black Lives Matter.

As the former mayor of San Antonio, Texas, the 7th largest city in the country, Castro made important contributions to improving the lives of Americans. He did not just present lofty ideas, he established policies to directly address them. Castro ran a bold presidential campaign that highlighted the plight of immigrant children detained and caged by the Trump administration on the US border. He advocated the repeal Section 1325 of the immigration code that makes it a crime for immigrants to enter the United States without legal status. He set the agenda on immigration which many other Democratic presidential candidates subsequently adopted.

As the only Latino candidate for president, Castro deserved more than an offer of a cameo in a pre-recorded panel, he deserved a keynote speech like other former presidential candidates. This is the source of concern; role models matter and are crucial in creating a pipeline of future leaders.

Just as the convention provided a platform to bring moderate Republicans into the Democratic Party tent, it was also an opportunity to appeal to the progressive elements — including Latino progressives — who make the Democrats attractive to so many. As party officials court the Republican base and more conservative sectors of the Democratic Party, they must also pay tribute and respect to all parts of the base if the party is to remain relevant, and thrive.

This year, 32 million Latinos will be eligible to vote in November 2020 — that is the largest non-white voting bloc and that is projected to grow as the overall Latino population becomes 28 percent of the US population by 2060. Some 800,000 Latinos turn 18 every yearNinety-three percent of these are US citizens by birth. It’s time to include Latinos at all levels of the political conversation, not only as political surrogates or as tools for a diversity photo-op, but as full members of the Democratic Party.

Latinos have not been elected to the highest office in America — yet. Giving Castro a primetime role at the DNC would have been an investment in the future of the Democratic Party, an acknowledgement that it regards Latinos as part of the movement. Not giving him or Ocasio-Cortez prominent roles is disheartening; accomplished Latinos must be included in a significant way.

The DNC has always counted on the Latino constituency to go along. A large percentage of Latinos will probably vote for the Democratic ticket this fall because the status quo is unacceptable. However, voting for the Democratic ticket in 2020 doesn’t mean Latinos will forget this slight.

Luis R. Fraga is a professor and director of the Institute for Latino Studies at the University of Notre Dame. Luz E. Herrera is a professor and associate dean of Experiential Education at the Texas A&M University School of Law.

January 19, 2016

The Supreme Court Adds ‘Take Care Clause’ to the DAPA Debate

Cross-posted from ACSblog.

The Supreme Court granted certiorari in United States v. Texas today, agreeing to hear the federal government's questions on its immigration policy and adding one more. The Court will decide whether the federal government's policy to postpone the deportations of millions who are in the United States in undocumented status is arbitrary and capricious, whether it was subject to the APA's notice and comment procedures, and whether the states have standing to sue. The Court added a question that was not decided in the lower courts, namely, whether the policy violates the Take Care Clause in Art. II, Sec. 3, which requires the president to take care that the laws of the United States are faithfully executed.

At issue in this case is the president's announcement of a guidance that would defer action on the undocumented noncitizens in the United States who have lived in the United States for five years and who came as children, or who have U.S. citizen or permanent resident children. The federal government claims that the president's guidance is permitted under immigration law, which allows the Department of Homeland Security to postpone, for its own convenience or for humanitarian reasons, the removal of noncitizens from the United States. The immigration statute also allows the Department of Homeland Security, for its own convenience, to issue employment authorization to these individuals. Notably, deferred action does not bestow any form of legal status on noncitizens, nor does it provide any benefit.

The most interesting part of the Court's grant is its signal that it will decide whether the president's guidance violates the Constitution's Take Care Clause. The questions of whether the president has faithfully executed the laws of the United States requires a deep understanding of the multi-dimensional nature of the immigration law at stake.

Immigration law has historically included both enforcement and humanitarian aspects. While the enforcement provisions give the executive branch wide latitude in determining whether individuals are removable, the humanitarian provisions also give the executive branch great latitude in determining whether removal is warranted given an individual's circumstances. By providing guidance on deferral of removal in a set of cases that warrant the executive branch's discretion - discretion delegated by Congress - the president has fulfilled his duties under the Clause.

If the Supreme Court accepts the multi-dimensionality of immigration law, it will find that the executive branch has done exactly what the Take Care Clause requires: It has created a guidance that reflects the multi-dimensional aspects of immigration law while maintaining its duty to stay within the contours of existing law.

November 16, 2015

Employment Authorization, the DAPA Memo and the Fifth Circuit’s Opinion

Cross-posted from Immigration Prof Blog.

On November 9, the Fifth Circuit denied the federal government’s petition to stay the federal district court’s injunction in Texas v. United States. The ruling upheld the injunction, preventing the implementation of the administration’s extended DACA and DAPA programs, otherwise known as the DAPA memo. The court decided that the Obama administration’s proposed implementation of the DAPA memo was a substantive rule implemented in violation of the Administrative Procedure Act’s requirements for notice and comment rulemaking. Substantively, the court held that the executive branch overreached its authority to issue employment authorization to the millions of undocumented individuals that would qualify under the administration’s deferred action program. In this post I analyze the executive branch’s authority to issue employment authorization documents.

The DAPA memo stated that eligible undocumented individuals can apply for deferred action, and that “each person who applies for deferred action pursuant to the [DAPA] criteria . . . shall also be eligible to apply for work authorization for the period of deferred action.” DAPA Memo at 4. The Court of Appeals focused on the reference to employment authorization, and its ability to transform the rights of an undocumented person. The court noted that because the government was outside its authority to grant deferred action, it was also outside its authority to grant employment authorization.

The Court of Appeals is wrong. The employer sanctions provisions of Immigration Reform and Control Act (IRCA) expressly grant wide latitude to the agency, and Congress specifically intended to provide the agency with this broad authority. And so, the Court of Appeals got it backwards when it concluded that

“[I]f DAPA’s deferred-action program must be subjected to notice-and- comment, then work authorizations may not be validly issued pursuant to that subsection until that process has been completed and aliens have been ‘granted deferred action.’”

As the government argued and the dissent concluded, the agency has the authority to grant employment authorization regardless of DAPA; it is its authority to regulate worksite immigration enforcement that allows it to also grant deferred action on a category of individuals for its convenience.

Congress granted the agency this broad authority precisely to enable the agency create what is now the vast and largely-expanded infrastructure for worksite enforcement. If Congress had not vested the agency with flexibility in creating the categories for proper employment authorization, the carefully-created compromises in the employer sanctions provisions would not have been sustainable.

When Congress first set up employer sanctions and worksite immigration enforcement scheme in IRCA, it made the explicit decision to give the executive branch the authority and discretion to provide employment authorization to certain classes of noncitizens. INA § 274A(h)(3) defines an “unauthorized alien” for employment purposes:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.

The clear meaning of this language is to give the Attorney General discretion to authorize employment under the Act. IRCA provides specific guidance to the agency about its power to determine who is eligible for work, and yet the employer sanctions provision is silent on the question of how unlawful presence should be considered. The Act further provided, “The Attorney General shall, not later than the first day of the seventh month beginning after the date of enactment of this Act, first issue, on an interim or other basis, such regulations as may be necessary in order to implement this section [which included INA § 274A].”

The Attorney General acted pursuant to this power, issuing regulations governing the types of individuals who were employment authorized by virtue of their immigration status as well as those eligible to apply for employment authorization subject to agency approval. Among those authorized to apply for employment authorization subject to agency discretion were individuals with deferred action. See 8 CFR 274a.12(c)(14).

It is important to remember that employment authorization provisions were developed as a comprehensive worksite enforcement scheme aimed at punishing EMPLOYERS, not employees, for hiring unauthorized workers. Employment authorization was seen by Congress as a way to make it easier for employers to identify authorized employees and to create a safe harbor for employers who were wary of the effects of worksite enforcement efforts on their own liability. The impetus for employer sanctions was less about protecting American workers (as the Court of Appeals suggests) than it was about making employers accountable for hiring foreign-born workers. The employer sanctions were not targeting unlawful presence. Rather they were targeting employers who hired workers without employment authorization. The distinction is important because employers fought very hard to ensure that they were not converted into private immigration enforcement officers. They, as well as Congress, wanted to leave it up to the agency to make decisions about employment authorization, especially in those cases in which immigration status itself did not automatically confer employment authorization. The agency’s regulations, implemented in 8 CFR 274a.12(c), list at least 25 such situations. Employment authorization, therefore, has become a critical element in the enforcement scheme designed to protect employers by providing a safe harbor. That employment authorization, and the agency’s ability to grant it, are questioned today, almost 30 years after implementation, should cause employers great concern.

There are important effects beyond undermining the employer sanctions provisions. From a civil rights perspective, the employer sanctions provisions would strip all meaning from prohibitions on alienage discrimination that also were a part of the grand bargain between Congress and employers in the implementation of worksite immigration enforcement. Under the alienage discrimination provision, an employer cannot discriminate against an employment-authorized worker on the basis of alienage. The provision was put in place alongside the safe harbors in the employer sanctions provisions to ensure that employers did not discriminate in their hiring practices and claim that they did not have the capacity to distinguish between employment-authorized and unauthorized workers. The Court’s ruling now puts employers in a bind if they cannot rely on the agency’s authority to grant employment authorization. In other words, when Congress implemented IRCA, it understood that there would be a universe of unlawfully present individuals seeking work. It defined “unauthorized alien” specifically in the statute to give the agency the flexibility to monitor, regulate and control that universe. Employment authorization does not make an individual lawfully present, nor does it provide any of the benefits that the Court of Appeals imagines. It does, just as Congress intended, provide the immigration agency the flexibility and authority to authorize employment as it sees fit, so that the ultimate goal of employer sanctions – to make the employer accountable for unauthorized work – can be achieved.

The Court of Appeals displayed a fundamental lack of understanding of IRCA and the relationship between employment authorization and DAPA. If it had understood the genesis and history of employment authorization and its relationship to employer sanctions, it would have understood that deferred action is a mechanism to provide the agency with the type of flexibility necessary to enforce employer sanctions. Bringing people out of the shadows, as President Obama suggested, is really about maintaining the employer sanctions system that Congress so carefully crafted almost 30 years ago.