Frequently Asked Questions about the Supreme Court’s Ruling in
U.S. v. Texas
Q: How did the Supreme Court rule in U.S. v. Texas?
A: On June 23, 2016, the Supreme Court issued a one-sentence per curiam ruling in U.S. v.
Texas, simply stating, “The judgment is affirmed by an equally divided court.” The 4-4 deadlock
effectively leaves in place the preliminary injunction that was issued on February 16, 2015 by
U.S. district court Judge Andrew Hanen, and affirmed by the Fifth Circuit, blocking the federal
government from implementing two initiatives announced by President Obama in November
2014: the expansion of Deferred Action for Childhood Arrivals (DACA+) and Deferred Action
for Parents of Americans and Lawful Permanent Residents (DAPA). By affirming the lower
court in this manner, the Court set no precedent on any of the substantive issues in the case,
including the threshold question of whether Texas and the other litigant states have standing to
sue.
Q: How will the Court’s ruling affect people who are waiting to apply for these initiatives?
A: It is no secret that millions of young people and families have been living for years in the
United States in an unauthorized status and at risk of deportation. In recognition of this reality,
on June 15, 2012, the Obama administration announced the first DACA initiative for certain
young people who came to the United States as children and meet other eligibility criteria. With
Congress repeatedly failing to pass immigration reform in the preceding years and again in 2013,
AILA and other organizations urged the president to provide temporary relief to other
individuals, resulting in the announcement of DACA+ and DAPA. The Court’s inability to
render a majority decision in U.S. v. Texas means the administration’s initiatives remain blocked
and individuals who would otherwise be eligible for DACA+ or DAPA cannot apply at this time.
It has also been found that DACA provides recipients with greater access to educational
opportunities and better jobs, thus contributing to the growth of businesses and the economy
through increased tax contributions. Those additional benefits that DACA+ and DAPA would
have yielded will also remain on hold.
Q: Will the Court’s ruling impact DACA 2012?
1
AILA Doc. No. 16062436. (Posted 6/24/16)
A: The ruling does not directly impact the original DACA initiative launched in 2012. Previous
grants of deferred action under DACA 2012 are not affected, and future applicants will still be
able to apply for DACA 2012.
Q: What happens in the legal case U.S. v. Texas?
Though there are a number of possibilities, the two most likely scenarios involve either a request
for rehearing by the Supreme Court or allowing the case to proceed on the merits.
Rehearing by the Supreme Court. The federal government and the three intervening
private litigants (represented by MALDEF) could request rehearing by the Court. The
Court’s decision to grant rehearing is discretionary, and could take months. For example, in
another case that yielded a 4-4 ruling this term, Friedrichs v. California Teachers
Association, though the litigants requested rehearing in April, as of late June the Court still
had not ruled on the petition. One benefit of rehearing is that the case could be reviewed
again, but this time by a full court with nine justices sitting. In U.S. v. Texas, if the Court
grants rehearing it would likely not schedule it until a ninth justice is confirmed, and it is
likely that the Senate will not confirm a ninth justice until the new president takes office in
2017. As a result, re-argument would likely not be scheduled until the Court’s 2017-2018
term, and a decision would not be expected until 2018.
Decision on the merits. If neither the federal government nor the private intervenors
requests rehearing, or if the Court does not grant a rehearing request, the case will go back to
the district court for a decision on the merits. Given Judge Hanen’s prior rulings, it is
anticipated that he will ultimately strike down the initiatives. The government could then
appeal such a decision to the Fifth Circuit and again seek certiorari before the Supreme
Court. As with the rehearing option, a final decision from the Court in a direct appeal would
not likely come until 2018 or later.
Q: Will DACA+ and DAPA ever be implemented?
A: The Supreme Court is not likely to render a decision in either of the scenarios described
above until 2018, so prospective applicants will have to wait at least two more years. As a result,
the future of this program likely depends on who is elected president in November and whether
he or she would continue to pursue this strategy or not. Hillary Clinton has stated publicly that
she supports these initiatives and has committed to introducing comprehensive immigration
reform legislation with a path to citizenship within the first 100 days of her administration.
Donald Trump has said he will rescind DACA 2012 as well as DACA+ and DAPA.
Q: Does DHS still have the authority to grant deferred action?
A: Although DACA+ and DAPA are enjoined, the Supreme Court’s ruling does not render
judgment on the underlying question of the president’s authority to establish priorities for the
enforcement of immigration law or to grant deferred action. Thus, DHS still has the authority to
review and grant individual requests for deferred action. Moreover, the Court’s ruling does not
2
AILA Doc. No. 16062436. (Posted 6/24/16)
affect DHS’s authority to establish a different deferred action initiative that applies to a category
of individuals who are not enforcement priorities. There are several examples where DHS has
defined a deferred action policy that applies to a group of individuals, most notably the
announcement in 1987 under President Reagan of the “Family Fairness” initiative, a blanket
deferral of deportation for a defined class of children under 18 in mixed status families.
Q: As a result of the Court’s ruling are people who would be eligible for DACA+ and
DAPA now at greater risk of deportation?
A. The Court’s ruling does not affect DHS’s authority to establish enforcement priorities, and on
the day the ruling was issued, President Obama announced that the enforcement priorities set
forth in DHS Secretary Jeh Johnson’s November 20, 2014 memorandum would remain in
effect. Individuals who would qualify for DACA+ or DAPA do not fall under these stated
priorities and should not be targeted for enforcement.
Q. Should individuals who may be eligible for DACA+ or DAPA apply affirmatively for
deferred action as an exercise of prosecutorial discretion?
A: AILA lawyers and other practitioners should continue to evaluate each case individually and
make a careful determination as to whether an affirmative request for prosecutorial discretion,
including deferred action, is a viable and prudent option. DHS’s 2014 policies on enforcement
and prosecutorial discretion remain in effect and are intended to clarify the grounds upon which
immigration officials will consider a grant of prosecutorial discretion. But requesting deferred
action for an individual who is not is not yet the subject of enforcement carries significant risk
which must be carefully evaluated prior to applying. Moreover, the application of the
prosecutorial discretion policies is inconsistent across field offices, and a decision to exercise
discretion is, by its very definition, discretionary.
Q: How else can AILA members assist potential DACA+ and DAPA applicants?
A: Research has shown that 14.3% of the DACA-eligible population may also qualify for other
forms of relief. Thus, practitioners can provide a service to the affected public by screening
potential DACA+ and DAPA applicants to determine if they qualify for legal status. In the
meantime, AILA will continue fighting for the implementation of DACA+ and DAPA, and will
provide updates on our website about the status of the litigation, as well as information about
how to support these efforts. AILA will also continue advocating for Congress to pass legislative
reforms that provide a more lasting solution, not only for those living in the U.S. without status,
but for the families, businesses, asylum seekers, and other individuals who have long awaited
reform.
Q: What is the status of Judge Hanen’s demand for the personal information of DACA
recipients who received three-year EADs?
A: On May 19, 2016, Judge Hanen ordered the federal government to turn over the names,
addresses, “A” file numbers, and all available contact information of tens of thousands of DACA
recipients who received three-year work authorization cards under the 2012 DACA initiative
3
AILA Doc. No. 16062436. (Posted 6/24/16)
between November 2014 and February 2015, and who live in one of 26 plaintiff states in U.S. v.
Texas. While Judge Hanen stated that this information will initially be kept under seal, it could
be released to any of the 26 states that are parties to the lawsuit if they show “good cause.”
Judge Hanen also ordered hundreds of DOJ attorneys to take an in-person ethics course. This
order stems from previous hearings where Judge Hanen threatened DOJ attorneys with sanctions
for “misleading” him regarding the government’s implementation of DACA+ and DAPA.
On June 7, 2016, Judge Hanen issued an order for the parties to appear for a status conference on
August 22, 2016, and stayed the May 19, 2016 order pending the outcome of that conference. In
the meantime DOJ has until July 31, 2016 to file a brief explaining how it did not make a
“misrepresentation” to Judge Hanen regarding the implementation of DACA+ and DAPA. In an
appeal to the 5th Circuit, DOJ asked the court to vacate Judge Hanen’s orders to sanction
prosecutors and his request to turn over the personal information of the individuals who received
the three-year employment authorization cards in error.
4
AILA Doc. No. 16062436. (Posted 6/24/16)
No. 15-674
In the Supreme Court of the United States
UNITED STATES OF AMERICA, ET AL., PETITIONERS
v.
STATE OF TEXAS, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR REHEARING
IAN HEATH GERSHENGORN
Acting Solicitor General
Counsel of Record
BENJAMIN C. MIZER
Principal Deputy Assistant
Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
BETH S. BRINKMANN
Deputy Assistant Attorney
General
ZACHARY D. TRIPP
Assistant to the Solicitor
General
DOUGLAS N. LETTER
SCOTT R. MCINTOSH
JEFFREY CLAIR
WILLIAM E. HAVEMANN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
[email protected]
(202) 514-2217
AILA Doc. No. 14122946. (Posted 7/18/16)
In the Supreme Court of the United States
No. 15-674
UNITED STATES OF AMERICA, ET AL., PETITIONERS
v.
STATE OF TEXAS, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR REHEARING
Pursuant to Rule 44 of this Court, the Acting Solicitor General, on behalf of the United States and the
other petitioners, hereby respectfully petitions for rehearing of this case before a full nine-Member Court.
1. This case involves a challenge by the respondent
States to a November 20, 2014 memorandum (Guidance) issued by the Secretary of Homeland Security.
Among other things, the Secretary’s Guidance directed his subordinates to establish a process for considering requests for deferred action from certain aliens.
The respondent States challenged the Guidance on substantive grounds and on the basis that it was promulgated in violation of the notice-and-comment requirements of the Administrative Procedure Act (APA), 5
U.S.C. 553. On February 16, 2015, the district court
entered a preliminary injunction barring implementation of the Guidance nationwide. Pet. App. 407a-410a.
After expediting the appeal, a divided panel of the
(1)
AILA Doc. No. 14122946. (Posted 7/18/16)
2
Fifth Circuit affirmed the preliminary injunction on
November 9, 2015. Id. at 2a-3a; see id. at 1a-155a.
On January 19, 2016, this Court granted certiorari
on four questions: (1) whether the respondent States
have Article III standing and a justiciable cause of action under the APA; (2) whether the Guidance is arbitrary and capricious or otherwise not in accordance
with law under the APA; (3) whether the Guidance was
subject to the APA’s notice-and-comment rulemaking
procedures; and (4) whether the Guidance violates the
Take Care Clause of the Constitution, Art. II, § 3. See
136 S. Ct. at 906; Pet. i.
On June 23, 2016, after argument, this Court affirmed the judgment of the court of appeals by an
equally divided Court, with eight Members participating in the decision.
2. Ordinarily, it is exceedingly rare for this Court
to grant rehearing. But when this Court has conducted plenary review and then affirmed by vote of an
equally divided court because of a vacancy rather than
a disqualification, the Court has not infrequently
granted rehearing before a full Bench. “[R]ehearing
petitions have been granted in the past where the
prior decision was by an equally divided Court and it
appeared likely that upon reargument a majority one
way or the other might be mustered.” Stephen M.
Shapiro et al., Supreme Court Practice § 15.6(a), at
838 (10th ed. 2013). “The small number of cases in
which a full Bench can rehear a case decided by an
equal division probably amounts to the largest class of
cases in which a petition for rehearing after decision
on the merits has any chance of success.” Id. at 839.
For example, the government petitioned for rehearing in United States v. One 1936 Model Ford V-8 De
AILA Doc. No. 14122946. (Posted 7/18/16)
3
Luxe Coach, 305 U.S. 666 (1938), after this Court divided equally in a case when there was a vacancy due to
Justice Cardozo’s death, but before the vacancy was
filled. This Court granted the petition, ibid., then heard
the case after Justice Frankfurter was confirmed. 307
U.S. 219 (1939). This Court similarly granted petitions for rehearing before a full Bench in a series of
cases decided 4-4 after Justice McReynolds’ retirement
caused a vacancy in 1941; 1 after a leave of absence by
Justice Jackson caused a temporary vacancy in 1945; 2
and after Justice Jackson’s death caused a vacancy in
1954. 3 See also, e.g., Pollock v. Farmers’ Loans &
Trust Co., 158 U.S. 617 (1895) (similar for absence due
to illness); id. at 601-606 (reproducing petition for rehearing discussing earlier cases); id. at 606-607
(granting rehearing).
In such situations, the Court has not infrequently
held the case over the Court’s summer recess, holding
oral arguments months later. For example, in Halliburton Oil Well Cementing Co. v. Walker, 327 U.S.
812, the Court granted rehearing in February 1946,
ibid., and heard reargument 240 days later in October
1946, see 329 U.S. 1 (1946). See also, e.g., MacGregor
v. Westinghouse Elec. & Mfg. Co., 329 U.S. 402 (1947)
(reargument 248 days after rehearing granted); Bal1
Baltimore & Ohio R.R. v. Kepner, 313 U.S. 597 (1941); Toucey
v. New York Life Ins. Co., 313 U.S. 596 (1941); New York, Chi. &
St. Louis R.R. v. Frank, 313 U.S. 596 (1941); Commercial Molasses Corp. v. New York Tank Barge Corp., 313 U.S. 596 (1941).
2
See MacGregor v. Westinghouse Elec. & Mfg. Co., 327 U.S. 812
(1946); Bruce’s Juices, Inc. v. American Can Co., 327 U.S. 812
(1946).
3
Indian Towing Co. v. United States, 349 U.S. 926 (1955); Ryan
Stevedoring Co. v. Pan-Atl. Corp., 349 U.S. 926 (1955).
AILA Doc. No. 14122946. (Posted 7/18/16)
4
timore & Ohio R.R. v. Kepner, 314 U.S. 44 (1941) (175
days later). In a few earlier cases, several years
elapsed between the grant of rehearing and reargument. See Home Ins. Co. v. New York, 122 U.S. 636
(1887) (granting rehearing February 7, 1887), and 134
U.S. 594 (1890) (reargument March 18-19, 1890); Selma, Rome & Dalton R.R. v. United States, 122 U.S.
636 (1887) (granting rehearing March 28, 1887), and
139 U.S. 560 (1891) (reargument March 25-26, 1891).
3. The need for rehearing is also more pressing
here than in Friedrichs v. California Teachers Ass’n,
136 S. Ct. 1083, reh’g denied, No. 14-915, 2016 WL
3496857 (June 28, 2016), and in Hawkins v. Community Bank of Raymore, 136 S. Ct. 1072, reh’g denied,
No. 14-520, 2016 WL 3461626 (June 27, 2016). In those
cases, after lengthy consideration, this Court denied
petitions for rehearing before a full Bench following
4-4 decisions from this Court. The issues that warranted certiorari in Friedrichs and Hawkins may
freely recur in other cases, however, and thus there
was no need for this Court’s review in those particular
vehicles. By contrast, the validity of the Guidance is
unlikely to arise in any future case. The preliminary
injunction here prohibits the government from implementing the Guidance anywhere nationwide; there is
no reason to expect that the district court would issue
a permanent injunction that is narrower; and no other
pending case challenges the Guidance. See Pet. 35. Unless the Court resolves this case in a precedential manner, a matter of “great national importance” involving
an “unprecedented and momentous” injunction barring
implementation of the Guidance will have been effectively resolved for the country as a whole by a court of
appeals that has divided twice, with two judges voting
AILA Doc. No. 14122946. (Posted 7/18/16)
5
for petitioners and two for respondent States. Pet. 11,
32. As this Court recognized in granting certiorari,
this Court instead should be the final arbiter of these
matters through a definitive ruling.
To be sure, because this case arises on appeal of a
preliminary injunction, the same issues could arise again
in this case following entry of a final judgment and
a subsequent appeal. But as the Court determined in
granting certiorari and scheduling argument for the
October 2015 Term, there is a strong need for definitive resolution by this Court at this stage. See Pet.
33-34 (noting interests of the government and individuals in a prompt resolution). And the justification that
might be advanced in other cases for awaiting an appeal from a final judgment down the road have little
force here, because the court of appeals’ legal rulings
leave little or no room for a different outcome below:
The court held that Texas’s “standing is plain”; that
Texas “satisfies the zone-of-interests test”; that the
Guidance “is not an unreviewable agency action . . .
committed to agency discretion by law”; that the respondent States are likely to establish that the Guidance must go through notice-and-comment; and that
the Guidance is “manifestly contrary to the INA.” Pet.
App. 11a, 37a, 50a, 76a (citation and internal quotation
marks omitted); see id. at 68a. This Court therefore
should grant rehearing to provide for a decision by the
Court when it has a full complement of Members,
rather than allow a nonprecedential affirmance by an
equally divided Court to leave in place a nationwide injunction of such significance.
AILA Doc. No. 14122946. (Posted 7/18/16)
6
* * * * *
For the foregoing reasons, the petition for rehearing should be granted.
Respectfully submitted.
IAN HEATH GERSHENGORN
Acting Solicitor General
BENJAMIN C. MIZER
Principal Deputy Assistant
Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
BETH S. BRINKMANN
Deputy Assistant Attorney
General
ZACHARY D. TRIPP
Assistant to the Solicitor
General
DOUGLAS N. LETTER
SCOTT R. MCINTOSH
JEFFREY CLAIR
WILLIAM E. HAVEMANN
Attorneys
JULY 2016
AILA Doc. No. 14122946. (Posted 7/18/16)
7
CERTIFICATE OF COUNSEL
I hereby certify that this petition for rehearing is
presented in good faith and not for delay.
___________________________
IAN HEATH GERSHENGORN
Acting Solicitor General
AILA Doc. No. 14122946. (Posted 7/18/16)
Understanding the Legal Challenges to Executive Action
On June 23, 2016, the U.S. Supreme Court issued a 4-4 decision in United States v. Texas, the case challenging
expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and
Lawful Permanent Residents (DAPA). 1 This means that a preliminary injunction temporarily halting the
implementation of these initiatives stands. This ruling does not impact the original DACA program launched in
2012. However, it does have a profound and disappointing impact on the millions of would-be eligible
immigrants whose lives remain in limbo after the Court’s ruling.
This fact sheet provides an overview of the lawsuits that have challenged expanded DACA and DAPA. It
explains the legal claims, the court decisions, and the process.
Background
On November 20 and 21, 2014, President Barack Obama announced a series of administrative reforms of
immigration policy, collectively called the Immigration Accountability Executive Action. 2 The centerpiece of
these reforms is an expansion of the current Deferred Action for Childhood Arrivals (DACA) initiative and the
Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative for the parents of
U.S citizens and lawful permanent residents who meet certain criteria. 3 Together, these initiatives could
provide as many as 5 million immigrants with temporary relief from deportation. Moreover, DAPA and
expanded DACA would not only keep families united, but also increase U.S. gross domestic product, increase
tax revenue, and raise wages. 4
Like the original DACA initiative, both expanded DACA and DAPA derive from the executive branch’s authority
to exercise discretion in the prosecution and enforcement of immigration cases. 5 In both instances, the
President authorized the Department of Homeland Security (DHS) to defer for three years the deportation of
qualified individuals who pose no threat to the United States in the hope that Congress would finally
undertake more permanent, comprehensive immigration reform.
Within hours of the announcement, notorious Maricopa County, Arizona Sheriff Joe Arpaio challenged the
President’s plan to defer deportations in a Washington, D.C., federal court, in a case named Arpaio v. Obama. 6
Shortly thereafter, representatives of 17 states filed a similar case, Texas v. United States, in a Brownsville,
Texas, federal court, 7 with 9 other states later joining the lawsuit. 8 On the other hand, a broad spectrum of
supporters------including 15 states and the District of Columbia 9------filed ‘‘friend-of-the-court’’ briefs supporting
the President’s plan.
Understanding the Legal Challenges to Executive Action | American Immigration Council | June 2016
The U.S. Government opposed both lawsuits on the grounds that the President’s actions were a lawful use of
prosecutorial discretion, and that the plaintiffs lacked ‘‘standing’’ to bring their cases, since plaintiffs were not
harmed. 10 Both arguments are supported by a wide range of law professors and experts. 11
The Washington, D.C. federal court promptly dismissed Sheriff Arpaio’s lawsuit. 12 That decision was upheld
unanimously by a three-judge panel of the D.C. Circuit Court of Appeals on August 14, 2015. 13 Sheriff Arpaio
asked the Supreme Court to review the case, but on January 19, 2016, the Supreme Court denied that
request. 14
Separately, the Texas federal court preliminarily blocked, on procedural grounds, the President’s DAPA and
expanded DACA initiatives (but not original DACA) on February 16, 2015. 15 The Department of Justice appealed
this order, 16 and arguments were heard on July 10, 2015. On November 9, 2015, a divided panel of the Fifth
Circuit Court of Appeals upheld the lower court’s ruling in a 2-1 decision. 17 The following day, the Department
of Justice announced its intention to seek Supreme Court review of the Fifth Circuit’s decision. 18 On January
19, 2016, the Supreme Court granted certiorari (meaning, it agreed to take the case), 19 and it heard oral
arguments on April 18, 2016. On June 23, 2016 the Supreme Court issued a 4-4 decision in United States v.
Texas, which has the effect of upholding the Fifth Circuit’s decision.
At the center of these cases is a policy dispute------Texas, 25 other states, and an Arizona sheriff disagree with the
President’s policy on how the immigration agencies should use their limited enforcement resources. These
cases are more political diatribe than legal argument, and many previous Administrations have used their
executive authority in similar ways. 20 Understanding the procedural steps and the nature of the arguments
helps to Texas v U.S. in perspective.
The States' Lawsuit
Texas and 25 states seek to ‘‘enjoin,’’ meaning to permanently block implementation of, DAPA and expanded
DACA. They argue that the executive actions violate the ‘‘Take Care’’ clause of the Constitution because the
President has allegedly changed the law rather than ‘‘tak[ing] care that the laws be faithfully executed.’’ 21
Initially, both lawsuits sought a ‘‘preliminary injunction’’------a temporary block during the life of the lawsuit-----which is an ‘‘extraordinary remedy.’’ 22 To grant a ‘‘preliminary injunction,’’ the court must find that four factors
exist------(1) the challenger is likely to succeed on the merits, (2) the challenger is likely to suffer ‘‘irreparable
harm’’ without the injunction, (3) the ‘‘balance of equities’’ supports the challenger, and (4) an injunction is in
the ‘‘public interest.’’ 23
The states’ complaint argued that expanded DACA and DAPA will trigger a ‘‘wave’’ of immigration------even larger
than the alleged ‘‘flood’’ of Central American families to the United States caused by DACA24 (ignoring the
substantial evidence that fear of persecution and violence is driving Central Americans from their homes).25
The states also alleged that this wave will ‘‘increase human trafficking’’ by drug cartels and thus ‘‘exacerbate
the risks and dangers imposed on [states] by organized crime.’’ 26 In addition, the states alleged broader harms
from the expenditures on law enforcement, health care, education, processing professional licenses, and other
benefits. 27
Page 2 of 10
Understanding the Legal Challenges to Executive Action | American Immigration Council | June 2016
Preliminary Injunction in States’ Lawsuit
On February 16, 2015, Brownsville, Texas federal judge Andrew Hanen, of the U.S. District Court for the
Southern District of Texas, temporarily enjoined DAPA and the planned expansion of DACA pending a higher
court’s contrary order or a trial on the merits. 28 Highlights of the court’s reasoning include:
1.
Texas has standing to bring this lawsuit because DAPA and expanded DACA will create a new class of
individuals eligible to apply for state-subsidized driver’s licenses, which would impose additional
processing and issuance costs on the state. 29 The court did not address the offsetting economic benefits
that states also would realize from DAPA and expanded DACA, including higher wages, increased tax
revenue, and new jobs.30 The court rejected other standing arguments by the plaintiffs, namely, that DAPA
would impose indirect costs on states such as for public education and uncompensated medical care. 31
2.
Judge Hanen based his ruling on narrow procedural grounds------that the Government did not comply with
certain technical requirements under the Administrative Procedure Act (APA), including notice-andcomment rulemaking. 32
In reaching this conclusion, Judge Hanen found DAPA and expanded DACA to be substantive rules subject to
notice-and-comment procedures, rather than general statements of policy, which would not require such
procedures. 33 However, as DHS pointed out, the expanded DACA and DAPA initiatives are policies, under which
DHS must decide on a case-by-case basis whether to grant a particular individual’s request. 34 DHS national
procedures for officers reviewing DACA claims specifically allow discretionary denials, which are consistent
with a general statement of policy. The procedures provide a form with a box permitting denials solely on the
basis of discretion------even where eligibility guidelines are met, as well as another box permitting denial where a
requestor ‘‘do[es] not warrant a favorable exercise of prosecutorial discretion because of national security or
public safety concerns.’’ 35 Notably:
1.
The ruling did not address the constitutionality of President Obama’s initiatives. Indeed, the decision
affirmed the Secretary of Homeland Security’s authority to set the Department’s enforcement priorities
and to marshal its resources accordingly. 36
2.
The court explicitly did not enjoin original DACA. 37 DHS reinforced this point, recalling that ‘‘individuals
may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the
guidelines established in 2012.’’ 38
3.
Regarding the public interest, the court found the cost of issuing drivers’ licenses and other benefits to
prospective deferred action beneficiaries to be decisive. 39 This is contrary to evidence that President
Obama’s policy helps, not harms, the public interest, as an amicus brief by the American Immigration
Council and others argued. 40 Conversely, halting President Obama’s policy will harm the economy and
affected individuals, who have significant ties in the United States. 41
Page 3 of 10
Understanding the Legal Challenges to Executive Action | American Immigration Council | June 2016
Fifth Circuit Appeal in States’ Lawsuit
The government subsequently appealed the lower court’s decision granting the preliminary injunction to the
higher federal court, the Fifth Circuit Court of Appeals. 42 In addition, the government asked Judge Hanen to
‘‘stay’’ the injunction (i.e., stop the injunction from being in effect), 43 and then made the same request------on an
emergency basis------to the Fifth Circuit when Judge Hanen did not rule promptly. 44
A broad spectrum of states, municipalities, law enforcement agencies, legislators, and other organizations
supported the federal government’s appeal with ‘‘friend of the court’’ or amici briefs. These amici include 15
states and the District of Columbia, 45 73 U.S. mayors and county officials (led by New York, Los Angeles,
Chicago, and Houston ),46 over 30 heads of local law enforcement agencies,47 181 U.S. Representatives, 48 four
U.S. Senators, 49 over 150 civil rights, labor, and immigrants’ rights groups, 50 19 faith organizations, 51
organizations representing educators and children’s advocates, 52 and businesses and trade associations.53
The cities supporting the President’s initiatives contain more undocumented immigrants than the states
opposing them.54
On May 26, 2015, a divided panel of the Fifth Circuit Court of Appeals denied the request for an emergency stay
of the preliminary injunction, with the result that the hold on implementation of DAPA and expanded DACA
remained in place while the Fifth Circuit considered the appeal of the preliminary injunction itself.55
On November 9, 2015, a divided panel of the Fifth Circuit Court of Appeals upheld the district court’s order
granting the preliminary injunction.56 The majority accepted the lower court’s findings that Texas has standing
to bring this lawsuit based on the additional costs it would incur to issue driver’s licenses to beneficiaries of
expanded DACA and DAPA. 57 The court acknowledged that judicial review is unavailable under the APA where
a matter is committed to agency discretion and that the government’s immigration enforcement priorities fall
squarely within this category; nonetheless, the majority also found that the plaintiff states were likely to prevail
on their claim that the federal government should have pursued notice-and-comment rulemaking because
DAPA and expanded DACA determinations are non-discretionary. 58 In addition, the majority held that the new
deferred action initiatives are arbitrary and capricious because the federal government did not have authority
to promulgate them under the Immigration and Nationality Act. 59 The Court also granted a motion by the
Mexican American Legal Defense and Education Fund (MALDEF) to intervene in the case on behalf of three
mothers who wish to apply for DAPA once it is implemented. Allowing MALDEF to intervene means the mothers
can participate as parties in the case, with all of the rights of parties, including briefing and argument. 60
In her dissenting opinion, Judge Carolyn D. King characterized the majority’s opinion as a ‘‘mistake’’ that ‘‘has
been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal.’’ 61
States' Case at Supreme Court
On January 19, 2016, the Supreme Court announced it would review the Fifth Circuit’s decision. 62 A broad
range of organizations and community leaders filed amicus briefs with the Supreme Court in support of the
federal government, demonstrating the far-reaching impact of this case. 63 Together, the amici made a strong
Page 4 of 10
Understanding the Legal Challenges to Executive Action | American Immigration Council | June 2016
argument that expanded DACA and DAPA are good for families, public safety and the American
economy. 64 The amici included faith-based groups, business owners, law enforcement officials, educators,
former Homeland Security officials, and current and former members of Congress. 65 Furthermore, 115 mayors,
county executives, and localities, as well as 16 states and the District of Columbia, filed briefs in support of the
government’s position.66
On April 18 the Supreme Court heard 90 minutes of oral argument. The argument itself focused primarily on
the issue of standing, or legal capacity, to file the lawsuit. 67 Although the U.S. Solicitor General and the Texas
Solicitor General (on behalf of all 26 states) argued for the bulk of the time, the Court also allowed the U.S.
House of Representatives, which filed an amicus brief in support of the states, and intervenor MALDEF (on
behalf of the intervenors) to argue as well. 68
On June 23, 2016, the Supreme Court issued a 4-4 decision in United States v. Texas. 69 In a nine-word opinion,
the Supreme Court refused to resolve any of the questions it had agreed to consider in the case.70 Instead,
because the Court could not reach a majority, the Fifth Circuit’s decision remains in place. Importantly, the
Court neither rebuked nor affirmed the President’s authority to exercise executive action. Because it is a split
decision, the Court’s opinion has no precedential value. The decision also does not impact the original DACA
program launched in 2012.
Judge Hanen Issues Order Relating to Three-Year Work Permit Confusion
Meanwhile, on May 19, 2016, Judge Andrew Hanen issued a highly extraordinary order instructing the DOJ to
turn over personal information of about 50,000 DACA recipients who received three-year reprieves from
deportation and three-year work permits. 71 This order stems from previous hearings where Judge Hanen
threatened DOJ attorneys with sanctions for allegedly ‘‘misleading’’ him about the government’s
implementation of expanded DACA and DAPA, in accordance with a November 20, 2014 memo. 72 In addition to
setting forth eligibility requirements for expanded DACA and DAPA, the memo announced that the government
would begin issuing deferrals of deportation and work permits for three years instead of two, even for those
who applied under the original 2012 DACA initiative.
Judge Hanen claims DOJ misled him when, with respect to implementation of expanded DACA and DAPA, its
lawyers stated early in the litigation that they ‘‘really would not expect anything between now and the date of
the hearing.’’ 73 DOJ asserts that its lawyers merely misunderstood what Judge Hanen was asking. 74 The focus
of Texas v. United States was on the proposed new initiatives------expanded DACA and DAPA------not on original
DACA. Further, DOJ noted in a brief that if it had been trying to hide this change from two to three-year
increments, the agency did a bad job considering it was posted on the Department of Homeland Security’s
website. 75
Unconvinced by these arguments, Judge Hanen issued an order imposing two sets of sanctions on May 19,
2016. 76 First, hundreds of DOJ attorneys involved in this case must take an in-person ethics course. Second,
DOJ must turn over the names and addresses, among other personal information, of the 50,000 DACA
Page 5 of 10
Understanding the Legal Challenges to Executive Action | American Immigration Council | June 2016
beneficiaries who received benefits for a three-year period. On May 31, 2016, DOJ filed a motion to stay, or halt,
Judge Hanen’s order. On June 7, 2016, Judge Hanen stayed his order until a hearing on August 22, 2016. 77
In the coming weeks, the parties will make decisions about whether to seek rehearing at the Supreme Court or
pursue other legal avenues. The case may ultimately go back to the district court for a hearing on the merits of
the case. Whatever happens, there still is much more work to be done. Although expanded DACA and DAPA
are important steps toward meaningful reform, they are only temporary measures at best. The only way to
ensure lasting improvements is for Congress to pass long-overdue immigration reform legislation.
Endnotes
1
United States v. Texas, No. 15-674, (U.S. June 23, 2016).
American Immigration Council, A Guide to the Immigration Accountability Executive Action (November 2014), at
http://www.immigrationpolicy.org/special-reports/guide-immigration-accountability-executive-action.
2
3
U.S. Department of Homeland Security Secretary Jeh Charles Johnson, Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S.
Citizens or Permanent Residents (November 20, 2014), at
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.
4
American Immigration Council, Only the Beginning: The Economic Potential of Executive Action on Immigration (December
2014), at http://www.immigrationpolicy.org/sites/default/files/docs/only_the_beginningeconomic_potential_of_executive_action_final.pdf.
Hiroshi Motomura, The President’s Discretion, Immigration Enforcement, and the Rule of Law (August 2014), at
http://www.immigrationpolicy.org/perspectives/president%E2%80%99s-discretion-immigration-enforcement-and-rule-law.
5
6
Arpaio v. Obama, et al., No. 14-cv-1966 (D.D.C.).
7
Texas, et al. v. United States, et al., No. 14-cv-254 (S.D. Tex.).
The 24 states’ amended complaint, filed December 9, 2014, is available at
https://www.texasattorneygeneral.gov/files/epress/files/ImmigrationStatesFirstAmendedLawsuit12092014.pdf (hereinafter
“States’ Amended Complaint”). Those states are Texas, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho (and the Idaho
Governor), Indiana, Kansas, Louisiana, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota,
Utah, West Virginia, and Wisconsin, as well as Michigan’s attorney general and the Governors of Mississippi, Maine, and North
Carolina. Additionally, two more states—Tennessee and Nevada—joined the lawsuit. Associated Press, 2 more states join
Texas-led immigration lawsuit (Jan. 26, 2015), at http://hosted.ap.org/dynamic/stories/T/TX_IMMIGRATION_LAWSUIT_TNOL?SITE=TNSHE&SECTION=STATE&TEMPLATE=DEFAULT.
8
17 states initially filed the first complaint on December 3 (all but Arizona, Florida, Arkansas, Michigan’s attorney general,
North Dakota, Ohio, and Oklahoma).
Texas, et al. v. United States, et al., No. 14-cv-254, Dkt #81 (S.D. Tex. Jan. 12, 2015) (hereinafter “States’ District Court
Amicus”), available at http://www.atg.wa.gov/uploadedFiles/TexasvUSAmicusBr.pdf. All states but Delaware, Rhode Island,
and Virginia also signed the district court amicus brief. See also Brief of the Amicus States of Washington, California,
Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island,
Vermont, Virginia, and the District of Columbia in Support of the United States, Texas, et al. v. United States, et al., No. 1540238 (5th Cir. Apr. 6, 2015) (hereinafter “States’ Appeals Court Amicus”), available at
http://www.legalactioncenter.org/sites/default/files/docs/lac/5th%20Cir%20Imm%20Amicus_Attorneys%20General.pdf.
9
10
Brief for the Appellants, Texas, et al. v. United States, et al., No. 15-40238 (5th Cir. March 30, 2015) (hereinafter “Gov’t Appeal
Brief,” available at http://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/30/immigration_ca5_-_us_pi_brief.pdf; Defendants’ Memorandum of Points and Authorities
in Opposition to Plaintiffs’ Motion for Preliminary Injunction, Texas, et al. v. United States, et al., No. 14-cv-254, Dkt #38 (S.D.
Tex. Dec. 24, 2014) (hereinafter “Gov’t District Court Opp.”), available at http://www.scribd.com/doc/252049849/Texas-vUnited-States-Response-of-United-States; Defendants’ Sur-Reply in Opposition to Plaintiffs’ Motion for Preliminary
Injunction, Texas, et al. v. United States, et al., No. 14-cv-254, Dkt #38 (S.D. Tex. Jan. 30, 2015) (hereinafter “Gov’t District
Court Sur-Reply”), available at http://www.scribd.com/doc/254323502/Texas-v-United-States-Government-Surreply#scribd.
Page 6 of 10
Understanding the Legal Challenges to Executive Action | American Immigration Council | June 2016
See Brief of Immigration Law Professors as Amici Curiae in Support of Reversal, Texas, et al. v. United States, et al., No. 1540238 (5th Cir. Apr. 6, 2015), available at http://lawprofessors.typepad.com/files/immigration-law-professors-brief-filed.pdf;
Lynne Rambo, States’ Lawsuit Against Executive Action More Politics Than Substance, Immigration Impact (Jan. 13, 2015)
(summarizing standing arguments), available at http://immigrationimpact.com/2015/01/13/states-lawsuit-againstexecutive-action-more-politics-than-substance/#sthash.d8AEPKv6.dpuf.
11
Arpaio v. Obama, et al., No. 14-cv-1966, Dkt #23, 2014 WL 7278815 (D.D.C. Dec. 23, 2014) (hereinafter “Arpaio Opinion”),
available at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1966-23.
12
Arpaio v. Obama, et al., No. 14-5325, (D.C. Cir. 2015), available at
https://www.cadc.uscourts.gov/internet/opinions.nsf/D4C4C6269EE9758585257EA10052EE62/$file/14-5325-1567834.pdf.
Judge Brown wrote a concurring opinion; Arpaio v. Obama, et al., No. 14-5325, (D.C. Cir. 2015), petition for cert. filed, (Nov. 12,
2015) (No. 15-643) available at, http://www.freedomwatchusa.org/pdf/151112PetitionWritCertiorariArpaiovObamaUSSC.pdf.
13
Arpaio v. Obama, et al., No. 14-5325, (D.C. Cir. 2015), cert denied, (U.S. Jan. 19, 2016) (No. 15-643), available at
http://www.supremecourt.gov/orders/courtorders/011916zor_l5gm.pdf.
15
Texas, et al. v. United States, et al., No. 14-cv-254, Dkt #145 (S.D. Tex. Feb. 16, 2015) (hereinafter “Hanen Opinion”), at
http://www.txs.uscourts.gov/notablecases/1-14-cv-254_145X20977588_0.pdf.
14
Defendants’ Notice of Appeal, Texas, et al. v. United States, et al., No. 14-cv-254, Dkt #149 (S.D. Tex. Feb. 23, 2015), at
http://www.scribd.com/doc/256670421/Texas-v-United-States-Notice-of-Appeal.
16
Texas v. United States, No. 15-40238, (5th Cir. Tex. Nov. 9, 2015) available at,
http://www.ca5.uscourts.gov/opinions/pub/15/15-40238-CV0.pdf
18
Ariane de Vogue, Obama Administration Wants Supreme Court to Approve its Immigration Plans, CNN, (Nov. 10, 2015),
available at, http://www.cnn.com/2015/11/09/politics/obama-immigration-appeals-court-ruling/.
19
Joshua Gerstein, Supreme Court to Rule on Obama’s Immigration Orders, Politico, (Jan. 19, 2016), available at,
http://www.politico.com/story/2016/01/supreme-court-to-rule-on-obama-immigration-orders-217860;.Texas v. United
States, No. 15-40238, (5th Cir. Tex. Nov. 9, 2015), cert. granted, (U.S. January 19, 2016) (No. 15-674), available at,
http://www.supremecourt.gov/orders/courtorders/011916zor_l5gm.pdf.
20
American Immigration Council, Executive Grants of Temporary Immigration Relief, 1956-Present, (October 2014), at
http://www.immigrationpolicy.org/just-facts/executive-grants-temporary-immigration-relief-1956-present.
21
U.S. Const., Art. II, § 3.
17
22
Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008).
23
See Arpaio Opinion, note 12, at 20.
24
See States’ Amended Complaint, note 8, at ¶¶ 31-43.
American Immigration Council, Children in Danger: A Guide to the Humanitarian Crisis at the Border (July 2014), p. 2, at
http://www.immigrationpolicy.org/sites/default/files/docs/children_in_danger_a_guide_to_the_humanitarian_challenge_a
t_the_border_final.pdf; Elizabeth Kennedy, No Childhood Here: Why Central American Children are Fleeing Their Homes (July
2014), at
http://www.immigrationpolicy.org/sites/default/files/docs/no_childhood_here_why_central_american_children_are_fleein
g_their_homes_final.pdf.
25
26
States’ Amended Complaint, note 8, at ¶ 63.
27
Id., ¶¶ 64-68.
28
See Hanen Opinion, note 7.
Id. at 22-27; see also Plaintiffs’ Reply In Support of Motion for Preliminary Injunction, Texas, et al. v. United States et al., No.
1:14-cv-254, Dkt #64 (S.D. Tex. Jan. 7, 2015) (on file with American Immigration Council).
29
30
See Gov’t District Court Sur-Reply, note 17, at p. 10; States’ District Court Amicus, note 7, at pp. 5-7, 12-13; Amici Curiae Brief
of American Immigration Council, American Immigration Lawyers Association, Define American, National Immigrant Justice
Center, National Immigration Law Center, New Orleans Workers’ Center For Racial Justice, Service Employees International
Union, Southern Poverty Law Center, and United We Dream in Opposition to Plaintiffs’ Motion for Preliminary Injunction,
Texas, et al. v. United States, et al., No. 14-cv-254, Dkt #39 (S.D. Tex. Dec. 29, 2014) (hereinafter “Council District Court
Amicus”), pp. 3-6, at http://www.legalactioncenter.org/sites/default/files/Texas%20v.%20US%20amicus%20brief.pdf.
31
Hanen Opinion, note 7, at pp. 43-56.
32
Id. at pp. 81-87, citing 5 USC § 701(a)(2); see also pp. 102-112.
Page 7 of 10
Understanding the Legal Challenges to Executive Action | American Immigration Council | June 2016
33
Id. at pp. 102-112.
34
Gov’t District Court Sur-Reply, note 17, at pp. 39-43; Council District Court Amicus, note 48, at pp. 1-2.
Council District Court Amicus, note 8, at p. 2, citing U.S. DHS, National Standard Operating Procedures (SOP), Deferred
Action for Childhood Arrivals (DACA), (Form I-821D and Form I-765) (Apr. 4, 2013), Appendix F, p. 249, at
http://legalactioncenter.org/sites/default/files/DACA%20Standard%20Operating%20Procedures.pdf; see also Declaration of
Donald W. Neufeld, Texas, et al. v. United States, et al., No. 14-cv-254, (S.D. Tex. Jan. 30, 2015), ¶¶ 10-24, at
https://ecf.txsd.uscourts.gov/doc1/179122474614.
35
36
Hanen Opinion, note 7, at p. 70, 123.
37
Hanen Opinion, note 7, at p. 5, p. 123.
U.S. DHS, Statement by Secretary Jeh C. Johnson Concerning the District Court's Ruling Concerning DAPA and DACA (Feb. 17,
2015), at http://www.dhs.gov/news/2015/02/17/statement-secretary-jeh-c-johnson-concerning-district-courts-rulingconcerning-dapa.
38
39
Hanen Opinion, note 21, at pp. 22-32.
40
Council District Court Amicus, note 48, at pp. 3-8.
41
Id. at pp. 9-15.
Defendants’ Notice of Appeal, Texas, et al. v. United States, et al., No. 14-cv-254, Dkt #149 (S.D. Tex. Feb. 23, 2015), at
http://www.scribd.com/doc/256670421/Texas-v-United-States-Notice-of-Appeal.
42
Defendants’ Emergency Expedited Motion to Stay the Court’s February 16, 2015 Order Pending Appeal and Supporting
Memorandum, Texas, et al. v. United States, et al., No. 1:14-cv-254 (S.D. Tex. Feb. 23, 2015), available at
http://immigrationimpact.com/wp-content/uploads/2015/02/150-Ds-Emergency-Expedited-Motion-to-Stay-the-CourtsFebruary-16-2015-Order-Pending-Appeal-and-Supporting-Memorandum.pdf. The government indicated that if the district
court did not rule by a date certain (Feb. 25, 2015), it might seek relief from the Fifth Circuit. Id. at p. 3. After three weeks had
passed and Judge Hanen had not ruled, the government turned to the appellate court, seeking the same relief it sought from
Judge Hanen; namely, an emergency stay, or, alternatively, limitation of the injunction only to Texas or only to the states
suing the government. Gov’t Appeal Brief at pp. 54-56.
43
Appellants’ Emergency Motion for Stay Pending Appeal, Texas, et al. v. United States, et al., No. 15-40238 (5th Cir. Mar. 12,
2015), available at http://crimmigration.com/wp-content/uploads/2015/03/03-12-2015-stay-mx-5th-cir.pdf; see also Wendy
Feliz, DOJ Files Emergency Appeal In Immigration Executive Action Case, Immigration Impact (Mar. 12, 2015), at
http://immigrationimpact.com/2015/03/12/doj-files-emergency-appeal-in-immigration-executive-action-case/.
44
Brief of the Amicus States of Washington, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland,
Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and the District of Columbia in Support of
the United States, Texas, et al. v. United States, et al., No. 15-40238 (5th Cir. Apr. 6, 2015) (hereinafter “States’ Appeals Court
Amicus”), available at
http://www.legalactioncenter.org/sites/default/files/docs/lac/5th%20Cir%20Imm%20Amicus_Attorneys%20General.pdf.
See also Texas, et al. v. United States, et al., No. 14-cv-254, Dkt #81 (S.D. Tex. Jan. 12, 2015) (hereinafter “States’ District Court
Amicus”), available at http://www.atg.wa.gov/uploadedFiles/TexasvUSAmicusBr.pdf. All states but Delaware, Rhode Island,
and Virginia also signed the district court amicus brief.
45
Amicus Curiae Brief of Major Cities Chiefs Association, Police Executive Research Forum, and Individual Sheriffs and Police
Chiefs in Support of Defendants-Appellants, Texas, et al. v. United States, et al., No. 15-40238 (5th Cir. Apr. 6, 2015), available
at www.nilc.org/document.html?id=1228. Twenty-seven of these law enforcement leaders, and the organizations, also filed
a brief in the district court. See Amici Curiae Brief of Major Cities Chiefs Association, Police Executive Research Forum, and
Individual Sheriffs and Police Chiefs in Opposition to Plaintiffs’ Motion for Preliminary Injunction, Texas, et al. v. United
States, et al., No. 14-cv-254, Dkt #83 (S.D. Tex. Jan. 12, 2015), available at http://archive.azcentral.com/ic/news/LawEnforcement-Amicus-2015-01-12.pdf.
47
Brief for 181 Members of the United States House of Representatives as Amici Curiae in Support of Defendants-Appellants,
Texas, et al. v. United States, et al., No. 15-40238 (5th Cir. Apr. 6, 2015), available at
http://www.democraticleader.gov/newsroom/181-house-members-file-amicus-brief-in-court-to-support-presidentobamas-immigration-executive-actions/. All but 12 House Democrats signed the brief. See Cristina Marcos, Dems:
Immigration actions are legal, The Hill (Apr. 6, 2015), at http://thehill.com/blogs/blog-briefing-room/news/238012-housedems-side-with-obama-in-immigration-court-case.
48
Page 8 of 10
Understanding the Legal Challenges to Executive Action | American Immigration Council | June 2016
Brief of Amici Curiae Members of United States Senate in Support of Defendants-Appellants, Texas, et al. v. United States, et
al., No. 15-40238 (5th Cir. Apr. 6, 2015), available at www.nilc.org/document.html?id=1226. The four Senators were Senator
Richard Blumenthal. Senator Christopher A. Coons, Senator Mazie K. Hirono, and Senator Sheldon Whitehouse.
49
50
Amici Curiae Brief of American Immigration Council, National Immigration Law Center, Service Employees International
Union and Others in Support of Appellant United States Seeking Reversal Of Preliminary Injunction, Texas, et al. v. United
States, et al., No. 15-40238 (5th Cir. Apr. 6, 2015) (hereinafter “Council Appeals Court Amicus”), available at
http://www.legalactioncenter.org/sites/default/files/docs/lac/5th%20Cir%20Imm%20Amicus_final.pdf.
Brief of Faith-Based Organizations as Amici Curiae in Support of Appellants on the Public Interest Issue and Supporting
Reversal, Texas, et al. v. United States, et al., No. 15-40238 (5th Cir. Apr. 6, 2015), available at
http://www.interfaithimmigration.org/wp-content/uploads/2015/04/Faith-Amicus-Brief.pdf.
51
Brief of Educators and Children’s Advocates as Amici Curiae in Support of Defendants-Appellants, Texas, et al. v. United
States, et al., No. 15-40238 (5th Cir. Apr. 6, 2015), available at www.nilc.org/document.html?id=1230. The organizations are
the American Federation of Teachers, First Focus, the National Education Association, ASPIRA, Educators for Fair
Consideration, The Hispanic Association of Colleges and Universities, Pomona College, and the Scholarship Foundation of
St. Louis.
52
Brief for Amici Curiae Businesses in Support of Respondents-Appellants and in Support of Reversal, Texas, et al. v. United
States, et al., No. 15-40238 (5th Cir. Apr. 6, 2015), available at www.nilc.org/document.html?id=1231. The businesses and
associations are American Apparel, Inc., Capital City Fruit, Inc., Farmers Investment Co., Latin-American Chamber of
Commerce of Utah, Marek Brothers Construction, Inc., New Solutions Group, LLC, and the Nisei Farmers League.
53
Texas v. United States, No. 15-40238, 2015 U.S. App. LEXIS 8657 (5th Cir. May 26, 2015) available at
http://wfc2.wiredforchange.com/dia/track.jsp?v=2&c=p5rvXqyZ8SErMkbXZVzYR%2BeKfJrgA%2Bmh.
56
Texas v. United States, No. 15-40238, (5th Cir. Tex. Nov. 9, 2015) available at,
http://www.ca5.uscourts.gov/opinions/pub/15/15-40238-CV0.pdf.
57
Id. at 19.
58
Id. at 30-44.
59
Id. at 54-66.
55
60 Order of Intervention, Texas, et al. v. United States, et al. v. Jane Doe #1 et al., No. 15-40333 (5th Cir. November 9, 2015),
available at, http://www.ca5.uscourts.gov/opinions/pub/15/15-40333-CV0.pdf.
Id. at 124.
62
Texas v. United States, No. 15-40238, (5th Cir. Tex. Nov. 9, 2015), cert. granted, (U.S. January 19, 2016) (No. 15-674),
available at, http://www.supremecourt.gov/orders/courtorders/011916zor_l5gm.pdf.
63
Briefs for Amici Curiae in Support of Petitioners, United States v. Texas et. al., No. 15-674 (U.S., March 28, 2016), available at
https://www.fightforfamilies.org/press-and-resources/#legalResources.
64
Id.
65
Id.
66
Id.
67
Transcript of Oral Argument, U.S. v Texas et. al., No. 15-674 ,(U.S., April 18, 2016), available at,
http://www.supremecourt.gov/oral_arguments/argument_transcripts/15-674_h3dj.pdf.
68
Brief for the Amici Curiae The United States House of Representatives in Support of Respondents, United States v. Texas et.
al., No. 15-674 (U.S., April 4, 2016), available at http://www.scotusblog.com/wp-content/uploads/2016/04/AmicusBrief.pdf.
69
United States v. Texas, No. 15-674, (U.S. June 23, 2016).
70
Id.
71
Memorandum Opinion and Order, Texas, et al. v. United States, et al., No. 14-cv-254 (S.D. Tex. May 19, 2016), available at,
http://www.scotusblog.com/wp-content/uploads/2016/05/Judge-Hanen-ethics-ruling-5-19-16.pdf (hereinafter “Hanen
Order”).
72
FoxNews.com, ‘Like an idiot I believed that’: Judge blasts DOJ over immigration claims, threatens sanctions, (March 20,
2015), available at, http://www.foxnews.com/politics/2015/03/20/judge-sanctions-possible-in-obama-immigration-courtcase.html.
73
Hanen Order, note 75, at 16.
74
Defendants’ Response to the Court’s Order of April 7, 2015, Texas, et al. v. United States, et al., No. 14-cv-254, Dkt #38 (S.D.
Tex. April 20, 2015) available at http://cdn.thinkprogress.org/wp-content/uploads/2016/05/19222348/brief-to-hanen.pdf.
75
Id.
61
Page 9 of 10
Understanding the Legal Challenges to Executive Action | American Immigration Council | June 2016
76
Defendants’ Motion to Stay May 19, 2016 Order Pending Further Review, Texas, et al. v. United States, et al., No. 14-cv-254,
Dkt #38 (S.D. Tex. May 31, 2016) available at http://www.politico.com/f/?id=00000155-0777-d4d4-a3dd-1ffff6320002.
77
Order, Texas, et al. v. United States, et al., No. 14-cv-254 (S.D. Tex. June 7, 2016), available at,
http://www.scotusblog.com/wp-content/uploads/2016/06/Hanen-order-on-stay-6-7-16.pdf.
Page 10 of 10
Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 —
Threading the Needle between Security and Travel Facilitation
By Jeffrey Gorsky and Noah Klug
On December 18, 2015, the President signed into law the Consolidated Appropriations Act 2016,
which includes the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of
2015 (the Act). 1 This provision received by-partisan support and reflected Congressional
concern over both the influx of Near Eastern refugees to Europe and terrorists incidents in both
Paris and San Bernardino. However, the provision has been criticized as discriminatory by the
American Civil Liberty Union, the Leadership Conference, the National Iranian American
Council and other interested groups. The European Union Ambassador to the United States,
David O’Sullivan, wrote an editorial signed by other Ambassadors from E.U. member nations,
critical of the Act’s restrictions. 2
The Act provides for two different bases for VWP ineligibility. 3 Dual nationals with
nationalities from specified countries are ineligible. 4 Travel to specified countries will also
create a bar to VWP, but there are some exceptions. 5
The Act made ineligible for VWP nationals from program countries who were also nationals of
Iraq and Syria. 6 It also provided for VWP exclusion based on nationality from certain countries
designated under specific legislative authority, or by the Secretary of Homeland Security (DHS),
and that provision added to this list Iran and Sudan. 7 There is no exception to the bar based on
dual nationality. Customs and Border Protection (CBP) will be examining its ESTA database
and revoking any ESTA registrations if it discovers evidence of nationality in the specified
countries. 8
The Act also bars eligibility for VWP travel to persons who have been present in Iraq, Syria or
other countries designated as authorized by the Act at any time on or after March 1, 2011. 9 On
February 18, 2016, DHS announced that it would add to this list Libya, Somalia and Yemen as
1
Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Division O, Title II (2015)
European Union's Ambassador to the United States David O'Sullivan and the ambassadors to the U.S. of the 28
EU member states, What the Visa Waiver Program means to Europe (2015), http://thehill.com/blogs/congressblog/foreign-policy/262999-what-the-visa-waiver-program-means-to-europe
3
Supra, n.1 at § 203.
4
Id.
5
Id.
6
Id.
7
Id.
8
DHS Press Office, United States Begins Implementation of Changes to the Visa Waiver Program (January 21, 2016)
https://www.dhs.gov/news/2016/01/21/united-states-begins-implementation-changes-visa-waiver-program
9
Supra, n.1 at § 203.
2
countries of concern. 10 There are exceptions to the bar based on travel. The Act excepts official
travel by military personnel or full-time government employees of visa waiver countries. 11
The Act allows for a waiver of the VWP restrictions if the waiver is in the law enforcement or
national security interests of the United States. 12 Travelers apply for a waiver simply through
applying as normal using the ESTA registration system. 13 On January 21, 2016, the Obama
Administration announced a number of “blanket waivers” using these waiver powers under the
Act. 14 The waivers, which only apply to the ineligibility based on travel (the announcement
states that the government “will continue to explore whether and how the waivers can be used for
dual nationals of Iraq, Syria, Iran and Sudan”) include:
•
•
•
•
•
Individuals who have traveled to Iran, Iraq, Sudan or Syria on behalf of international
organizations, regional organizations, or sub-national governments on official duty;
Individuals who have traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian
non-governmental organizations (NGO);
Individuals who have traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting
purposes;
Individuals who traveled to Iran for legitimate business-related purposes following the
conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
Individuals who have traveled to Iraq for legitimate business-related purposes. 15
This announcement has been criticized by a number of Congress leaders, who see it as an overly
broad use of the waiver authority, which the Act limits to cases involving law enforcement or
national security interests, so that more restrictive legislative provisions remain a possibility. 16
There is one other provision that can restrict VWP eligibility: effective April 1, 2016, all VWP
country citizens must possess an electronic passport to travel to the United States under the
DHS Press Office, DHS Announces Further Travel Restrictions for the Visa Waiver Program (February 18, 2016)
https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiver-program#
11
Supra, n.1 at §203.
12
Id.
13
Visa Waiver Program Improvement and Terrorist Travel Prevention Act Frequently Asked Questions (Question 10)
http://www.cbp.gov/travel/internationalvisitors/visawaiverprogram/visawaiverprogramimprovementandterroristt
ravelpreventionactfaq
14
Supra, n.9.
15
Id.
16
Caroline May, GOP Slams Obama Visa Waiver for Certain Travelers to Iran, Syria: ‘Blatantly Breaking the Law,’
Breitbart News, January 21, 2016, available at: http://www.breitbart.com/big-government/2016/01/21/gop-slamsobama-visa-waiver-for-certain-travelers-to-iran-syria-blatantly-breaking-the-law/
10
VWP.17 The Act also contains screening requirements and data share for the eligible countries,
but these provisions will not affect travelers. 18
17
18
Supra, n.1 at § 203.
Id. at § 202.
WHAT’S SO SPECIAL ABOUT “SPECIALIZED KNOWLEDGE”?
By Jeffrey Gorsky
International companies transferring employees from overseas offices to their U.S. operations
had high hopes that a much-anticipated policy memo would clarify how US immigration
officials adjudicate L-1 visa applications and broaden the definition of “specialized knowledge”
– the key criterion that non-managerial transferees must meet. President Obama claimed that the
memo “could benefit hundreds of thousands of nonimmigrant workers and their employers,”
benefit the entire economy and spur additional investment, while Senator Chuck Grassley
complained that adopting this more liberal definition of “specialized knowledge” would flood the
U.S. with L-1B workers and accelerate the offshoring of jobs.
Yet all this may have been much ado about relatively little. While the memo, released Aug. 17,
2015, clarified some controversial issues, the new guidelines are far from clear and simple:
While “specialized knowledge” is only two words, this memo defining those words spans 23
pages.
And the memo has made little practical difference for companies moving their employees. Visa
denials declined only slightly from 25 percent to 23 percent in the first half of fiscal year 2016,
while denials for all intra-company transfers, including managers, actually rose from 7.2 percent
to 10 percent since the memo was published, according to government statistics.
History of a Phrase
The struggle to define “specialized knowledge” dates back from the inception of the L-1
classification in 1970. Before then, companies brought in foreign personnel managers and
executives as immigrants. The new “L” status allowed companies to apply for temporary visas
for workers with “specialized knowledge,” but the new phrase was introduced with little debate
or study.
Because “specialized knowledge” is a vague and unique term, there was no body of law to
interpret it. A series of legal cases focused on whether a foreign worker possessed proprietary
knowledge in determining whether the knowledge was “specialized.” The widely disparate
nature of these cases quickly illustrated the difficulty of managing the diverse personnel needs of
multinational companies under the rubric of “specialized knowledge.”
In 1983, the first regulatory definition appeared, focusing on knowledge of a proprietary basis,
such as a company’s unique product or technique. Congress then established a new, but still
vague, definition as part of the Immigration Act of 1990, that was later adopted verbatim in
regulations, prompting three subsequent agency memoranda further interpreting “specialized
knowledge.”
Growth in Demand
All this attention on interpreting the term “specialized knowledge” reflects an enormous
increase in mobility within multinational companies over the years. The number of L-1 visas
issued worldwide rose from 14,119 in 1987 to 84,532 in 2007. While demand fell after the
financial crisis, it is on the rise again, with 78,537 visas issued in 2015. Much of the rise
comes from the IT industry, particularly in India. In fiscal year 2015, Indian nationals
received 26,689 L-1 visas, out of 78,537 worldwide. This large increase attracted more
government scrutiny to the L-1 category. Requests for Evidence at the California Service Center
spiked from less than 10 percent in 2005 to 40 percent in 2008. Between 2009 and 2010 the
adjusted L-1 visa refusal rate in India rose from 3.4 to 8.1 percent.
The August 2015 Guidance
The August guidance adopted a more flexible approach than some earlier guidance and for that
reason it received some tempered support from immigration practitioners. It expressly rejected
the idea that only a small subset of employees can be considered specialized. It acknowledged
that specialized knowledge “need not be proprietary or unique to the petitioning organization”.
On the other hand, it also adopted a definition from the Merriam-Webster Dictionary that
is long, vague, and subject to variable interpretations. It lists six factors and nine types of
evidence that immigration officers can consider in determining whether the beneficiary’s
knowledge is specialized. The determination of whether there is specialized knowledge is
ultimately made on a review of the entire record, i.e., vested in the discretion of the
adjudicating officer. In other words, the memo still relies on vague, open-ended
definitions not clearly grounded in real world examples, and gives significant interpretive
discretion to adjudicators.
Need for Reform
After 46 years of strained attempts by the DHS and Congress to clarify what is meant by
“specialized knowledge” in the L visa context, one lesson appears clear. If the goal is to
provide plain, objective and predictable standards to employers and adjudicators, what is
needed is not more long, labored memos, but legislative reform.
It is not hard to come up with clear, objective criteria for L visa workers. For example, L1B positions could be limited to professionals or persons with four or more years of
experience in a job that requires that level of experience. Clear and objective standards
will assist employers in making employee transfers, and save governmental resources by
simplifying visa and petition adjudication.
What Every In-House Counsel Needs to Know about Immigration Law Compliance Part One in a Two-Part Series
By Noah Klug, Jeffrey Gorsky, and Martin R. Robles-Avila
Introduction: Party Politics and Rhetoric Driving an Environment of Enforcement
In-house counsel has rarely faced a more inhospitable and uncertain regulatory environment in
the province of immigration. Perhaps unparalleled in contemporary history, the immigration
debate has commandeered superposition in the American political landscape, simultaneously
occupying all branches of government, state and federal. While the schizophrenic administration
announces targeted raids against Central Americans, a deadlocked Supreme Court in a nine-word
per curiam ruling left millions of unlawfully present immigrants in the First Circle of Dante’s
Hell – Limbo – ensuring that the presidential election will devolve into tribal warfare and identity
politics. United States v. Texas, 579 U.S. ___ (2016). The legislative branch, meanwhile, is
locked in its own ideological stalemate over whether to deport or legalize, tighten the noose or
loosen the reins; neither side willing to concede political capital to find common ground.
In an election year’s political ambient, a perfect storm can materialize from little more than the
flapping of a butterfly’s wings. Driven by a small number of anecdotes of abuse related in
particular to two nonimmigrant visa classifications: B-1 (Temporary Business Visitor) and H-1B
(Specialty Occupation), enforcement saber-rattling has propelled both Republicans and
Democrats to react. Once again, the H-1B visa category has become a center of political unease
over immigration in general. These stories include the use of H-1B workers by Southern
California Edison Company (SCE), Walt Disney World, Pfizer, and Infosys. Although these
cases did not involve many workers (H-1B employees in general represent a small percentage of
the US workforce) and the extent of the actual abuse can be reasonably questioned, these
company names are chanted like a mantra by politicians on both sides of the aisle as examples of
the threat the H-1B poses to the US workforce.
Senate Republicans Grassley (R-Iowa) and Sessions (R-Alabama) have called for more
restrictions on H-1B and other employment provisions. While many Republicans have been
supportive of the H-1B program and business-related immigration overall, factions within the
party generally opposed to immigration have used stories of H-1B abuse to promote further
restraint on immigration. In fact, it was Senator Hatch’s (R-Utah) proposed bill to increase the
number of H-1B visas from 65,000 to 195,000 annually in the Immigration Innovation Act of
2015 that animated Senator Grassley, Chairman of the Senate’s Judiciary Committee, to actively
oppose his Republican colleague. Perhaps nativist tendencies run thicker than ideology.
1
Democrats as well have used these stories to support the need for greater immigration restrictions,
premised on the notion that H-1B workers displace and undercut the wages of US workers. For
example, in an unusual show of bipartisanship in the immigration realm, Senator Durbin (DIllinois) collaborated with Senator Grassley in 2015 to introduce The H-1B and L-1 Visa Reform
Act of 2015 (S. 2266, 114th Congress), which would have barred firms from hiring H-1B workers
if more than 50% of their employees were already on H-1B or L-1 visas. In a statement posted
on his website, Senator Grassley specifically referred to media reports of abuse as justification
for reform: “The abuse of the system is real, and media reports are validating what we have
argued against for years, including the fact that Americans are training their replacements.”
In the wake of the Southern California Edison story, ten Senators from both parties (Durbin,
Sessions, Blumenthal (D-Connecticut), Grassley, Brown (D-Ohio), Vitter (R-Louisiana.),
McCaskill (D-Missouri), Cassidy (R-Louisiana), Sanders (I-Vermont) and Inhofe (R-Oklahoma)
wrote to the Secretaries of the Department of Homeland Security, Department of Labor, and the
Attorney General calling for an investigation of H-1B worker displacement allegations at SCE
and other firms. Senator Blumenthal also wrote a letter to US Attorney General Loretta Lynch in
February 2016 “urg[ing]” the Department of Justice to investigate claims that H-1B workers
unlawfully displaced workers at Eversource Energy.
In-house counsel must stay abreast of these political developments and carefully tread the murky
policy waters they create. While immigration reform remains sidelined due to its staunchly
partisan and controversial nature, the ubiquity of these stories and the bipartisan nature of the
concern they invoke (although to be sure, the political parties differ over their motivations) has
sounded the alarm for “reform” of the H-1B (and to a lesser extent, the L-1 Intracompany
Transferee visa classification, which raises comparable issues) than any other immigration
provision. Recent events, however, have broadened the target for immigration critics to include
the B-1 Business Visitor classification.
B-1 Business Visitor Abuse and Wage Obligation Circumvention
It is important that in-house counsel closely monitor for misuse of business visitor visas by
foreign employees visiting the company’s US offices or client sites. Permissible uses of the B-1
visa and business visitor entry through the Visa Waiver Program and ESTA (Electronic System
for Travel Authorization) are fairly circumscribed. The Immigration and Nationality Act (INA)
provides that a business visitor must be “visiting the United States temporarily for business,” and
cannot be “visiting for the purpose of study or of performing skilled or unskilled labor.” INA §
101(A)(15)(B). While this leaves room for interpretation, policy guidance enumerates
permissible business visitor activities in the following ways:
2
● Engage in commercial transactions, which do not involve gainful employment
in the United States (such as a merchant who takes orders for goods
manufactured abroad);
● Negotiate contracts;
● Consult with business associates;
● Litigate;
● Participate in scientific, educational, professional, or business conventions,
conferences, or seminars;
● Undertake independent research;
● Attend board meetings as a member of the board of directors;
● Seek investment in the USA, including an investment that would qualify him
or her for E-2 Treaty Investor status, under certain conditions;
● Work on a sea vessel in the Outer Continental Shelf, under certain conditions;
● Install, service, or repair commercial or industrial equipment or machinery
purchased from a company outside the US, or supervise or train such workers
to perform these services, under certain conditions;
● Observe the conduct of business or other professional or vocational activity,
under certain conditions; and
● Receiving training, under certain conditions.
See Chapter 9 of the Foreign Affairs Manual (FAM), Section 402.2-5.
The rule of thumb when it comes to permissible business visitor activities is whether they are
“incidental to work that will principally be performed outside of the United States.” 9 FAM
402.2-5(A)(b), citing Matter of Hira, 11 I&N Dec. 824 (BIA 1979). Importantly, unlike the H1B category, issuance of B-1 visas is neither restricted by number nor tied to any particular
employer.
Another example of permissible B visa activity involves individuals who would qualify as H-1B
but who are customarily employed by a foreign firm which pays the employee’s salary, and the
source of the employee’s salary is abroad. 9 FAM 402.2.5(f). Because this provision can allow
for H-1B-type services without the H-1B cap restrictions, it is a tempting resource for employers.
However, a State Department general guidance cable of October 2012 provides that aliens
engaged in activities of this nature, the so-called B-1 in lieu of H-1B, must “clearly plan to
engage in H-1B-caliber activity for a temporary period, normally less than six months in
duration,” along with other restrictions. B-1 in Lieu of H-1B, State 101466 (October 12, 2013),
published on AILA InfoNet at Doc. No. 12102246.
If your employees enter as business visitors to engage in “work” or other non-permissible
business activities, this can lead to a number of negative consequences:
3
● Denied entry to the United States, resulting in:
○ Unused/non-refundable travel costs;
○ Negative ramifications for the employee’s business unit, which was likely relying
on the employee to complete an important project;
○ Potential blacklisting of your company with US Customs and Border Protection.
● US Citizenship and Immigration Services, the US Department of Labor, and/or US
Immigration and Customs Enforcement have jurisdiction to appear at your company
offices for an unannounced “site visit” and examine whether all employees have proper
work authorization. If, during such a site visit, an immigration officer discovers an
employee in business visitor B-1 visa status engaging in productive work or other nonpermissible business visitor activities, this could mean:
○ For violations of 31 U.S.C. § 3729(a)(1)(A), civil penalties of up to $11,000 for
each false claim submitted to a US government employee, three times the amount
of damages that the Government sustained as a result of the conduct, costs and
expenses of litigation;
○ For violations of 8 U.S.C. § 1324a(a)(1)(B), civil penalties of up to $1,100 for
each violation and costs and expenses of litigation.
A prominent example of these potential negative consequences to employers for business visitor
violations is found in the Justice Department’s lawsuit against Infosys, a large multinational
technology corporation based in India. The Department alleged that Infosys “used B-1 visa
holders to perform jobs that involved skilled labor that were instead required to be performed by
United States citizens or required legitimate H-1B visa holders.” In 2013, Infosys agreed to a
civil settlement resolving all claims for a $34 million payment, a record for immigration cases.
This negatively impacted not only Infosys’ reputation with government authorities, but also its
profits.
H-1B Wage Compliance
Another area fraught with peril for in-house counsel is wage compliance for its H-1B employees.
US employers are required to pay H-1B workers the actual wages paid to similarly situated
employees in the company, or the prevailing wage ﹘ whichever is greater. INA § 212(n).
Additional employer requirements exist to help protect the wages of US workers from being
adversely affected by H-1B workers. These include maintaining auditable paperwork,
demonstrating how the actual wage and prevailing wage were calculated, and including various
attestations, such as a statement from the employer to offer benefits to H-1B workers on the
same basis as US workers. Violations of these obligations can lead to civil penalties of up to
$35,000 per violation, depending on the type and severity of the violation. INA §
212(n)(2)(C)(iii)(I).
4
The Department of Labor may also impose other remedies, including payment of back wages.
INA § 212(n)(2)(D). Smartsoft International, for example, was ordered to pay nearly $1 million
in back wages to 135 H-1B employees in 2010. Prince George’s County Public Schools, too, was
ordered by the Department of Labor to pay $4.2 million in back wages to over one-thousand
workers to resolve H-1B violations. The potential harm is not only financial; H-1B violations can
also result in program debarment, precluding future access to the H-1B program for a period of
up to three years, depending upon the nature of the violation. INA § 212(n)(2)(C), et seq. The
Labor Department also maintains a list of debarred employers on its website.
Displacement of US Workers
There are a number of cautionary tales for in-house counsel to use to discourage decision-makers
from cutting corners. The cases now frequently cited as examples of visa abuse and displacement
of US workers demonstrate the risks that an employer can face if accused of misusing these visa
classifications. Southern California Edison (SCE), which was accused of replacing US workers
with workers from Indian companies Tata and Infosys, was investigated by the Department of
Labor (DOL) and the Office of Special Counsel for Immigration-Related Unfair Employment
Practices (OSC) at the Department of Justice. Both investigations were eventually closed without
action taken against SCE. However, SCE was publicly criticized in the letter from ten Senators
cited above, as well as by Rep. Chu (D-California), Rep. Issa (R-California) and other members
of Congress.
Even family friendly Walt Disney World Corporation is currently being investigated for
outsourcing abuse by the Department of Labor. The Institute of Electrical and Electronics
Engineers, an international association of technical professionals, posted an online petition to
encourage Americans who were displaced to file complaints with the Justice Department.
Congressional critics of Disney practices included Democratic Senator Nelson of Florida. The
Senate Subcommittee on Immigration and the National Interest held a February 25, 2016 hearing
on “The Impact of High-Skilled Immigration on US Workers.” Its first witness was Leo Perrero,
a former Disney IT Engineer, who claimed to be “displaced by a less skilled foreign work force
imported into our country using the H-1B visa program.”
No doubt, this has impacted Walt Disney World’s bottom line. Disney was additionally singled
out by Donald Trump after a GOP debate. In his “Position On Visas,” he asserts: “I remain totally
committed to eliminating rampant, widespread H-1B abuse and ending outrageous practices such as
those that occurred at Disney in Florida when Americans were forced to train their foreign
replacements. I will end forever the use of the H-1B as a cheap labor program, and institute an
absolute requirement to hire American workers first for every visa and immigration program.” On
wedge issues such as immigration, opposition can be unmoored from law and reality and still
5
result in adverse action. Here, public and political perception is reality – potentially a cause for
concern for our future legislation and leadership.
Rise of Private Party Complaints and Lawsuits
Real and perceived victims of job displacement are not relying solely on government agencies to
seek redress of their grievances. The Infosys investigation and subsequent settlement mentioned
above were instigated by a private party lawsuit filed against the company in an Alabama federal
district court by whistleblower, Jack “Jay” Palmer, in February 2011. Jack was a project manager
at Infosys when he brought the lawsuit. He alleged that Infosys was writing false invitation
letters for Indian employees and claimed that he was asked to sign such a letter and refused. His
lawsuit claimed that he had been punished and sidelined by Infosys executives after he witnessed
widespread visa fraud. Although his lawsuit was dismissed by the federal court in August 2012,
it led to the federal investigation mentioned above.
More recently, Leo Perrero, mentioned above, and Dena Moore, Americans both laid off by
Disney and allegedly replaced by H-1B workers whom they were required to train, brought a
class-action lawsuit against Disney in a Florida federal court, claiming that the company
colluded to break the law by bringing in immigrant workers to displace Americans. As occurred
with Infosys, the private lawsuit by Perrero and Moore led to a Department of Labor
investigation of Disney. These cases highlight the rise in private party “whistleblower” lawsuits
and the need to protect against them through careful preventative action and foresight.
Conclusion
Partnering with seasoned immigration counsel is one way to maneuver the complexities of this
dynamic field. We have only “the lamp of experience,” as Patrick Henry put it, to determine the
future, but that is perhaps the best guide for in-house counsel on the contentious issue of
immigration. As more incidents of alleged abuse occur and political rhetoric intensifies, the trend
is luminously clear; more enforcement, more regulation, and stricter qualitative and quantitative
controls. In turbulent times, a finger on the pulse of the political theater of operations is perhaps
the best way to make sound business decisions. In a truly global economy, the flapping of a
butterfly’s wings in Walt Disney World could create the conditions that cause the regulatory
leviathan to rise. If we do not pay close attention, it could also determine the next leader of the
free world.
6